Filed 5/16/13 P. v. Lopez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038506
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS120252)

             v.

ENRIQUE NUNEZ LOPEZ,

         Defendant and Appellant.



         Defendant Enrique Nunez Lopez appeals a judgment of conviction following his
no contest plea to one count of unlawful possession of a firearm (Pen. Code, § 29815,
subd. (a)),1 and admission of a gang enhancement (§ 186.22, subd. (b)(1)). On appeal,
defendant asserts the court erred in imposing a probation condition that is vague and
overbroad, because it does not include a scienter requirement.
                                          STATEMENT OF THE CASE2
         In April 2012, defendant was charged by information with unlawful possession of
a firearm (§ 29815, subd. (a); count 1), receiving or concealing stolen property (§ 496,
subd. (a)). The information also alleged defendant committed the charged crimes for the


         1
             All further statutory references are to the Penal Code.
         2
             The underlying facts are omitted because they are not relevant to the issues on
appeal.
benefit of a street gang (§ 186.22, subd. (b)(1)), and that defendant was ineligible for a
county jail commitment (§ 1170, subd. (h)(3)).
        Defendant pleaded no contest to count 1, and admitted the gang enhancement.
The court suspended imposition of sentence, and ordered defendant to serve three years
of formal probation, with terms and conditions including that he not “use or possess
intoxicants, narcotics, or other controlled substances without the prescription of a
physician.”
                                        DISCUSSION
        Defendant asserts the trial court erred by imposing a probation condition that
lacked a scienter requirement. “[P]robation is a privilege and not a right, and . . . adult
probationers, in preference to incarceration, validly may consent to limitations upon their
constitutional rights . . . . [Citations.]” (People v. Olguin (2008) 45 Cal.4th 375, 384.)
However, “[a] probation condition ‘must be sufficiently precise for the probationer to
know what is required of him, and for the court to determine whether the condition has
been violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.]”
(In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.) Generally, to pass constitutional
muster, conditions that prohibit possession of specific items or association with certain
persons must require that the probationer knowingly possess or associate. (E.g., People
v. Freitas (2009) 179 Cal.App.4th 747, 752; People v. Garcia (1993) 19 Cal.App.4th 97,
102.)
        The Attorney General implicitly concedes that the condition does not expressly
require knowledge but urges us to adopt the approach taken by the court in People v.
Patel (2011) 196 Cal.App.4th 956. In that case, the Third Appellate District considered
whether a probation condition ordering that the defendant not drink alcohol, possess it, or
be in a place where it was the chief item of sale was invalid because it lacked a
knowledge requirement. (Id. at p. 959.) The court expressed its frustration with the

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“dismaying regularity” with which “we still must revisit the issue in orders of probation”
that do not include a qualification that the defendant must commit the proscribed conduct
knowingly. (Id. at p. 960.) Noting that “there is now a substantial uncontradicted body
of case law establishing, as a matter of law, that a probationer cannot be punished for
presence, possession, association, or other actions absent proof of scienter” (ibid.), the
Patel court announced that it would “no longer entertain this issue on appeal” (ibid.) and,
moving forward, it would “construe every probation condition proscribing a
probationer’s presence, possession, association, or similar action to require the action be
undertaken knowingly” (ibid.), without modifying a probation order that “fails to
expressly include such a scienter requirement.” (Id. at p. 961, fn. omitted).
       A number of the courts of appeal have declined to follow the rationale of Patel,
including the Fourth Appellate District in People v. Moses (2011) 199 Cal.App.4th 374,
381, where the court chose to modify the probation conditions to include a knowledge
requirement. We too decline to follow the Third Appellate District’s approach in Patel.
Our Supreme Court faced the issue of the lack of a knowledge requirement in a probation
condition and the remedy it mandated was unequivocal: “[W]e agree with the Court of
Appeal that modification to impose an explicit knowledge requirement is necessary to
render the condition constitutional.” (Sheena K., supra, 40 Cal.4th at p. 892, italics
added.) Until our Supreme Court rules differently, we will follow its lead on this point.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
       Under the circumstances, we modify the probation condition to prohibit defendant
from knowingly using or possessing intoxicants, narcotics, or other controlled substances
without the prescription of a physician.




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                                      DISPOSITION
      The judgment is modified and defendant’s probation condition shall now be that
he “not knowingly use or possess intoxicants, narcotics, or other controlled substances
without the prescription of a physician.” As modified, the judgment is affirmed.


                                         ______________________________________
                                                    RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA J.




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