Filed 2/26/13 P. v. Barriga CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037613
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS111869A)

         v.

JESUS BARRIGA,

         Defendant and Appellant.



         In this appeal appellant challenges as vague a probation condition that requires
him to "[t]otally abstain from the use of alcoholic beverages, not purchase or possess
alcoholic beverages, and stay out of places you know alcohol to be the main item of
sale." Appellant urges this court to modify the first part of the condition to include a
knowledge requirement.
         Even though appellant did not object to the condition at issue when it was
imposed, the forfeiture rule does not apply when a probation condition is challenged as
unconstitutionally vague on its face and the claim can be resolved on appeal as a pure
question of law without reference to the sentencing record. (In re Sheena K. (2007) 40
Cal.4th 875, 888–889 (Sheena K.).)
       For reasons that follow we modify the challenged probation condition, which is
designated probation condition "8" in the probation officer's report and the minute order
from the sentencing hearing.
       The facts underlying appellant's conviction are not relevant to this appeal. We
note, however, that pursuant to a negotiated disposition appellant pleaded no contest to
one count of assault with force likely to cause great bodily injury. In exchange for his no
contest plea appellant was promised felony probation.
       On November 9, 2011, at appellant's sentencing hearing, the court suspended
imposition of sentence and placed appellant on probation on various terms and conditions
including a 120 day county jail term. As noted, one of the conditions of probation as
announced by the court requires appellant to "[t]otally abstain from the use of alcoholic
beverages, not purchase or possess alcoholic beverages, and stay out of places you know
alcohol to be the main item of sale."
       Respondent argues that appellant has forfeited any challenge to this condition by
failing to object when the condition was imposed. Respondent asserts that this court
should limit the exception to the forfeiture rule found in Sheena K, supra, 40 Cal.4th at
page 889, to cases in which only First Amendment rights are implicated. Respondent
cites to no relevant authority to support this proposition.1

1
        Respondent's reliance on People v. Olguin (2008) 45 Cal.4th 375 (Olguin), is
misplaced. In Olguin, the Supreme Court considered a challenge to a probation condition
that required the defendant to notify his probation officer of any pets that were present in
the home. (Id. at p. 378.) The condition was challenged on various grounds such as not
being reasonably related to future criminality, that it limited the defendant's fundamental
rights, and was unconstitutionally overbroad. (Ibid.) The defendant invited the court to
determine whether the condition was closely tailored to achieve its legitimate purpose of
his rehabilitation and protection of the probation officer. The court refused to apply such
close scrutiny in the absence of a showing that the probation condition infringed upon a
constitutional right. The court noted that absent such a showing, the court simply
reviewed such a condition for abuse of discretion. (Id. at p. 384.) Respondent seizes
upon this to argue that the Supreme Court has recognized that not all probation conditions
merit equal scrutiny. Nothing in Olguin invalidates the holding in Sheena K, supra, 40
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       Respondent argues that restricting challenges on direct appeal to probation
conditions implicating First Amendment rights would not leave others without a remedy
because of the opportunity to litigate the issue during revocation proceedings. We are not
persuaded.
       Alternatively, respondent invites this court to adopt the approach of the Third
District Court of Appeal in People v. Patel (2011) 196 Cal.App.4th 956, 960-961. In that
case, the Third 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 "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). In People v. Moses (2011) 199 Cal.App.4th 374, 381, the Fourth District declined
to adopt the Patel approach, choosing instead to modify probation conditions to include a
knowledge requirement.



Cal 4th 875. The fact that the Supreme Court believes that different levels of scrutiny are
available for conditions that are challenged on reasonableness grounds does not support
imposition of a forfeiture rule unless the condition implicates First Amendment rights.
Appellant is not asking for a heightened level of constitutional scrutiny. Rather, he is
asking that his due process rights be protected.
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       While we too are frustrated by how frequently this issue arises and, in these days
of strained budgets, we agree that the interests of fiscal and judicial economy are critical,
we decline to follow the Third 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.)
       "In granting probation, courts have broad discretion to impose conditions to foster
rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.
[Citations.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120–1121; People v. Leon
(2010) 181 Cal.App.4th 943, 948 (Leon).) Nevertheless, probation conditions may be
challenged on the ground of unconstitutional vagueness. (People v. Lopez (1998) 66
Cal.App.4th 615, 630.) "[T]he underpinning of a vagueness challenge is the due process
concept of 'fair warning.' [Citation.] The rule of fair warning consists of 'the due process
concepts of preventing arbitrary law enforcement and providing adequate notice to
potential offenders' [citation], protections that are 'embodied in the due process clauses of
the federal and California Constitutions. [Citations.]' [Citation.]" (Sheena K., at p. 890.)
       We continue to adhere to the view that in order to pass constitutional muster, a
requirement of knowledge should be included in some probation conditions prohibiting
the possession or use of specified items. The law has no legitimate interest in punishing a
probationer who has no knowledge that he is using or possessing a prohibited item.
Knowledge requirements in probation conditions "should not be left to implication."
(People v. Garcia (1993) 19 Cal.App.4th 97, 102.) Absent a requirement that a
probationer know he is disobeying the condition, he is vulnerable, and unfairly so, to


                                              4
punishment for unwitting violations of it. (See People v. Lopez, supra, 66 Cal.App.4th at
pp. 628–629.)
       An appellate court is empowered to modify a probation condition in order to
render it constitutional. (Sheena K., supra, 40 Cal.4th at p. 892.)
       In this case, we will modify probation condition "8" to include a knowledge
requirement.
                                        Disposition
       The judgment is modified to reflect the following change to probation condition 8:
"Totally abstain from the use of beverages you know, or reasonably should know, to be
alcoholic; do not purchase or possess any beverage you know, or reasonably should
know, to be alcoholic; stay out of places where you know, or reasonably should know,
that alcohol is the main item of sale." As so modified the judgment (order of probation)
is affirmed."




                                          _________________________________
                                          ELIA, J.


WE CONCUR:




______________________________
RUSHING, P. J.




______________________________
PREMO, J.
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