Filed 7/1/13 P. v. Amparan CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064011
         Plaintiff and Respondent,
                                                                            (Super. Ct. No. VCF254599B)
                   v.

OSCAR AMPARAN,                                                                           OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Glade F.
Roper, Judge.
         Cheryl Anderson, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne Le
Mon, Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent
                                                        -ooOoo-




*        Before Wiseman, Acting P.J., Detjen, J. and Peña, J.
       Appellant, Oscar Amparan, pled guilty to possession of methamphetamine (count
2/Health & Saf. Code, § 11377, subd. (a)) and possession of drug paraphernalia (Health
& Saf. Code, § 11364, subd. (a)).
       On appeal, Amparan contends that three of his conditions of probation are
unconstitutionally vague. We affirm.
                                          FACTS1
       On October 27, 2011, the trial court placed Amparan on probation for three years
and ordered him to participate in recovery court. Amparan‟s terms and conditions of
probation included the following conditions which required that Amparan:

       “19. Not use or possess alcoholic beverages and shall not enter a place
       where alcohol is the primary beverage sold or served.

       “20. Not use or possess narcotics or any restricted or controlled substances
       without a prescription. The defendant shall not use any prescribed or over-
       the-counter medications without the prior approval of the Judge, Probation
       Officer or assigned treatment provider. ¶ … ¶

       “22. Not associate with any person(s) using, selling or trafficking in
       narcotics or dangerous drugs. ¶ … ¶

       “30. Not own or possess any weapon.”
       At a hearing on April 26, 2012, Amparan asked the court to modify his terms of
probation by eliminating the requirement that he participate in drug court and adding a
knowledge element to the above-noted conditions of probation. After eliminating the
drug court requirement and ordering Amparan to serve an aggregate 190 days on his two
convictions, the court stated:

              “[I]‟m going to order that you not knowingly associate with any
       person using[,] selling, or trafficking narcotics or restricted or controlled
       substance[s] other than a physician or a pharmacist in the course of their
       employment.


1     The facts of Amparan‟s underlying offenses are omitted because they are not
germane to the issues he raises.


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              “Obviously if you go to the doctor, he prescribes medication for you,
       then that would not violate probation. Or if you go to the pharmacy to pick
       up prescribed medication.

             “In all other respects, the previously imposed probation terms will
       remain in full force and effect.”
                                       DISCUSSION
       Amparan contends probation conditions 19, 20, and 30 are constitutionally vague
because they do not have a knowledge element. We disagree.

               “Trial courts have broad discretion to prescribe probation conditions
       to foster rehabilitation and protect public safety. [Citations.] A probation
       condition that imposes limitations upon constitutional rights must be
       narrowly tailored to achieve legitimate purposes. [Citations.] Further, „[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.]‟ [Citations.] „A probation condition which either
       forbids or requires the doing of an act in terms so vague that persons of
       common intelligence must necessarily guess at its meaning and differ as to
       its application, violates due process.‟ [Citations.] The „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”.…‟ [Citations.]

              “Beginning with People v. Garcia (1993) 19 Cal.App.4th 97 …,
       California appellate courts have routinely added an explicit knowledge
       requirement to probation conditions prohibiting a probationer from
       associating with certain categories of persons, frequenting or remaining in
       certain areas or establishments, and possessing certain items. [Citation.]”
       (People v. Moore (2012) 211 Cal.App.4th 1179, 1184 (Moore.)
       As explained in People v. Kim (2011) 193 Cal.App.4th 836 (Kim), “In [these]
situations, an express knowledge requirement is reasonable and necessary. The
affiliations and past history of another person may not be readily apparent without some
personal familiarity. Similarly, despite the presence of gang graffiti, sites of gang-related
activity may not be obvious to all. And it takes some experience or training to identify
what colors, symbols, hand signs, slogans, and clothing are emblematic of various
criminal street gangs.” (Id. at p. 845.)

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       In Moore, the court rejected a vagueness challenge to a probation condition
prohibiting the probationer from using or possessing or owning any dangerous or deadly
weapons including firearms, knives and other concealable weapons. (Moore, supra, 211
Cal.App.4th at p. 1182.) In so doing, the court noted that with respect to the prohibition
against owning firearms, the challenged condition did not impact Moore‟s constitutional
rights. (Id. at pp. 1184, 1187; see, e.g., People v. Freitas (2009) 179 Cal.App.4th 747,
751 [the defendant, as a felon, has no constitutional right to bear arms]; Kim, supra, 193
Cal.App.4th at p. 847 [because no constitutional right is at stake, the defendant‟s concern
about an implicit knowledge requirement is inapplicable].) More importantly, however,
the Moore court stated, “[T]he weapons prohibition here is sufficiently precise to inform
Moore of what is required of him, and for a court to determine whether the condition has
been violated. Because Moore can have no doubt about what is prohibited, innocent or
inadvertent violation of the condition is far less likely than in cases in which the
parameters of the probation condition are imprecise.” (Moore, supra, 211 Cal. App. 4th
at p. 1186.) Additionally, the court rejected as unfounded Moore‟s concern that without a
scienter requirement he could be found in violation of probation for “unknowing
possession” because a trial court may not revoke a probation unless the defendant
willfully violated the terms and conditions of probation and “it is now settled that a
probationer cannot be punished for presence, possession, or association without proof of
knowledge.” (Ibid.)
       It should be apparent to Amparan when he enters a place that is a place where
alcohol is the primary beverage sold, that a beverage he possesses is an alcoholic
beverage; that a substance he possesses or uses is a narcotic or a restricted or controlled
substance; or that an item in his possession is a weapon. Therefore, probation conditions
19, 20, and 30, are precise enough to inform Amparan what they require of him. Further,
since it is now settled that a knowledge requirement is implied in each condition and that
a probation violation may not be found absent knowing conduct (People v. Patel (2011)


                                              4
196 Cal.App.4th 956, 960) we conclude that probation conditions 19, 20, and 30, are not
constitutionally vague and need not be modified.
                                    DISPOSITION
      The judgment is affirmed.




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