Filed 1/14/16 P. v. Vargas CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H041094
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. F1450225)

         v.

YARELI VARGAS,

         Defendant and Appellant.


         In exchange for a grant of felony probation with six months custody time,
defendant Yareli Vargas waived her right to a preliminary examination and trial, and
pleaded no contest to having sexual intercourse with a minor more than three years her
junior (count 1; Pen. Code, §261.5, subd. (c)), possessing methamphetamine (count 2;
Health & Saf. Code, § 11377, subd. (a)), and the misdemeanor of possessing the
controlled substance Vicodin without a prescription (count 3; Bus. & Prof. Code,
§ 4060). She also admitted violating probation in another case. Defendant and the
prosecutor waived a full probation report. 1



         1
          Due to the lack of a preliminary hearing and a complete probation report, the
complaint and amended complaint provide the only details of the crimes. In signing the
waiver of rights form, the trial court found a factual basis for the plea. Defense counsel
stipulated in writing to a factual basis. Defense counsel’s stipulation did not refer to any
document containing the facts and the trial court, in taking defendant’s no contest pleas,
did not inquire about the factual basis. (Pen. Code, § 1192.5.)
       On appeal defendant challenges one probation condition that provides, “She may
not possess or use illegal drugs or go to places where they’re used or sold.”2 She
contends this condition is unconstitutionally vague and overbroad due to its lack of an
express knowledge requirement. The Attorney General contends that a knowledge
component is implicit in possession, but concedes that the location prohibition requires
an express knowledge element. For the reasons stated below, we will accept the Attorney
General’s concession and will affirm the judgment as modified.
       In the waived referral probation report, among 17 recommended probation
conditions was “[t]he defendant shall not possess or use illegal drugs or illegal controlled
substances or go anywhere he/she knows illegal drugs or non-prescribed controlled
substances are used or sold.” At sentencing, the court announced its “intention to follow
through with the negotiated disposition of six months, including the [violation of
probation], plus the other helpful conditions of probation.” The court orally imposed the
challenged condition without including the recommended knowledge element.
Defendant did not object to any of the terms and conditions of probation.
                                      DISCUSSION
       In People v. Rodriguez (2013) 222 Cal.App.4th 578, on which the Attorney
General relies, this court recognized that we may review the constitutionality of probation
conditions for the first time on appeal. (Id. at p. 585.) One of the conditions at issue in
Rodriguez was much like the one challenged here. We adhere to the conclusions of
Rodriguez without restating the reasoning.



       2
         Defendant’s opening brief challenged imposition of a probation supervision fee
not to exceed $110 monthly, but by letter she has since properly conceded that the
contention is forfeited in light of recent decisions in People v. Trujillo (2015)
60 Cal.4th 850 and People v. Aguilar (2015) 60 Cal.4th 862.




                                              2
       Possession and Use
       A reasonable reader would understand a probation condition prohibiting
possession and consumption of illegal drugs as mirroring provisions of California’s
Uniform Controlled Substances Act (Health & Saf. Code, § 11000, et seq.). Case law has
identified knowledge elements as implicit in statutes prohibiting possession of controlled
substances. When a probation condition reinforces a probationer’s obligations under the
California Uniform Controlled Substances Act, we understand the condition to include
the same implicit knowledge elements as the underlying statutes. (Rodriguez, supra, 222
Cal.App.4th at p. 593.) The implicit knowledge component is constitutionally clear in
the challenged condition without being express. (Id. at p. 592.)
       Places Where Drugs are Used or Sold
       While the Controlled Substances Act prohibits possession of controlled
substances, it does not prohibit mere physical proximity to them. In People v. Kim
(2011) 193 Cal.App.4th 836, this court noted that express knowledge elements have been
added to conditions prohibiting presence in locations where prohibited activity may not
be obvious to all. (Id. at p. 845.) Although all alleged violations of probation conditions
must be shown to be willful (People v Cervantes (2009) 175 Cal.App.4th 291, 295),
adding an express knowledge requirement to this aspect of the probation condition will
ensure that the condition is sufficiently precise for defendant to know what conduct is
prohibited and for a court to determine when the condition has been violated. (In re
Sheena K. (2007) 40 Cal.4th 875, 890.)
                                     DISPOSITION
       The challenged probation condition is ordered modified to provide “Defendant
may not possess or use illegal drugs or go to places where she knows or should know
they are used or sold.” As so modified, the judgment is affirmed.




                                             3
                               ____________________________________
                               Grover, J.




WE CONCUR:




____________________________
Rushing, P.J.




____________________________
Márquez, J.




The People v Vargas
H041094
