Filed 2/9/17




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S227193
           v.                        )
                                     )                     Ct.App. 1/1 A141278
LAQUINCY HALL,                       )
                                     )                    Contra Costa County
           Defendant and Appellant.  )                   Super. Ct. No. 51315225
____________________________________)


        The terms of defendant’s probation bar him from possessing firearms or
illegal drugs. He contends that these conditions on his release are
unconstitutionally vague on their face, because they do not explicitly define the
state of mind, or mens rea, required to sustain a violation of probation. He
requests modification of the conditions to convey explicitly that they apply only to
knowing possession of the prohibited items. What we conclude is that the
probation conditions already include an implicit requirement of knowing
possession, and thus afford defendant fair notice of the conduct required of him.
We therefore affirm the Court of Appeal.
                                 I. BACKGROUND
        Defendant LaQuincy Hall was convicted of possessing cocaine base for
sale (Health & Saf. Code, § 11351.5) and placed on three years’ probation. As
modified by the Court of Appeal to conform to the oral pronouncement of
sentence (People v. Mitchell (2001) 26 Cal.4th 181, 185), the conditions of



                                         1
probation provided that defendant “may not own, possess or have in [his] custody
or control any handgun, rifle, shotgun or any firearm whatsoever or any weapon
that can be concealed on [his] person,” and that he “shall not use or possess or
have in [his] custody or control any illegal drugs, narcotics, [or] narcotics
paraphernalia without a prescription.” Defendant offered no objection to either
condition.
       Defendant challenged these conditions as unconstitutionally vague for the
first time on appeal. The Court of Appeal deemed this facial challenge cognizable
as a question of law (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.)), but
rejected it on the merits. The appellate court considered whether the vagueness
doctrine requires a probation condition to explicitly spell out the mens rea
necessary to sustain a violation of the condition. It concluded that the firearms
and narcotics conditions did not need to be modified to bar “knowing” possession
“because the mens rea generally applicable to probation conditions precludes the
finding of unwitting violations.”
       Other Courts of Appeal have taken a different view. (Compare People v.
Moore (2012) 211 Cal.App.4th 1179, 1189 [concluding that modification of a
weapons condition to add an express knowledge requirement was “unnecessary”]
with People v. Freitas (2009) 179 Cal.App.4th 747, 752 [finding it “appropriate”
to modify the condition so as to bar defendant from “knowingly” possessing the
prohibited items].) We granted review to resolve the conflict.
                                    II. DISCUSSION
       Penal Code section 1203.1 et seq. gives trial courts broad discretion to
determine whether to grant an eligible defendant probation, and if so, what terms
of probation will promote rehabilitation and protect public safety. (People v.
Carbajal (1995) 10 Cal.4th 1114, 1120.) A probation condition is valid under the
statutory scheme if it relates to the crime for which the defendant was convicted,

                                          2
relates to other criminal conduct, or requires or forbids conduct that is reasonably
related to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486.)
Revocation of probation typically requires proof that the probation violation was
willful. (People v. Leiva (2013) 56 Cal.4th 498, 517; People v. Hartley (2016)
248 Cal.App.4th 620, 634 [deeming this an “established principle”]; People v.
Rodriguez (2014) 222 Cal.App.4th 578, 594 [“well established”]; People v.
Moore, supra, 211 Cal.App.4th at p. 1186 [“settled”]; People v. Patel (2011) 196
Cal.App.4th 956, 960 [“a substantial uncontradicted body of case law”]; People v.
Zaring (1992) 8 Cal.App.4th 362, 378-379.) 1
       In the context of conditions barring the possession, custody, or control of
firearms, illegal drugs, and related items, revocation requires knowledge. The
unwitting possession of contraband does not sufficiently establish backsliding by
the probationer, nor does it sufficiently threaten public safety, to merit revocation
without regard to the probationer’s state of mind. On the other hand, revocation
can be justified where the probationer knows of the contraband’s presence and its

1       We need not decide whether sustaining a probation violation requires a
showing of willfulness where the probation violation poses a direct threat to public
safety or otherwise frustrates the assumptions underlying the grant of probation,
because this case does not appear to present such circumstances. (See United
States v. Pinjuv (9th Cir. 2000) 218 F.3d 1125, 1131 [“even conditions of release
which are beyond a convicted person’s control may be necessary to facilitate the
rehabilitation process or to ensure the safety of society”]; People v. Colabello
(Colo.Ct.App. 1997) 948 P.2d 77, 79-80 [upholding probation revocation where
defendant was discharged from in-patient sex offender program against his will];
State ex rel. Nixon v. Campbell (Mo. 1995) 906 S.W.2d 369, 370-372 [same,
where defendant’s inability to complete a sex offender treatment program was
caused by the hospital’s cancellation of the program]; State v. Kochvi (N.H. 1996)
671 A.2d 115, 117-118 [same, where defendant was refused admission to the sex
offender treatment program for reasons beyond his control]; see generally Miller,
et al., Can Probation Be Revoked When Probationers Do Not Willfully Violate the
Terms or Conditions of Probation? (June 1999) 63 Fed. Probation 23.)



                                          3
restricted character because of what possession in such circumstances is
understood to convey about an individual’s plans or potential for further criminal
activity, the probability of success of such activity if attempted, and the risks
associated with such activity. Requiring such knowledge before sustaining a
violation of one of the probation conditions at issue here would be consistent with
the state of mind implicitly required for conviction by statutes criminalizing
possession of illegal drugs (People v. Martin (2001) 25 Cal.4th 1180, 1184
[unlawful possession of a controlled substance implicitly requires “ ‘knowledge of
its presence and of its restricted dangerous drug character’ ”]) or dangerous
weapons (People v. King (2006) 38 Cal.4th 617, 623-626). The analogy is not
perfect; a trial court may properly bar a probationer from possessing items that are
not themselves illicit but that are related to past or future criminality. But the
statutes are otherwise sufficiently similar to probation conditions addressing
possession, and reflect the importance of a defendant’s knowledge as a relevant
criterion in the analysis.
       Accordingly, a probationer who has possession, custody, or control of
contraband willfully violates probation where the probationer has knowledge of
the contraband’s presence and its restricted nature, regardless of whether the item
is criminal in itself, or merely related to criminality. And the Courts of Appeal
have consistently so held. (E.g., In re Ana C. (2016) 2 Cal.App.5th 333, 344-349
[conditions barring possession of alcohol, drugs and drug paraphernalia, or
tobacco]; People v. Rodriguez, supra, 222 Cal.App.4th at pp. 590-593 [conditions
barring (1) possession of any firearm, dangerous weapon, or ammunition, and (2)
use or possession of controlled substances, alcohol, or other intoxicants]; People v.
Moore, supra, 211 Cal.App.4th at pp. 1186-1187 [condition barring use or
possession of firearms, knives, and other concealable weapons]; People v. Freitas,



                                           4
supra, 179 Cal.App.4th at pp. 750-751 [conditions barring possession of guns,
ammunition, and stolen property].)
       The parties appear to be in agreement up to this point. Both sides recognize
that defendant may not be deemed in violation of the firearms or narcotics
conditions of probation if his possession or control of the prohibited items was
unwitting. In other words, a probation violation can occur only if defendant
knowingly owned or possessed these items or had them in his custody or control.
Consequently, the issue presented here is not what state of mind is required to
sustain a violation of probation, but the extent to which that state of mind must be
expressly articulated in the probation condition itself to provide defendant with
fair warning of what the condition requires. In defendant’s view, the conditions at
issue in this case are unconstitutionally vague and must be modified to state
explicitly that knowing possession is required. The People respond that these
conditions implicitly include a knowledge requirement already, rendering them
sufficiently precise to afford defendant fair notice of what is prohibited.
       Our analysis begins with the void-for-vagueness doctrine. This doctrine,
which derives from the due process concept of fair warning, bars the government
from enforcing a provision that “forbids or requires the doing of an act in terms so
vague” that people of “common intelligence must necessarily guess at its meaning
and differ as to its application.” (Connally v. General Const. Co. (1926) 269 U.S.
385, 391; accord, Sheena K., supra, 40 Cal.4th at p. 890.) To withstand a
constitutional challenge on the ground of vagueness, a probation condition must be
sufficiently definite to inform the probationer what conduct is required or
prohibited, and to enable the court to determine whether the probationer has
violated the condition. (Connally, at p. 391; Sheena K., at p. 890.) In determining
whether the condition is sufficiently definite, however, a court is not limited to the
condition’s text. (People v. Lopez (1998) 66 Cal.App.4th 615, 630-632.) We

                                          5
must also consider other sources of applicable law (In re Ana C., supra, 2
Cal.App.5th at p. 344), including judicial construction of similar provisions.
(United States v. Lanier (1997) 520 U.S. 259, 266; People ex rel. Gallo v. Acuna
(1997) 14 Cal.4th 1090, 1117 (Acuna) [provision is not void for vagueness “ ‘if its
terms may be made reasonably certain by reference to other definable sources’ ”].)
Thus, a probation condition should not be invalidated as unconstitutionally vague
“ ‘ “if any reasonable and practical construction can be given to its language.” ’ ”
(Williams v. Garcetti (1993) 5 Cal.4th 561, 567.)
       Given this legal backdrop, we conclude that the firearms and narcotics
conditions are not unconstitutionally vague. California case law already
articulates not only a general presumption that a violation of a probation condition
must be willful, but also specifically provides that probation conditions barring
possession of contraband should be construed to require knowledge of its presence
and its restricted nature. (See generally In re Trombley (1948) 31 Cal.2d 801, 807
[“The word ‘willfully’ . . . implies that the person knows what he is doing”].) The
requisite scienter for these probation conditions is thus easily ascertainable by
reference to “ ‘other definable sources’ ” that make sufficiently clear the
conditions’ scope. (Acuna, supra, 14 Cal.4th at p. 1117.)
       When a criminal statute similarly fails to expressly articulate the requisite
scienter, we routinely rely on an analogous presumption. On occasion, and
particularly for public welfare offenses, a statute will omit any reference to
scienter, because no scienter is required. (Stark v. Superior Court (2011) 52
Cal.4th 368, 393.) More commonly, though, courts construe criminal statutes
against the backdrop of the common law presumption that scienter is required and
imply the requisite mental state, even where the statute is silent. (Staples v. United
States (1994) 511 U.S. 600, 605-606; accord, In re Jorge M. (2000) 23 Cal.4th
866, 872 (Jorge M.).) For example, we have construed statutes prohibiting

                                          6
possession of controlled substances to require knowledge of the presence and
illegal character of the drug, even though the statutes themselves fail to include a
reference to any mental state. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242;
cf. People v. King, supra, 38 Cal.4th at pp. 622-623 [same for statute prohibiting
possession of weapons].) The mere fact that a statute must be interpreted to
determine the applicable mental state does not render a criminal statute — or a
probation condition — unconstitutionally vague. (Jorge M., at p. 886; People v.
Estrada (1995) 11 Cal.4th 568, 581; see generally Walker v. Superior Court
(1988) 47 Cal.3d 112, 143 [“We thus require citizens to apprise themselves not
only of statutory language but also of legislative history, subsequent judicial
construction, and underlying legislative purposes”].) So long as the requisite
scienter is readily discernible, its omission from the text of the statute or probation
condition poses little risk of “trap[ping] the innocent.” (Grayned v. City of
Rockford (1972) 408 U.S. 104, 108; see Colautti v. Franklin (1979) 439 U.S. 379,
395.)
        Defendant contends that the analogy between statutes and probation
conditions is inapt. He points out that unlike statutes, probation conditions are
“individualized,” with wording that varies case by case. Defendant is correct:
probation conditions encompass great diversity, in scope as well as phrasing.
Where he is mistaken is in assuming that the requisite state of mind cannot
lawfully be inferred from such conditions. Just as most criminal statutes — in all
their variety — are generally presumed to include some form of mens rea despite
their failure to articulate it expressly, so too are probation conditions generally
presumed to require some form of willfulness, unless excluded “ ‘ “expressly or by
necessary implication.” ’ ” (Jorge M., supra, 23 Cal.4th at p. 872.)
        No one contends that the conditions challenged here expressly reflected an
intention to remove the element of scienter, or that they implied the absence of any

                                           7
state of mind requirement to sustain a probation violation. To the contrary: case
law has already made clear that knowledge of the contraband’s presence and of its
restricted nature is implicit in probation conditions restricting firearms and
narcotics, regardless of any minor variations in the wording of those conditions.
(People v. Rodriguez, supra, 222 Cal.App.4th at pp. 589-593; People v. Moore,
supra, 211 Cal.App.4th at p. 1186.)
       Consider, for example, one of the most common probation conditions —
the implicit condition to obey all laws. (See People v. Arreola (1994) 7 Cal.4th
1144, 1149; People v. Leal (2012) 210 Cal.App.4th 829, 838.) This condition
appears to contemplate that the probationer might need to look beyond the four
corners of the probation order to ascertain what conduct is permitted, what is
prohibited, and what state of mind must be shown to sustain a violation. The mere
fact that defendant is charged with knowledge of all the law that could apply to his
situation does not render the condition unconstitutionally vague.
       Defendant argues that Sheena K. nonetheless compels modification of the
probation conditions challenged here. Not so. In Sheena K., we approved the
Court of Appeal’s reliance on the vagueness doctrine to order modification of a
probation condition barring the probationer from associating with “ ‘anyone
disapproved of by probation.’ ” (Sheena K., supra, 40 Cal.4th at p. 889.) Unlike
in this case, though, the probationer in Sheena K. did not object that the condition
was vague in failing to articulate the requisite scienter. (People v. Hartley, supra,
248 Cal.App.4th at pp. 633-634 [distinguishing Sheena K.]; People v. Moore,
supra, 211 Cal.App.4th at p. 1189 [same].) Rather, she claimed that the category
of prohibited persons was vague, in that the condition failed to specify which
persons the probation officer had disapproved of. (Sheena K., at pp. 890-891.)
Because the condition “did not notify defendant in advance with whom she might
not associate through any reference to persons whom defendant knew to be

                                          8
disapproved of by her probation officer” (id. at pp. 891-892), we agreed that the
condition should have been modified to direct the probationer “not to associate
with anyone ‘known to be disapproved of’ by a probation officer.” (Id. at p. 892.)
It is telling that this court declined to modify the condition at issue in Sheena K. by
inserting a requirement that the probationer avoid knowingly associating with the
specified group of persons — which is the kind of modification defendant seeks
here.
        Indeed, defendant’s brief eventually concedes that “a potential solution” to
the vagueness problem would be to “construe” the firearms and narcotics
conditions as requiring knowledge of the contraband’s presence and its restricted
nature, as a number of courts have already done. Yet he continues to insist that
modifying the conditions is a superior alternative. At core, what defendant seeks
through modification is “absolute clarity” in the text of the condition itself,
without the need to rely on “a judicial construction.” But the question before us is
not whether this degree of precision would be desirable in principle, but whether it
is constitutionally compelled. As we have previously observed, the vagueness
doctrine demands “ ‘no more than a reasonable degree of certainty.’ ” (Acuna,
supra, 14 Cal.4th at p. 1117.)
        That degree of certainty is present in the conditions at issue here. Given the
relevant case law, the firearms condition is properly construed as prohibiting
defendant from knowingly owning, possessing, or having in his custody or control
any handgun, rifle, shotgun, firearm, or any weapon that can be concealed on his
person. So too with the narcotics condition, which is best read as proscribing
defendant from knowingly using, possessing, or having in his custody or control
any illegal drugs, narcotics, or narcotics paraphernalia, without a prescription.
(Cf. Posters ‘N’ Things v. United States (1994) 511 U.S. 513, 526 [inferring a
scienter requirement “assists in avoiding any vagueness problem” in a statute

                                           9
criminalizing possession of drug paraphernalia].) Because no change to the
substance of either condition would be wrought by adding the word “knowingly,”
we decline defendant’s invitation to modify those conditions simply to make
explicit what the law already makes implicit.2 A trial court, however, remains free
to specify the requisite mens rea explicitly when imposing a condition of
probation.




2      To the extent they concluded that an express knowledge requirement was
necessary to prevent unwitting violations of possessory probation conditions, we
disapprove In re Kevin F. (2015) 239 Cal.App.4th 351, 361-366, and People v.
Freitas, supra, 179 Cal.App.4th 747, 751-752. To the extent they found that
possessory probation conditions must include an express knowledge requirement
where the prohibited item was not criminalized by statute but was merely related
to criminality, we disapprove In re Ana C., supra, 2 Cal.App.5th 333, 347-350,
and People v. Rodriguez, supra, 222 Cal.App.4th 578, 594.



                                        10
                              III. DISPOSITION
      The judgment of the Court of Appeal is affirmed.
                                                   CUÉLLAR, J.


WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.




                                     11
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Hall
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 236 Cal.App.4th 1124
Rehearing Granted

__________________________________________________________________________________

Opinion No. S227193
Date Filed: February 9, 2017
__________________________________________________________________________________

Court: Superior
County: Contra Costa
Judge: Leslie G. Landau

__________________________________________________________________________________

Counsel:

Patrick McKenna, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M.
Laurence, Assistant Attorney General, Laurence K. Sullivan, René A. Chacón, Nanette Winaker and Julia
Y. Je, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Patrick McKenna
P.O. Box 1130
Santa Clara, CA 95052
(408) 482-5309

Julia Y. Je
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5567
