Filed 10/28/15 P. v. Navarro CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A143343
v.
OSCAR NAVARRO,                                                       (Napa County
                                                                     Super. Ct. No. CR169972)
         Defendant and Appellant.


         Oscar Navarro challenges a drug-related condition of his probation that prohibits
him from using, consuming, or possessing “any non-prescribed . . . substances.” He
argues that the condition is unconstitutionally vague. We agree and therefore modify the
condition, but we otherwise affirm the judgment.
                                                    I.
                                          FACTUAL AND PROCEDURAL
                                               BACKGROUND
         In March 2014, Navarro was pulled over by a Napa police officer. In the course of
the stop, Navarro struggled with the officer and was found to be in possession of
methamphetamine and a smoking pipe. Navarro was charged with three crimes:
(1) possessing a controlled substance (methamphetamine), a felony; (2) possessing a
smoking device, a misdemeanor; and (3) resisting, obstructing, or delaying a peace




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officer, a misdemeanor.1 The misdemeanor device-possession charge was later
dismissed, and Navarro pleaded no contest to the remaining two counts.2 On the plea
form Navarro signed memorializing the plea agreement, he agreed to “probation w/ drug
terms.” The trial court then placed him on probation for three years with various
conditions, including one prohibiting him from “us[ing], consum[ing] or possess[ing] any
non-prescribed or illegal substances, including medical marijuana, unless specifically
authorized by the Court.”
                                            II.
                                        DISCUSSION
       Navarro claims that the challenged condition is unconstitutionally vague because
the term “substances” can be interpreted to mean substances other than drugs, and the
term “non-prescribed” is ambiguous as to whether it includes over-the-counter
medications.3 Although he did not object to the condition below, Navarro may raise this
claim on appeal because it presents a “ ‘ “pure question[] of law that can be resolved
without reference to the particular sentencing record developed in the trial court.” ’ ” (In
re Sheena K. (2007) 40 Cal.4th 875, 884.) For the reasons we shall explain, we conclude
that the term substances is sufficiently clear, but the term non-prescribed is not.
       The vagueness doctrine is concerned with whether a probation condition is
sufficiently clear and understandable. (In re Sheena K., supra, 40 Cal.4th at p. 890.) “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.” (Ibid.) “[T]he underpinning
1
 Navarro was charged under Health and Safety Code sections 11377, subdivision (a)
(possession of methamphetamine) and 11364 (possession of smoking device), and Penal
Code section 148, subdivision (a)(1) (resisting, obstructing, or delaying a peace officer).
2
  Navarro later sought resentencing on the felony charge under Proposition 47, and it was
reduced to a misdemeanor. (Pen. Code, § 1170.18.)
3
  In his opening brief, Navarro argued that the condition should be modified to require
that he “knowingly” consume, use, or possess the substances and asserted the condition
improperly required the trial court’s authorization of any use of medical marijuana. He
later abandoned these two arguments.


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of a vagueness challenge is the due process concept of ‘fair warning,’ [which] ‘prevent[s]
arbitrary law enforcement and provid[es] adequate notice to potential offenders.’ ”
(Ibid.) A probation condition is unconstitutionally vague if “ ‘ “[persons] of common
intelligence must necessarily guess at its meaning and differ as to its application.” ’ ”
(Ibid.)
          A. The Condition’s Use of the Word Substances Is Sufficiently Precise.
          Navarro first contends that the condition is unconstitutionally vague because the
term “substances” is imprecise. We disagree.
          Although the term substances may have various meanings, “[a] probation
condition should be given ‘the meaning that would appear to a reasonable, objective
reader.’ ” (People v. Olguin (2008) 45 Cal.4th 375, 382.) Within the challenged
condition, the term substances is preceded by the modifying terms “non-prescribed or
illegal.” These modifiers establish that the word substances as used in the condition
refers only to things that can be illegal, prescribed, or non-prescribed. Thus, the most
reasonable interpretation is that the term refers to drugs. Indeed, both parties concede
that the condition was meant to prohibit the use of any non-prescribed or illegal drugs,
not just any substances that may be deemed illegal in some circumstances.
          Moreover, as the Attorney General points out, Navarro pleaded no contest to drug-
related offenses and specifically agreed to “probation ‘with drug terms.’ ” This context
further supports the conclusion that the word substances is limited to drugs. (In re
Sheena K., supra, 40 Cal.4th at p. 890, italics in original [holding that probation
conditions must be “ ‘applied in a specific context’ ”].) Therefore, the use of the term
does not render the challenged condition vague.
          B. The Condition’s Use of the Word Non-prescribed Is Vague.
          Navarro next argues that the condition’s use of the term “non-prescribed” to
modify substances is ambiguous and confusing because it suggests the challenged
condition prohibits the use or possession of over-the-counter medications, such as aspirin,
which the parties agree are not covered. We agree and conclude that the condition must
therefore be modified.


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       The Attorney General initially argues that Navarro’s claim confuses overbreadth
and vagueness. We disagree. The claim here is not that the condition goes too far by
prohibiting activity that should arguably be permissible, i.e., possessing or using over-
the-counter medications, but is instead that it is unclear whether the condition even
encompasses that activity. “ ‘[O]verbreadth involves the scope of a directive while
vagueness involves its clarity.’ ” (People v. Contreras (2015) 237 Cal.App.4th 868,
884.) If the condition here stated, “Do not use, possess, or consume any non-prescribed
substances, including over-the-counter medications,” the condition might be overbroad,
but it would not be vague because it would clearly encompass over-the-counter drugs.
(See In re Sheena K., supra, 40 Cal.4th at p. 890 [requiring probation conditions
impinging on constitutional rights to be closely tailored to achieve legitimate purpose].)
Here, the condition as imposed does not raise the concern that it goes too far by
prohibiting over-the-counter medications, but instead raises the concern of whether over-
the-counter medications are prohibited at all. Thus, it raises vagueness, not overbreadth,
concerns.
       We therefore turn to the merits of Navarro’s vagueness argument, and we agree
that nothing in the condition limits its prohibition to using, consuming, or possessing only
prescription drugs. The term non-prescribed refers to any drug that is not prescribed, and
over-the-counter medications are drugs that are not prescribed.
       We cannot accept the Attorney General’s argument that a person of common
intelligence would necessarily understand that the condition permits using, consuming, or
possessing over-the-counter medications. Navarro’s agreement to “probation w/ drug
terms” does not obviously limit the condition to prescription-only medications. And
over-the-counter medications can be abused just like prescription medications and other
drugs. A trial court could reasonably impose a probation condition prohibiting a
probationer, who has pleaded guilty to drug charges, from possessing or using at least
some over-the-counter medications. Since the condition’s wording here encompasses all
drugs—both those that require a prescription and those that do not—the condition is



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ambiguous and must be modified to reflect the parties’ agreement that it does not
encompass over-the-counter medications.
                                           III.
                                       DISPOSITION
       The challenged probation condition is modified to read, “Do not use, consume, or
possess any illegal substances, prescribed substances for which you do not have a valid
and current prescription, or medical marijuana, unless specifically authorized by the
Court.” As so modified, the judgment is affirmed.




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                                  _________________________
                                  Humes, P. J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.




People v. Navarro (A143343)




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