Filed 1/13/15 P. v. Delgado CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040579
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1363668)

         v.

EFREN ANGEL DELGADO,

         Defendant and Appellant.


         Defendant Efren Angel Delgado pleaded nolo contendere to a count of possession
of marijuana for sale (Health & Saf. Code, § 11359). He was placed on three years of
formal probation, subject to various terms and conditions including that he not “possess
or consume illegal drugs or alcohol or knowingly go anywhere illegal drugs are used or
sold or where alcohol is the major item of sale.” On appeal, he argues his probation
condition is unconstitutionally vague, because it lacks an express knowledge requirement.
We agree and modify the condition. As modified, we affirm the judgment.
                                        PROCEDURAL BACKGROUND1
         On August 19, 2013, the Santa Clara County District Attorney’s office filed a
complaint charging defendant with one count of possession of marijuana for sale (Health
& Saf. Code, § 11359). On December 18, 2013, defendant pleaded nolo contendere as


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       The underlying facts of defendant’s offense are not relevant to the issue raised on
appeal. We therefore only provide a summary of the relevant procedural history of the
case.
charged in the complaint and was placed on three years of formal probation. The court
imposed a condition of probation that he not “possess or consume illegal drugs or alcohol
or knowingly go anywhere illegal drugs are used or sold or where alcohol is the major
item of sale.”
         On January 7, 2014, defendant notified the court that he wished to withdraw his
plea. That same day, he filed a notice of appeal and an application for a certificate of
probable cause. The court denied his motion to withdraw his plea on January 15, 2014.
The following week, the court denied defendant’s application for a certificate of probable
cause.
         On January 30, 2014, defendant filed an amended notice of appeal.
                                        DISCUSSION
         On appeal, defendant argues the probation condition imposed by the trial court
prohibiting him from possessing or consuming illegal drugs or alcohol is
unconstitutionally vague, because it lacks an express knowledge requirement.
         Defendant did not object to the imposition of the condition during his sentencing
hearing. However, “[a] Court of Appeal may review the constitutionality of a probation
condition, even when it has not been challenged in the trial court, if the question can be
resolved as a matter of law without reference to the sentencing record. (In re Sheena K.
(2007) 40 Cal.4th 875, 888-889 (Sheena K.).) Our review of such a question is de novo.”
(People v. Pirali (2013) 217 Cal.App.4th 1341, 1345.) Here, defendant raises a facial
vagueness challenge to the imposed probation condition.
         “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair
warning.’ ” (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.) That is, the defendant must know in

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advance when he may be in violation of the condition. “[T]he law has no legitimate
interest in punishing an innocent citizen who has no knowledge of the presence of a
[prohibited item].” (People v. Freitas (2009) 179 Cal.App.4th 747, 752.)
       This court considered the constitutionality of a similar condition in People v.
Rodriguez (2013) 222 Cal.App.4th 578 (Rodriguez). In Rodriguez, the defendant
challenged a probation condition that stated: “ ‘Not use or possess alcohol, intoxicants,
narcotics, or other controlled substances without the prescription of a physician.’ ” (Id. at
p. 592.) We concluded that “[t]o the extent [the condition] reinforces defendant’s
obligations under the California Uniform Controlled Substances Act, the same
knowledge element which has been found implicit in those statutes is reasonably implicit
in the condition. What is implicit is that possession of a controlled substance involves the
mental elements of knowing of its presence and of its nature as a restricted substance.”
(Id. at p. 593.)
       However, Rodriguez further concluded that the probation condition at issue was
not “limited to substances regulated by statute, but extend[s] to alcohol and the generic
‘intoxicants.’ ” (Rodriguez, supra, 222 Cal.App.4th at p. 594.) The court determined
that “[b]ecause the latter category is susceptible of different interpretations, which may
include common items such as adhesives, bath salts, mouthwash, and over-the-counter
medicines, the addition of an express knowledge requirement [would] eliminate any
potential for vagueness or overbreadth in applying the condition.” (Ibid., fn. omitted.)
       We adhere to the reasoning set forth in Rodriguez. To the extent the probation
condition reinforces defendant’s obligations under the Uniform Controlled Substances
Act, a knowledge element is reasonably implied in the condition. (Rodriguez, supra, 222
Cal.App.4th at p. 593.) However, to the extent defendant’s condition is not limited to
only those substances regulated by statute but to alcohol, an express knowledge
requirement is required. Therefore, we modify defendant’s probation condition to state

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that he shall “not knowingly possess or consume illegal drugs or alcohol or knowingly go
anywhere illegal drugs are used or sold or where alcohol is the major item of sale.”
                                      DISPOSITION
       The probation condition that provides “You shall not possess or consume illegal
drugs or alcohol or knowingly go anywhere illegal drugs are used or sold or where
alcohol is the major item of sale” is modified to provide: “You shall not knowingly
possess or consume illegal drugs or alcohol or knowingly go anywhere illegal drugs are
used or sold or where alcohol is the major item of sale.”
       As modified, the judgment is affirmed.




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                    Premo, J.




WE CONCUR:




    Rushing, P.J.




    Elia, J.
