Filed 10/9/14 P. v. Salvatierra CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040338
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1362329)

             v.

AUGUSTINE SALVATIERRA,

         Defendant and Appellant.



                                                   INTRODUCTION
         Defendant Augustine Salvatierra contends that the probation conditions
prohibiting him from possessing or consuming alcohol or controlled substances are vague
and overbroad. The Attorney General agrees that the challenged probation conditions
should be modified to include a knowledge requirement. We will modify the challenged
conditions to include an express knowledge requirement.
                              FACTUAL AND PROCEDURAL BACKGROUND
         On August 13, 2013, the district attorney filed a complaint charging defendant
with stalking (Pen. Code, § 646.9, subd. (a)1; count 1), grand theft (§§ 484/487(c);
count 2), and attempting to dissuade a victim or witness from reporting a crime (§ 136.1,
subd. (b)(1); count 3). On August 30, 2013, the district attorney amended the complaint


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             All further statutory references are to the Penal Code unless otherwise indicated.
to reduce count 2 to misdemeanor petty theft (§§ 484/488, subd. (a)). Defendant then
pleaded no contest to stalking and pleaded guilty to the two misdemeanors.
       On November 4, 2013, the trial court suspended imposition of sentence and placed
defendant on probation for three years. The court imposed several terms and conditions.
One of the conditions mandates that defendant “shall not possess or consume alcohol or
illegal substances or knowingly go to places where alcohol is the primary item of sale.”
Another condition orders that defendant “is not to 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.”
                                        DISCUSSION
       Defendant contends that the two probation conditions prohibiting his possession or
consumption of alcohol or controlled substances are unconstitutionally vague and
overbroad because they lack an express knowledge requirement. He asserts that the
conditions must be modified to include a knowledge element. The Attorney General
agrees that the conditions should be modified to read that defendant may not
“knowingly” possess or consume alcohol or controlled substances.
       “In granting probation, courts have broad discretion to impose conditions to foster
rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.
[Citations.]” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121; People v. Leon
(2010) 181 Cal.App.4th 943, 948 (Leon ).) However, probation conditions may be
challenged on the grounds of unconstitutional vagueness and overbreadth. (People v.
Lopez (1998) 66 Cal.App.4th 615, 630 (Lopez).) A probation condition may be
“ ‘overbroad’ ” if in its reach it prohibits constitutionally protected conduct. (Ibid.) “The
underlying concern of the vagueness doctrine is the core due process requirement of
adequate notice.” (Ibid., italics omitted.) 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. To
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avoid being void for vagueness, a probation condition “ ‘must be sufficiently precise for
the probationer to know what is required of him. . . .’ [Citations.]” (Ibid.) Absent a
requirement that the defendant know he or she is disobeying the condition, the defendant
is vulnerable, and unfairly so, to punishment for unwitting violations of that condition.
(See Id. at pp. 628-629.)
       This court, as well as several other appellate courts have frequently modified
probation conditions to include an express knowledge requirement in order to give clear
notice to the defendant and probation authorities of what will constitute a violation. (See
In re Sheena K. (2007) 40 Cal.4th 875, 892 (Sheena K.); People v. Pirali (2013) 217
Cal.App.4th 1341, 1350-1353; People v. Barajas (2011) 198 Cal.App.4th 748, 761, fn.
10; Leon, supra, 181 Cal.App.4th at pp. 950- 951; In re H.C. (2009) 175 Cal.App.4th
1067, 1070-1073; People v. Freitas (2009) 179 Cal.App.4th 747, 750-751, 753.) Such a
“modification to impose an explicit knowledge requirement is necessary to render the
condition[s] constitutional.” (Sheena K., supra, at p. 892.) Accordingly, we will modify
the two challenged conditions to include an express knowledge requirement.
                                       DISPOSITION
       The order of probation is modified to reflect the following changes:
       Condition 17: “The defendant shall not knowingly possess or consume alcohol or
illegal substances or knowingly go to places where alcohol is the primary item of sale.”
       Condition 18: “The defendant is not to knowingly 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.”
       As modified, the judgment is affirmed.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           ELIA, J.




____________________________________
           MÁRQUEZ, J.




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