THE PEOPLE,
A141278 (Contra Costa County Super. Ct. No. 51315225)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Filed 5/15/15
CERTIFIED FOR PUBLICATION
BACKGROUND
When Hall was placed on probation, the sentencing court admonished him as follows: “You must obey all laws and all orders of the Court and of your probation officer. Any willful violation of your probation can result in you being brought back to court and the maximum sentence being imposed . . . . [¶] . . . [¶] You may not own, possess or have in your custody or control any handgun, rifle, shotgun or any firearm whatsoever or any weapon that can be concealed on your person . . . . [¶] . . . [¶] [A]s further terms of your probation, you may not use or possess or have [in] your custody or control any illegal drugs, narcotics, narcotics paraphernalia without a prescription.”2
DISCUSSION
Hall argues that these conditions are unconstitutionally vague and must be modified to incorporate an express knowledge requirement so that he cannot be found in violation of his probation by unwittingly doing something prohibited, such as carrying a backpack that he does not know contains a weapon or eating a brownie that he does not know contains marijuana. He contends that the weapons condition must be modified to state that he “shall
Hall’s position conflates two separate concepts, vagueness and mens rea.3 As relevant here, the first involves the idea that a probation condition prohibiting conduct related to a category of associations, places, or items (a category condition) may be—but is not always—unconstitutionally vague unless it expressly requires the probationer to know that an association, place, or item is within the category. The second involves the idea that courts may not revoke probation unless the evidence shows that the probationer willfully violated its terms. This mens rea prevents probation from being revoked based on unwitting violations of probation conditions. Courts sometimes confuse the distinctions between knowledge as it relates to vagueness with mens rea principles, and this confusion has led to imprecise or unnecessary appellate modifications of probation conditions.
A. Category Conditions That Are Unconstitutionally Vague May Often Be Cured by Requiring the Probationer to Know a Particular Association, Place, or Item Is Within the Prohibited Category.
Trial courts have broad discretion to set conditions of probation to “foster rehabilitation and to protect public safety.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120; see also
The vagueness doctrine is concerned with whether a probation condition is sufficiently clear and understandable. (See Sheena K., supra, 40 Cal.4th at p. 889.) “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.” (Id. at p. 890.) “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders’ [citation], protections that are ‘embodied in the due process clauses of the federal and California Constitutions.’ ” (Ibid.)
Consequently, “[t]he vagueness doctrine bars enforcement of ‘ “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” [Citation.]’ [Citation.] A vague law ‘not only fails to provide adequate notice to those who must observe its strictures, but also “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” [Citation.]’ [Citation.] In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that ‘abstract legal commands must be applied in a specific context,’ and that, although not admitting of ‘mathematical certainty,’ the language used must have ‘ “reasonable specificity.” ’ ” (Sheena K., supra, 40 Cal.4th at p. 890, italics in original; see also People v. Moore (2012) 211 Cal.App.4th 1179, 1184 (Moore) [“ ‘A probation condition which . . . forbids . . . 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’ ”].)
Conditions determined to be unconstitutionally vague include those that restrict otherwise lawful activity by broadly prohibiting “association with certain categories of persons, presence in certain types of areas, or possession [or use] of items that are not easily amenable to precise definition.” (Moore, supra, 211 Cal.App.4th at p. 1185.) The concern with broadly prohibiting probationers from otherwise lawful conduct involving these categories is that the prohibitions may fail to give adequate notice of what probationers are supposed to avoid doing.
Under the category of prohibiting presence in certain locations, conditions have been held to be vague when they prohibit probationers from being in places where there are firearms or dangerous or deadly weapons (Victor L., supra, 182 Cal.App.4th at pp. 911-913), where sexually explicit materials are sold (Moses, supra, 199 Cal.App.4th at p. 377), where gang-related activity occurs (Leon, supra, 181 Cal.App.4th at pp. 949-952), or where alcohol is the chief item of sale (People v. Patel (2011) 196 Cal.App.4th 956, 961 (Patel).
And under the category of prohibiting the use or possession of certain items, conditions have been held to be vague when they prohibit probationers from having gang clothing or paraphernalia (Leon, supra, 181 Cal.App.4th at pp. 949-952; Lopez, supra, 66 Cal.App.4th at pp. 628-629), firearms and ammunition (People v. Freitas (2009) 179 Cal.App.4th 747, 751 (Freitas)), sexually explicit materials (Moses, supra, 199 Cal.App.4th at p. 377), or alcohol (Patel, supra, 196 Cal.App.4th at p. 961).
Appellate courts have cured unconstitutionally vague category conditions by incorporating a requirement that the probationer know that a particular association, place, or item falls within the prohibited category. (See, e.g., Sheena K., supra, 40 Cal.4th at pp. 878, 892 [condition prohibiting defendant from associating with anyone “ ‘disapproved of by probation’ ” modified to require that “defendant have knowledge of who was disapproved of by her probation officer”]; Justin S., supra, 93 Cal.App.4th at p. 816 [condition barring gang associations modified to forbid association “ ‘with any person known to [the defendant] to be a gang member’ ”]; Lopez, supra, 66 Cal.App.4th at p. 624, fn. 5 [similar condition modified to forbid associations “with any person known to [the] defendant to be a gang member”]; Garcia, supra, 19 Cal.App.4th at p. 103 [condition barring association with drug users or sellers modified to forbid association with “persons [the defendant] knows to be users or sellers of [drugs]”].)
Appellate courts have usually modified vague category conditions on a case-by-case basis to incorporate a knowledge requirement into the specific condition being challenged. But our colleagues in the Third District have taken a different approach. Frustrated with the “dismaying regularity” of having to “revisit the issue in orders of probation,” they have incorporated, by operation of law, a blanket knowledge requirement into all category conditions. (Patel, supra, 196 Cal.App.4th at p. 960 [“We construe every probation condition proscribing a probationer’s presence, possession, association, or similar action to require the action be undertaken knowingly”].) We are sympathetic to the Third District’s frustration, but we join the other courts that have declined to follow its approach. (People v. Pirali, supra, 217 Cal.App.4th at p. 1351; Moses, supra, 199 Cal.App.4th at pp. 380-381; Garcia, supra, 19 Cal.App.4th at pp. 102-103.) In our view, the Third District’s approach fails to solve the vagueness problem fully because it neither gives “adequate notice to those [probationers] who must observe [the conditions’] strictures” nor sufficiently protects against “the attendant dangers of arbitrary and discriminatory application.” (Sheena K., supra, 40 Cal.4th at p. 890.) Probationers and probation officers cannot be expected to know, understand, and adhere to implied terms that, even if binding on them as a matter of law, are neither expressed by the sentencing court nor set forth in the written probation conditions. We believe that explicitly modifying vague conditions better ensures due process by informing “the probationer . . . in advance whether his [or her] conduct comports with or violates a condition of probation.” (Victor L., supra, 182 Cal.App.4th at p. 913, italics in original.)
This is not to say, however, that every category condition is vague just because it does not explicitly require a probationer to know that the association, place, or item is within the prohibited category. In general, a probation
B. Modifying Category Conditions to Include a Mens-rea Requirement Imprecisely Addresses Vagueness Problems and Is Unnecessary.
Having concluded that vague category conditions can be made sufficiently precise with a modification requiring the probationer to know that the association, place, or item falls within the category, and having concluded that such a modification is properly made on a case-by-case basis, we turn to discuss the relationship between these modifications and the mens rea required to sustain a probation violation. We do so because Hall’s proposal to modify the conditions at issue here conflates the knowledge requirement used to make a vague category more precise with mens-rea principles.
Mens rea is “the state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime.” (Garner, Dict. of Modern Legal Usage (3d ed. 2011) p. 572.) “ ‘[T]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.’ ” (People v. Simon (1995) 9 Cal.4th 493, 519.) Thus, with the exception of certain public-welfare offenses (see id.), “for a criminal conviction, the prosecution [must] prove some form of guilty intent, knowledge, or criminal negligence.” (In re Jorge M. (2000) 23 Cal.4th 866, 872.)
Failing to distinguish between the reasons for using a knowledge requirement to modify a vague category condition and mens-rea principles has led some appellate courts to modify conditions imprecisely or unnecessarily. To begin with, vague category conditions are sometimes modified imprecisely by requiring the probationer to not knowingly engage in the prohibited conduct instead of requiring the probationer to know the association, place, or item is in the prohibited category.4 The former modification is less precise because “knowingly” acts as an adverb modifying the proscribed activity (such as associating, being present, using, or possessing), which is not the vague part of the condition. The latter modification is more precise because the probationer’s knowledge acts as an adjective modifying the category, which is the vague part of the condition. If reasonable probationers can be confused about what falls within a prohibited category, telling them that they cannot knowingly engage in conduct related to that category may still not explain clearly what it is they are supposed to avoid doing.
Our state Supreme Court employed the more precise approach—requiring the probationer to know that the association, place, or item is in the
Finally, sentencing courts frequently identify a mens-rea requirement when they impose probation conditions, as the trial court did here by warning Hall against “[a]ny willful violation of [his] probation,” and it is perfectly appropriate for them to do so. But, contrary to Hall’s argument, there is nothing that requires sentencing courts to include, or appellate courts to incorporate, a requirement that the probationer “knowingly” violate a condition in order to protect against enforcement of unwitting violations. Our state Supreme Court has never held that any mens-rea requirement must be explicitly stated in probation conditions and has in fact suggested the opposite. In a case involving whether a probationer had violated probation by violating a criminal statute, the court stated: “That the statute contains no reference to knowledge or other language of mens rea is not itself dispositive. As we recently explained, the requirement that, for a criminal conviction, the prosecution prove some form of guilty intent, knowledge, or criminal negligence is of such long standing and so fundamental to our criminal law that penal statutes will often be construed to contain such an element despite their failure expressly to state it. . . . ‘ “ ‘ “So basic is this [mens rea] requirement that it is an invariable element of every crime unless excluded expressly or by necessary implication.” ’ ” ’ ” (In re Jorge M., supra, 23 Cal.4th at p. 872.) We see no reason why probation conditions would need to articulate mens-rea requirements expressly when criminal statutes need not.
In short, we think the best approach is for appellate courts to incorporate an express knowledge requirement into category conditions only when necessary to cure a truly vague category, and then to do so by incorporating a requirement that the probationer know the association, place, or item falls within the prohibited category.
With these principles and distinctions in mind, we turn to whether the two conditions Hall challenges are unconstitutionally vague.5 In considering the claim, we are mindful that whether a probation condition is unconstitutionally vague is a question of law reviewed de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143; In re J.H. (2007) 158 Cal.App.4th 174, 183.)
The first challenged condition tells Hall that he cannot “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 . . . .” The second tells him he “[can]not use or possess or have [in his] custody or control any illegal drugs, narcotics, narcotics paraphernalia without a prescription.”6 In our view, these prohibitions are not vague because they do not forbid conduct “in terms so vague that persons of common intelligence must necessarily guess at [their] meaning and differ as to [their] application.” (Moore, supra, 211 Cal.App.4th at p. 1184.) Because they are not vague, these conditions require no modification and certainly not the one proposed by Hall.
We start with the weapons condition. Moore concerned a nearly identical condition that provided, “ ‘Do not own, use, or possess any dangerous or deadly weapons, including firearms, knives, and other concealable weapons.’ ” (Moore, supra, 211 Cal.App.4th at p. 1183.) We agree with Moore that such a condition is “sufficiently precise” for the probationer to know what is required and “ ‘for the court to determine whether the condition has been violated.’ ” (Sheena K., supra, 40 Cal.4th at p. 890.)
Turning to the drug condition, we conclude that it is also sufficiently precise. We think that people of common intelligence can understand this
The only arguably vague portion of the drug condition is its directive that Hall not use or possess “narcotics, narcotics paraphernalia without a prescription.” But even accepting for the sake of argument that the phrase is inexact, we cannot conclude that it is unconstitutionally vague. In Village of Hoffman Estates v. Flipside, Hoffman Estates (1982) 455 U.S. 489, the United States Supreme Court provided us with useful guidance.
In that case, an owner of a shop brought a facial-vagueness challenge to a city’s ordinance banning the sale of drug paraphernalia. In rejecting the challenge, the court explained that the degree of vagueness tolerated by the federal Constitution depends in part on the nature of the directive and whether it threatens to interfere with speech. (Id. at pp. 498-499.) Here, the nature of the directive is not a generally applicable enactment but is instead a probation condition that applies only to one person. (See id. at p. 495 [a party “who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others”]; see also Bamboo Brothers v. Carpenter (1982) 133 Cal.App.3d 116, 126 [considering nature of enactment in upholding anti-drug paraphernalia ordinance].) Furthermore, the condition does not restrict any activities protected by the First Amendment. In our view, a person of common intelligence in Hall’s position—i.e., someone who has been convicted of possessing cocaine base for sale—would understand what was meant when told not to use or possess “narcotics, narcotics paraphernalia without a prescription” while on probation.
Hall insists that the word “knowingly” must be incorporated into the conditions because without it he could be found to violate probation by unwittingly doing something prohibited. He argues that without such a modification he could be found to have violated the weapons condition if he carried a backpack or borrowed a jacket that, unbeknownst to him, contained a weapon. Similarly, he argues he could be found to have violated the drug condition if he “willfully” drove a car but did not know someone had placed illegal drugs inside it or if he “willfully” ate a brownie without knowing it was laced with marijuana.
Hall’s concerns are misplaced and arise out of his misunderstanding of the distinctions between mens rea and the rationale for modifying vague category conditions. The implied mens rea of willfulness must be established to find a probation violation, and this protects Hall from being punished for an unwitting failure to comply with a condition. If he borrows a jacket but does not know it contains a weapon or eats a brownie but does not know it
In closing, we summarize our conclusions. First, probation conditions that prohibit conduct related to categories of associations, places, or items may be, but are not necessarily, unconstitutionally vague. Second, when such conditions are vague, they can often be made sufficiently clear by incorporating a qualification requiring the probationer to know that the association, place, or item is within the prohibited category. And third, modifying vague category conditions to incorporate a requirement that the probationer must knowingly violate the condition is imprecise and unnecessary to protect against unwitting violations.
DISPOSITION
The minute order of the sentencing hearing is ordered modified to conform to the trial court’s oral pronouncement of the weapons and drug conditions. The weapons condition shall read, “You may not own, possess or have in your custody or control any handgun, rifle, shotgun or any firearm whatsoever or any weapon that can be concealed on your person.” The drug condition shall read, “You shall not use or possess or have in your custody or control any illegal drugs, narcotics, narcotics paraphernalia without a prescription.” In all other respects, the judgment is affirmed.
Humes, P.J.
We concur:
Margulies, J.
Dondero, J.
People v. Hall (A141278)
Trial Court: Contra Costa County Superior Court
Trial Judge: Honorable Leslie G. Landau
Counsel for Appellant: Patrick McKenna, under appointment by the First District Appellate Project
Counsel for Respondent: Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, René A. Chacón, Supervising Deputy Attorney General, Nanette Winaker, Deputy Attorney General