People v. Dowell CA6

Filed 2/14/14 P. v. Dowell CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039306 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1114484)

v.

JONATHAN KAWIKA DOWELL,

Defendant and Appellant.

Defendant Jonathan Kawika Dowell appeals from a conviction for methamphetamine possession. On appeal, he contends that the trial court erred in imposing two probation conditions that are unconstitutionally vague. As set forth below, we will modify the probation conditions and affirm the judgment as modified. F ACTUAL AND P ROCEDURAL HISTORY During a search following a traffic stop, a police officer found a bag of methamphetamine in defendant’s pocket. An information subsequently charged defendant with possession of methamphetamine (Health and Saf. Code, § 11377, subd. (a)). He pleaded guilty to the charge. The trial court suspended imposition of sentence and placed defendant on formal probation for two years. As a condition of probation, the court ordered that defendant “shall not possess or consume alcohol or illegal drugs.” As another condition of

probation, the court ordered that defendant “shall not own or possess any firearm or ammunition for the rest of his life.” Defendant filed a timely notice of appeal. This appeal followed. DISCUSSION Defendant contends that the alcohol/drugs condition and the firearms/ammunition condition are unconstitutionally vague because they do not include knowledge requirements. He accordingly requests that we modify each condition to impose a knowledge requirement. The People contend that we should decline to modify the conditions, as the Third Appellate District did in People v. Patel (2011) 196 Cal.App.4th 956 (Patel). As explained below, we will modify each condition to impose a knowledge requirement. “Constitutional issues are reviewed de novo.” (In re J.H. (2007) 158 Cal.App.4th 174, 183.) Thus, “we review constitutional challenges to a probation condition de novo.” (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) The “underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) “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.) “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.) “California appellate courts have found probation conditions to be unconstitutionally vague . . . when they do not require the probationer to have knowledge of the prohibited conduct or circumstances.” (People v. Kim (2011) 193 Cal.App.4th 836, 843 (Kim).) To survive a vagueness challenge, a probation condition that prohibits possession of particular items must “specify that defendant not knowingly possess the 2