People v. Conatser CA1/3

Filed 9/30/16 P. v. Conatser CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A146093 v. CHRISTOPHER HAYES CONATSER, (Napa County Super. Ct. No. CR167593) Defendant and Appellant.

Defendant Christopher Hayes Conatser appeals from a judgment sentencing him to two years in local custody followed by six years mandatory supervision based on his no contest plea to possession of methamphetamine for sale (Health & Saf. Code, § 11378) with two prior drug convictions. On appeal, defendant contends that two of the conditions of his mandatory supervision are unconstitutionally vague and must be modified to prohibit him from knowingly violating them. The underlying issue is currently pending before our Supreme Court in People v. Hall (2015) 236 Cal.App.4th 1124, review granted September 9, 2015, S227193.1 Therefore, although we question the need to do so,

1 The summary of the issues under review in the Supreme Court in People v. Hall, supra, 236 Cal.App.4th 1124 states: “This case presents the following issues: (1) Are probation conditions prohibiting defendant from: (a) ‘owning, possessing or having in his custody or control any handgun, rifle, shotgun or any firearm whatsoever or any weapon that can be concealed on his person’; and (b) ‘using or possessing or having in his custody or control any illegal drugs, narcotics, narcotics paraphernalia without a prescription,’ unconstitutionally vague? (2) Is an explicit knowledge requirement constitutionally mandated?” (See also People v. Gaines (2015) 242 Cal.App.4th 1035, review granted Feb. 17, 2016, S231723.)

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we shall, in the interest of avoiding the prolongation of these proceedings, modify the challenged conditions to include an express knowledge requirement, and affirm the judgment in all other respects. Discussion Defendant challenges as unconstitutionally vague the following conditions of his mandatory supervision: “10. Do not use, consume or possess any non-prescribed or illegal substances, including medical marijuana, unless specifically authorized by the court. Provide the probation officer with verification of any prescribed controlled substance within 72 hours of it being prescribed. [¶] . . . [¶] 15. Do not own or possess any firearm, ammunition, or other dangerous or deadly weapon.” “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) To survive a challenge for vagueness, “[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.’ ” (Ibid.) A probation condition passes constitutional muster so long as it spells out with “reasonable specificity” what is prohibited in such a way that persons of common intelligence need not guess at its meaning or differ as to its application. (Ibid.) Initially, defendant argues that the “use of the word ‘non-prescribed’ in the substances condition renders it hopelessly vague, because it suggests that Conatser is prohibited from using or possessing any over-the-counter medication, such as aspirin, or something to ease heartburn.” The Attorney General explains correctly, however, that the word “non-prescribed” encompasses only prescription medications for which defendant does not have a valid prescription. Read in context, a reasonable probationer with common intelligence is not likely to interpret the probation condition as prohibiting his use of over-the-counter medication. Defendant’s primary contention is that the challenged conditions must include an explicit knowledge requirement to avoid the possibility of an unwitting violation of the conditions. The Attorney General recognizes that defendant can violate the conditions of his supervision only if he does so willfully and suggests that the implicit willfulness