P. v. Lopez CA6

Filed 5/16/13 P. v. Lopez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H038506 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS120252)

v.

ENRIQUE NUNEZ LOPEZ,

Defendant and Appellant.

Defendant Enrique Nunez Lopez appeals a judgment of conviction following his no contest plea to one count of unlawful possession of a firearm (Pen. Code, § 29815, subd. (a)),1 and admission of a gang enhancement (§ 186.22, subd. (b)(1)). On appeal, defendant asserts the court erred in imposing a probation condition that is vague and overbroad, because it does not include a scienter requirement. STATEMENT OF THE CASE2 In April 2012, defendant was charged by information with unlawful possession of a firearm (§ 29815, subd. (a); count 1), receiving or concealing stolen property (§ 496, subd. (a)). The information also alleged defendant committed the charged crimes for the

1 All further statutory references are to the Penal Code. 2 The underlying facts are omitted because they are not relevant to the issues on appeal.

benefit of a street gang (§ 186.22, subd. (b)(1)), and that defendant was ineligible for a county jail commitment (§ 1170, subd. (h)(3)). Defendant pleaded no contest to count 1, and admitted the gang enhancement. The court suspended imposition of sentence, and ordered defendant to serve three years of formal probation, with terms and conditions including that he not “use or possess intoxicants, narcotics, or other controlled substances without the prescription of a physician.” DISCUSSION Defendant asserts the trial court erred by imposing a probation condition that lacked a scienter requirement. “[P]robation is a privilege and not a right, and . . . adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights . . . . [Citations.]” (People v. Olguin (2008) 45 Cal.4th 375, 384.) However, “[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. [Citation.]” (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.) Generally, to pass constitutional muster, conditions that prohibit possession of specific items or association with certain persons must require that the probationer knowingly possess or associate. (E.g., People v. Freitas (2009) 179 Cal.App.4th 747, 752; People v. Garcia (1993) 19 Cal.App.4th 97, 102.) The Attorney General implicitly concedes that the condition does not expressly require knowledge but urges us to adopt the approach taken by the court in People v. Patel (2011) 196 Cal.App.4th 956. In that case, the Third Appellate District considered whether a probation condition ordering that the defendant not drink alcohol, possess it, or be in a place where it was the chief item of sale was invalid because it lacked a knowledge requirement. (Id. at p. 959.) The court expressed its frustration with the