Opinion
H043674
03-02-2017
THE PEOPLE, Plaintiff and Respondent, v. DEREK QUIROZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Benito County Super. Ct. No. CR-15-02082)
Defendant Derek Quiroz pleaded no contest to possessing methamphetamine for sale and admitted two prior felony drug convictions. (Health & Saf. Code, §§ 11378, 11370.2, subd. (c).) The trial court denied probation and imposed a total term of eight years, consisting of one year in county jail and seven years of mandatory supervision. Among other conditions of supervision, the court imposed the following four conditions, requiring Quiroz: (1) to abstain from the use or possession of alcoholic beverages; (2) not to frequent or be present at any location where controlled substances or alcoholic beverages are present, available, or being used; (3) not to own, possess, have access to, or have under his control any weapons; and (4) not to possess or have under his control any kit, device, or substance intended to mask the presence of a controlled substance.
Quiroz contends these conditions are unconstitutionally vague or overbroad in the absence of a scienter requirement. He further contends the term "weapon" is too vague to give him notice of what items are prohibited.
Based on the California Supreme Court's recent opinion in People v. Hall (Feb. 9, 2017, S227193) ___Cal.5th___ (Hall), we conclude these claims are without merit. Accordingly, we will affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
The statement of facts is based on the probation report and police reports. The parties stipulated that the police reports provided a factual basis for the plea. --------
While executing an eviction in December 2015, San Benito Sheriff's deputies arrested Quiroz on an outstanding warrant. The deputies searched a black backpack Quiroz had taken from his residence. They found four baggies of methamphetamine with a net weight of about seven grams. The backpack also held a used methamphetamine pipe, a digital pocket scale, and several grams of marijuana. Quiroz told the deputies the methamphetamine was for his own personal use.
The prosecution charged Quiroz by complaint with two counts: Count One—Possession of methamphetamine for sale (Health & Saf. Code, § 11378); and Count Two—Possession of a device for smoking a controlled substance (Health & Saf. Code, § 11364, subd. (a)). The complaint also alleged three prior prison terms and three prior felony drug convictions. (Pen. Code, § 667.5, subd. (b); Health & Saf. Code, § 11370.2, subd. (c).)
Quiroz pleaded no contest to possessing methamphetamine for sale and admitted two prior felony drug convictions. The trial court denied probation and imposed a total term of eight years, consisting of the two-year midterm on Count One plus three-year terms for each of the prior drug convictions. The court ordered Quiroz to serve one year of the sentence in county jail and the remaining seven years under the mandatory supervision of the probation department.
The court then imposed the following conditions of supervision, among others: "You're to abstain from the use and possession of controlled substances without a valid prescription or any alcoholic beverages, and do not be present or frequent any location where those substances are present, available, or being used. [¶ . . . ¶] Do not own, possess, have access to, or have under your control any weapons, firearms, stun guns, OC (pepper spray), tear gas, or any instrument or device which a reasonable person would believe to be capable of being used as a firearm, or any ammunition, or a knife with a blade longer than two inches, other than kitchen knives kept in your residence, or knives related to your employment and used in connection therewith. [¶ . . . ¶] Do not use or possess any kit, device, or substance used to mask the presence of a controlled substance in your urine." Quiroz lodged no objections.
II. DISCUSSION
Quiroz challenges the above probation conditions as vague and overbroad on the ground that they lack explicit scienter requirements. He argues that the conditions must be modified to include an express knowledge requirement—e.g., that he not knowingly use or possess any alcoholic beverages. He further contends the term "weapon" must be more specifically described to provide him with notice of what items to avoid. The Attorney General contends the challenged conditions are neither vague nor overbroad.
In Hall the California Supreme Court considered the necessity for an express scienter requirement in any probation condition prohibiting possessory conduct, such as the possession of drugs, firearms, and other contraband. At the outset, the court noted that "[r]evocation of probation typically requires proof that the probation violation was willful." (Hall, supra, ___Cal.5th___ [2017 WL 527563, p. 3].) The court further noted that in the context of conditions barring possession of an item, revocation requires knowledge. (Ibid.) Analogizing to criminal statutes that prohibit possession of contraband, the court observed that courts validly construe such statutes as containing an implicit knowledge requirement even where the statute is silent. (Id. at p. 6.) The court then observed that this reasoning is equally applicable to probation conditions. "Just as most criminal statutes — in all their variety — are generally presumed to include some form of mens rea despite their failure to articulate it expressly, so too are probation conditions generally presumed to require some form of willfulness, unless excluded ' " 'expressly or by necessary implication.' " ' " (Id. at p. 7, quoting In re Jorge M. (2000) 23 Cal.4th 866, 872.) Accordingly, the court held that no express scienter must be added, as doing so would make no change to the substance of the condition. (Id. at p. 10.)
Applying Hall here, we reject Quiroz's claims regarding the necessity for an express scienter. Three of the challenged conditions are prohibitions on possession of some item, making them indistinguishable from the conditions at issue in Hall. As to the condition that Quiroz not be present or frequent any location where alcohol or controlled substances are present, available, or being used, the same logic applies. If he unwittingly finds himself present at a location where alcohol or controlled substances are present but he is unaware of them, then he has not willfully violated the condition, and the state has no grounds for revocation. We perceive no need to add a scienter requirement to that condition.
Finally, as to the condition concerning the prohibition of weapons, the trial court specifically set forth this condition in detail to cover "weapons, firearms, stun guns, OC (pepper spray), tear gas, or any instrument or device which a reasonable person would believe to be capable of being used as a firearm, or any ammunition, or a knife with a blade longer than two inches, other than kitchen knives kept in your residence, or knives related to your employment and used in connection therewith." We reject Quiroz's contention that this condition fails to provide him with adequate notice of what items he may possess.
"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." (In re Sheena K. (2007) 40 Cal.4th 875, 890.) The weapons condition provides adequate notice under this standard. (See People v. Moore (2012) 211 Cal.App.4th 1179, 1188 [upholding probation condition prohibiting possession of dangerous or deadly weapons].) Quiroz relies on In re Kevin F. (2015) 239 Cal.App.4th 351 (Kevin F.), overruled on other grounds by Hall, supra, but the court in that case found the trial court's list of the specific types of prohibited weapons and items sufficiently precise to provide adequate notice. (Id. at p. 358.) The court rejected a portion of the condition that prohibited possession of "anything that [he] could use as a weapon," id. at page 360, but that broad language is not at issue here. The condition imposed here closely resembles that part of the condition approved by the court in Kevin F. The court in Kevin F. also held the condition must include an express scienter requirement, but the high court in Hall has now overruled that requirement. Quiroz cannot be found in violation of this probation condition if he violates it unknowingly, and under Hall, no express modification is required.
For the reasons above, we find Quiroz's claims without merit.
III. DISPOSITION
The judgment is affirmed.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
ELIA, J.