PEOPLE v. HALL

Appellant’s Petition for Review

Cal.June 19, 2015

$227193 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, No. , Plaintiff and Respondent, No. A141278 LAQUINCYHALL, (Contra CostaDefendant and Appellant. County Case No. 51315225) SUPREME COURT FILED JUN 19 2015 PETITION FOR REVIEW Frank A. McGuire Clerk ON APPEAL FROM A JUDGMENTOF THE Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF CONTRA COSTA THE HONORABLELESLIE G. LANDAU, JUDGE PATRICK McKENNA,ESQ. State Bar No. 274959 P.O. Box 1130 Santa Clara, CA 95052 (408) 482-5309 pmckennal0@gmail.com Attorney for Appellant, LaQuincy Hall TABLE OF CONTENTS ISSUE PRESENTED FOR REVIEW ....--- +++ sees sree sere eres 1 REASONS FOR GRANTING REVIEW... 0.2... c eee eee eee eee 2 STATEMENT OF THECASE ........0. 000 e ee eee eee eee e eens 4 STATEMENT OF FACTS .......... 2 cece cee ence ete eee enes 5 A. Prosecution CaS€ ......... eee cece cette ee eens 5 1. Events Occurring on May 6, 2013 ..........-.--- 5 2. Narcotics Expert Testimony ............--.--05- 6 B. Defense Case .. 0.2.2... cece cee eee een teen nee 8 ARGUMENT......-...-0 00s eee e eens Lene eee eee eens 8 I. REVIEW SHOULD BE GRANTED TO DETERMINE WHETHER PROBATION CONDITIONSRESTRICTINGPOSSESSIONORUSE OF WEAPONS AND DRUGS REQUIRE MODIFICATION TO INCLUDEEXPRESS KNOWLEDGEREQUIREMENTSINORDER TO PREVENT THE CONDITIONS FROM BEING UNCONSTITUTIONALLY VAGUE IN VIOLATION OF A DEFENDANT’S FOURTEENTH AMENDMENTRIGHTS..... 8 A. Introduction and Factual Background. ................. 8 B. General Legal Standards, This Court’s Holding in Sheena K., andthe Present Split inAppellate CourtAuthorityRegardingthe ISSUC. 2... eee eet eee sede e nee e eee 10 C.- The appellate court erred in its holding ................ 14 CONCLUSION 2... 0... ccccetee ete renee eens 19 CERTIFICATE OF WORD COUNT .......-. 0s eee eee eee eens 20 TABLE OF AUTHORITIES CASES In re Shaun R. (2010) 188 Cal.App.4th 1129 2.0...ceeens 12 In re Sheena K. (2007) 40 Cal.4th 875 ............... 2,3, 10, 11, 12, 13, 14, 15, 17, 18 In re Victor L. (2010) 182 Cal.App.4th 902 2.0...ceceence nn nes 2 People ex. Rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 2.00.eeeeee 10, 11 People v. Castaneda (2000) 23 Cal.4th 743 2...ccccent ee eens 10 People v. Cervantes (2009) 175 Cal.App.4th 291 2.0... eeecece eens 15 People v. Freitas (2009) 179 Cal.App.4th 747 2...eeeeee 4,13, 14 People v. Leon (2010) 181 Cal.App.4th 943 0.0... 2. eee ee eee eee 2, 11, 14,17 People v. Lewis (2004) . 120 Cal.App.4th 837 2.0... cceeeee eee eee 16 People v. Moore (2012) 211 Cal.App.4th 1179 ............................ 13, 15, 16 People v. Moses (2011) 199 Cal.App.4th 374 2...ceceeee 2,17 People v. Pirali (2013) 217 Cal.App.4th 1341 2.2...eeeeee 2 il People v. Patel (2011) 196 Cal.App.4th 956 2.0.0... eee eee 2, 3,9, 12, 13, 14 People v. Rodriguez (2013) 222 Cal.App.4th 578 2.0... cece ee eee eens 13 Wright v. New Jersey (1985) 469 U.S. 1146 20cenceneneee 10 CONSTITUTIONS United States Constitution | Fifth Amendment .......... 0... ccc cece eee cee eee ees 10 Fourteenth Amendment .............. 0. ce eee eee 1, 3, 8, 9, 10 California Constitution Art. I, Section 7 2...ceeeeee ene ees 10 STATUTES Health and Safety Code §11014.5 2.ceecen eee ene ees 18 SLIBSD.S Loceceeee e eens 4 §11364.5 occceene nen ee eeees 18 Penal Code § 7, subd. 1 oo...ccceect teen eens 16 § 7, subd. 5 2...cect e teen eee eeee 16 OTHER Webster’s 3d Internat. Dict. (1993) ...... 0... cece ee eee 16 iil IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, | ° Plaintiff and R: dent v OS A141278 LAQUINCYHALL, Defendant and Appellant. (Contra Costa County Case No. 51315225) PETITION FOR REVIEW TO THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICEOF THE STATE OF CALIFORNIA, AND TO THEHONORABLE ASSOCIATE JUSTICES OF THE COURT: Defendant and appellant LaQuincy Hallpetitions for review following the published decisionofthe First District Court ofAppeal, Division Onefiled on May 15, 2015. A copy of the opinion is attached as Exhibit “A.” ISSUE PRESENTED FOR REVIEW I. Due to the absence of express knowledge requirements, are probation conditions restricting a defendant’s use and possession of drugs and weapons unconstitutionally vague in violation of the defendant’s Fourteenth Amendmentrights? REASONSFOR GRANTING REVIEW Since this court’s opinion in Jn re Sheena K. (2007) 40 Cal.4th 875, appellate courts across the state have frequently been confronted with challenges to various probation conditions on thebasisthat they fail to contain express knowledge requirements. (See, e.g., People v. Patel (2011) 196 Cal.App.4th 956, 961; Jn re Victor L. (2010) 182 Cal.App.4th 902, 911-913; People v. Moses (2011) 199 Cal.App.4th 374, 377; People v. Leon (2010) 181 Cal.App.4th 943, 949-952.) The Third District Court of Appeal, frustrated with the “dismaying regularity” of“having to revisit the orders ofprobation,” _ has incorporated a blanket knowledge requirementinto probation conditions. (Patel, supra, 196 Cal.App.4th at p. 960.) Other courts, including the appellate court here (Exhibit “A”at pp. 6-7), have criticized this practice as failing to meet Sheena K.’s requirement that probation conditions provide the defendant adequate and express notice of the prohibited conduct. (See, e.g., People v. Pirali (2013) 217 Cal.App.4th 1341, 1351, citations omitted.) The conditionsat issue in the present case deal with a probationer’s use, possession, and/or ownership of (1) “any handgun, rifle, shotgun or any firearm whatsoever or any weaponthat can be concealed on your person,” and (2) “any illegal drugs, narcotics, [or] narcotics paraphernalia without a prescription.” (Exhibit “A” at p. 2.) In a published opinion, the appellate court held that the Fourteenth Amendmentdid not necessitate the modification of either condition to include express knowledge requirements, deeming, in short, that (1) the inclusion of an express knowledge requirementis usually only necessary when “the prohibited conduct relate[s] to categories of associations, places, or items,” and the condition does not specify that the probationer know that something falls within one of those categories; and (2) a knowledge requirementis unnecessary ifthe inclusion ofsucha specification only indicates to the probationerthat he is in violation ifhe knowingly commits the prohibited conduct. (Exhibit “A”at p. 14.) The court here foundthat the categories of prohibited items were not vague and therefore, under the aforementionedprinciples, express knowledge requirements were unncessary. ([bid.) The appellate court erred in its conclusion by misinterpreting the holding in Sheena K. In short, the conditions as phrased could cause appellant to unwittingly violate probation. (Sheena K., supra, 40 Cal.4th at pp. 890- 891.) Given the varying opinionsby the state’s courts of appeal on this issue — some of which, when considering conditions similar to those here, have expressly come to conclusions contrary to the appellate court here (see,e.g., Patel, supra, 196 Cal.App.4th at p. 959 [modifying condition to prohibit the defendant from “knowingly drinking alcohol, possessing it, or beng in any place where it is the chief item of sale”]; People v. Freitas (2009) 179 Cal.App.4th 747, 751-753 [modifying condition to prohibit the defendantnot to “knowingly own, possess, or have custody or control of any firearms or ammunition”]) ~— review should be granted to give further guidance to courts across the state when confronted with this frequently-litigated issue. STATEMENT OF THE CASE On August 1, 2013, the prosecution filed an information, charging appellant with possessing cocaine base for sale (Health & Saf. Code, § 11351.5; count one). (1 CT 78.) Appellant proceeded to jury trial. On October 1, 2013, he was convicted of count one. (1 CT 140, 208; 2 RT 413-414.) On February 14, 2014, appellant was granted a three-year probationary term, including 180 days in countyjail. (1 CT 217-218; 2 RT 434-435.) On March5, 2014, a timely notice ofappeal wasfiled. (1 CT 220.) On May 15, 2015, the appellate court issued a published decision, modifying two written probation conditions to comport with the oral pronouncementofthose conditions: the court rejected appellant’s contention that express knowledge requirements should be addedinto the conditions. (Exhibit “A” at p. 14.) No petition for rehearing wasfiled. STATEMENTOF FACTS A. Prosecution Case. 1. Events Occurring on May6, 2013. On May 6, 2013, Richmond police officer Brian Hoffman was patrolling the Santa Fe area in the city of Richmond. (1 RT 159-160.) At approximately 3:40 P.M., he saw an individual, later identified as appellant, standing on the west curb line of South SecondStreet, just south of Maine Avenue. (1 RT 161-162.) Officer Hoffman saw appellant reach forward and drop a red and white container in between the opening of a fence gate. (1 RT 164-165.) Officer Hoffman parked his patrol car and walked towards appellant, who washeading away from the gate and towardsthe officer. (1 RT 165-166, 168.) Officer Hoffman asked appellant what he dropped, and appellant told him that he had dropped some trash. (1 RT 168.) Officer Hoffman continued walking towards the gap in the fence and saw a red and white canister located on the other side of the fence on top of somegrass. (1 RT 169, 171.) Officer Hoffman reached through the fence and picked up the canister, which was an Altoids container. (1 RT 171, 183.) He ' opened it up and found 18 Ziploc bags, each of which contained a white chunky substance. (1 RT 171-172.) Officer Hoffman believed that the substance was cocaine base, and he subsequently detained and handcuffed appellant. (1 RT 173.) Uponsearching appellant’s person, OfficerHoffman found a cell phone and $166 in cash. (1 RT 175.) The money waslocated in appellant’s front right pocketinside ofa billfold and was ordered sequentially. (1 RT 181, 191, 219.) Appellant did not appear under the influence, and Officer Hoffman located no paraphernalia on appellant’s person. (1 RT 206.) The substances located inside two of the 18 Ziploc bags werelater tested by the Contra Costa County Sheriff's Crime Lab, and both came back positive for cocaine base. (1 RT 254-255.) The substances in the other 16 bags were not tested because, pursuant to lab policy, if substances appear similar, only one in every 10 itemsis tested. (1 RT 256-257.) The total weight ofthe substancesinside of all 18 bags was approximately 2.096 grams. (1 RT 256-257.) 2. Narcotics Expert Testimony. Thomas Peterson, a detective and member of the Richmond Police Department’s Narcotics Division, testified as an expert witness on the use and possession of cocaine base for sale. (1 RT 260-261, 278-279.) The prosecution presented the following hypothetical to Detective Peterson: “...an individual in the 100 block of South [Second] Street, just south of Maine Avenue onthe westcurb line of South [Second] Street, and that individual had 18 individually packaged pieces ofcocaine base contained within...a canister of somesort, the individual had $166 in cash on them,the pieces of cocaine base weighed roughly a [tenth] ofa gram each, there was no user paraphernalia found on the person and there were no signs or symptoms that the person was underthe influenceof a controlled substance, specifically cocaine base.” (1 RT 285; see also 2 RT 328-329.) Detective Peterson testified that he believed the individual in the hypothetical possessed the cocaine base for sale based on the number and amount of packages, the amountofcash, the lack of user paraphernalia, and the presence in a high narcotics area. (1 RT 285-286; see also 2 RT 331.) He noted that the size and number of packages would allow the individual to engagein quicktransactions consistent with “street-level” dealing. (1 RT 286; 2 RT 332.) Additionally, as to the amount of cocaine base possessed in the hypothetical, Detective Peterson stated that “[i]f someone had two grams on their person for personal use, it would suggest to me that either they usea lot or that they made very few trips to purchase.” (1 RT 287.) Detective Peterson testified that the packaging, substances, and money foundin the instant case were consistent with possession for sale — the latter piece ofevidence because it was in denominations of $20 bills or less. (1 RT 289-291.) B. Defense Case. The defense called no witnessesattrial. In closing argument, the defense arguedthat it was unreasonableto believe that Officer Hoffman could see appellant holding the canister; even if appellant did possess the cocaine base, counsel argued that it was only possessed momentarily and that it was not possessed for sale. (See 2 RT 382-388.) ARGUMENT I. REVIEW SHOULD BE GRANTED TO DETERMINE WHETHERPROBATIONCONDITIONS RESTRICTING POSSESSION OR USE OF WEAPONS AND DRUGS REQUIRE MODIFICATION TO INCLUDE EXPRESS KNOWLEDGE REQUIREMENTS IN ORDER TO PREVENT THE CONDITIONS FROM BEING UNCONSTITUTIONALLY VAGUEIN VIOLATION OF A DEFENDANT’S FOURTEENTH AMENDMENT RIGHTS. A. Introduction and Factual Background. At the February 14, 2014 sentencing hearing, the trial court ordered that, as a condition ofprobation, appellant "may not own, possess or have in [his] custody or control any handgun,rifle, shotgun, or any firearm whatsoever or any weaponthat can be concealed on [his] person" (2 RT 435 [hereinafter referred to as "the weaponsprobation condition"]; see also 1 CT 219 [noting similar phrasing on "Standard Terms and Conditions" of Probation form]); additionally, the trial court ordered that appellant may not "use or possess or have [in his] custody or control any illegal drugs, narcotics, [or] narcotics paraphernalia without prescription" (2 RT 436-437 [hereinafter referred to as "the drug probation condition"]).’ Review should be granted to determine whether the conditions as phrased are unconstitutionally vague in violation of appellant’s Fourteenth Amendment rights due to the lack of express knowledge requirements. As argued below, express knowledge requirements in the context of the aforementioned conditions are necessary for two main purposes: (1) to expressly require that appellant can only be in violation for knowingly possessing or using the prohibited items; and (2) to expressly require that appellant can only bein violation ifhe knows whattypes ofobjects fall within the specified categories. Review is appropriate due to the varying opinions amongthe courts of appeal regarding this issue. (Compare, e.g., Exhibit “A” at pp. 13-14 [refusing modification of the probation conditions in this case] with Patel, supra, 196 Cal.App.4th at p. 959 [modifying condition to prohibit the defendantfrom “knowingly drinking alcohol, possessingit, or being in any ' The written versions of the conditionsslightly differed from the oral pronouncementof the conditions. Both parties agreed below that the oral pronouncements controlled, and the appellate court ordered that the written versions of the conditions be modified to comport with the pronouncements. (Exhibit “A”at p. 2, fn. 2.) place whereit is the chief item of sale’’].) B. General Legal Standards, This Court’s Holding in Sheena K., and the Present Split in Appellate Court Authority Regarding The Issue. “The underpinning ofa vaguenesschallengeis the due process concept of ‘fair warning’” (People v. Castaneda (2000) 23 Cal.4th 743, 751, citations omitted), as protected by the California and federal constitutions (see U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7). “A probation condition ‘must be sufficiently precise for the probationer to know whatis 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.]” (Sheena K., supra, 40 Cal.4th at p. 890.) Vague probation conditions “impermissibly delegate basic policy matters to policemen, judges, andjuries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. [Citation.]” (People ex rel. Gallov. Acuna (1997) 14 Cal.4" 1090, 1115 [hereinafter referred to as “Acuna’’]; see also Wright v. New Jersey (1985) 469 U.S. 1146, 1152,fn. 5.) A vagueness problem may arise when a probation condition imposes restrictions on a probationer’s conduct with respect to a category whose members maynot be evident to a probationer; examples of such conditions include those that prohibit association with a class of persons, possession of 10 a category of objects, or visits to a particular type of area. (See, e.g., Leon, supra, 181 Cal.App.4th at pp. 949-952 [analyzing probation conditions prohibiting the defendant from associating with gang membersandpossessing gang paraphernalia].) Absent knowledge that a particular person, object, or placefalls within the category specifiedbythe condition,the probationeris not on notice that he or she is violating probation in a particular instance; hence, such probation conditions must include express knowledge requirements to ensure that the probationer may only be found in violation if he or she has propernotice of the prohibited conduct. (Sheena K., supra, 40 Cal.4th at pp. 891-892.) Similarly, in order to prevent probationers from unwittingly violating probation, express knowledge requirements can ensure that a defendantis prohibited only fromknowinglycommitting the requisite conduct. (See ibid. [noting that vague probation conditions can lead to unwitting probation violations.].) In determining the adequacy of a condition, a court should look at whether the language is “so vague that men of common intelligence must necessarily guess at its meaning anddiffer as to its application. [Citation.]” (Acuna, supra, 14 Cal.4th at p. 1115.) The meaning ofthe language need not rise to a level of “mathematical certainty,” though it must have “reasonable specificity.” (Ud. at pp. 1116-1117, emphasis omitted.) No objection is il required to preserve constitutional challenges for probation conditions on appeal (/n re Shaun R. (2010) 188 Cal.App.4th 1129, 1143), and an appellate court employs a de novo standard of review in considering such claims. (Sheena K., supra, 40 Cal.4th at pp. 888-889.) The aforementioned principles are not in dispute among the various courts of appeal. What is in dispute is the application of these principles following this court’s ruling in Sheena K. There, this court considered a probation condition prohibiting the juvenile from associating with anyone “disapproved of by probation.” (Sheena K., supra, 40 Cal.4th at p. 890.) Though the condition of probation was challenged as being both unconstitutionally vague and overbroad,this court only consideredthefirst of these two challenges, determining that the condition was,in fact, vague since it “did not notify the defendant in advance with whom she might not associate through any reference to persons whom the defendant knew to be disapproved ofby her probation officer.” (/d. at pp. 891-892.) Hence, this court modified the probation condition to only prohibit the juvenile from associating with anyone “knownto be disapprovedof” by her probation officer or other person having authority over her. (/d. at p. 892.) Since Sheena K., appellate courts have regularly been confronted with constitutional challenges to various probation conditions. (See Patel, supra, 12 196 Cal.App.4th at p. 960 [court noting the “dismaying regularity” of“having to revisit the orders ofprobation”].) The post-Sheena K. jurisprudence on the issue can, at best, be described as inconsistent, with courts coming to conflicting conclusions as to the types of categories that necessitate express knowledge requirements, and whether Sheena K. more broadly demands express knowledge requirements to specify the appropriate mens rea required as to the prohibited conduct. (Compare, e.g., People v. Rodriguez (2013) 222 Cal.App.4th 578, 582, 592-594 [court found that knowledge that drugs are “controlled substances” implicit in condition] andPeople v. Moore (2012) 211 Cal.App.4th 1179, 1186 [no express knowledge requirement in condition prohibiting “dangerousor deadly weapon’’] with Patel, supra, 196 Cal.App.4th at p. 959 [modifying condition to prohibit the defendant from “knowingly drinking alcohol, possessing it, or being in any place whereit is the chief item of sale”] and Freitas, supra, 179 Cal.App.4th 747, 751-753 [modifying condition to prohibit the defendant not to “knowingly own, possess, or have custody or control of any firearms or ammunition”’].) The appellate decisions regarding the potential constitutionality of various probation conditions are legion, with the appellate court here ably discussing the rulings in many of them. (See Exhibit “A” at pp. 3-11.) In doing so, the appellate court attempted to make some sense regarding the 13 conflicting opinions on the issue. Appellant posits that such confusion is exactly what warrants a grant ofreview in the instant case, particularly since, as argued more below, the analysis that the appellate court provided was wrong and violated the spirit of this court’s holding in Sheena K. Cc. The appellate court erred in its holding. In considering whether the conditions here were unconstitutionally vague,the appellate court examined two major concerns:(1) whether the types of objects that appellant was prohibited from possessing were unconstitutionally vague so as to necessitate an express knowledge requirement: and (2) whether express knowledge requirements were needed, more generally, so as to ensure that a defendant cannot be foundin violation ofprobation ifhe unwittingly engages in the prohibited conduct. (Exhibit “A” at pp. 11-14.) As noted above, the court came to conclusionscontrary to those of several other appellate courts considering similar probation conditions (Patel, supra, 196 Cal.App.4th at p. 959; Freitas, supra, 179 Cal.App.4th at pp. 751-753), and appellant asserts that the court erred in its holdings. Knowledge requirements are needed to advise appellant that he can only be in violation ifhe knowingly possessesoruses the prohibited items andso that the conditions require that he know what types of itemsfall into the conditions’ specified categories. (See Leon, supra, 181 Cal.App.4th at pp. 949-952 14 [probationer can only be punishedif he or she knowsofthe item’s presence, as well as its qualifying nature].) Asto the conditions’failure to require that appellant Knowingly possess the prohibited items, as presently phrased, appellant could be found in violation of probation even if he does not know of the particular item’s presence. For example, appellant could be foundin violationifhe is carrying a backpack, in which, unbeknownst to him, someonehasplaced a firearm or a controlled substance. To prevent such an occurrence, an express knowledge requirementis neededso that appellant does not unwittingly violate probation. (See Sheena K., supra, 40 Cal.4th at pp. 891-892.) Appellant notes that some appellate courts have held that express knowledge requirements are unnecessary in probation conditions restricting probationers from prohibiting weapons and controlled substances. As a general rule, a court may only find a probationer in violation if he acts willfully. (People v. Cervantes (2009) 175 Cal.App.4th 291, 295.) Indeed, in Moore, supra, 211 Cal.App.4th 1179, the appellate court found that, in the context of the weapons probation condition at issue there, there was no need for an express knowledge requirement, noting that “[w]hen aprobationer lacks knowledgethat heis in possession of a gun or weapon,his possession cannot 15 be considered a willful violation of a probation condition. [Citation.]” (/d.at p. 1187; see also Exhibit “A”at p. 12 [agreeing with Moore].) Proofofwillfulness, however, does not necessarily demandproofthat a probationer knew of the object’s presence, let alone its qualifying nature. Whenthe word “willfully” is used in the Penal Code, it ordinarily “implies a purpose or willingness to commit the act or make the omission referred to.” (§ 7, subd. 1; see also People v. Lewis (2004) 120 Cal.App.4th 837, 852 [“The word ‘willfully’ as generally used in the law is a synonym for‘intentionally,’ 1.e., the defendant intended to do the act proscribed by the penal statute.”].) Such a meaning comports with the ordinary meaning of the term “willful” — “done deliberately” and “not accidental.” (Webster’s 3d Internat. Dict. (1993) p. 2617.) In contrast, the Penal Code provides that “unless otherwise apparent from the context,” the term “‘knowingly’ imports only a knowledge that the facts exist which bring the act or omission within the provisions of this code[,]”and “i]t does not require any knowledge ofthe unlawfulness of such act or omission.” (§ 7, subd. 5.) Thus, the meanings of “willfully” and “knowingly”are distinct. The former term does not require that a perpetrator know ofall the salient facts, but only that he intentionally commits the proscribed conduct. The example provided aboveillustrates this point. Under 16 these definitions, and contrary to the appellate court’s conclusion here (Exhibit “A” at pp. 12-13), appellant could act willfully by wearing a backpack, but he may not knowthat a firearm or narcotic is located inside the item, let alone know that the item is prohibited by the conditions of his probation. This conclusion is compoundedby the fact that the conditions do not ensure that appellant could only be foundin violation for possessing items that he knowsare prohibited. (See, e.g., Moses, supra, 199 Cal.App.4that p. 377; Leon, supra, 181 Cal.App.4th at pp. 949-952.) Hypothetically, under the present phrasingofthe conditions, appellant could be in violation ofprobation if he physically possesses a gun that he genuinely believes is a toy, even though it is, in fact, an actual weapon. Similarly, appellant could violate probation if he is handed a bag of cocaine that he genuinely believes to be flour. Accordingly, the exact concern addressed by this court in Sheena K. would be present in these scenarios: appellant would be in violation of probation without being on notice that his conduct was prohibited by the conditions of his probation. (Sheena K., supra, 40 Cal.4th at pp. 891-892.) * The appellate court here expressed a preference that when a knowledge requirementis added into a probation condition,it should be added in as an adjective modifying the specific category of prohibited items, as opposed to being added as an adverb modifying the prohibited conductitself. (Exhibit “A” at pp. 9-10.) Appellant posits that, in some circumstances, knowledge requirements may be needed in both places but, by adding the requirement in at the beginning of the probation condition — 1.e., appellant 17 Appellantadditionally posits that the phrases “weapons that can be concealed on [appellant’s] person” in the context of the weaponsprobation condition and “narcotics paraphernalia” in the context of the drug probation condition also necessitate the inclusion of a knowledge requirement here. Contrary to the appellate court’s conclusion, the meanings ofthese phrases are not self-explanatory. As to the latter category, for example, “drug paraphernalia”is defined differently throughout the Health and Safety Code. Health and Safety Code sections 11014.5 and 11364.5 providelists of items that may qualify as paraphernalia, and while these lists have some overlap, they are not identical, nor are the definitions of “paraphernalia” as included in these provisions. It should not be appellant’s burden to guess which definition or list applies to the terms of his probation. Accordingly, for these reasons, the court erred in its holding. Knowledge requirements are needed in the context of both conditions. “may not knowingly possessor use [prohibited items]” — this court’s ruling in Sheena K.has been sufficiently followed and operates to ensure that appellant cannot be found in violation if he unknowingly commits the prohibited conduct — whether by accidentally possessing or using something,or by not knowing that the item possessedorusedis, in fact, prohibited. 18 CONCLUSION For the aforementioned reasons, review should be granted. Dated: June 17, 2015 MCKENNA Attorney for Petitioner LaQuincy Hall 19 CERTIFICATE OF COUNSEL I certify that this brief contains 4644 words. Dated: June 17, 2015 ICK MCKENNA Attorney for Appellant LaQuincyHall 20 EXHIBIT A Filed 5/15/15 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE THE PEOPLE, Plaintiff and Respondent, A141278 V. LAQUINCY HALL, (Contra Costa County Super. Ct. No. 51315225) Defendant and Appellant. A jury convicted LaQuincy Hall of possessing cocaine base for sale, andthetrial court placed him onprobation for three years subject to various conditions.’ Twoofthe conditions admonish him to stay away from weaponsand illegal drugs. On appeal, Hall argues that these conditions are unconstitutionally vague and therefore must be modified to prohibit him from knowingly violating them. His position conflates principles involving the vaguenessofprobation conditions with principles involving the mensrea necessary to establish probation violations. We hold that the conditions here are sufficiently precise, and wetherefore affirm. Wepublish our opinion to provide additional guidance in the hope of reducing misguided appeals and unnecessary appellate modifications of probation terms. ' Possessing cocaine basefor sale is a violation of Health and Safety Code section 11351.5. We do not discuss the facts underlying Hall’s conviction because they are not relevant to the issues raised on appeal. BACKGROUND When Hall wasplaced on probation, the sentencing court admonished him as follows: “You must obeyall laws andall 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 custodyor control any handgun,rifle, shotgun or any firearm whatsoever or any weapon that can be concealed on your person.... [f]... [9] [Als further terms of your probation, you may notuse or possessor have [in] your custody or control anyillegal drugs, narcotics, narcotics paraphernalia without a prescription.”” DISCUSSION Hall argues that theseconditions are unconstitutionally vague and must be modified to incorporate an express knowledge requirementso 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 weaponor eating a brownie that he does not know contains marijuana. He contends that the weapons condition must be modified to state that he “shall not Anowingly own,possess, or have in his custody or control any handgun,rifle, shotgun, or any other firearm whatsoever, or any weapon that could be concealed on his person.” And he contends that the drug condition must be modified to state that he “shall not knowingly use, possess or have in his custody or control any illegal drugs, narcotics, or narcotics paraphernalia without [a] prescription.” , These conditions are indicated in the minute order of the sentencing hearing by checked boxes. Thefirst says, “Do not own or possess or control any firearm or weapon.” The secondsays, “Not use or possess any dangerous drugs, narcotics, marijuana, or narcotic paraphernalia without prescription.” Hall asserts, respondent acknowledges, and we agree that here, to the extent the minute order’s description of these conditions differs from the trial court’s oral pronouncement at sentencing, the oral pronouncementcontrols. (See People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.) We order that the written conditions be modified to conform to the oral pronouncement. Hall’s position conflates two separate concepts, vagueness and mens tea.’ 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 showsthat 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 knowledgeasit relates to vagueness with mensrea 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 Pen. Code, § 1203.1, subd. (j).) In the exercise of that discretion, trial courts may prohibit otherwise lawful conductthat is “reasonably related to the crime of which the defendant was convicted or to future criminality.” (People v. Lent (1975) 15 Cal.3d 481, 486.) Probation conditions may even “impinge upona constitutionalright otherwise enjoyed by the probationer, whois ‘not entitled to the same degree of 3 Anotherrelated conceptis the doctrine of overbreadth, which we need not discuss in depth because Hall has not raised it. Suffice it to say, overbreadth involves the scope of a directive while vagueness involvesits clarity. Whether the overbreadth doctrine applies in situations, as here, where the challenge to the directive is not based on the First Amendmentis an open question. (See Tobe v. City ofSanta Ana (1995) 9 Cal.4th 1069, 1095-1096, fn. 15.) But to the extent the doctrine applies, it asks whether a prohibition goes too far by “ ‘ “sweep[ing] unnecessarily broadly and thereby invad[ing] the area of protected freedoms.” ’” (/n re Englebrecht (1998) 67 Cal.App.4th 486, 497.) This standard is strikingly similar to the established rule requiring probation conditionsthat impinge on constitutionalrights to be closely tailored to achieve legitimate purposes. (/n re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) constitutional protection as other citizens.’ ” (People v. Lopez (1998) 66 Cal.App.4th 615, 624 (Lopez).) But as noted above, if a condition impinges on a constitutionalright, the condition mustbeclosely tailored to the achievementof legitimate purposes. (Sheena K., supra, 40 Cal.4th at p. 890.) 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 whatis 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.” (/d. at p. 890.) “[T]he underpinning of a vaguenesschallenge is the due process conceptof ‘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.’ ” (lbid.) Consequently, “[t]he vagueness doctrine bars enforcementof‘ “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 observeits 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 ofarbitrary and discriminatory application.” [Citation.]’ [Citation.] In deciding the adequacyof any notice afforded those boundbya legal restriction, we are guided by the principles that ‘abstract legal commands mustbe applied in a specific context,’ and that, although not admitting of ‘mathematicalcertainty,’ 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 vaguethat persons of commonintelligence must necessarily guess at its meaning and differ asto its application, violates due process’ ”].) Conditions determined to be unconstitutionally vague include thosethatrestrict otherwise lawful activity by broadly prohibiting “association with certain categories of persons, presencein 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 categoriesis that the prohibitions may fail to give adequate notice of what probationers are supposedto avoid doing. Underthe category of prohibiting associations with certain groups of people, conditions have been held to be vague whenthey prohibit probationers from associating with people disapproved of by probation officers or parents (Sheena K., supra, 40 Cal.4th at p. 892; In re Victor L. (2010) 182 Cal.App.4th 902, 911 (Victor L.)), gang members (People v. Leon (2010) 181 Cal.App.4th 943, 949-952 (Leon); In re H.C. (2009) 175 Cal.App.4th 1067, 1071-1072; Zn re Justin S. (2001) 93 Cal.App.4th 811, 816 (Justin S.); Lopez, supra, 66 Cal.App.4th at pp. 628-629), felons, ex-felons, and drug sellers and users (People v. Garcia (1993) 19 Cal.App.4th 97, 100-102 (Garcia)), or minors (People v. Moses (2011) 199 Cal.App.4th 374, 377 (Moses)). Underthe category of prohibiting presence in certain locations, conditions have been held to be vague whenthey 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 alcoholis the chief item of sale (People v. Patel (2011) 196 Cal.App.4th 956, 961 (Patel). And underthe 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 requirementthat the probationer knowthat 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 knowledgeof who wasdisapproved 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 knownto [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] knowsto be usersor sellers of [drugs]’’].) Incorporating this type of knowledge requirement solves the vagueness problem becauseit narrowsthe prohibited category in a waythat is understandable and meaningful. A condition banning association with all gang members, for example,is vague because probationers may comeinto contact with people who, unbeknownstto them, belong to a gang. (Lopez, supra, 66 Cal.App.4th at p. 628.) Such a condition therefore fails to inform probationers in a meaningful way of whomthey needto avoid. (See Justin S., supra, 93 Cal.App.4th at p. 816 [condition “[p]rohibiting association with gang members withoutrestricting the prohibition to known gang membersis ‘ “a classic case of vagueness” ’ ”], italics in original.) Modifying such a condition to require probationers to know that the person they are associating with is a gang memberinforms the probationers that prescience is not required and that they may have everyday interactions with people whom they have no reason to believe are in a gang. Appellate courts have usually modified vague category conditions on a case-by- case basis to incorporate a knowledge requirementinto 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 requirementinto 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.4that pp. 102- 103.) In our view, the Third District’s approach fails to solve the vagueness problem fully becauseit 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 norset forth in the written probation conditions. Webelieve that explicitly modifying vague conditions better ensures due process by informing “the probationer. . . in advance whetherhis [or her] conduct comports with orviolates 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 becauseit does not explicitly require a probationer to know that the association, place, or item is within the prohibited category. In general, a probation condition is not unconstitutionally 399 99vague whenit spells out with “ ‘ “reasonable specificity (Sheena K., supra, 40 Cal.4th at p. 890) what is prohibited in such a way that persons of common intelligence need not “guess at its meaning anddiffer as to its application.” (Moore, supra, 211 Cal.App.4th at p. 1184.) Yet even when perfectly clear, category conditions have sometimes been needlessly modified. For example, after stating that “it is unnecessary to specify that [a] defendant must know a gunis a gun,”the court in Freitas nonetheless modified the probation condition to specify that the defendant “must not knowingly own, possessor have custody or control of any firearms or ammunition.” (Freitas, supra, 179 Cal.App.4th at pp. 752-753,italics added.) Similarly, the court in Patel, supra, 196 Cal.App.4th 956 modified a condition to specify that the probationer not “ ‘knowingly’ ” drink “ ‘alcoholic beverage[s]’ ” or “ ‘possess alcohol’ ” even though, in our view, people know that alcoholis alcohol. (/d. at p. 961.) Prohibiting probationers from possessing gunsor drinking alcoholis simply not nebulous,andit is unlike prohibiting them from activity involving an ambiguous category of associations, places, or items, such as associating with a gang member(whether known or unknown). In our view,there is no need to explicitly require a probationer to know that something falls within a prohibited category when the category is essentially clear. 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 madesufficiently precise with a modification requiring the probationer to know that the association, place, or item falls within the category, and having concludedthat such a modification is properly made on a case-by-casebasis, we turn to discuss the relationship between these modifications and the mensrea 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. Mensreais “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 mensreais the rule of, rather than 2 99the exception to, the principles of Anglo-American criminal jurisprudence.’ (Peoplev. 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.” (Jn re Jorge M. (2000) 23 Cal.4th 866, 872.) “A court may not revoke probation unless the evidence supports ‘a conclusion [that] the probationer’s conduct constituted a willful violation of the terms and conditions of probation.’ [Citation.]” (People v. Cervantes (2009) 175 Cal.App.4th 291, 295.) Thus,willfulness is the mensrea thatis implicitly required for a probation violation. (/bid.) “The terms ‘willful’ or ‘willfully’... imply ‘simply a purpose or willingness to commit the act. .,’ without regard to motive,intent to injure, or knowledgeofthe act’s prohibited character. [Citation.] ... Stated another way, the term ‘willful’ requires only that the prohibited act occur intentionally.” (Un re Jerry R. (1994) 29 Cal.App.4th 1432, 1438; see also Pen. Code, § 7, par. 1.) The term also imports a requirementthat “the person knowswhatheis doing.” (Jn re Trombley (1948) 31 Cal.2d 801, 807; People v. Honig (1996) 48 Cal.App.4th 289, 334-335.) Violations due to circumstances beyond the probationer’s control are not willful. (Cervantes, at p. 295 [deported probationer did not willfully fail to attend hearing]; People v. Zaring (1992) 8 Cal.App.4th 362, 379 [no willful violation where probationer’s tardy appearance due to unforeseen circumstances and not due to “irresponsibility, contumacious behavior or disrespect for the orders and expectations of the court”].) 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.” The former modification is less precise because “knowingly” acts as an adverb modifying the proscribed activity (such as associating, being present, using, or possessing), whichis 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 conductrelated to that category maystill not explain clearly whatit is they are supposed to avoid doing. 4 See, e.g., Patel, supra, 196 Cal.App.4th at p. 959 (modifying condition prohibiting defendant from “drinking alcohol, possessing it, or being in any place whereit is the chief item of sale” to include a qualification that defendant must “commit the proscribed conduct knowingly”); Freitas, supra, 179 Cal.App.4th at pp. 751-753 (condition modified to require defendant not to “ ‘knowingly own, possess or have custody or control of any firearms or ammunition’ ”). Our state Supreme Court employed the more precise approach—requiring the probationer to knowthat the association, place, or item is in the prohibited category—in Sheena K., supra, 40 Cal.4th 875. There, after determining that a condition that the defendant “ ‘not associate with anyone disapproved of by probation’ ” was unconstitutionally vague, the court affirmed the modification of the condition to require that the “defendant have knowledge of who wasdisapprovedofby her probation officer.” (Id. at pp. 878, 892.) Another example of applying this approach can be seen in Leon, supra, 181 Cal.App.4th 943, where the Court of Appeal cured a vague probation condition that instructed the probationer “ ‘not to frequent any areas of gang-related activity’ ” by modifying it to require the probationer “ ‘not to visit or remain in any specific location which you know to be or which the probation officer informs you is an area of criminal-street-gang-related activity.’ ” (/d. at p. 952.) By requiring that the probationer know location wasin the prohibited category instead of that he “knowingly visit or remain” in a prohibited location, the modification cured the condition’s vagueness by giving clearer notice of the places the probationer neededto avoid. 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,” andit 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 mustbe 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 criminalstatute, the court stated: “That the statute contains no reference to knowledgeor other language of mensreais not itself dispositive. As we recently explained, the requirementthat, for a criminal conviction, the prosecution prove some form of guilty intent, knowledge, or criminal negligence is of such long standing and so fundamentalto our criminal law that penal statutes will often be construed to contain such an element despite their failure expressly 10 to state it.... ‘ “ ‘ “So basic is this [mens rea] requirementthatit is an invariable element of every crime unless excluded expressly or by necessary implication.” ’” ’ ” (Un 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 criminalstatutes need not. In short, we think the best approachis 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 knowthe association, place, or item falls within the prohibited category. C. The Probation Conditions at Issue Are Not Unconstitutionally Vague. With these principles and distinctions in mind, we turn to whether the two conditions Hall challenges are unconstitutionally vague.” In considering the claim, we are mindful that whether a probation condition is unconstitutionally vague is a question of law reviewed de novo. Un re Shaun R. (2010) 188 Cal.App.4th 1129, 1143; In re JH. (2007) 158 Cal.App.4th 174, 183.) Thefirst challenged condition tells Hall that he cannot “own, possess or have in [his] custody or control any handgun,rifle, shotgun or any firearm whatsoeveror any weapon that can be concealed on [his] person ....” The secondtells him he “{can]not use or possess or have[in his] custody or control any illegal drugs, narcotics, narcotics ° Although Hall failed to object to the conditions on vagueness groundsat sentencing, he may nevertheless pursue this claim on appeal becauseit presents a “ * “nure question[] of law that can be resolved without reference to the particular sentencing record developedin thetrial court.” ’” (Sheena K., supra, 40 Cal.4th at p. 889.) 11 paraphernalia withouta prescription.”® 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 anddiffer asto [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 proposedbyHall. Westart with the weapons condition. Moore concerned a nearly identical condition that provided, “ ‘Do not own,use, or possess any dangerousor deadly 299weapons,including firearms, knives, and other concealable weapons.’ (Moore, supra, 211 Cal.App.4th at p. 1183.) We agree with Moore that such a conditionis “sufficiently precise” for the probationer to know whatis 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 concludethatit is also sufficiently precise. We think that people of commonintelligence can understand this proscription without eee 6 99°9°99guessing at its meaning. After all, what is required is reasonable specificity, not perfect specificity. (Sheena K., supra, 40 Cal.4th at p. 890,italics in original.) The only arguably vagueportion of the drug conditionis its directive that Hall not use or possess “narcotics, narcotics paraphernalia without a prescription.” But even accepting for the sake of argumentthat the phrase is inexact, we cannot concludethatit is unconstitutionally vague. In Village ofHoffman Estates v. Flipside, Hoffman Estates (1982) 455 U.S. 489, the United States Supreme Court provided us with useful guidance. 6 Both conditions prohibit illegal activity: it is a crime for convicted felons to own or possess firearms (Pen. Code, § 29800), andit is a crime undervariousstatutes for anyoneto possessor useillegal drugs, narcotics, or drug paraphernalia. Vagueness concernsare often alleviated when probation conditionsrestrict unlawful activity. (See, e.g., People v. Rodriguez (2013) 222 Cal.App.4th 578, 582, 592-594 [knowledge that substances are “controlled substances” implicit in condition, based on statutes criminalizing such substances’ possession, transportation, or use, although portion of condition referring to “intoxicants” modified to include “express knowledge requirement” because that category “susceptible of different interpretations” and not “regulated by statute”]; Moore, supra, 211 Cal.App.4th at p. 1186 [reference to “ “dangerous or deadly weapon’ ” not unconstitutionally vague based on legal definitions of that phrase].) . 12 In that case, an ownerof a shop broughta facial-vagueness challengeto a city’s ordinance banning the sale of drug paraphernalia. In rejecting the challenge, the court explained that the degree of vaguenesstolerated by the federal Constitution depends in part on the nature of the directive and whetherit threatens to interfere with speech. (Jd. 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 conductthat is clearly proscribed cannot complain of the vagueness ofthe law as applied to the conduct of others”); see also Bamboo Brothers v. Carpenter (1982) 133 Cal.App.3d 116, 126 [considering nature of enactmentin upholding anti-drug paraphernalia ordinance].) Furthermore, the condition does not restrict any activities protected by the First Amendment. In our view, a person of commonintelligence in Hall’s position—i.e., someone whohas been convicted of possessing cocaine base for sale—would understand what was meant whentold notto 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 foundto 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 borrowedajacketthat, 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 insideit or if he “willfully” ate a brownie without knowing it was laced with marijuana. Hall’s concerns are misplaced andarise out of his misunderstanding of the distinctions between mensrea andthe rationale for modifying vague category conditions. The implied mensrea 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 borrowsa jacket but does not know it contains a weapon oreats a brownie but does not knowit contains marijuana, he will lack the necessary mensrea to 13 be found in violation of his probation. As Moore explained,in the unlikely event probationers find themselves in “unknowing and inadvertent possession” of a weapon or unwittingly using a drug, their “lack of knowledge would prevent a court from finding [them] in violation of probation.” (Moore, supra, 211 Cal.App.4th at pp. 1186-1187.) In short, the weapons and drug conditionsare sufficiently precise, and they do not need to be modified in the manner Hall proposes because the mensrea generally applicable to probation conditions precludesthe finding of unwitting violations. In closing, we summarize our conclusions. First, probation conditions that prohibit conduct related to categories of associations, places, or items maybe, but are not necessarily, unconstitutionally vague. Second, when such conditions are vague, they can often be madesufficiently clear by incorporating a qualification requiring the probationer to know that the association, place, or item is within the prohibited category. Andthird, 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 weaponsand drug conditions. The weapons condition shall read, “You may not own, possess or have in your custodyor 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 judgmentis affirmed. 14 Humes, P.J. Weconcur: Margulies, J. Dondero,J. People v. Hall (A141278) 15 Trial Court: Trial Judge: Counsel for Appellant: Counsel for Respondent: Contra Costa County Superior Court Honorable Leslie G. Landau Patrick McKenna, under appointmentbythe First District Appellate Project Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, René A. Chacén, Supervising Deputy Attorney General, Nanette Winaker, Deputy Attorney General 16 PROOF OF SERVICE I declare that I am overthe age of 18, not a party to this action and my business address is P.O. Box 1130, Santa Clara, CA 95052. On the date shownbelow, I served the within PETITION FOR REVIEW to the following parties hereinafter namedby: BYELECTRONIC TRANSMISSION:| transmitted a PDF version ofthis documentby the Truefiling System and e-mail to the following parties: Attorney General’s Office [attorney for respondent] SFAG. Docketing@doj.ca.gov First District Appellate Program First District Court of Appeal eservice@fdap.org BYMAIL: J placeda true copy thereof, enclosed in a sealed enveloped with postage thereon fully prepaid in the United States mail at Santa Clara, CA, addressed as follows: LaQuincyHall Address on File Appeals Clerk, Contra Costa County Superior Court 725 Court Street P.O. Box 911 Martinez, CA 94533 Contra Costa DA’s Office 100 37" Room 200 Richmond, CA 94805 Contra Costa PD’s Office 3811 Bissell Avenue Richmond, CA 94805 I declare under penalty of perjury the foregoingis true and correct. Executed this 17th day of June, 2015, at Santa j i 21