Opinion
A149341
11-22-2017
THE PEOPLE, Plaintiff and Respondent, v. TRISHA R. TOWNE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR176915)
We affirm a judgment imposing a condition of probation that lacks an express scienter requirement.
In 2016, Trisha Towne entered a no contest plea to a felony charge of evading an officer. (Veh. Code, § 2800.2, subd. (a).) The court suspended imposition of sentence and placed Towne on formal probation for three years. One of the conditions of probation (Condition 14) reads: "Do not . . . be in any place where alcohol is sold as the primary income of the business."
Towne argues Condition 14 is unconstitutionally vague and must be modified to include an express scienter requirement, as follows: "Do not . . . be in any place where you know alcohol is sold as the primary income of the business." Although Towne did not raise a contemporaneous objection to the probation condition in the trial court, we address the constitutional vagueness argument for the first time on appeal because it presents a pure question of law. (See In re Sheena K. (2007) 40 Cal.4th 875, 886-889.)
While this appeal was pending, the Supreme Court decided People v. Hall (2017) 2 Cal.5th 494 (Hall), and held the mere fact that "the probationer might need to look beyond the four corners of the probation order to ascertain what conduct is permitted, what is prohibited, and what state of mind must be shown to sustain a violation . . . does not render the condition unconstitutionally vague." (Id. at p. 502, italics added.) "California case law already articulates . . . a general presumption that a violation of a probation condition must be willful . . . ." (Id. at p. 501.) In the analogous context of interpreting criminal statutes, the Supreme Court has, "[f]or example, . . . construed statutes prohibiting possession of controlled substances to require knowledge of the presence and illegal character of the drug, even though the statutes themselves fail to include a reference to any mental state. [Citations.] The mere fact that a statute must be interpreted to determine the applicable mental state does not render a criminal statute—or a probation condition—unconstitutionally vague." (Ibid.)
Towne attempts to distinguish Hall on two grounds. She first notes that, as to the probation conditions under review in Hall, "California case law already articulates not only a general presumption that a violation of a probation condition must be willful, but also specifically provides that probation conditions barring possession of contraband should be construed to require knowledge of its presence and its restricted nature." (Hall, supra, 2 Cal.5th at p. 501, italics added.) She suggests that because a second layer of case law does not exist as to Condition 14, which prohibits otherwise legal behavior, Hall is materially distinguishable. We disagree. Hall's discussion of how the Supreme Court has interpreted criminal statutes—relying solely on the presumption that scienter is required to reject vagueness challenges based on the lack of an explicit mens rea element—demonstrates that the specific case law applicable to possession probation conditions was not dispositive to the court's analysis.
Towne also claims her argument is analogous to the challenge sustained in In re Sheena K., which the high court expressly distinguished in Hall. Again, we disagree. As Hall explains: "In Sheena K., we approved the Court of Appeal's reliance on the vagueness doctrine to order modification of a probation condition barring the probationer from associating with ' "anyone disapproved of by probation." ' (Sheena K., supra, 40 Cal.4th at p. 889.) Unlike in this case, though, the probationer in Sheena K. did not object that the condition was vague in failing to articulate the requisite scienter. [Citations.] Rather, she claimed that the category of prohibited persons was vague, in that the condition failed to specify which persons the probation officer had disapproved of. (Sheena K., at pp. 890-891.) Because the condition 'did not notify defendant in advance with whom she might not associate through any reference to persons whom defendant knew to be disapproved of by her probation officer' (id. at pp. 891-892), we agreed that the condition should have been modified to direct the probationer 'not to associate with anyone 'known to be disapproved of' by a probation officer.' (Id. at p. 892.) It is telling that this court declined to modify the condition at issue in Sheena K. by inserting a requirement that the probationer avoid knowingly associating with the specified group of persons—which is the kind of modification defendant seeks here." (Hall, supra, 2 Cal.5th at pp. 502-503.)
Towne directs our attention to a recent decision of Division Two of this district, In Re Oswaldo (2017) 11 Cal.App.5th 409. We find nothing in that case which alters our view. The Oswaldo court rejected a claim that a probation condition requiring the defendant not to " 'participate in any gang-related activity' " was facially vague in violation of due process rights, finding the scope of the condition readily ascertainable " ' " 'by reference to other definable sources" ' " "—in that case, statutory definitions. (Id. at pp. 416-417, quoting Hall, supra, 2 Cal.5th at pp. 500-501.) Here, Towne does not claim that the category of prohibited places ("any place where alcohol is sold as the primary income of the business") is vague. Rather, Towne complains that she may not know or even reasonably be able to discern whether alcohol sales are the primary income of a given business. Stated differently, Towne does not claim that "any place where alcohol is sold as the primary income of the business" does not sufficiently define the places she is prohibited from entering; she claims she might unwittingly do so. But if Towne does not know that she is entering such a place (because the nature of the place is not readily discernable or for some other reason) she will not be liable for violating this condition of probation. (See Hall, supra, 2 Cal.5th at p. 500.) Adding "knowingly" to the condition will not change that result and is not necessary to cure any constitutional deficiency, given that "knowingly" is already an implicit term of the probation condition.
We do not suggest that definition of such prohibited places might not be, and should not be, better defined. As Towne argues, "it will often not be readily apparent to an ordinary patron that alcohol is the primary driver of income for a given business." Towne argued in her opening brief that, "[a]lthough a trial court may not revoke a person's probation absent proof of willfulness, 'this is cold comfort to a probationer who suffers from an unfounded arrest and detention based on the whim or vengeance of an arbitrary or mean-spirited probation officer.' (In re Victor L. (2010) 182 Cal.App.4th 902, 913 . . . .)" However, Hall did not adopt this view as a constitutional imperative. On the contrary, the Supreme Court commented: "At core, what defendant seeks through modification is 'absolute clarity' in the text of the condition itself, without the need to rely on 'a judicial construction.' But the question before us is not whether this degree of precision would be desirable in principle, but whether it is constitutionally compelled. As we have previously observed, the vagueness doctrine demands ' "no more than a reasonable degree of certainty." ' " (Hall, supra, 2 Cal.5th at p. 503.)
DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.