Opinion
A145393
03-08-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT DANIEL DUES, JR., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR304523)
Robert Daniel Dues, Jr. (appellant) appeals from a judgment entered after he pleaded no contest to transportation of a controlled substance, methamphetamine (Health & Saf. Code, § 11379 ), and the trial court placed him on probation for three years with various conditions. He contends that the probation conditions proscribing his possession of firearms/dangerous weapons and prohibiting his use of illegal drugs are unconstitutionally vague and must be modified. We reject the contention and affirm the judgment.
All further statutory references are to the Health and Safety Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
On August 8, 2014, an information was filed charging appellant with possession of a controlled substance, methamphetamine (§ 11378, count one) and transportation of a controlled substance, methamphetamine (§ 11379, count two). The information alleged as to both counts that appellant had a prior drug-related conviction (§ 11370.2, subd. (c)).
The information was based on an incident that occurred on December 13, 2013. That day, police contacted appellant—a passenger in a vehicle—during a vehicle stop in a high crime area near the Talk N Win. The vehicle had a strong odor of marijuana coming from inside. Appellant was initially adamant that an officer could not search him, but later consented to a search and was found in possession of a baggie containing marijuana, a Ziploc baggie with over four ounces of methamphetamine, and $580.00 in U.S. currency. Appellant's cell phone was later determined to have numerous text messages consistent with drug sales.
On March 26, 2015, appellant pleaded no contest to transportation of a controlled substance, methamphetamine (§ 11379, count two). The trial court dismissed the other charge and allegations in this case, as well as misdemeanor charges in two other cases (Case Numbers FC287572 and FCR284188). The court suspended imposition of sentence and placed appellant on formal probation for three years with various conditions, including that he serve 180 days in county jail. The court also imposed the following two conditions, stating: "You can't have in your possession, custody or control any firearms or dangerous or deadly weapons," and "You must totally abstain from the use of illegal drugs."
DISCUSSION
Appellant contends that the weapons and drug probation conditions the trial court imposed are unconstitutionally vague and must be modified. Specifically, he argues the conditions fail to specify the requisite mens rea for finding a violation of the conditions and that knowledge of the prohibited nature of the items is required. We reject the contention.
A reviewing court reviews de novo a constitutional challenge to a probation condition. (In re J.H. (2007) 158 Cal.App.4th 174, 183.) Although appellant did not object to the conditions below, he is entitled to raise the issue for the first time on appeal. (See e.g., People v. Leon (2010) 181 Cal.App.4th 943, 949-950 [a defendant may raise a constitutional challenge to a probation condition for the first time on appeal].)
Our Supreme Court recently decided the issue appellant raises in People v. Hall (Feb. 9, 2017, S227193) ___ Cal.4th ___ .) There, as here, the trial court imposed weapons and drug conditions to a defendant who was convicted of drug charges. (Id. at p. *1.) One of the conditions provided that the defendant may not own or possess any firearms or weapons, and another condition provided that he is not to use or possess any illegal drugs. (Id. at p.*2.) The defendant challenged the conditions as unconstitutionally vague, and the Court of Appeal "considered whether the vagueness doctrine requires a probation condition to explicitly spell out the mens rea necessary to sustain a violation of the condition. It concluded that the firearms and narcotics conditions did not need to be modified to bar 'knowing' possession 'because the mens rea generally applicable to probation conditions precludes the finding of unwitting violations.' " (Id. at pp.*2-*3.)
The Supreme Court agreed with the Court of Appeal, holding that because California 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," the "requisite scienter for these probation conditions is thus easily ascertainable by reference to ' " 'other definable sources' " ' that make sufficiently clear the conditions' scope." (Id. at pp.*7-*8.) The Supreme Court concluded: "Because no change to the substance of either condition would be wrought by adding the word 'knowingly,' we decline defendant's invitation to modify those conditions simply to make explicit what the law already makes implicit." (Id. at p.*13.)
Under People v. Hall, supra, ___ Cal.4th ___, we conclude that the probations conditions prohibiting appellant from possessing firearms and using illegal drugs are not unconstitutionally vague and need not be modified.
DISPOSITION
The judgment is affirmed.
/s/_________
McGuiness, P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.