Opinion
E068938
10-03-2018
THE PEOPLE, Plaintiff and Respondent, v. CARSENE CORTEZ O'NEAL, Defendant and Appellant.
Tyrone A. Sandoval, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 16CR000479) OPINION APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Affirmed. Tyrone A. Sandoval, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Carsene Cortez O'Neal forcibly kidnapped and inappropriately touched a 13-year-old girl. Subsequently, pursuant to a negotiated plea agreement, defendant pled no contest to kidnapping (Pen. Code, § 207, subd. (a)). He also admitted that he had served two prior prison terms (§ 667.5, subd. (b)). In exchange, the remaining allegations were dismissed and defendant was placed on formal probation for a period of three years on various terms and conditions of probation. The court suspended imposition of an upper term of eight years for the kidnapping offense, and two years for the two prior prison terms, for a total term of 10 years, in state prison.
All future statutory references are to the Penal Code unless otherwise stated.
Defendant subsequently violated the terms and conditions of his probation. Following a formal hearing, the trial court found true that defendant violated the terms and conditions of his probation by using a controlled substance based on defendant's admission he had used marijuana. The court thereafter revoked defendant's probation and sentenced defendant to serve the previously suspended 10-year term in state prison. On appeal, defendant contends that the order revoking his probation must be reversed because the court's finding is not supported by a showing he knowingly used a controlled substance. In the alternative, defendant asserts the probation term prohibiting him from using any controlled substance not prescribed by a medical professional is unconstitutionally vague. We reject defendant's contentions and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the probation report.
On February 11, 2016, Barstow police responded to a call involving possible sexual abuse of a 13-year-old female victim. The police contacted the victim and her mother. The victim was scared and upset. She was missing a shoe and her clothing was torn, exposing her bra. She reported that defendant had approached her in a vehicle, said that her sister was in the backseat, and had asked her to help him wake her sister up. When the victim approached defendant's vehicle, he grabbed her by the hair and forced her into the backseat. Defendant then drove to a junkyard. When he stopped at the junkyard, defendant tore off most of the victim's shirt and touched her breast under her bra. Defendant also touched her private area over her pants. The victim eventually fled from the vehicle but defendant caught up to her. After the victim kicked defendant in the groin, she escaped defendant. Defendant was on parole at the time of the incident and wanted for absconding.
Later that day, defendant called the police because he was aware of the victim's report. He stated he was dating the victim's sister and denied any wrongdoing. Defendant stated that the victim's act of getting into his vehicle was voluntary and that she left the junkyard because he was taking too long. Police officers requested that defendant meet them, which he initially refused to do. He later called the police again to arrange a meeting. Defendant was subsequently arrested.
Following a preliminary hearing, on April 25, 2016, an information was filed charging defendant with kidnapping (§ 207, sub. (a); count 1) and forcible lewd act upon a child (§ 288, subd. (b)(1); count 2). The information also alleged that defendant had suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), two prior serious felony convictions (§ 667, subd. (a)(1)), and three prior prison terms (§ 667.5, subd. (b)).
On March 27, 2017, defendant pled no contest to the kidnapping charge and admitted he had suffered two prior prison terms. In return, the remaining allegations were dismissed, and defendant was placed on formal probation for a period of three years on various terms and conditions of probation. Imposition of a 10-year term (eight years for the kidnapping charge, plus one year each for the two prior prison terms) was suspended, pending completion of supervised probation. Among others, defendant was ordered to "Neither use nor possess any controlled substance unless prescribed to you by a medical professional." Defendant agreed to follow the terms and conditions of his probation.
On April 10, 2017, defendant reported to his probation officer while under the influence of alcohol and marijuana. When his probation officer asked defendant if he had used a controlled substance or had been drinking, defendant admitted that he had used marijuana and drank alcohol.
On April 13, 2017, the probation department filed a petition to revoke defendant's probation based upon his failure to cooperate with his probation officer, follow all reasonable directives of probation officers, and refrain from using or possessing any controlled substance unless prescribed by a medical professional.
A probation revocation hearing was held on August 9, 2017. At that time, the court heard testimony from defendant's probation officer, as well as argument from counsel. The prosecutor argued defendant violated the terms of his probation that required him to cooperate with his probation officer, follow all reasonable directives of his probation officer, and not use or possess any controlled substances. Defense counsel asserted that defendant had substantially complied with the terms of his probation. The prosecutor confirmed in response to the trial court's inquiry that marijuana was listed as a controlled substance at the time defendant agreed to his probationary terms and conditions. Defense counsel claimed that defendant had committed no crime under state law. Likening defendant's marijuana use to legal alcohol consumption, defense counsel asserted that "[w]e owe it to the probationers to specifically advise them in some fashion what the rules are" before sending them to prison for their use of marijuana.
Following testimony and argument, the trial court found true that defendant had violated his probation by using a controlled substance based on defendant's admission he had used marijuana. The court did not find true the remaining allegations in the petition to revoke defendant's probation. The court thereafter imposed the previously suspended 10-year sentence and sentenced defendant to state prison.
On August 16, 2017, defendant filed a timely notice of appeal.
III
DISCUSSION
A. Order Revoking Probation
Without any objection, defendant accepted the terms and conditions of his probation and specifically agreed to "[n]either use nor possess any controlled substance unless prescribed to [him] by a medical professional." Relying upon the recent legalization of recreational use of marijuana, defendant argues the trial court's order revoking his probation must be reversed because there was no evidence to support that he knowingly used a controlled substance in violation of its term. (See Prop. 64, § 8.7, approved Nov. 8, 2016, eff. Nov. 9, 2016; Health & Saf. Code, § 11362.1 et seq.) He believes the probation condition prohibiting him from using any controlled substance did not prohibit him from using marijuana. We disagree.
A grant of probation is an act of clemency in lieu of punishment. (People v. Moran (2016) 1 Cal.5th 398, 402.) Probation is a privilege and not a right. A court has broad discretion to impose "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, . . . and generally and specifically for the reformation and rehabilitation of the probationer . . . ." (§ 1203.1, subd. (j); People v. Carbajal (1995) 10 Cal.4th 1114, 1121 (Carbajal); see People v. Olguin (2008) 45 Cal.4th 375, 379.) Moreover, "it is well settled that the trial court has the discretion to impose probation conditions that prohibit even legal activity." (People v. Brooks (2010) 182 Cal.App.4th 1348, 1352 (Brooks).)
"Trial courts are granted great discretion in deciding whether or not to revoke probation." (People v. Kelly (2007) 154 Cal.App.4th 961, 965.) "A court may revoke probation 'if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation . . . .' [Citation.] 'As the language of section 1203.2 would suggest, the determination whether to . . . revoke probation is largely discretionary.' [Citation.] '[T]he facts supporting revocation of probation may be proven by a preponderance of the evidence.' [Citation.] However, the evidence must support a conclusion the probationer's conduct constituted a willful violation of the terms and conditions of probation. [Citation.]" (People v. Galvan (2007) 155 Cal.App.4th 978, 981-982 (Galvan); see § 1203.2, subd. (a).)
On November 8, 2016, California voters passed Proposition 64, which had the effect of "legalizing marijuana for recreational use by adults, subject to various conditions." (City of Vallejo v. NCORP4, Inc. (2017) 15 Cal.App.5th 1078, 1081.) Among other things, Proposition 64 added Health and Safety Code section 11362.1, subdivision (a)(1), which permits the possession, by persons 21 years of age or older, of up to 28.5 grams of marijuana. The statute specifically states that "it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to . . . [s]moke or ingest cannabis or cannabis products[.]" (Health & Saf. Code, § 11362.1, subd. (a)(4).) Health and Safety Code section 11362.1, subdivision (c), states that "Cannabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest." However, smoking and ingesting marijuana is unlawful if the activity occurs in specified locations. (Health & Saf. Code, § 11362.3.) Further, Health and Safety Code section 11362.1 did not amend, repeal, affect, restrict, or preempt certain laws restricting or making illegal use and possession in various contexts. (Health & Saf. Code, § 11362.45.)
Health and Safety Code section 11054, subdivision (d)(13), identifies cannabis as a Schedule I controlled substance, a hallucinogen, "[u]nless specifically excepted."
Defendant relies on the "unless specifically excepted" language in the provision identifying controlled substances to argue that Health and Safety Code section 11362.1, subdivisions (a)(4) and (c), created such an exception by making marijuana use by individuals over 21 legal. Therefore, he believes his probationary terms did not prohibit his use of marijuana, and the court's finding that he knowingly used a controlled substance in violation of the terms of his probation is "unsupported."
This case presents a question of statutory interpretation, which we review de novo. (Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1251.) The rules for interpreting legislative enactments and initiative measures are the same. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900-901.) Our goal is to ascertain the intent of the statute. " 'In determining intent, we look first to the words of the statute, giving the language its usual, ordinary meaning. If there is no ambiguity in the language, we presume the Legislature meant what it said, and the plain meaning of the statute governs. [Citation.]' [Citation.]" (Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063.) In doing so, we give "significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose." (Ibid.)
Here, we agree with the People that the plain language of Health and Safety Code section 11362.1, subdivisions (a)(4) and (c), do not change the nature of marijuana to something other than a controlled substance. Rather, it legalizes certain conduct involving the controlled substance. As noted, Health and Safety Code section 11054, subdivision (d)(13), lists "marijuana" as a Schedule I hallucinogenic controlled substance. THC is also listed as a Schedule I hallucinogenic controlled substance. (Health & Saf. Code, § 11054, subd. (d)(20).)
In his reply brief, defendant asserts that Health and Safety Code section 11362.1, subdivision (c), "plainly changed the nature of cannabis" from a "controlled substance" to " 'not contraband' " under certain circumstances. That provision, as previously noted, states: "Cannabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest." (Health & Saf. Code, § 11362.1, subd. (c), italics added.) However, "contraband" and "controlled substance" are not synonymous terms. Health and Safety Code section 11007 defines a controlled substance, "unless otherwise specified, [as] a drug, substance, or immediate precursor which is listed in any schedule in [Health and Safety Code] Section 11054, 11055, 11056, 11057, or 11058." As previously noted, Health and Safety Code section 11054, which lists Schedule I controlled substances, includes marijuana in subdivision (d). (Health & Saf. Code, § 11054, subd. (d)(13).) "Contraband" is " '[a]nything prohibited to be imported or exported; goods imported or exported contrary to law or proclamation' or something '[f]orbidden, illegitimate, unauthorized.' " (People v. Waxler (2014) 224 Cal.App.4th 712, 721, quoting 3 Oxford English Dict. (2d ed. 1989) p. 833.) Black's Law Dictionary defines "contraband" as " '[g]oods that are unlawful to import, export, produce, or possess.' " (Waxler, at p. 721, quoting Black's Law Dict. (9th ed. 2009) p. 365.) "Contraband" has a much broader meaning than "controlled substance," and those two terms are not "indistinguishable" as defendant posits. Moreover, Health and Safety Code section 11362.1, subdivision (c), merely provides guidance in terms of detention, search, seizure, and arrest for lawful possession of cannabis and cannabis products. That provision in no way supports defendant's claim that marijuana or cannabis is not a controlled substance.
Based on the foregoing, we find marijuana is a "controlled substance," even after the passage of Proposition 64.
Moreover, it is clear that a court may nevertheless prohibit an otherwise legal activity if the condition either bears a relationship to the crime for which the defendant was convicted, or the condition is reasonably related to preventing future criminality. Indeed, appellate courts have affirmed probation orders that have prohibited the medical use of marijuana, even after such use was made legal in California. (See, e.g., People v. Hughes (2012) 202 Cal.App.4th 1473, 1480; People v. Leal (2012) 210 Cal.App.4th 829, 843-849; Brooks, supra, 182 Cal.App.4th at p. 1352; People v. Moret (2009) 180 Cal.App.4th 839, 853-854.)
In this case, the controlled substance condition was incorporated in the trial court's grant of probation. Defendant agreed to the condition and does not challenge the reasonableness of the condition. Furthermore, he cannot show that he was unaware that cannabis or marijuana is a controlled substance. (See People v. Hall (2017) 2 Cal.5th 494, 501 (Hall) [Supreme Court held that the qualifier "knowingly" need not be "expressly articulated" in a probation condition in order to provide a defendant with "fair warning" of what the condition requires and noted criminal statutes prohibiting the possession of contraband are generally construed to contain an implicit knowledge requirement even where the statute is silent].) In addition, defendant admitted to using marijuana. Therefore, defendant's conduct constituted a willful violation of the terms and conditions of his probation. (Galvan, supra, 155 Cal.App.4th at p. 982.)
"The word 'willfully' as generally used in the law is a synonym for 'intentionally,' i.e., the defendant intended to do the act proscribed by the penal statute." (People v. Lewis (2004) 120 Cal.App.4th 837, 852; see In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438 ["The terms 'willful' or 'willfully' . . . imply 'simply a purpose or willingness to commit the act . . . ,' without regard to motive, intent to injure, or knowledge of the act's prohibited character. [Citation.] . . . Stated another way, the term 'willful' requires only that the prohibited act occur intentionally."].) The term also imports a requirement that "the person knows what he is doing." (In 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. (People v. Cervantes (2009) 175 Cal.App.4th 291, 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"].) Here, defendant's use of marijuana was not due to circumstances beyond his control. Furthermore, public intoxication is still a crime under section 647, subdivision (f). Defendant was intoxicated in public when he showed up to probation.
Accordingly, we find the trial court did not abuse its discretion in revoking defendant's probation. The California Supreme Court has instructed that the trial court is "granted great discretion in determining whether to revoke probation. [Citation.]" (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) Thus, " 'only in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation. . . .' [Citation.]" (Id. at p. 443.)
B. Constitutional Challenge to Probation Condition
In the alternative, defendant contends that the probation condition prohibiting him from using any controlled substance not prescribed by a medical professional is unconstitutionally vague because it did not adequately define "controlled substance." We disagree.
1. Applicable Law
Initially, we note that defendant's position conflates two separate concepts, vagueness and mens rea. 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 shows that 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 knowledge as it relates to vagueness with mens rea principles, and this confusion has led to imprecise or unnecessary appellate modifications of probation conditions.
We turn now to the probation condition that defendant challenges here.
As previously noted, trial courts have broad discretion to set conditions of probation to "foster rehabilitation and to protect public safety." (Carbajal, supra, 10 Cal.4th at p. 1120; see § 1203.1, subd. (j).) In the exercise of that discretion, trial courts may prohibit otherwise lawful conduct that 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, overruled on other grounds in People v. Wheeler (1992) 4 Cal.4th 284, 290-292.) Probation conditions may even "impinge upon a constitutional right otherwise enjoyed by the probationer, who is 'not entitled to the same degree of constitutional protection as other citizens.' " (People v. Lopez (1998) 66 Cal.App.4th 615, 624 (Lopez).) However, if a condition impinges on a constitutional right, the condition must be closely tailored to the achievement of legitimate purposes. (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).)
The vagueness doctrine is concerned with whether a probation condition is sufficiently clear and understandable. (See Sheena K., supra, 40 Cal.4th at p. 890.) "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." (Ibid.) "[T]he underpinning of a vagueness challenge is the due process concept of '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.' " (Ibid.)
Consequently, "[t]he vagueness doctrine bars enforcement of ' "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 observe its 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 of arbitrary and discriminatory application." [Citation.]' [Citation.] In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that 'abstract legal commands must be applied in a specific context,' and that, although not admitting of 'mathematical certainty,' the language used must have ' "reasonable specificity." ' " (Sheena K., supra, 40 Cal.4th at p. 890; see People v. Moore (2012) 211 Cal.App.4th 1179, 1184 (Moore) [" 'A probation condition which . . . forbids . . . the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application, violates due process.' "].)
Conditions determined to be unconstitutionally vague include those that restrict otherwise lawful activity by broadly prohibiting "association with certain categories of persons, presence in 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 categories is that the prohibitions may fail to give adequate notice of what probationers are supposed to avoid doing.
Under the category of prohibiting associations with certain groups of people, conditions have been held to be vague when they 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; In 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)).
Under the category of prohibiting presence in certain locations, conditions have been held to be vague when they 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 alcohol is the chief item of sale (People v. Patel (2011) 196 Cal.App.4th 956, 961 (Patel)).
And under the 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) disapproved by Hall, supra, 2 Cal.5th at p. 503, fn. 2 [Supreme Court held drug and firearm probation conditions were not unconstitutionally vague in failing to specify that a violation of the condition required knowledge of the contraband's presence and its restricted nature]), 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 requirement that the probationer know that 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 knowledge of who was disapproved 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 known to [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] knows to be users or sellers of [drugs]"].)
This is not to say, however, that every category condition is vague just because it 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 vague when it spells out with " ' "reasonable specificity" ' " (Sheena K., supra, 40 Cal.4th at p. 890, italics omitted) what is prohibited in such a way that persons of common intelligence need not " 'guess at its meaning and differ 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 gun is a gun," (Freitas, supra, 179 Cal.App.4th at p. 752) the court in Freitas nonetheless modified the probation condition to specify that the defendant must " 'not knowingly own, possess or have custody or control of any firearms or ammunition.' " (Id. 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 alcohol is alcohol. (Id. at p. 961.) Prohibiting probationers from possessing guns or drinking alcohol is simply not nebulous, and it 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 and unambiguous. (See Hall, supra, 2 Cal.5th at p. 497 ["we conclude . . . that the probation conditions already include an implicit requirement of knowing possession, and thus afford defendant fair notice of the conduct required of him"].) This opinion resolves the split in authority on this issue. We will therefore continue to adhere to the rule that scienter is implied in particular conditions of probation. Our Supreme Court in Hall held that probation conditions barring possession of firearms or illegal drugs were not unconstitutionally vague on their face for failing to specify knowing possession, because knowing possession is implicit. (Ibid.)
2. Analysis
With these principles and distinctions in mind, we turn to whether the challenged probation condition is 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. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143; In re J.H. (2007) 158 Cal.App.4th 174, 183.) The drug condition here is sufficiently precise. We believe that people of common intelligence can understand the proscription to "[n]either use nor possess any controlled substance unless prescribed to [him] by a medical professional" without guessing at its meaning. After all, " ' "reasonable specificity" ' " is required, not perfect specificity. (Sheena K., supra, 40 Cal.4th at p. 890.)
Although defendant failed to object to the condition on vagueness grounds at sentencing, he may nevertheless pursue this claim on appeal because it presents a " ' "pure question[ ] of law that can be resolved without reference to the particular sentencing record developed in the trial court." ' " (Sheena K., supra, 40 Cal.4th at p. 889.)
Defendant argues that, "Because people of common intelligence must necessarily guess at the meaning of the term 'controlled substance' as used in [his] probation terms, including whether Health and Safety Code section 11362.1 specifically excludes cannabis as a 'controlled substance' in defining it as 'not contraband,' [defendant]'s probation term prohibiting him from using any 'controlled substance' is unconstitutionally vague." For the reasons previously discussed, the terms "controlled substance" and "contraband" are not synonymous or interchangeable. The passage of Proposition 64 did not change the character of marijuana as a controlled substance, but merely decriminalized certain conduct involving marijuana. (See Health & Saf. Code, § 11362.1, subd. (a).) The term "controlled substances" is defined by statute. (See Health & Saf. Code, §§ 11053-11058.) Defendant is presumed to have knowledge of that law. "[W]e 'require citizens to apprise themselves . . . of statutory language.' " (People v. Heitzman (1994) 9 Cal.4th 189, 200.) Moreover, a scienter element is reasonably implicit in conditions prohibiting possession of alcohol, intoxicants, narcotics, or other controlled substances without a prescription. (See People v. Rodriguez (2013) 222 Cal.App.4th 578, 592-594, disapproved on another ground in Hall, supra, 2 Cal.5th at p. 503, fn. 2.)
We conclude that the condition is constitutional as stated and adequately defines "controlled substance." The phrase "controlled substance" makes it clear that the prohibited "controlled substance" is limited to drugs that are controlled substances as defined in the Health and Safety Code and, therefore, the category is sufficiently clear that there is no need to specify a knowledge requirement. (Hall, supra, 2 Cal.5th at p. 497.)
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. MILLER
J.