Filed 5/30/13 In re I.P. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
In re I. P., a Person Coming Under the Juvenile Court
Law.
THE PEOPLE, C071551
Plaintiff and Respondent, (Super. Ct. No. J35119)
v.
I. P.,
Defendant and Appellant.
Following a disposition hearing in June 2012, I. P. (the minor) was placed on
formal probation. The minor appeals, alleging that three conditions of his probation are
unconstitutionally vague and therefore must be stricken and modified. We disagree and
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The minor’s terms of probation include, in pertinent part, the following conditions:
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“6. Totally refrain from the use, control, or possession of any controlled substance,
including alcohol, unless with a current prescription from a licensed physician, & possess
no narcotic paraphernalia.
“[¶] . . . [¶]
“34. That the minor not have any dangerous or deadly weapon in his/her
possession, nor remain in the presence of any unlawfully armed person.
“35. That the minor not associate with . . . [a]ny person involved in the crime for
which he/she was adjudicated.”
The minor timely appealed.
DISCUSSION
I
Scienter Is Implied In Probation Conditions
The minor claims that “General condition of probation six and special conditions
of probation 34 and 35 . . . are unconstitutionally vague and overbroad” because they lack
a knowledge requirement. Thus, he “could unknowingly violate the terms of his
probation.” The minor claims these conditions “must be stricken and modified” so as to
include a knowledge requirement.
“[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.’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
The minor concedes that just two years ago in People v. Patel (2011) 196
Cal.App.4th 956, 960, this court announced “our intent to henceforth no longer entertain
this issue on appeal.” We held that, hereafter we would “construe every probation
condition proscribing a probationer’s presence, possession, association, or similar action
to require the action be undertaken knowingly. It [is] no longer . . . necessary to seek a
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modification of a probation order that fails to expressly include such a scienter
requirement.” (Ibid.) Nevertheless, I. P. invites us to reconsider our holding in Patel “in
light of the subsequent holdings in other appellate courts and as a matter of public
policy.” We decline this invitation.
Two cases the minor relies on to show the necessity of including an explicit
knowledge requirement in probation conditions are In re Victor L. (2010) 182
Cal.App.4th 902 and People v. Garcia (1993) 19 Cal.App.4th 97. Patel addressed both
of these cases specifically and stated “we reject the conclusions reached in Victor L. and
Garcia.” (People v. Patel, supra, 196 Cal.App.4th at p. 960.) In response to the
concerns raised in those cases, we noted “there is now a substantial uncontradicted body
of case law establishing, as a matter of law, that a probationer cannot be punished for
presence, possession, association, or other actions absent proof of scienter. As with
contracts generally, this should be considered a part of the conditions of probation ‘ “just
as if [this was] expressly referred to and incorporated.” ’ ” (Patel, at p. 960.) Addressing
the court’s unease in Victor L. that failing to include an explicit knowledge requirement
could lead to “unfounded arrest and detention based on the whim or vengeance of an
arbitrary or mean-spirited probation officer,” (In re Victor L., supra, 182 Cal.App.4th
913), the Patel court did “not discern how addressing this specific issue on a repetitive
case-by-case basis [wa]s likely to dissuade a probation officer inclined to act in bad faith
from finding some other basis for harassing an innocent probationer” (Patel, at p. 960).
We see no reason to depart from this rationale.
The probation conditions at issue here fall squarely within the “presence,
possession, association, or similar action” described by the court in Patel whereby the
court construes the “probation condition . . . to require the action be undertaken
knowingly.” (People v. Patel, supra, 196 Cal.App.4th at pp. 960-961.) Thus, contrary to
the minor’s claim, there is no need to strike and modify the probation conditions to
include a knowledge requirement because scienter is already implied.
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II
Defining Who Was “Involved” In The Crime
The minor raises a separate contention in a footnote, namely, the definition of
“involved” in probation condition No. 35 is vague because it does not explicitly state
whether victims, witnesses, or police at the crime scene fit into the category of “[a]ny
person involved in the crime for which [he] was adjudicated.” He argues we must tailor
probation condition No. 35 to specifically identify the people with whom the minor
cannot associate. We do not address this separate contention, as it is not raised by a
distinct heading in the opening brief and it lacks any citation to authority. (Alameda
County Flood Control & Water Conservation Dist. v. Department of Water Resources
(2013) 213 Cal.App.4th 1163, 1194-1195; Salas v. Department of Transportation (2011)
198 Cal.App.4th 1058, 1074; Loranger v. Jones (2010) 184 Cal.App.4th 847, 858, fn. 9.)
DISPOSITION
The judgment (order of probation) is affirmed.
ROBIE , Acting P. J.
We concur:
BUTZ , J.
MAURO , J.
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