In re I.P.

 

 

 

 

 

 

 

 

 

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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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,                           Plaintiff and Respondent,               v.   I. P.,                           Defendant and Appellant.	C071551   (Super. Ct. No. J35119)

 

 

            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:

            “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. 

            “[¶]
. . . [¶]

             â€œ34. That the minor not have any dangerous or
deadly weapon in his/her possession, nor remain in the presence of any
unlawfully armed person.

             â€œ35. 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.’ â€  (>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
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 ‘ â€œjust as
if [this was] expressly referred to and incorporated.” ’ â€  (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.

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.