P. v. Benoit

















Filed 6/29/12 P.
v. Benoit CA1/3

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>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



FIRST APPELLATE DISTRICT



DIVISION THREE


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THE PEOPLE, Plaintiff and Respondent, v. EDWARD BENOIT, Defendant and Appellant.

A132205 (Sonoma County Super. Ct. No. SCR573969)

Defendant, Edward Benoit, appeals
from an order granting probation following a no contest plea to href="http://www.fearnotlaw.com/">possession of concentrated cannabis. (Health & Saf. Code, § 11357,
subd. (a).) Benoit argues that a
condition of his probation requiring him to stay away from places where alcohol
is the primary item of sale is unconstitutionally
vague because there is no explicit requirement that he can only be punished
for knowingly violating this condition.
Accordingly, we modify the order to require Benoit to stay away from
locations where he knows alcohol is the primary item of sale and, as modified,
affirm the judgment.

>I. BACKGROUND

On December 12, 2009, a police officer stopped Benoit’s vehicle in a routine traffic
stop. The officer observed a strong odor
of marijuana emitting from the vehicle and conducted a search. In the search, the officer discovered several
packages of marijuana packed in bags of cayenne pepper and coffee grounds,
which are commonly used to mask the odor of marijuana and to avoid detection by
drug detection canines. A total of
1334.3 grams (2.93 pounds) of marijuana were discovered. Officers received a warrant to search
Benoit’s residence, in which they discovered 3.4 pounds of marijuana, 301 grams
of hashish (concentrated cannabis), 0.5 grams of methamphetamine, 92.4 grams of
psilocybin (mushrooms), 33 marijuana-laced food items, packaging material, pay
and owe notes, a digital scale, and a cell phone.

Benoit entered a no contest plea on February 25, 2011 to one count of possession of concentrated cannabis. The trial court suspended imposition of
sentence and placed him on probation for three years. The trial judge instructed Benoit that he
“may not be in any place where alcohol is the primary item of sale, including
bars, clubs and liquor stores.” Benoit argues
this condition is void for vagueness in contravention of his constitutional href="http://www.fearnotlaw.com/">due process rights because it does not
define whether Benoit must know he is in a place where alcohol is the primary
item of sale. If the condition lacks a
knowledge requirement, Benoit could violate his probation by being “unaware
until he is well inside that a place is more of a nightclub than a restaurant,
or more of a liquor store than a grocery store.”

>II. APPEALABILITY

Although Benoit did not object to
the condition at trial, he may challenge the probation condition for being
unconstitutionally vague or overbroad, because these claims regard “ ‘pure
questions of law that can be resolved without regard to the sentencing record
in the trial court.’ ” (>In re Sheena K. (2007) 40 Cal.4th 875,
884 (Sheena K.).) In the interest of judicial economy, we
expect that generally “the probationer should object to a perceived facial
constitutional flaw at the time a probation condition initially is imposed in
order to permit the trial court to consider, and if appropriate in the exercise
of its informed judgment, to effect a correction.” (Sheena
K., supra, at p. 889.)

>III. DISCUSSION

A. The probation condition is void for vagueness without
a knowledge requirement

The due process concept of “fair
warning” underlies a vagueness challenge to a probation condition. (U.S.
Const., 5th & 14th Amends.; Cal. Const., art. I, § 7; Sheena
K., supra, 40 Cal.4th 875, 890.) A
probation condition does not provide “fair warning” when it is so vague that a
probationer of ordinary intelligence “must necessarily guess at its meaning and
differ as to its application.” (>People v. Freitas (2009) 179 Cal.App.4th
747, 750.) To survive a challenge of
constitutional vagueness, 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.’ ” (Sheena
K., at p. 890.) Otherwise, a
vague probation condition “ ‘ “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.]’ ” (People
v. Lopez (1998) 66 Cal.App.4th 615, 630, citing People ex. rel Gallo v. Acuna (1997) 14 Cal.4th 1090,
1115–1116.)

Appellate courts have consistently
held that probation conditions restricting a probationer’s presence,
possession, or association must include express scienter requirements to
prevent the conditions from being unconstitutionally vague. (In re
Victor L. (2010) 182 Cal.App.4th 902, 912 (Victor L.) [knowingly in presence of weapons]; People v. Freitas, supra, 179 Cal.App.4th at pp. 751–752
[knowing possession of gun or ammunition]; People
v. Lopez (1998) 66 Cal.App.4th 615, 634 [knowing display of gang indicia];> cf. Sheena
K., supra, 40 Cal.4th 875,
891–892 [in absence of express knowledge requirement, condition restricting
probationer’s association with persons disapproved of by her probation officer
was unconstitutionally vague]; cf. People
v. Patel (2011) 196 Cal.App.4th 956, 960 (Patel) [presence, possession, or association probation conditions
are unconstitutionally overbroad without implied scienter requirement].)

A probation condition restricting a
probationer’s presence in a specified location is unconstitutionally vague
unless the probationer knows where the condition prohibits the probationer from
going. (See Victor L., supra, 182 Cal.App.4th at pp. 912–913.) In Victor
L., the defendant’s probation condition restricting his presence near
weapons was unconstitutionally vague because absent a knowledge qualification
it violated the due process requirement “that the probationer be informed >in advance whether his conduct
. . . violates a condition of probation.” (Victor
L., at p. 913.)

Here, the overwhelming body of case
law requires that we hold that Benoit’s probation condition as written is
unconstitutionally vague. Without a
knowledge requirement, Benoit may be held liable for entering a place which he
later discovers to primarily sell alcohol, and due process requires that Benoit
must be informed in advance whether his conduct violates his probation. The state does not have a legitimate interest
in revoking probation based on an innocent misunderstanding.

B. The knowledge requirement should be explicitly
stated in the probation condition

The parties agree that Benoit’s
condition must include a knowledge requirement but dispute whether the requirement
may be implied. The People argue that we
should recognize the knowledge requirement is implicit in Benoit’s condition of
probation, relying on the Third District Court of Appeal’s recent decision >People v. Patel. (Patel,
supra, 196 Cal.App.4th 956). In >Patel, a condition that prohibited the
probationer from drinking or possessing alcohol and being in any place where it
is the chief item of sale was held unconstitutionally overbroad. (Patel,
supra, at pp. 959–960.)
Although the court chose to modify the condition by inserting a
knowledge requirement and affirmed the condition as modified, the Third
District gave notice of its intent to no longer direct modification of this
condition in appeals where a knowledge requirement is not explicit. (Patel,
supra, at p. 960.) In the
interests of “fiscal and judicial economy,” the Third District now construes
“every probation condition proscribing a probationer’s presence, possession,
association, or similar action to require the action be undertaken knowingly.” (Patel,
supra, at p. 960.) Thus, “it
will no longer be necessary to seek a modification of a probation order that
fails to expressly include a scienter requirement.” (Patel,
supra, at pp. 960–961.)

The rule expressed by the Third
District in Patel appears to be
unique.href="#_ftn1" name="_ftnref1" title="">[1] Other appellate courts continue to
consistently hold that probation conditions restricting a probationer’s
presence, possession, and association must include scienter requirements, and
have elected not to follow Patel. Instead they continue to modify probation
orders on a case-by-case basis. In >People v. Moses, The Fourth District
Court of Appeal modified a sex offender’s presence, possession, and association
probation restrictions to include knowledge requirements. (People
v. Moses (2011) 199 Cal.App.4th 374, 377–379.) The court noted its frustration with the
unfortunate routine of appeals seeking to modify such conditions of probation
but held that, unlike the court in Patel,
“we instead choose to modify and strike certain challenged probation conditions
in this case and by this opinion state that the superior court should revise
its standard probation conditions form to meet constitutional
requirements.” (Moses, supra, at
p. 381.) Other Courts of Appeal
have similarly declined to follow Patel
in nonpublished decisions.href="#_ftn2"
name="_ftnref2" title="">[2]

We too see scarce resources expended
on this undisputed issue far too frequently.
Constitutionally sound conditions of probation impart fair warning of
prohibited conduct. For example, a
condition that prohibits the probationer from being in any place where alcohol
is the primary item of sale, including bars, clubs, and liquor stores, imparts
fair warning in a practical sense.
Adding an explicit knowledge requirement does not make such a warning
more effective. The knowledge
requirement in cases like this bears more upon whether the probationer can be
punished for being in a prohibited place, than it does on whether the condition
imparts constitutionally sufficient notice.

While we recognize the wisdom of the
Patel approach (forestalling future
claims by holding that the scienter requirement is implied), we will not follow
it because the First District, unlike the Third, has separate divisions, and we
will not presume to speak for our colleagues in the other divisions of this
Court. In the event that trial courts do
not revise their standard probation conditions to make the knowledge
requirement explicit, we encourage our Supreme Court to take the opportunity to
settle this area of the law in the appropriate case. (Cal. Rules of Court, rule 8.500(b)(1).)

>IV. DISPOSITION

The probation condition should be
modified to read “You may not be any place where you know alcohol is the
primary item of sale, including bars, clubs, and liquor stores.” As modified,
the order is affirmed.







_________________________

Siggins,
J.





We concur:





_________________________

Pollak, P.J.





_________________________

Jenkins, J.