P. v. Amparan

 

 

 

 

 

 

 

 

 

Filed 7/1/13  P.
v. Amparan CA5

 

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

 
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THE PEOPLE,   Plaintiff and Respondent,                           v.   OSCAR AMPARAN,   Defendant and Appellant.

F064011   (Super. Ct. No. VCF254599B)     >OPINION

 

THE COURThref="#_ftn1"
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            APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Tulare
County.  Glade F. Roper, Judge.

            Cheryl
Anderson, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne Le
Mon, Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent

-ooOoo-



            Appellant, Oscar Amparan, pled guilty to href="http://www.fearnotlaw.com/">possession of methamphetamine (count
2/Health & Saf. Code, § 11377, subd. (a)) and href="http://www.mcmillanlaw.com/">possession of drug paraphernalia (Health
& Saf. Code, § 11364, subd. (a)). 

            On appeal,
Amparan contends that three of his conditions of probation are
unconstitutionally vague.  We affirm.

FACTShref="#_ftn2"
name="_ftnref2" title="">^[1]>

            On October
27, 2011, the trial court placed Amparan on probation for three years and
ordered him to participate in recovery court.  
Amparan’s terms and conditions of probation included the following
conditions which required that Amparan:

“19.  Not use or
possess alcoholic beverages and shall not enter a place where alcohol is the
primary beverage sold or served.

“20.  Not use or
possess narcotics or any restricted or controlled substances without a
prescription.  The defendant shall not
use any prescribed or over-the-counter medications without the prior approval
of the Judge, Probation Officer or assigned treatment provider.  ¶ … ¶

“22.  Not
associate with any person(s) using, selling or trafficking in narcotics or
dangerous drugs.  ¶ … ¶

“30.  Not own or
possess any weapon.”  

            At a
hearing on April 26, 2012, Amparan asked the court to modify his terms of
probation by eliminating the requirement that he participate in drug court and
adding a knowledge element to the above-noted conditions of probation. 
After eliminating the drug court requirement and ordering Amparan to serve an
aggregate 190 days on his two convictions, the court stated:

“[I]’m going to order that you
not knowingly associate with any
person using[,] selling, or trafficking narcotics or restricted or controlled
substance[s] other than a physician or a pharmacist in the course of their
employment.

            “Obviously
if you go to the doctor, he prescribes medication for you, then that would not
violate probation.  Or if you go to the
pharmacy to pick up prescribed medication. 


“In all other respects,> the previously imposed probation terms will
remain in full force and effect.” 

DISCUSSION

            Amparan contends probation conditions
19, 20, and 30 are constitutionally vague because they do not have a knowledge
element.  We disagree.

“Trial courts have broad
discretion to prescribe probation conditions to foster rehabilitation and
protect public safety.  [Citations.]  A probation condition that imposes limitations
upon constitutional rights must be narrowly tailored to achieve legitimate
purposes.  [Citations.]  Further, ‘[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.  [Citation.]’ 
[Citations.]  ‘A probation
condition which either forbids or requires 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.’ [Citations.]  The ‘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”.…’  [Citations.]

“Beginning with People v.
Garcia (1993) 19 Cal.App.4th 97 …, California appellate courts have
routinely added an explicit knowledge requirement to probation conditions
prohibiting a probationer from associating with certain categories of persons,
frequenting or remaining in certain areas or establishments, and possessing
certain items.  [Citation.]”  (People
v. Moore (2012) 211 Cal.App.4th 1179, 1184 (Moore.) 

As explained in >People v. Kim (2011) 193 Cal.App.4th 836
(Kim), “In [these] situations, an
express knowledge requirement is reasonable and necessary.  The affiliations and past history of another
person may not be readily apparent without some personal familiarity.  Similarly, despite the presence of gang
graffiti, sites of gang-related activity may not be obvious to all. And it
takes some experience or training to identify what colors, symbols, hand signs,
slogans, and clothing are emblematic of various criminal street gangs.”  (Id. at
p. 845.)

In Moore, the court rejected a vagueness challenge to a probation
condition prohibiting the probationer from using or possessing or owning any
dangerous or deadly weapons including firearms, knives and other concealable
weapons.  (Moore, supra, 211 Cal.App.4th at p. 1182.)  In so doing, the court noted that with
respect to the prohibition against owning firearms, the challenged condition
did not impact Moore’s constitutional rights. 
(Id. at pp. 1184, 1187; see,
e.g., People v. Freitas (2009)
179 Cal.App.4th 747, 751 [the defendant, as a felon, has no
constitutional right to bear arms]; Kim, supra, 193 Cal.App.4th at p. 847 [because no constitutional right is at
stake, the defendant’s concern about an implicit knowledge requirement
is inapplicable].)  More importantly,
however, the Moore court stated,
“[T]he weapons prohibition here is sufficiently precise to inform Moore of what
is required of him, and for a court to determine whether the condition has been
violated.  Because Moore can have no
doubt about what is prohibited, innocent or inadvertent violation of the
condition is far less likely than in cases in which the parameters of the
probation condition are imprecise.”  (>Moore, supra, 211 Cal. App. 4th at p. 1186.)  Additionally, the court rejected as unfounded
Moore’s concern that without a scienter requirement he could be found in
violation of probation for “unknowing possession” because a trial court may not
revoke a probation unless the defendant willfully violated the terms and
conditions of probation and “it is now settled that a probationer cannot be
punished for presence, possession, or association without proof of
knowledge.”  (Ibid.)

            It should
be apparent to Amparan when he enters a place that is a place where alcohol is
the primary beverage sold, that a beverage he possesses is an alcoholic
beverage; that a substance he possesses or uses is a narcotic or a restricted
or controlled substance; or that an item in his possession is a weapon.  Therefore, probation conditions 19, 20, and
30, are precise enough to inform Amparan what they require of him.  Further, since it is now settled that a
knowledge requirement is implied in each condition and that a probation
violation may not be found absent knowing conduct (People v. Patel (2011) 196 Cal.App.4th 956, 960) we
conclude that probation conditions 19, 20, and 30, are not constitutionally
vague and need not be modified.

DISPOSITION

            The
judgment is affirmed.