P. v. Roberts

 

 

 

 

Filed: 
1/22/14  P. v. Roberts
CA6

 

 

 

 

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SIXTH APPELLATE DISTRICT

 
>

THE PEOPLE,   Plaintiff and Respondent,   v.   JONATHAN MELL ROBERTS,   Defendant and Appellant.

H039597      (Santa Clara County       Super. Ct. No. B1261312)

            Here
we modify a probation condition that the Attorney
General concedes is constitutionally deficient.

            Pursuant
to a plea agreement, imposition of sentence was suspended and defendant
Jonathan Roberts was placed on felony probation after pleading no contest to
bringing onto the Stanford University campus a folding knife with a three-inch blade and two knives with
fixed seven- and eight-inch blades.  (Pen.
Code, § 626.10, subd. (b).)  He also
pleaded no contest to a misdemeanor for loitering on the grounds of a
pre-school after being asked to leave.  (Pen. Code, § 653b.) 

            The
probation report noted that defendant has a history of href="http://www.sandiegohealthdirectory.com/">mental illness for which he
was taking prescription medications.  At
sentencing, the court orally imposed the following probation condition, among
others:  “The defendant is not to own,
possess or consume any alcohol or illegal substances or knowingly be anywhere
where alcohol is a primary item of sale or illegal controlled substances are
known by him to be used or sold.”href="#_ftn1"
name="_ftnref1" title="">[1]
 Another condition is that defendant
cooperate with psychological and psychiatric counseling and treatment.  When asked if he understood and accepted the
terms and conditions of probation, defendant said, “I understand it.  I don’t agree with all of it, but, yes, sir,
I will comply.” 

            Defendant
filed a notice of appeal without obtaining a certificate of probable
cause.  He contends that the prohibition
against owning, possessing, or consuming alcohol and illegal substances
requires an express scienter element to avoid being unconstitutionally vague
and overbroad.  The Attorney General
concedes that the first half of the condition should be modified as proposed by
defendant to state in pertinent part, “The defendant is not to knowingly own,
possess, or consume alcohol or illegal substances.”  We note that neither the trial court’s
condition nor the parties’ proposed modification would allow defendant to take
already prescribed medications or future prescriptions as part of his required href="http://www.sandiegohealthdirectory.com/">psychiatric treatment. 

            We
will order the condition modified to add a scienter requirement consistent with
the reasoning of two recent decisions by this court without repeating their
reasoning here.  (People v Mendez (2013) 221 Cal.App.4th 1167; People v. Rodriguez (2013) 222 Cal.App.4th 578.)  We will also order modification to permit
possession and consumption of defendant’s prescribed medications.

Disposition

            The
order of probation is modified to provide in pertinent part:  “The defendant is not to own, possess, or
consume what he knows or reasonably should know is alcohol or an illegal
controlled substance without a prescription.” 
(The remainder of the challenged condition requires no
modification.)  As so modified, the
judgment is affirmed.

                                                                        ____________________________________

                                                                        Grover,
J.

 

 

 

 

WE
CONCUR:

 

 

 

 

____________________________

Elia, Acting P.J.

 

 

 

 

____________________________

Mihara, J.