People v. Barron CA6 ( 2015 )

Filed 1/5/15 P. v. Barron 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H040580
(Santa Clara County
Plaintiff and Respondent, Super. Ct. Nos. B1365928, B1369559,
C1362445)
v.
BRIGITTE ANN BARRON,
Defendant and Appellant.
Defendant Brigitte Ann Barron was placed on probation after pleading no contest
to second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), and the court ordered as a
condition of probation that she “not possess or use alcohol or illegally controlled
substances or go to places that [sic] you know alcohol, illegal substances, or non-
prescribed controlled substances are used or sold.” On appeal, she contends that this
condition is unconstitutionally vague and overbroad. She asks us to modify this
condition to add the word “knowingly” so that it reads “not knowingly possess or use
alcohol or illegally controlled substances . . . .” The Attorney General concedes that the
condition must be modified to add “knowingly” to the prohibition against possession or
use of “alcohol,” but she insists that the prohibition on possession or use of “illegally
controlled substances” does not require the addition of the word “knowingly” because the
condition “implicitly contains a knowledge element.”
The Attorney General relies on this court’s decision in People v. Rodriguez (2013)
222 Cal.App.4th 578 (Rodriguez). In Rodriguez, the defendant challenged as
unconstitutionally vague and overbroad a probation condition that she “ ‘[n]ot use or
possess alcohol, intoxicants, narcotics, or other controlled substances without the
prescription of a physician . . . .’ ” (Rodriguez, at pp. 592-593.) Although this court
suggested that “a scienter element is reasonably implicit in this condition” with respect to
controlled substances, it nevertheless ordered that the entire condition be modified to add
an express knowledge requirement because “the addition of an express knowledge
requirement will eliminate any potential for vagueness or overbreadth in applying the
condition.” (Rodriguez, at pp. 593-594.) We do the same in this case.
The order of probation is hereby modified so that the challenged condition reads:
“You shall not knowingly possess or use alcohol or illegally controlled substances or go
to places where you know alcohol, illegal substances, or non-prescribed controlled
substances are used or sold.” As so modified, the order is affirmed.
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_______________________________
Mihara, J.
WE CONCUR:
_____________________________
Elia, Acting P. J.
_____________________________
Bamattre-Manoukian, J.
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