People v. Lopez CA6 ( 2015 )

Filed 10/16/15 P. v. Lopez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, H041291
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1352807)
v.
OMAR LOPEZ,
Defendant and Appellant.
Following a jury trial, defendant Omar Lopez was found guilty of carrying a
concealed, loaded firearm (Pen. Code, § 25400, subd. (a)(2))1 and resisting a peace
officer (§ 148, subd. (a)(1)). The trial court suspended imposition of sentence and placed
defendant on probation. The trial court conditioned probation, in part, as follows: “You
shall not possess or consume alcohol or illegal controlled substances or knowingly go to
places where alcohol is the primary item of sale.” On appeal, defendant contends that
this condition is unconstitutionally vague. He asks this court to modify the condition to
include the word “knowingly.” The Attorney General concedes that the condition
requires modification.
In People v. Rodriguez (2013) 222 Cal. App. 4th 578, the defendant challenged as
unconstitutionally vague and overbroad a probation condition that she “ ‘[n]ot use or
1
All further statutory references are to the Penal Code.
possess alcohol, intoxicants, narcotics, or other controlled substances without the
prescription of a physician . . . .’ ” (Id. at p. 592.) This court concluded that “a scienter
element is reasonably implicit in this condition” with respect to controlled substances.
(Id. at p. 593.) However, this court also recognized that the condition was not limited to
substances regulated by statute, such as alcohol and intoxicants. (Id. at p. 594.) Thus,
this court ordered that the condition be modified to add an express knowledge
requirement to “eliminate any potential for vagueness or overbreadth in applying the
condition.” (Ibid.) We will do the same in this case.
The order of probation is modified so that the challenged condition reads. “You
shall not knowingly possess or consume alcohol or illegal controlled substances or
knowingly go to places where alcohol is the primary item of sale.” As so modified, the
order is affirmed.
2
_______________________________
Mihara, J.
I CONCUR:
______________________________
Bamattre-Manoukian, Acting P. J.
3
Grover, J., Concurring
I am able to concur in the judgment because there is no practical harm in adding
an express knowledge element to the probation condition at issue here, and the Attorney
General does not object to that modification. However, I write separately to express my
view that such a modification is not required under the reasoning of People v. Rodriguez
(2013) 222 Cal. App. 4th 578 (Rodriguez) because the term “intoxicants” which
necessitated modification of the probation condition in that case is not present here.
Specifically, Rodriguez pointed out that the generic category of “intoxicants” is
susceptible of different interpretations and “may include common items such as
adhesives, bath salts, mouthwash, and over-the-counter medicines.” (Id. at p. 594.) As I
do not believe the term “alcohol” is similarly susceptible, in my view the challenged
condition requires no modification.
______________________________________
Grover, J.
2