filed: ( 2014 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H039597
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. B1261312)
v.
JONATHAN MELL ROBERTS,
Defendant and Appellant.
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 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.”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 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.
1
There is no minute order reciting the oral order. The oral order appears to be
based on two conditions recommended in the probation report. “7. The defendant shall
not possess or consume alcohol or illegal substances or knowingly go to places where
alcohol is the primary item of sale. [¶] 8. The defendant is not to possess or use illegal
drugs or illegal controlled substances or go anywhere he/she knows illegal drugs or
nonprescribed controlled substances are used or sold.”
2
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.
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