P. v. Perez

Filed 10/25/16 P. v. Perez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
BRIAN PEREZ,
Defendant and Appellant.
D070173
(Super. Ct. No. JCF35772)
APPEAL from a judgment of the Superior Court of Imperial County, Christopher
J. Plourd, Judge. Affirmed.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney
General, Ted Cropley and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff
and Respondent.

-- 1 of 7 --

2
Brian Perez challenges the condition of his probation that prohibits him from
possessing any firearms or dangerous weapons as unconstitutionally vague because it
does not contain an express knowledge requirement.1 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Perez was an inmate at the Imperial County Jail. A corrections officer noticed
another inmate hand Perez a bag. The officer searched the bag and found substances that
later tested positive for heroin and methamphetamine. Perez pleaded no contest to
unauthorized possession of a controlled substance in jail (Pen. Code, § 4573.6, subd. (a)).
The trial court placed Perez on three years of formal probation with various terms and
conditions, including that "[d]efendant shall not possess any firearms or dangerous
weapons" (the weapons condition).
DISCUSSION
Perez contends the weapons condition is unconstitutionally vague because it does
not expressly provide that he "knowingly" possess the prohibited items. Thus, he argues
it does not provide adequate notice of what is required of him, and he risks being
punished even for unknowing possession. Because the condition notifies Perez and the
trial court with sufficient particularity of what is required of Perez, we conclude the
condition need not be modified.
1 Perez also asserts the weapons condition is unconstitutionally overbroad. Because
he neither argues nor provides any authority in support of this assertion, we deem the
issue of overbreadth forfeited and address only the issue of vagueness. (See People v.
Whalen (2013) 56 Cal.4th 1, 72, fn. 28 [issue forfeited when appellate brief mentions
related contention but does not provide supporting argument or authority], disapproved
on another ground in People v. Romero (2015) 62 Cal.4th 1, 44.)

-- 2 of 7 --

3
"[T]he underpinning of a vagueness challenge is the due process concept of 'fair
warning.' " (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.), quoting People v.
Castenada (2000) 23 Cal.4th 743, 751.) Fair warning involves both providing adequate
notice to the probationer and preventing arbitrary law enforcement. (Sheena K., at p.
890.) A probation condition gives fair warning when it is " 'sufficiently precise for the
probationer to know what is required of him, and for the [trial] court to determine
whether the condition has been violated.' " (Ibid., quoting People v. Reinertson (1986)
178 Cal.App.3d 320, 324-325.) "[A] trial court may not revoke probation unless the
defendant willfully violated the terms and conditions of probation." (People v. Moore
(2012) 211 Cal.App.4th 1179, 1186 (Moore).) We review constitutional challenges to
probation conditions de novo. (In re Malik J. (2015) 240 Cal.App.4th 896, 901.)
There is a split of authority regarding whether due process requires that a weapons
condition include an express knowledge requirement. (Compare Moore, supra, 211
Cal.App.4th at p. 1189 [express knowledge provision not required] with People v. Freitas
(2009) 179 Cal.App.4th 747, 752 (Freitas) [express knowledge provision required].)2
We are persuaded that no express knowledge provision is required.
In Moore, supra, 211 Cal.App.4th at page 1183, the defendant challenged as
vague a probation condition that required he " 'not own, use, or possess any dangerous or
deadly weapons, including firearms, knives, and other concealable weapons.' " The
appellate court upheld this condition despite its lack of an express knowledge
2 The California Supreme Court has taken up the matter in People v. Hall (2015)
236 Cal.App.4th 1124, review granted September 9, 2015, S227193.

-- 3 of 7 --

4
requirement. (Id. at p. 1189.) First, the Moore court reasoned the condition gave
adequate notice to the defendant because there was no ambiguity in terms of what
conduct it prohibited. (Id. at p. 1186.) The court noted that even its sister court in
Freitas, which modified a similar weapons condition to include an express knowledge
requirement, acknowledged that the prohibited items were easily recognizable and that
the condition need not specify the probationer " 'know a gun is a gun.' " (Moore, at p.
1185, quoting Freitas, supra, 179 Cal.App.4th at pp. 751-752.) Second, the court
reasoned the condition would not cause arbitrary enforcement because the trial court
could not revoke the defendant's probation absent a willful violation, and when a
probationer does not know he possesses a firearm or other dangerous weapon, his
possession cannot be considered willful. (Moore, at pp. 1186-1187.) In other words, a
knowledge requirement was implied in the condition; therefore, the defendant was not
subject to revocation of probation for unknowing possession. (Id. at p. 1189.)
Applying that reasoning here, the weapons condition need not be modified to
include an express knowledge requirement. The condition provides Perez and the trial
court with adequate notice of what is required of Perez. As with the condition in Moore,
the condition here leaves no ambiguity in terms of what conduct it prohibits. (See
Moore, supra, 211 Cal.App.4th at p. 1186.) Although Perez makes the conclusory
statement that he has not received adequate notice, he does not explain what about the
directive not to possess firearms or other dangerous weapons he does not understand.
Perez's true concern is arbitrary enforcement. However, the weapons condition
will not cause arbitrary enforcement because, as the court made clear in Moore, a

-- 4 of 7 --

5
knowledge requirement is implied in the condition by virtue of the fact a violation of the
condition must be willful. (See Moore, supra, 211 Cal.App.4th at pp. 1185-1186.)
Therefore, the trial court may not revoke Perez's probation for an unknowing—i.e.,
unwillful—violation. (See id. at pp. 1186-1187.)
Perez argues we should not follow Moore because the court erred by conflating
the terms "willfully" and "knowingly." Perez cites People v. Cervantes (2009) 175
Cal.App.4th 291, 295 (Cervantes) to support the proposition that a trial court may find a
defendant violated a probation condition simply for acting willfully, as opposed to
knowingly. He asserts, for example, that without an express knowledge requirement, he
would violate the weapons condition—and thus be subject to arbitrary enforcement—if
he were to willfully possess a firearm that he genuinely believes to be a toy or willfully
carry a friend's backpack that, unbeknownst to him, contains a dangerous weapon.
Perez's fears are unfounded. Cervantes makes clear that a probationer must
willfully violate a term or condition of his probation to face revocation, not merely act
willfully. (See Cervantes, supra, 175 Cal.App.4th at p. 295; Moore, supra, 211
Cal.App.4th at pp. 1186-1187.) Willfully means purposefully. (See Pen. Code, § 7,
subd. (1).) One cannot purposefully violate a probation condition without knowingly
doing so; therefore, a trial court may not revoke probation for an unknowing violation.
(Moore, at pp. 1186-1187.)
Despite the fact the trial court may not revoke Perez's probation for an unknowing
violation, Perez fears his probation officer may still treat the weapons condition as a strict
liability offense, which Perez characterizes as a form of arbitrary enforcement. However,

-- 5 of 7 --

6
the possibility a probation officer may enforce a weapons condition as a strict liability
offense does not render the condition unconstitutional. (In re R.P. (2009) 176
Cal.App.4th 562, 569.) Indeed, we would expect a probation officer to examine with
healthy skepticism a probationer's claim that he mistakenly believed a gun found in his
possession was a toy or that he was unaware there was a gun inside a backpack in his
possession. Should Perez find himself in the unlikely scenario of unknowing possession,
his remedy is to assert the affirmative defense of lack of knowledge in the trial court.
(See Moore, supra, 211 Cal.App.4th at pp. 1186-1187.)
Because the weapons condition here clearly identifies the items Perez is prohibited
from possessing, and because he cannot, as a matter of law, be punished for unknowing
possession of those items, the condition is not unconstitutionally vague as written.

-- 6 of 7 --

7
DISPOSITION
The judgment is affirmed.
HALLER, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.

-- 7 of 7 --