Monterey County Superior Court, Case No.: SS120588 Hon. Marla O. Anderson, Judge.
Attorneys for Plaintiff/Respondent: The People Kamala D. Harris Attorney General of California Dane R. Gillette Chief Assistant Attorney General Gerald A. Engler Senior Assistant Attorney General Laurence K. Sullivan Supervising Deputy Attorney General Rene A. Chacon Supervising Deputy Attorney General.
Attorneys for Defendant/Appellant: Jaime Mata Mendez William M. Robinson Assistant Director, Sixth District Appellate Program.
The sole issue presented by this appeal is whether a probation condition is unconstitutionally vague when it prohibits an adult convicted of possessing a controlled substance from associating with certain types of persons “ ‘you know, or reasonably should know’ ” are drug users, probationers, or parolees. Defendant Jaime Mendez contends that an “ ‘actual knowledge’ ” requirement is constitutionally mandated. For the reasons stated below, we will reaffirm our position that language allowing either actual or constructive knowledge is constitutionally clear.
II. trial court proceedings
On March 30, 2012, defendant and four male companions were contacted by Salinas police officers investigating a report of drug sales in a city park. Inside a flashlight carried by defendant was a baggie containing 0.4 grams of cocaine. Defendant, then 45 years old, admitted that the flashlight and its contents were his and said that he had relapsed into narcotics use two months earlier after two years of abstinence. One of his companions had a baggie of marijuana.
Defendant was charged by complaint with possessing cocaine. (Health & Saf. Code, § 11350, subd. (a).) On April 9, 2012, assisted by an interpreter, defendant admitted on a change of plea form that he “was in possession of a small amount of a controlled substance” and pleaded guilty to the charge on the understanding he would immediately be placed on “Proposition 36 probation.” (Pen. Code, § 1210.1.)
On the same day, the court suspended imposition of sentence for 18 months and placed defendant on probation with a number of conditions, including attending substance abuse counseling programs as directed by the court. Defendant orally accepted all the terms and conditions of participating in the Proposition 36 program.
Defendant failed to appear at a scheduled review hearing on April 26, 2012 and his Proposition 36 probation was summarily revoked. He was later arrested on a bench warrant and appeared in custody on May 24, 2012.
At a hearing on June 5, 2012, defense counsel acknowledged that defendant was subject to a federal Immigration and Customs Enforcement hold. In light of this, the court terminated Proposition 36 probation, recognizing that defendant would be unable to participate in such a program.
The probation report prepared for sentencing acknowledged that defendant was likely to be deported after sentencing and recommended suspending imposition of sentence for three years and placing defendant on formal probation subject to 20 numbered conditions, including: “10. Not use or possess alcohol, intoxicants, narcotics, or other controlled substances without the prescription of a physician; not traffic in, or associate with persons you know, or have reason to know, to use or traffic in narcotics or other controlled substances” and “16. Not associate with any individuals you know, have reason to know, or are told by the Probation Officer to be drug users, or on any form of probation or parole supervision.”
At the sentencing hearing on July 5, 2012, defense counsel objected to the “ ‘reason to know’ ” language in proposed conditions 10 and 16. The following dialog ensued.
“THE COURT: I think most of the Sixth District of Appeals [sic] I believe have upheld ‘you know or have reason to know.’ Why would you object? If you can give me a basis, I can consider it. That would be under number 10 and number 16.
“[Defense counsel]: Yes. We believe that the language is vague since it’s hard to have a reason to know.
“THE COURT: Well, it’s saying if you have a reason to know. So, that means if there’s something that says to you that it’s reasonable that you know someone is either using narcotics or you have a reason to believe or know that someone is on probation or parole, then that’s when it would be a violation of probation. If you don’t have a reason to know and ...