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Name: In re Ana C.
Case #: A145411
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 08/10/2016

Probation condition that prohibited minor from using, possessing, or being under the influence of alcohol, tobacco, or drugs, is not unconstitutionally vague despite lack of an express scienter requirement. Ana C. was adjudged a ward and placed on probation pursuant to numerous terms and conditions. On appeal she raised constitutional vagueness challenges to many conditions, including one that prohibited her from using, possessing, or being under the influence of any alcoholic beverages, controlled substances, or tobacco, including electronic cigarettes. Ana argued that without an express scienter requirement she could innocently violate the condition. Held: Condition affirmed. Generally, knowledge requirements “should not be left to implication” and courts have found conditions facially vague for failing to include one. (See In re Sheena K. (2007) 40 Cal.4th 875, 889.) However, not all probation conditions that fail to include an express knowledge requirement are facially vague. When conditions reinforce or implement applicable laws—like the ones concerning underage smoking, drinking, or drug use—an express knowledge requirement is unnecessary. This is because when the condition is “read against the backdrop of applicable law, the meaning of the prohibition on possession and use of [alcohol, tobacco, and drugs] is plain enough . . . .” The court distinguished People v. Freitas (2009) 179 Cal.App.4th 747, which addressed a probation condition that included constructive possession language.

Probation condition that minor shall not possess any drug paraphernalia is unconstitutionally void for vagueness and must be modified to include an express scienter requirement. The drug paraphernalia probation condition here does not merely reinforce or implement the laws prohibiting possession of drug paraphernalia because it is much broader than the prohibitions set forth in Health and Safety Code sections 11364 and 11364.7, which only apply to certain types of paraphernalia. Accordingly, “[t]his is not a situation in which it is possible to infer that a probation condition has the same implicit mental element as the penal statutes it was written to enforce.” (People v. Carreon (2016) 248 Cal.App.4th 866, 882.) The condition here is similar to the one found facially vague in In re Kevin F. (2015) 239 Cal.App.4th 351, 357-358. The probation condition in Kevin F. prohibited the minor from possessing anything that could be used as a weapon, which could be read to prohibit the minor from innocently possessing common household items. Likewise, the drug paraphernalia condition at issue here could be read as prohibiting Ana from possessing “[c]ommon household items [that could be used to ingest drugs] even if [she] possessed them for legitimate purposes and was ignorant of their use as drug paraphernalia.” The court modified the condition to state: “The minor shall not possess any item that she knows is drug paraphernalia.”

Probation condition that bars minor from “consuming any poppy seed products or other substances known to adulterate or interfere with chemical testing” is not constitutionally vague despite lack of an express scienter requirement. Ana argued that the probation condition banning her from consuming poppy seeds was unconstitutionally vague as it did not include an express scienter requirement. The Court of Appeal disagreed: “[W]e think the wording of the Poppy Seed Products Ban adequately conveys the message to an ordinary 18-year-old who knows she is subject to chemical drug testing that, for her own protection, it is her responsibility to find out what kinds of foods might cause false positive drug test results and to avoid those foods.” The meaning of the condition “is clear enough to avoid due process concerns.”

Probation condition that “Minor shall not possess or utilize any program or application, on any electronic data storage device, that automatically or through a remote command deletes data from that device” is unconstitutionally vague on its face and adding a knowledge requirement cannot save it. All computers are electronic data storage devices and nearly all have software that enables automatic deleting, specifically, a “delete” key. Thus the auto-delete condition could be read to ban Ana from using or possessing any smartphone or computer and is thus facially vague for failing to give fair warning of its scope. Although the court likely intended the condition only to ban programs like SnapChat and remote erase, the condition must be vacated and modified on remand to include “specific examples designed to narrow its intended purpose.”

Probation condition that minor “obey all rules and regulations of the Electronic Monitoring Program” is facially vague and cannot be fixed by adding an express knowledge requirement. Nowhere in the electronic monitoring condition, in the dispositional order, or elsewhere in the record is it revealed what, precisely, the rules and regulations of the electronic monitoring program are or that Ana was made aware of them. Since one can only guess at what they are, the condition is facially vague and must be modified to specify that minor shall “obey all rules and regulations of the Electronic Monitoring Program, as posted on the probation department’s website, as approved by the court, and as explained to her by her probation officer.”

Probation condition that minor “attend school regularly without tardiness or unexcused absence . . . and to . . . behave at all times while in school” is not unconstitutionally vague. Ana argued that the term “regularly” in the condition rendered it so ambiguous that it could not be understood by an ordinary person. The Court of Appeal declined to modify the condition. The condition does not implicate an important constitutional right and “[a]bsent a chilling effect on constitutionally protected conduct, a broadly stated prohibition phrased in inexact terms may in some instances be perfectly appropriate to use, by design, with the aim of ensuring that a probationer errs on the side of compliance.” The phasing of the condition was clear enough for an average juvenile of Ana’s age.

The full opinion is available on the court’s website here: