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Name: People v. Patel
Case #: C066321
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 07/19/2011
Subsequent History: mod. opn. 7/21/11

Appellate counsel may seek to correct a probation term in a trial court having jurisdiction. In its June 21, 2011 opinion, the court considered the repeated appellate challenges to the lack of a scienter requirement in probation conditions. In Patel’s case, a probation term prohibited him from being in places where alcohol was the chief item for sale, but did not require he “knowingly” do so. Noting that there is an uncontradicted body of law “establishing that a probationer cannot be punished for presence, possession, association, or other actions absent proof of scienter” the court found that raising this issue on appeal does not provide a deterrent effect for probation officers (to include scienter in a probation term) or a protective effect for defendants. The court announced it will no longer entertain this issue on appeal and would instead construe probation terms to include that the prohibited action be undertaken “knowingly.” In the modified opinion, the court added that its decision does not prevent appellate counsel from seeking to correct probation conditions which do not have a scienter requirement in a trial court having jurisdiction, similar to a Fares credits motion. (People v. Fares (1993) 16 Cal.App.4th 954.)