P. v. Bishop

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Filed 11/2/16 P. v. Bishop CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Tehama)
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THE PEOPLE,
Plaintiff and Respondent,
v.
CYNTHIA JENNIFER BISHOP,
Defendant and Appellant.
C079346; C079492
(Super. Ct. Nos. NCR90853;
NCR92344)
Defendant Cynthia Jennifer Bishop entered negotiated pleas in two separate
criminal cases in exchange for dismissal of additional charges and allegations and a grant
of probation in each case. The trial court granted probation in both cases and imposed
specified conditions, two of which defendant challenges on appeal as unconstitutionally
vague and overbroad for lack of an express knowledge requirement.1 We will affirm the
judgments.
1 We granted appellant’s motion for consolidation of the appeals.

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I. BACKGROUND
A. Appeal No. C079346; Case No. NCR90853
On April 25, 2014, defendant was charged by amended criminal complaint in case
No. NCR90853 with carrying a dirk or dagger (Pen. Code, § 21310—count 1),2 receiving
stolen property (§ 496, subd. (a)—count 2), misdemeanor possession of paraphernalia
used for injecting or ingesting a controlled substance (Health & Saf. Code, § 11364.1,
subd. (a)—count 3), and misdemeanor petty theft (§ 484, subd. (a)—count 4).
On June 3, 2014, defendant entered a negotiated plea of no contest to
misdemeanor counts three and four pursuant to People v. West (1970) 3 Cal.3d 595. The
parties stipulated to a factual basis for the plea.3 The trial court placed defendant on 18
months of probation subject to specified terms and conditions, with credit for time
served.
B. Appeal No. C079492; Case No. NCR923444
On October 4, 2014, the victim was given a ride to a house to collect some of her
belongings. When she went inside the house, she was attacked by the tenant, who
punched her several times and told defendant to “get her.” The victim ran outside where
her friend was waiting for her in a truck. Defendant reached inside the truck through the
window and struck the victim in the head and face with a large rock. Defendant also hit
the truck with the rock, causing damage to the windshield.
2 Further undesignated statutory references are to the Penal Code.
3 The record does not appear to include evidence from which we can deduce the facts
underlying defendant’s plea in case No. NCR90853. However, the parties agree that an
understanding of the facts is not necessary to our determination of this appeal.
4 During the plea hearing, the parties stipulated that the facts contained in the police
report provided the factual basis for her guilty pleas.

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On November 5, 2014, defendant was charged by information in case
No. NCR92344 with assault with a deadly weapon (§ 245, subd. (a)(1)—count 1), assault
by means likely to produce great bodily injury (§ 245, subd. (a)(4)—count 2),
misdemeanor vandalism (§ 594, subd. (a)—count 3), and possession of a device used for
smoking a controlled substance (Health & Saf. Code, § 11364.1, subd. (a)(1)—count 4).
The information alleged that, as to count two, defendant personally used a deadly and
dangerous weapon. (§ 12022, subd. (b)(1).)
On December 19, 2014, defendant entered a negotiated plea of guilty to count one
and admitted the weapon-use allegation in exchange for dismissal of the remaining
charges and five years of formal probation with credit for time served.
On April 13, 2015, the trial court granted defendant five years of formal probation,
subject to stipulated terms and conditions, with credit for time served. The court also
found defendant in violation of probation in case No. NCR90853, reinstated probation in
that case, and extended the original term to June 3, 2017.
Defendant filed timely notices of appeal in both cases. The trial court granted her
request for a certificate of probable cause in each case.
II. DISCUSSION
A. Probation Condition 13
Defendant contends probation condition 13 in case No. NCR92344 requiring that
she “abstain absolutely from the use and possession of alcohol, and stay out of places
where alcohol is the principal item for sale” is unconstitutionally vague. She claims the
condition is not “sufficiently precise,” making it impossible for her to determine what
places apply. She requests that the condition be modified to include an express
knowledge requirement.
The People contend, and we concur, that no such modification is necessary in light
of our opinion in People v. Patel (2011) 196 Cal.App.4th 956 (Patel). There, we held:
“We construe every probation condition proscribing a probationer’s presence, possession,

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association, or similar action to require the action be undertaken knowingly. It will no
longer be necessary to seek a modification of a probation order that fails to expressly
include such a scienter requirement.” (Id. at pp. 960-961.) The probation conditions at
issue here fall squarely within the “presence, possession, association, or similar action”
described in Patel.
Defendant acknowledges our decision in Patel, but nevertheless invites us to
“consider her claims, despite Patel’s holding” because “probationers and probation
officers cannot be expected to know about terms that are not listed either by the
sentencing court or in the written probation conditions.” We decline to do so.
We note that defendant’s reply argument premised on People v. Gaines (2015)
242 Cal.App.4th 1035 (review granted February 17, 2016, S231723) is deemed forfeited
for failure to raise it in her opening brief which, we also note, was filed over four months
after Gaines was decided and two months after review was granted by the Supreme
Court. A defendant may not deprive the Attorney General of the opportunity to respond
by raising the argument for the first time in a reply brief. (Reichardt v. Hoffman (1997)
52 Cal.App.4th 754, 764.) We generally decline to address an issue, in a summary
manner or at all, when an appellant raises it for the first time in a reply brief without
having raised it in the opening brief. (See People v. Duff (2014) 58 Cal.4th 527, 550, fn.
9; People v. Harris (2008) 43 Cal.4th 1269, 1290; People v. Alvarez (1996) 14 Cal.4th
155, 241, fn. 38.)
In any event, we acknowledge that a split of authority exists regarding whether
probation conditions restricting a probationer’s presence, possession, association, or
similar action must include an express scienter requirement, but adhere to our view that
scienter is implied. (Patel, supra, 196 Cal.App.4th at pp. 960-961; but see People v.
Pirali (2013) 217 Cal.App.4th 1341, 1351-1352 [declining to follow Patel and choosing
to modify probation conditions on a case-by-case basis to make knowledge requirement
explicit]; People v. Moses (2011) 199 Cal.App.4th 374, 381 [same].)

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Here, probation condition 13 falls squarely within the “presence, possession,
association, or similar action” described in Patel. (Patel, supra, 196 Cal.App.4th at
pp. 960-961.) Thus, we construe the condition to require that the proscribed conduct be
undertaken knowingly. Therefore, there is no need to modify the condition to include an
express knowledge requirement because scienter is already implied.
B. Probation Condition 14
Defendant also challenges probation condition 14 in case No. NCR92344, which
provides: “The defendant shall not use or possess any unlawful substance, nor any
controlled drug except by prescription, and the defendant shall notify the probation
officer within twenty-four hours of any such prescription. The defendant is not to use or
possess marijuana without prior permission of the court. The defendant shall not
associate with drug or illegal substance abusers or be in any place where illegal drugs are
used or sold.” Defendant contends the condition is unconstitutionally vague and
overbroad, and requests that it too be modified to include an express knowledge
requirement.
Again, we concur with the People’s contention that no such modification is
necessary in light of our opinion in Patel, as the condition falls squarely within the
“presence, possession, association, or similar action” described in Patel and we construe
the condition “to require the action be undertaken knowingly.” (Patel, supra,
196 Cal.App.4th at pp. 960-961.)
For the reasons discussed in part II, A of this opinion, we decline defendant’s
invitation to consider her claim despite Patel’s holding.

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III. DISPOSITION
The judgments are affirmed.
/S/
RENNER, J.
We concur:
/S/
RAYE, P. J.
/S/
MURRAY, J.

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