P. v. DeSantiago CA5

Filed 7/15/13 P. v. DeSantiago CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent, F064808

v. (Super. Ct. No. F11905362)

THOMAS DESANTIAGO, OPINION

Defendant and Appellant.

THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Dale Ikeda, Judge. Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

 Before Wiseman, Acting P.J., Levy, J., and Gomes, J.

Appellant, Thomas DeSantiago, pled no contest to inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)). On March 27, 2012, the court suspended imposition of sentence and placed DeSantiago on probation for three years on condition he serve 180 days local time. On appeal, DeSantiago contends two of his conditions of probation are overbroad. We find merit to this contention and modify the judgment accordingly. In all other respects we affirm the judgment as modified. DISCUSSION1 At DeSantiago‟s sentencing hearing the court imposed certain conditions of probation including the following: “the defendant is not to be in a gang or associate with any person who is in a gang as defined in Penal Code section 186.22(e) and (f). [¶] He‟s not to wear or possess any gang–related paraphernalia or indicia.” DeSantiago contends these two conditions are overbroad because they do not contain a knowledge element. We agree. “In a variety of contexts, beginning with People v. Garcia (1993) 19 Cal.App.4th 97 (Garcia), California appellate courts have found probation conditions to be unconstitutionally vague or overbroad when they do not require the probationer to have knowledge of the prohibited conduct or circumstances. In Garcia, a probation condition prohibiting association with „“any felons, ex-felons, users or sellers of narcotics,”‟ [citation] was found to impinge on the probationer‟s „constitutional right of freedom of association‟ and accordingly had to be narrowly drawn [citation]. [This court] rejected the contention that it was implicit that the condition would only be violated if the probationer knew of the other person‟s status, stating „the rule that probation conditions