The People v. Welbers CA6

Filed 8/29/13 P. v. Welbers CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H038791 (Monterey County Plaintiff and Respondent, Super. Ct. Nos. SS120998 & SS120367) v.

ALEXANDER WELBERS,

Defendant and Appellant.

Defendant Alexander Welbers appeals from a grand theft conviction. On appeal, defendant contends that the trial court erred in imposing two probation conditions that are vague and overbroad. As set forth below, we will modify the probation conditions and affirm the judgment as modified. FACTUAL AND PROCEDURAL HISTORY Defendant stole two truck rims. The victim reported that the rims were worth $500 each. A felony complaint charged defendant with grand theft (Pen. Code, § 487, subd. (a).) Defendant pleaded no contest to the charge.1

1 Defendant was on Proposition 36 probation at the time he committed the grand theft. In pleading no contest to the charge of grand theft, defendant admitted that he was in violation of the terms of his probation.

The trial court suspended imposition of sentence, and it placed defendant on formal probation for three years with various terms and conditions. One of the probation conditions states that defendant may “[n]ot possess, receive or transport any firearm, ammunition or any deadly or dangerous weapon.” Another probation condition specifies that defendant may “not possess tools used for the express purpose of facilitating a burglary or theft; such as pry bars, screwdrivers, pick lock devices, universal keys or implements, or other such devices without the express permission of [his] supervising Probation Officer.” Defendant filed a timely notice of appeal. This appeal followed. DISCUSSION Defendant argues that the weapons condition and the burglary-tools condition are unconstitutionally vague and overbroad because they do not include knowledge requirements. Defendant accordingly requests that we modify each condition to impose a knowledge requirement. The People contend that we should decline to modify the conditions and simply construe the conditions to include knowledge requirements, as the Third Appellate District did in People v. Patel (2011) 196 Cal.App.4th 956 (Patel). The People concede that, if we do not follow the Patel approach, express knowledge requirements should be added to the conditions. As explained below, we will modify each condition to impose a knowledge requirement. “A probation condition ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.] A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) To pass constitutional muster, a probation condition that prohibits possession of