People v. Gomez CA6

Filed 10/15/13 P. v. Gomez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H038711 (Monterey County Plaintiff and Respondent, Super. Ct. No. SSC110253)

v.

ARMANDO LOPEZ GOMEZ,

Defendant and Appellant.

Defendant Armando Lopez Gomez pleaded no contest to possessing methamphetamine for sale (Health & Saf. Code, § 11378). He was placed on probation for three years, with various terms and conditions. On appeal, defendant contends that a probation condition regarding weapons possession is unconstitutionally vague and requires modification. We will modify the challenged probation condition. BACKGROUND1  On October 8, 2011, King City police officers executed a search warrant at a residence where they had suspected drug transactions were occurring. Officers contacted and arrested defendant in front of the residence as he was about to enter the premises.

1 The factual background is based on the probation report.

During the search, officers found methamphetamine, cocaine, packaging materials, and $631 in cash. Defendant admitted to selling methamphetamine at the residence. In March 2012, the District Attorney filed an information charging defendant with possession of cocaine for sale (Health & Saf. Code, § 11351; count 1) and possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 2). Defendant pleaded no contest to count 2, on the condition that he receive probation. The trial court suspended imposition of sentence and placed defendant on probation for three years, with various terms and conditions. DISCUSSION In placing defendant on probation, the trial court imposed the following condition: “Not possess, receive or transport any firearm, ammunition or any deadly or dangerous weapon. Immediately surrender any firearms or ammunition you own or possess to law enforcement (P.C. § 12021).” Defendant contends that the above probation condition is unconstitutionally vague, in violation of his federal constitutional right to due process, because it does not include a knowledge requirement. Since probation conditions that implicate constitutional rights must be narrowly drawn, the knowledge requirement in some probation conditions “should not be left to implication.” (People v. Garcia (1993) 19 Cal.App.4th 97, 102.) Absent a requirement that the defendant knows he or she is disobeying the condition, the defendant is vulnerable, and unfairly so, to punishment for unwitting violations of it. (See People v. Lopez (1998) 66 Cal.App.4th 615, 628-629.) An appellate court is empowered to modify a probation condition in order to render it constitutional. (In re Sheena K. (2007) 40 Cal.4th 875, 892.) In People v. Kim (2011) 193 Cal.App.4th 836 (Kim), this court declined to modify a probation condition regarding weapons possession. In Kim, the probation condition provided, “ ‘You shall not own, possess, have within your custody or control