People v. Garcia CA6

Filed 10/25/13 P. v. Garcia CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H038578 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. F1140758)

v.

PHILIP MICHAEL GARCIA,

Defendant and Appellant.

Defendant Philip Michael Garcia appeals from the trial court‟s order modifying his probation conditions. He argues that the modification exceeded the court‟s jurisdiction because it was based on the same facts as the original probation order. He argues alternatively that the court must modify its minute order to conform to its oral pronouncement, and that the added “stay away from school campuses” condition is unconstitutionally vague and overbroad. For the reasons explained below, we will uphold the trial court‟s jurisdiction to modify Garcia‟s probation conditions. We conclude, however, that the “stay away from school campuses” condition is impermissibly vague, and we will modify the condition to specify a 50 foot distance consistent with the parties‟ agreement on appeal. I. BACKGROUND On November 19, 2011, defendant was arrested during a traffic stop in Gilroy for carrying a concealed firearm in a vehicle (Pen. Code, § 12025, subd. (a)(1)), possessing a firearm as a misdemeanant (Pen. Code, § 12021, subd. (c)(1)), and giving a false name to

a peace officer (Pen. Code, § 148.9). According to the police report, the arresting officer noted Garcia‟s tattoos during the booking process, at which time Garcia admitted to associating with a Norteño street gang in San Jose. Garcia entered no contest pleas to the concealed weapon and false information charges. On January 30, 2012 he was placed on three years formal probation, and was ordered to serve six months in county jail. The court imposed several probation conditions which did not include gang-related proscriptions. Garcia reported to the probation department one week after he was released from jail. His cell phone and car were searched at that time. According to the probation officer‟s memorandum recommending modifications to Garcia‟s probation conditions, the cell phone contained gang-related photos, including a red “N” indicating Norteño gang affiliation. His phone also contained a video of two men punching another man, and a video of a badly injured man with a bloody face. Garcia‟s phone password, which Garcia claimed not to know, was a swipe pattern of the letter “N.” Garcia told the probation officer that he did not take the photos or videos, that they were sent to him in November 2011, that he had not engaged in gang activity since his release from jail, and that he no longer wanted to associate with gang members or participate in gang activities. Based on the examination of Garcia‟s cell phone, and in light of his concealed firearm offense, the probation officer recommended that Garcia‟s probation conditions be modified to include gang conditions and drug testing orders.1 The probation officer explained that he sought the additional conditions to better supervise Garcia and protect the community. On July 12, 2012, at a probation modification hearing attended by Garcia and his counsel, the court granted the probation department‟s modification request. Garcia