People v. Ramirez CA6

Filed 11/13/13 P. v. Ramirez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H038660 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS120394)

v.

ADRIAN SOLORIO RAMIREZ,

Defendant and Appellant.

Defendant Adrian Solorio Ramirez pleaded guilty to possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and no contest to misdemeanor possession of a billy club (Pen. Code, § 22210).1 The trial court suspended imposition of sentence and placed him on felony probation for three years. On appeal, defendant challenges two probation conditions as unconstitutionally vague and overbroad. We modify and affirm the trial court’s order.

I. Background On March 2, 2012, Salinas police officers responded to reports of a stabbing in Closter Park and detained defendant and others near the metal bleachers. Asked if he possessed any weapons, defendant replied that he did not. Asked about a 14-inch billy

1 Subsequent statutory references are to the Penal Code unless otherwise noted.

club found where he had been sitting, defendant said he found the “bat” that morning and did not know it was considered a weapon. He consented to a search of his person, and officers found a hypodermic syringe in his pants pocket. He initially denied possessing heroin, but when a further search located a small tin “cooker” containing heroin and a rubber tie-off strap in his pocket, he admitted buying “a dime” of the drug that morning and using a small amount.

II. Discussion A. No-Alcohol/Drugs Condition Condition No. 8 requires defendant to “[n]ot use or possess alcohol, narcotics, intoxicants, drugs, or other controlled substances without the prescription of a physician; not traffic in or associate with persons known to [defendant] to use or traffic in narcotics or other controlled substances.” Defendant argues that the condition is unconstitutionally vague and overbroad because it lacks a knowledge requirement, leaving him “vulnerable to criminal punishment for conduct that may be wholly unwitting and involuntary.” The Attorney General responds that the condition contains an implied knowledge requirement. To the extent this court finds the condition vague, however, she agrees that it can be modified to add an express knowledge requirement. We conclude that the condition must be modified. A trial court has broad discretion to impose such reasonable probation conditions “as it may determine are fitting and proper to the end that justice may be done . . . and generally and specifically for the reformation and rehabilitation of the probationer . . . .” (§ 1203.1, subd. (j).) “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.]” (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ 2