People v. Ortega CA6

Filed 11/13/13 P. v. Ortega CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H039218 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1243946)

v.

ANGEL JOHN ORTEGA,

Defendant and Appellant.

Defendant Angel John Ortega pleaded no contest to commercial burglary (Pen. Code, §§ 459, 460, subd. (b))1 and battery (§§ 242, 243, subd. (a)). The trial court suspended imposition of sentence and placed defendant on probation for three years. Defendant contends that his probation condition that he stay away from all Lucky, Save Mart, and FoodMaxx supermarkets is unconstitutionally vague and overbroad. We conclude the probation condition must be modified. As modified, the order is affirmed.

I. Statement of Facts2 Defendant, who was carrying a backpack, entered a Lucky supermarket located in San Jose. Defendant placed several items into the backpack and left the store without paying for them. After a loss prevention officer approached defendant and identified

1 All further statutory references are to the Penal Code. 2 The statement of facts is based on the police reports.

himself, defendant tried to strike the officer with his backpack. The officer then attempted to take defendant into custody, but defendant managed to break free from his grasp. After defendant tripped, he was apprehended.

II. Discussion At the sentencing hearing, the trial court stated: “You cannot go on the premises of any Lucky store, Savemart store or Food Maxx store in the State of California or you’ll be in violation of probation. That means parking lot and store.” However, the minute order states that defendant was ordered to “[s]tay away from the premises of all Lucky, Save Mart & Food Maxx Stores in CA at 100 yds.” When there is a discrepancy between the minute order and the trial court’s oral pronouncement, the oral pronouncement controls. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) Thus, we will consider defendant’s constitutional challenges to the trial court’s oral pronouncement of the probation condition. Defendant argues that this probation condition is unconstitutionally overbroad, because it infringes on his constitutional right to travel. He also challenges the constitutionality of the probation condition on the ground of vagueness. He asserts that he could be found in violation of probation by entering a parking lot while he was unaware that the named supermarkets were on the premises.3 “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.” (Sheena K., supra, 40 Cal.4th at p. 890.) “The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s