People v. Bui CA6

Filed 11/25/13 P. v. Bui CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H039144 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1223208)

v.

CUONG MANH BUI,

Defendant and Appellant.

Defendant Cuong Bui appeals from a judgment entered upon his plea of no contest to possession of marijuana for sale. He challenges only his sentence, contending that one of the conditions of his supervised release is impermissibly vague because it does not include a knowledge element. He further contends that he is entitled to 16 days of additional presentence credit. We will modify the judgment to correct these sentencing errors and otherwise affirm. Background Defendant was charged by information with cultivating marijuana (Health & Saf. Code, § 11358); possession of marijuana for sale (Health & Saf. Code, § 11359); and felony vandalism (Pen. Code, § 594(a), subd. (b)(1)). The information further contained the allegation that defendant had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).

Pursuant to a negotiated disposition, appellant pleaded no contest to count two, possession of marijuana for sale. He also admitted the allegation regarding the prior prison term. Under the terms of the plea agreement, defendant was to receive a sentence of 10 months in county jail, followed by 26 months of mandatory supervision by the probation department. He was also to receive credit for time served and the prosecution would seek dismissal of the remaining charges. At sentencing the trial court dismissed the first and third counts of the information. Addressing count two, the admitted charge, the court ordered defendant to serve 288 days in county jail, with 288 days of credit for time served (144 actual days and 144 pursuant to Pen. Code, § 4019). The court further ordered defendant to serve 26 months and 12 days under mandatory supervision by the probation department. Defendant filed his notice of appeal the following day. Discussion 1. Supervised Release Condition The court's grant of mandatory supervised release was subject to several conditions, including the following: "The defendant is not to possess or use illegal drugs or illegal controlled substances or go anywhere where he knows illegal drugs or non- prescribed controlled substances are used or sold." Defendant seeks a modification to correct the vagueness that he believes results from the absence of a knowledge requirement. The People do not oppose this request. The court may grant probation "upon those terms and conditions as it shall determine." (Pen. Code, § 1203.1, subd. (a).) "In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. [Citations.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.) Nevertheless, "[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