People v. Infante CA6

Filed 2/21/14 P. v. Infante 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H039530 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS122125)

v.

MICHAEL JAMES INFANTE,

Defendant and Appellant.

Pursuant to a negotiated agreement, defendant Michael James Infante pleaded guilty to first degree burglary (Pen. Code, § 459). The trial court suspended imposition of sentence and placed defendant on probation for three years with various conditions. On appeal, defendant contends: (1) his probation condition that he stay away from the victims’ place of employment and vehicles is unconstitutionally vague; and (2) the amount of his restitution fine must be modified. We modify the stay-away condition. As modified, the order is affirmed.

I. Statement of Facts At approximately 9:00 a.m. on November 1, 2012, Salinas police responded to a residence regarding a burglary on Alameda Avenue. An officer spoke with a contractor who had observed cuts in a fumigation tarp on the residence. The contractor also

reported that he then noticed a man, later identified as defendant, exit the side entrance of the residence. The defendant was carrying a box and a case. When defendant began running, another witness followed him. Defendant dropped the box and the case on a nearby lawn and told the witness, “I have a gun so don’t chase me.” When defendant was subsequently arrested, he was in possession of property from the Alameda Avenue residence. A husband and wife lived at the Alameda Avenue residence. They reported that the defendant lives “around the corner” from them and the value of the stolen items was $15,923.83.

II. Discussion A. Stay-Away Probation Condition Defendant contends that the probation condition that he stay away from the victims’ place of employment and vehicles is unconstitutionally vague.1 The Attorney General concedes that the condition must be modified to include a knowledge requirement. At the sentencing hearing, the trial court stated: “Stay at least 100 yards away from the victims themselves, their residence, place of employment, any vehicles they own or operate.” However, the minute order, which was later signed by the trial court, states: “Stay away at least 100 yards from the person known to you to be the victim, the victim’s residence or place of employment, and any vehicle the victim owns or operates.”