People v. Dupree CA6

Filed 7/8/14 P. v. Dupree CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H039278 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1223102)

v.

VIRGIL LOUIS DUPREE,

Defendant and Appellant.

Defendant Virgil Louis Dupree appeals from a judgment of conviction after a jury trial. The jury found Dupree guilty of two counts of misdemeanor vandalism (Pen. Code, § 594)1 and one count of misdemeanor possession of an item with intent to commit vandalism (§ 594.2). The trial court suspended imposition of sentence and placed Dupree on probation for three years. On appeal, Dupree contends that two of his conditions of probation are unconstitutionally vague and overbroad. We modify the dispositional order as discussed below and affirm the order as modified. I. BACKGROUND Early on the morning of November 22, 2011, a San Jose police officer on routine patrol observed a vehicle parked in the driveway of a dental center that was closed for business at that hour. The officer saw a female individual sitting in the driver’s seat and a male individual, identified at trial as Dupree, standing outside the vehicle on the passenger’s side. The officer saw spray paint cans sticking out of the front pockets of 1 All further statutory references are to the Penal Code, unless otherwise indicated.

Dupree’s sweatshirt. Upon speaking with Dupree, the officer observed wet spray paint on Dupree’s hand and smelled spray paint. The officer searched Dupree and found latex gloves in his pants pocket. Two spray painted words were found on a dumpster and shed across the street from the dental center. According to the officer, that graffiti appeared to be fresh and matched the colors of the spray paint found in Dupree’s possession. Other applications of similar graffiti were found in the vicinity. Dupree denied having applied the graffiti, claiming that he found the spray paint cans in the parking lot and some of the paint got on him. On March 28, 2012, the Santa Clara County District Attorney filed an information charging Dupree with two counts of felony vandalism (§ 594, subds. (a), (b)(1), counts 1 & 2) and one count of misdemeanor possession of an item with intent to commit vandalism (§ 594.2, count 3). The information further alleged that Dupree served three prior prison terms (§ 667.5). The case proceeded to trial in August 2012. Following three days of testimony, the jury found Dupree guilty of the lesser included offense of misdemeanor vandalism on counts 1 and 2 and guilty on count 3, misdemeanor possession of an item with intent to commit vandalism. On December 14, 2012, the court suspended imposition of sentence and placed Dupree on probation for three years. Among the probation conditions imposed by the court were condition No. 15, providing that Dupree “shall not use or possess any graffiti-related materials or engage in any illegal graffiti-related activity, as directed by the Probation Officer.” The court also imposed probation condition No. 16, which provides that Dupree “shall not associate with any persons known by him/her to be involved in illegal graffiti activity, as directed by the Probation Officer.” Dupree did not object to any of the probation conditions. Dupree timely filed a notice of appeal on February 4, 2013.