People v. Luna CA6

Filed 10/20/14 P. v. Luna CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H040318 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS131628A)

v.

CHRISTIAN LUNA,

Defendant and Appellant.

Defendant Christian Luna pleaded no contest to a count of robbery (Pen. Code, § 211).1 The trial court suspended imposition of sentence and placed him on probation for three years, subject to various terms and conditions. On appeal, defendant argues that several of his probation conditions are unconstitutionally vague and overbroad. We modify two of the challenged conditions and affirm the judgment. PROCEDURAL BACKGROUND2 On August 19, 2013, the Monterey County District Attorney’s office filed a complaint charging defendant with three counts of second degree robbery (§ 211; counts 1-3) and a count of conspiracy to commit a crime (§ 182, subd. (a)(1); count 4). On September 17, 2013, defendant pleaded no contest to a single count of robbery pursuant to a plea bargain.

1 Further unspecified statutory references are to the Penal Code. 2 The facts underlying defendant’s offenses are not relevant to the issues raised on appeal. We therefore provide only a summary of the procedural history of the case.

On October 22, 2013, the trial court suspended imposition of sentence and placed defendant on probation for a period of three years, subject to certain terms and conditions. Defendant filed a timely notice of appeal. DISCUSSION 1. Standard of Review “A Court of Appeal may review the constitutionality of a probation condition, even when it has not been challenged in the trial court, if the question can be resolved as a matter of law without reference to the sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.).) Our review of such a question is de novo.” (People v. Pirali (2013) 217 Cal.App.4th 1341, 1345.) 2. Knowledge Requirement in Conditions Nos. 15 and 163 Condition No. 15 states: “Have no direct or indirect contact with the victims, including contact by telephone, writing, computer, or through another person.” Condition No. 16 states: “Stay away at least 100 yards from the victim, the victim’s residence, the victim’s place of employment, school they attend, and any vehicle the victim is in.” Defendant argues these conditions should be modified to include a knowledge requirement, and the People agree. “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ ” (Sheena K., supra, 40 Cal.4th at p. 890.) “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.” (Ibid.) That is, the defendant must know in advance when he