People v. Ramirez CA6

Filed 11/17/14 P. v. Ramirez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H040728 (Santa Clara County Plaintiff and Respondent, Super. Ct. Nos. CC776155, CC513156)

v.

EVARADO CORTEZ RAMIREZ,

Defendant and Appellant.

I. INTRODUCTION In case No. CC513156, defendant pleaded guilty in 2006 to possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), misdemeanor providing a false name to a peace officer (Pen. Code, § 148.9), and misdemeanor public intoxication (Pen. Code, § 647, subd. (f)). Defendant also admitted that he had served a prior prison term (Pen. Code, § 667.5, subd. (b)). The trial court suspended imposition of sentence and placed defendant on probation with various terms and conditions. Defendant’s probation was revoked in 2008 and a bench warrant was issued. He was arrested in December 2013. In case No. CC776155, defendant pleaded no contest in 2014 to driving with a blood alcohol level of 0.08 percent or more with one prior conviction (Veh. Code, §§ 23152, subd. (b), 23550.5, subd. (a))1 and misdemeanor hit and run (§ 20002,

1 All further statutory references are to the Vehicle Code unless otherwise indicated.

subd. (a)). Defendant also admitted that his blood alcohol level was 0.15 percent or more (§ 23578), and that he had served a prior prison term (Pen. Code, § 667.5, subd. (b)). On February 19, 2014, in the case involving Vehicle Code violations (No. CC776155), defendant was placed on probation with various terms and conditions, including that he not possess or consume alcohol. That same day, the court reinstated and terminated probation in the cocaine possession case (No. CC513156). On appeal, defendant does not raise any issues in the cocaine possession case (No. CC513156). In the case involving Vehicle Code violations (No. CC776155), defendant contends that the probation condition prohibiting possession of alcohol is unconstitutionally vague and overbroad. For reasons that we will explain, we will modify the judgment relating to the ordered condition of probation and, after correcting a clerical error, we will affirm the judgment as modified. II. FACTUAL AND PROCEDURAL BACKGROUND In August 2007, defendant was charged by complaint with driving under the influence of alcohol and drugs with one prior conviction (§§ 23152, former subd. (a), 23550.5, subd. (a); count 1), driving with a blood alcohol level of 0.08 percent or more with one prior conviction (§§ 23152, subd. (b), 23550.5, subd. (a); count 2), and misdemeanor hit and run driving causing property damage (§ 20002, subd. (a); count 3). It was further alleged that he had served a prior prison term (Pen. Code, § 667.5, subd. (b)), and as to counts 1 and 2 that his blood alcohol level was 0.15 percent or more (§ 23578). Defendant was released to immigration authorities in October 2007. He was arrested on a bench warrant in December 2013. In January 2014, based on the trial court’s indicated sentence of one year in county jail, defendant pleaded no contest to count 2 (driving with a blood alcohol level of 0.08 percent or more with a prior conviction) and count 3 (misdemeanor hit and run). He