People v. Delgado CA6

Filed 1/13/15 P. v. Delgado CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H040579 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1363668)

v.

EFREN ANGEL DELGADO,

Defendant and Appellant.

Defendant Efren Angel Delgado pleaded nolo contendere to a count of possession of marijuana for sale (Health & Saf. Code, § 11359). He was placed on three years of formal probation, subject to various terms and conditions including that he not “possess or consume illegal drugs or alcohol or knowingly go anywhere illegal drugs are used or sold or where alcohol is the major item of sale.” On appeal, he argues his probation condition is unconstitutionally vague, because it lacks an express knowledge requirement. We agree and modify the condition. As modified, we affirm the judgment. PROCEDURAL BACKGROUND1 On August 19, 2013, the Santa Clara County District Attorney’s office filed a complaint charging defendant with one count of possession of marijuana for sale (Health & Saf. Code, § 11359). On December 18, 2013, defendant pleaded nolo contendere as

1 The underlying facts of defendant’s offense are not relevant to the issue raised on appeal. We therefore only provide a summary of the relevant procedural history of the case.

charged in the complaint and was placed on three years of formal probation. The court imposed a condition of probation that he not “possess or consume illegal drugs or alcohol or knowingly go anywhere illegal drugs are used or sold or where alcohol is the major item of sale.” On January 7, 2014, defendant notified the court that he wished to withdraw his plea. That same day, he filed a notice of appeal and an application for a certificate of probable cause. The court denied his motion to withdraw his plea on January 15, 2014. The following week, the court denied defendant’s application for a certificate of probable cause. On January 30, 2014, defendant filed an amended notice of appeal. DISCUSSION On appeal, defendant argues the probation condition imposed by the trial court prohibiting him from possessing or consuming illegal drugs or alcohol is unconstitutionally vague, because it lacks an express knowledge requirement. Defendant did not object to the imposition of the condition during his sentencing hearing. However, “[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.) Here, defendant raises a facial vagueness challenge to the imposed probation condition. “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ ” (In re 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