People v. Gaff CA3

Filed 5/15/15 P. v. Gaff CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C075818

Plaintiff and Respondent, (Super. Ct. No. 13F04227)

v.

GARTH GAFF,

Defendant and Appellant.

Defendant Garth Gaff pleaded no contest to assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).)1 Imposition of sentence was suspended and defendant was placed on probation for five years on the condition, among others, that he serve 210 days’ incarceration with credit for 81 days. Thereafter, defendant admitted two separate probation violations for failing to obey all laws and his probation was reinstated each time. In connection with the second

1 Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.

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violation, which involved a shoplifting from a Raley’s supermarket, the court ordered defendant to “stay away from Raley’s.” On appeal, defendant contends the “stay away from Raley’s” condition must be stricken because it is (1) unconstitutionally overbroad, and (2) impermissibly vague. We affirm. PROCEDURAL AND FACTUAL BACKGROUND2 In November 2013, defendant admitted an allegation that he had violated his probation by failing to obey all laws by violating section 148, resisting or delaying a peace officer. Probation was reinstated on the original terms and conditions and defendant was also ordered to serve 90 days’ incarceration with credit for 15 days. In February 2014, defendant admitted an allegation that he had violated his probation by committing petty theft with a prior theft-related conviction. (§ 666.) The theft took place at Raley’s supermarket at 8391 Folsom Boulevard in Sacramento. Probation was again reinstated on the original terms and conditions. Defendant was also ordered to serve 150 days’ incarceration with credit for four days. The prosecutor asked the court to order that defendant “stay away from Raley’s stores,” and the trial court said it would issue the order. Defense counsel stated he “wouldn’t object” to an order to stay away from the Raley’s store where the probation violation occurred, but counsel objected “to a condition of him staying away from all Raley’s.” Counsel did not state a basis for the objection. The prosecutor responded that the requested probation condition was not “over broad in anyway [sic],” and the trial court voiced its agreement. The prosecutor added: “I think he is a thief, and he has abused his rights by stealing from Raley’s. And it is a reasonable condition of probation, and Raley’s doesn’t want him in their stores.” (Italics added.) Defense counsel responded, “[u]nder that logic we should prohibit him