People v. Hernandez CA6

Filed 5/21/15 P. v. Hernandez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H040586 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. F25470)

v.

CORNELIO LOPEZ HERNANDEZ,

Defendant and Appellant.

INTRODUCTION Defendant Cornelio Lopez Hernandez pleaded no contest to operating a vehicle with a blood-alcohol level of 0.08% or higher. (Veh. Code, § 23152, subd. (b).) The trial court also found true three prior convictions for violating the same provision. The court suspended imposition of sentence and placed defendant on probation for five years. On appeal, defendant challenges the validity of a probation condition prohibiting him from associating “with persons whose behavior might lead to criminal activities.” He also asserts that the trial court erred in imposing a $2,800 fine without identifying each fine, fee, and penalty imposed and the statute upon which each fine, fee, and penalty was based. Lastly, defendant contends that the court erred in failing to award presentence conduct credits. For the reasons set forth below, we will reverse and remand to the trial court with directions.

FACTUAL AND PROCEDURAL BACKGROUND In September 2013, the district attorney filed a complaint charging defendant with a felony count of driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a); count 1) and a felony count of driving while having a 0.08 percent or higher blood-alcohol level (Veh. Code, § 23152, subd. (b)). The complaint further alleged three prior convictions for violating Vehicle Code section 23152, subdivision (b). On January 16, 2014, defendant pleaded no contest to count 2, driving with a blood-alcohol level of 0.08 percent or higher. The trial court also found true the allegation that defendant had three prior convictions of the same offense. The court dismissed count 1. The trial court suspended imposition of sentence and placed defendant on probation for five years. The court imposed various terms and conditions of probation, one of which included serving 365 days in county jail, with 116 days of credit for time served. Additionally, one of the probation conditions prohibited defendant from associating with “persons whose behavior might lead to criminal activities.” The court also imposed, but suspended, a “fine . . . , including all fees and assessments of $2,800.” DISCUSSION A. The Association Probation Condition is Vague and Overbroad Defendant contends that the probation condition prohibiting association with “persons whose behavior might lead to criminal activities” must be stricken because it is unconstitutionally vague and overbroad. The Attorney General concedes that the probation condition is unconstitutional as written, but argues that it could be modified as follows: “Obey all laws and not associate with persons he knows to be users or sellers of narcotics, felons, or ex-felons.” To pass constitutional muster, a probation condition that restricts the defendant’s first amendment right to free association must be narrowly drawn to serve its rehabilitative purpose and to provide the defendant with “ ‘fair warning’ ” that he could 2