People v. Tran CA6

Filed 5/26/15 P. v. Tran CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H040534 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1361079)

v.

DUC DAO TRAN,

Defendant and Appellant.

I. INTRODUCTION After a jury trial, defendant Duc Dao Tran was convicted of one felony count of possession of a controlled substance (Health & Saf. Code, § 11377)1 and one misdemeanor count of being under the influence of a controlled substance (§ 11550, subd. (a)). Defendant admitted the allegations that he had two prior convictions for violation of section 11550. He was placed on formal probation for two years. On appeal, defendant challenges the probation conditions that require him to “not consume or use or possess illegal drugs” and “not own or possess firearms or ammunition.” Defendant contends that these probation conditions are unconstitutionally vague because they do not include an explicit knowledge element. For the reasons stated

1 All further statutory references are to the Health and Safety Code unless otherwise indicated.

below, we will modify the challenged probation conditions to include an express knowledge requirement and affirm the judgment as modified. II. BACKGROUND On July 10, 2013, Officer Kyle Rollins of the San Jose Police Department was on patrol on Summerside Road when he saw defendant walking on the sidewalk while rolling a bicycle. Officer Rollins had previously conducted narcotics investigations in that area. He asked defendant to come over to him and when defendant complied, Officer Rollins confirmed defendant’s identity with defendant’s California driver’s license and a database check. While Office Rollins was interacting with defendant, he observed that defendant was exhibiting symptoms of being under the influence of a central nervous system stimulant. Officer Rollins searched defendant and found bindles of crystal methamphetamine, a wallet containing a large sum of money, and a pocket knife. He arrested defendant for possession of a drug for sale. The information filed in September 2013 charged defendant with one felony count of possession for sale of a controlled substance, methamphetamine (§ 11378; count 1) and one misdemeanor count of being under the influence of a controlled substance (§ 11550, subd. (a); count 2). The information also included the allegations that defendant had two prior convictions for violation of section 11550. The matter proceeded to a jury trial and the jury verdict was rendered on November 26, 2013. The jurors found defendant not guilty on count 1 (§ 11378), guilty on the lesser included offense of simple possession (§ 11377), and guilty on count 2 (§ 11550, subd. (a)). On the same day as the jury verdict, defendant admitted the allegations that he had two prior convictions for violation of section 11550. At the sentencing hearing held on December 3, 2013, the trial court suspended imposition of sentence and imposed formal probation for two years with various terms and conditions.