People v. Lopez CA6

Filed 10/16/15 P. v. Lopez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H041291 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1352807)

v.

OMAR LOPEZ,

Defendant and Appellant.

Following a jury trial, defendant Omar Lopez was found guilty of carrying a concealed, loaded firearm (Pen. Code, § 25400, subd. (a)(2))1 and resisting a peace officer (§ 148, subd. (a)(1)). The trial court suspended imposition of sentence and placed defendant on probation. The trial court conditioned probation, in part, as follows: “You shall not possess or consume alcohol or illegal controlled substances or knowingly go to places where alcohol is the primary item of sale.” On appeal, defendant contends that this condition is unconstitutionally vague. He asks this court to modify the condition to include the word “knowingly.” The Attorney General concedes that the condition requires modification. In People v. Rodriguez (2013) 222 Cal.App.4th 578, the defendant challenged as unconstitutionally vague and overbroad a probation condition that she “ ‘[n]ot use or

1 All further statutory references are to the Penal Code.

possess alcohol, intoxicants, narcotics, or other controlled substances without the prescription of a physician . . . .’ ” (Id. at p. 592.) This court concluded that “a scienter element is reasonably implicit in this condition” with respect to controlled substances. (Id. at p. 593.) However, this court also recognized that the condition was not limited to substances regulated by statute, such as alcohol and intoxicants. (Id. at p. 594.) Thus, this court ordered that the condition be modified to add an express knowledge requirement to “eliminate any potential for vagueness or overbreadth in applying the condition.” (Ibid.) We will do the same in this case. The order of probation is modified so that the challenged condition reads. “You shall not knowingly possess or consume alcohol or illegal controlled substances or knowingly go to places where alcohol is the primary item of sale.” As so modified, the order is affirmed.