People v. Rayford CA1/4

Filed 10/16/15 P. v. Rayford CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A141455 v. JOEL NATHAN RAYFORD, (Contra Costa County Super. Ct. No. 51319532) Defendant and Appellant.

I. INTRODUCTION Appellant Joel Nathan Rayford appeals following his conviction for driving under the influence (DUI) with three prior DUI convictions (Veh. Code, §§ 23152, subd. (b), 23550). He objects to two probation conditions prohibiting: (1) custody or control of “any concealable weapon” (weapons condition) and (2) possession of “any dangerous drugs” (drug condition). He contends that both conditions are unconstitutionally vague because they lack a knowledge requirement, and they fail to define the operative terms. The Attorney General concedes that the language of the conditions should be more precise and that the drug condition, but not the weapons condition, should contain a knowledge requirement. We order both the drug condition and the weapons condition to be modified to be further defined and to include a knowledge element in each. Otherwise, we affirm the judgment as modified.

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II. FACTUAL AND PROCEDURAL BACKGROUND The Contra Costa County District Attorney charged appellant with three offenses resulting from his arrest on October 19, 2012: driving under the influence with three prior convictions within the last ten years (Veh. Code, §§ 23152, subd. (a), 23550); driving under the influence with a blood-alcohol content of 0.08 percent or more with three prior DUI convictions (Veh. Code, §§ 23152, subd. (b), 23550); and driving while his license was suspended for a previous DUI conviction (Veh. Code, § 14601.2, subd. (a)). Appellant pled no contest to count two: driving with a blood-alcohol level of 0.08 percent or higher with three prior convictions. He admitted that he had been convicted of driving under the influence on three previous occasions, and that on the date of the current offense his blood-alcohol level was over 0.15 percent. The court suspended imposition of sentence, and placed appellant on five years of formal probation. The court ordered appellant to serve 365 days in county jail with credit for 206 days, with the balance to be served on home detention. The court imposed the following probation conditions, among others: (1) “You cannot have in your custody or control any rifle, shotgun, firearm, any concealable weapon or any ammunition,” and (2) “You cannot possess any dangerous drugs, narcotics, or narcotic paraphernalia.”1 III. DISCUSSION Appellant’s claims that his probation conditions are unconstitutionally vague and overbroad, and his objections to them now are not forfeited by his failure to raise them in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).)