People v. Navarro CA1/1

Filed 10/28/15 P. v. Navarro CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, A143343 v. OSCAR NAVARRO, (Napa County Super. Ct. No. CR169972) Defendant and Appellant.

Oscar Navarro challenges a drug-related condition of his probation that prohibits him from using, consuming, or possessing “any non-prescribed . . . substances.” He argues that the condition is unconstitutionally vague. We agree and therefore modify the condition, but we otherwise affirm the judgment. I. FACTUAL AND PROCEDURAL BACKGROUND In March 2014, Navarro was pulled over by a Napa police officer. In the course of the stop, Navarro struggled with the officer and was found to be in possession of methamphetamine and a smoking pipe. Navarro was charged with three crimes: (1) possessing a controlled substance (methamphetamine), a felony; (2) possessing a smoking device, a misdemeanor; and (3) resisting, obstructing, or delaying a peace

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officer, a misdemeanor.1 The misdemeanor device-possession charge was later dismissed, and Navarro pleaded no contest to the remaining two counts.2 On the plea form Navarro signed memorializing the plea agreement, he agreed to “probation w/ drug terms.” The trial court then placed him on probation for three years with various conditions, including one prohibiting him from “us[ing], consum[ing] or possess[ing] any non-prescribed or illegal substances, including medical marijuana, unless specifically authorized by the Court.” II. DISCUSSION Navarro claims that the challenged condition is unconstitutionally vague because the term “substances” can be interpreted to mean substances other than drugs, and the term “non-prescribed” is ambiguous as to whether it includes over-the-counter medications.3 Although he did not object to the condition below, Navarro may raise this claim on appeal because it presents a “ ‘ “pure question[] of law that can be resolved without reference to the particular sentencing record developed in the trial court.” ’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 884.) For the reasons we shall explain, we conclude that the term substances is sufficiently clear, but the term non-prescribed is not. The vagueness doctrine is concerned with whether a probation condition is sufficiently clear and understandable. (In re Sheena K., supra, 40 Cal.4th at p. 890.) “A probation condition ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,’ if it is to withstand a challenge on the ground of vagueness.” (Ibid.) “[T]he underpinning 1 Navarro was charged under Health and Safety Code sections 11377, subdivision (a) (possession of methamphetamine) and 11364 (possession of smoking device), and Penal Code section 148, subdivision (a)(1) (resisting, obstructing, or delaying a peace officer). 2 Navarro later sought resentencing on the felony charge under Proposition 47, and it was reduced to a misdemeanor. (Pen. Code, § 1170.18.) 3 In his opening brief, Navarro argued that the condition should be modified to require that he “knowingly” consume, use, or possess the substances and asserted the condition improperly required the trial court’s authorization of any use of medical marijuana. He later abandoned these two arguments.