People v. Vargas CA6

Filed 1/14/16 P. v. Vargas CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H041094 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. F1450225)

v.

YARELI VARGAS,

Defendant and Appellant.

In exchange for a grant of felony probation with six months custody time, defendant Yareli Vargas waived her right to a preliminary examination and trial, and pleaded no contest to having sexual intercourse with a minor more than three years her junior (count 1; Pen. Code, §261.5, subd. (c)), possessing methamphetamine (count 2; Health & Saf. Code, § 11377, subd. (a)), and the misdemeanor of possessing the controlled substance Vicodin without a prescription (count 3; Bus. & Prof. Code, § 4060). She also admitted violating probation in another case. Defendant and the prosecutor waived a full probation report. 1

1 Due to the lack of a preliminary hearing and a complete probation report, the complaint and amended complaint provide the only details of the crimes. In signing the waiver of rights form, the trial court found a factual basis for the plea. Defense counsel stipulated in writing to a factual basis. Defense counsel’s stipulation did not refer to any document containing the facts and the trial court, in taking defendant’s no contest pleas, did not inquire about the factual basis. (Pen. Code, § 1192.5.)

On appeal defendant challenges one probation condition that provides, “She may not possess or use illegal drugs or go to places where they’re used or sold.”2 She contends this condition is unconstitutionally vague and overbroad due to its lack of an express knowledge requirement. The Attorney General contends that a knowledge component is implicit in possession, but concedes that the location prohibition requires an express knowledge element. For the reasons stated below, we will accept the Attorney General’s concession and will affirm the judgment as modified. In the waived referral probation report, among 17 recommended probation conditions was “[t]he defendant shall not possess or use illegal drugs or illegal controlled substances or go anywhere he/she knows illegal drugs or non-prescribed controlled substances are used or sold.” At sentencing, the court announced its “intention to follow through with the negotiated disposition of six months, including the [violation of probation], plus the other helpful conditions of probation.” The court orally imposed the challenged condition without including the recommended knowledge element. Defendant did not object to any of the terms and conditions of probation. DISCUSSION In People v. Rodriguez (2013) 222 Cal.App.4th 578, on which the Attorney General relies, this court recognized that we may review the constitutionality of probation conditions for the first time on appeal. (Id. at p. 585.) One of the conditions at issue in Rodriguez was much like the one challenged here. We adhere to the conclusions of Rodriguez without restating the reasoning.