People v. Barriga CA6

Filed 2/26/13 P. v. Barriga CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H037613 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS111869A)

v.

JESUS BARRIGA,

Defendant and Appellant.

In this appeal appellant challenges as vague a probation condition that requires him to "[t]otally abstain from the use of alcoholic beverages, not purchase or possess alcoholic beverages, and stay out of places you know alcohol to be the main item of sale." Appellant urges this court to modify the first part of the condition to include a knowledge requirement. Even though appellant did not object to the condition at issue when it was imposed, the forfeiture rule does not apply when a probation condition is challenged as unconstitutionally vague on its face and the claim can be resolved on appeal as a pure question of law without reference to the sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 888–889 (Sheena K.).)

For reasons that follow we modify the challenged probation condition, which is designated probation condition "8" in the probation officer's report and the minute order from the sentencing hearing. The facts underlying appellant's conviction are not relevant to this appeal. We note, however, that pursuant to a negotiated disposition appellant pleaded no contest to one count of assault with force likely to cause great bodily injury. In exchange for his no contest plea appellant was promised felony probation. On November 9, 2011, at appellant's sentencing hearing, the court suspended imposition of sentence and placed appellant on probation on various terms and conditions including a 120 day county jail term. As noted, one of the conditions of probation as announced by the court requires appellant to "[t]otally abstain from the use of alcoholic beverages, not purchase or possess alcoholic beverages, and stay out of places you know alcohol to be the main item of sale." Respondent argues that appellant has forfeited any challenge to this condition by failing to object when the condition was imposed. Respondent asserts that this court should limit the exception to the forfeiture rule found in Sheena K, supra, 40 Cal.4th at page 889, to cases in which only First Amendment rights are implicated. Respondent cites to no relevant authority to support this proposition.1