P. v. Silva CA6

Filed 4/19/13 P. v. Silva CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H038146 (Monterey County Plaintiff and Respondent, Super. Ct. No. SSC110091)

v.

CHRISTOPHER JOSEPH SILVA,

Defendant and Appellant.

Defendant Christopher Joseph Silva pleaded guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) pursuant to a plea agreement. Following defendant‟s completion of a residential drug treatment program, the trial court suspended imposition of sentence and placed defendant on probation for three years. On appeal, defendant contends that the trial court erred by imposing gang-related probation conditions. We conclude that some of the probation conditions must be modified. As modified, the order is affirmed.

I. Procedural and Factual Background In April 2011, defendant was a passenger in a car that was stopped for a traffic violation in King City. At that time, defendant was on probation for receiving stolen property (Pen. Code, § 496, subd. (a)), driving under the influence of alcohol or drugs

(Veh. Code, § 23152, subd. (b)), and driving with a suspended license (Veh. Code, § 14601.5, subd. (a)). After defendant was arrested for an unspecified violation of probation, he told the officer that he had a small bindle of methamphetamine in his sock. In May 2011, defendant was charged with transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)). In October 2011, the complaint was amended to add a count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). Defendant then pleaded guilty to possession of methamphetamine in exchange for a promise of probation, dismissal of the original charge, and consideration for treatment under the provisions of Proposition 36. About a week later, defendant was found ineligible for Proposition 36, but eligible for drug treatment court. In November 2011, defendant was accepted into a drug treatment program, and to remain in custody until a place was available for him in a residential facility. Gang-related probation conditions which had been previously imposed as a condition of “OR” release were continued. Defendant successfully completed the Sun Street Residential Program and complied with the terms of drug treatment court. In April 2012, the trial court suspended imposition of sentence and placed defendant on probation for three years. Over a defense objection, the trial court imposed several gang-related probation conditions.