Opinion
B227116
09-22-2011
THE PEOPLE, Plaintiff and Respondent, v. PABLO SANTIAGO BAUTISTA, Defendant and Appellant.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Gary A. Lieberman, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA362575)
APPEAL from a judgment of the Superior Court of Los Angeles County. Norman J. Shapiro, Judge. Affirmed with modification.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Gary A. Lieberman, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Pablo Santiago Bautista appeals from the judgment entered following a jury trial in which he was convicted of possessing cocaine base for sale. Defendant contends, and the Attorney General concedes, that one of defendant's probation conditions is unconstitutionally vague and overbroad and must be modified. We modify the condition as requested and affirm as modified.
BACKGROUND
About 5:00 a.m. on September 24, 2009, Los Angeles Police Department officers executed a search warrant at defendant's Los Angeles apartment. They detained defendant as he was about to drive away from the apartment building. Defendant was carrying $498 in cash, including thirty-eight $5 bills. Inside the apartment, the officers found a total of 8.86 grams of cocaine base, plus some powdered cocaine, pay-owe sheets, and $683 in cash. Defendant was advised of his Miranda rights in Spanish and waived them. He told officers that he sold drugs to pay the rent and support his family, and that he supplied a roommate with drugs to sell and use.
Defendant's girlfriend testified that defendant spoke no Spanish, only Zapotec, and the money found in the apartment came from her wages at a bakery and defendant's collection and recycling of cans.
The jury convicted defendant of possessing cocaine base for sale. The court granted defendant probation on various conditions, including the following: "You are not to use or possess any narcotics, dangerous, or restricted drugs, or associated paraphernalia, except with a valid prescription, and you are to stay away from places where users, buyers, and sellers congregate."
DISCUSSION
Defendant contends that the probation condition requiring him to stay away from places where users, buyers, and sellers congregate is unconstitutionally vague and overbroad and must be modified to include a knowledge element and a specification that it refers to users, buyers, and sellers of illegal drugs. The Attorney General aptly concedes this point, and suggests that the condition be modified to read, in pertinent part, "stay away from places where he knows, or where the probation officer has informed him, that users, buyers or sellers of illegal drugs congregate." (Italics in original.) We agree (In re Sheena K. (2007) 40 Cal.4th 875, 891-892), and essentially adopt the Attorney General's suggested wording.
DISPOSITION
Defendant's probation condition regarding narcotics, controlled substances, and paraphernalia is modified to read as follows: "You are not to use or possess any narcotics, dangerous, or restricted drugs, or associated paraphernalia, except with a valid prescription, and you are to stay away from places where you know, or have been informed by a probation officer, that users, buyers, or sellers of illegal drugs congregate." As modified, the judgment is affirmed.
NOT TO BE PUBLISHED.
MALLANO, P. J.
We concur:
ROTHSCHILD, J.
CHANEY, J.
Miranda v. Arizona (1966) 384 U.S. 436, 444 1602.