Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. SWF012152. Mark E. Peterson, Judge. Affirmed as modified.
David K. Rankin, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Following defendant’s admission that he violated three conditions of probation, the court reinstated probation with modified terms and conditions. Defendant appeals the sentence.
BACKGROUND
On July 6, 2005, defendant pled guilty to one count of possessing a controlled substance (Health & Saf. Code, § 11350, subd. (a)), and one count of being a felon in possession of a firearm. (Pen. Code, § 12021, subd. (a)(1).) In accordance with the terms of the plea bargain, defendant was granted probation, on specified terms, including, among other conditions, a requirement that he serve 120 days in local custody on weekends, register as a drug offender (Health & Saf. Code, § 11590), and report to the probation officer. A month after the guilty plea, defendant’s probation was revoked because he did not report to the probation officer or surrender to serve his weekend jail term, and the probation department had no valid California address for him. On October 18, 2005, defendant failed to appear at the revocation hearing, so a bench warrant was issued for defendant’s arrest.
On February 6, 2007, defendant was arraigned on the violation of probation, admitted the violation, and probation was reinstated on the same terms and conditions. However, defendant again failed to report to serve his weekend jail time, so the probation officer alleged another violation of probation on April 5, 2007. Defendant failed to appear at his arraignment on the violation of probation, resulting in the issuance of another bench warrant. He was subsequently taken into custody and arraigned on the violation of probation on January 29, 2008.
On January 31, 2008, defendant admitted violating the terms of his probation. The court reinstated probation but modified the conditions of probation to add an additional 245 days to the custody time previously imposed, and ordered that the term be served as straight time, among other things. Defendant appeals from the sentence or other matters occurring after the plea.
DISCUSSION
At his request, this court appointed counsel to represent defendant on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, but he has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. Defendant had previously had his probation revoked for failing to serve his weekend jail time, failing to register as a drug offender, and failing to report to his probation officer. Defendant’s admission of the probation violation was free and voluntary, and his repeated failure to report to serve his weekend custody, as well as his failure to register as a drug offender, or to report to his probation officer, justify the revocation of probation, reinstatement with increased custody time, and denial of weekend or work furlough terms. We have found no errors in the modified terms of probation.
However, we note that term number 16 of the original terms of probation, which was ordered reinstated at the disposition of the violation of probation, prohibits defendant from associating “with any unrelated person on probation or parole.” Similar conditions of probation have been held to be unconstitutionally vague. (See, In re Sheena K. (2007) 40 Cal.4th 875, 890-891 (Sheena K.) [invalidating probation condition prohibiting association with persons disapproved of by the probation officer]; People v. Turner (2007) 155 Cal.App.4th 1432, 1435 [condition forbidding minor from associating with persons under the age of 18 regardless of defendant’s knowledge of associates’ age]; People v. Lopez (1998) 66 Cal.App.4th 615, 627-628 [condition prohibiting association with gang members regardless of defendant’s knowledge of gang membership].
However, if a knowledge requirement is added, such a condition may withstand scrutiny. (See, People v. Robinson (1988) 199 Cal.App.3d 816, 818 [valid condition prohibited association with persons having known criminal record]; People v. Peck (1996) 52 Cal.App.4th 351, 353 [valid condition prohibited association with known possessors, users or traffickers of controlled substances].) Failure to object to the condition does not prevent us from reaching the issue, which involves a pure question of law. (Sheena K., supra, 40 Cal.4th at p. 888.) The appropriate remedy is to modify the condition to narrow its reference to persons known to the probationer to be on probation or parole.
We have completed our independent review of the record and find no arguable issues.
DISPOSITION
Probation condition No. 16 is modified to read: “Not associate with any unrelated person known to you to be on probation or parole.” As modified, the judgment is affirmed.
We concur: RICHLI, J., MILLER, J.