Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05CR7651
ROBIE, J.
Defendant Jamie D. Graham pled guilty to transporting methamphetamine. The trial court suspended sentence and placed her on five years’ formal probation, pursuant to Proposition 36, subject to certain terms and conditions. One of the probation conditions, special condition No. 8, directs that defendant “Not associate with known drug offenders or with persons using or possessing controlled substances during the period of probation.”
Defendant entered her plea pursuant to People v. West (1970) 3 Cal.3d 595.
On appeal, defendant contends special condition No. 8 is unconstitutionally vague and overbroad because she could be found to have violated her probation if she associated with someone who used or possessed drugs, even if she were not aware of that fact.
Whether a probation condition is vague or overbroad is a question of law that may be raised on appeal despite a defendant’s failure to object in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 888.)
In Sheena K., the California Supreme Court considered a probation condition forbidding the minor from associating with “‘anyone disapproved of by probation,’” and reasoned that the underpinning of the vagueness challenge is the due process concept of “‘fair warning.’” (In re Sheena K., supra, 40 Cal.4th at pp. 889, 890.) The vagueness doctrine “bars enforcement of ‘“a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.”’” (Id. at p. 890.) Absent “an express requirement of knowledge,” the probation condition in Sheena K. was unconstitutionally vague because it did not notify the appellant in advance with whom she was precluded from associating. (Id. at p. 891.)
We find this case to be similar. A person may reasonably not know whether he or she is associating with someone who uses or possesses a controlled substance. Fair notice, as described in Sheena K., is not possible unless the probation condition is modified to require that defendant must either know or reasonably should know that persons are “using or possessing” controlled substances before she is prohibited from associating with them. (See People v. Turner (2007) 155 Cal.App.4th 1432, 1436.)
We have the power to modify a probation condition to render the condition constitutional. (People v. Turner, supra,155 Cal.App.4th at p. 1436; see In re Sheena K., supra, 40 Cal.4th at p. 892.) Accordingly, we will modify the judgment to add an element of knowledge to special condition No. 8.
DISPOSITION
Special probation condition No. 8 is modified to state: Not associate with known drug offenders or with persons she knows or reasonably should know is using or possessing controlled substances during the period of probation. As modified, the judgment (order of probation) is affirmed.
We concur: SCOTLAND, P.J., SIMS, J.