Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 09F00580
BLEAS, Acting P. J.
Defendant Mayo Maurice Laurent entered a negotiated plea of no contest to possessing cocaine base (Health & Saf. Code, § 11350, subd. (a)) and misdemeanor resisting, delaying or obstructing a police officer. (Pen. Code, § 148, subd. (a)(1).) The trial court suspended imposition of sentence and placed defendant on five years’ probation on various terms and conditions.
Defendant contends, and the People concede, that three conditions of his probation are unconstitutionally overbroad. We accept the concession and shall direct the probation order to be amended.
DISCUSSION
The conditions of defendant’s probation require, among other things, that;
“3. Defendant not associate with known or reputed users or sellers of marijuana, dangerous drugs or narcotics, or be in places where narcotics and/or dangerous drugs are present”;
“6. Defendant not associate with known gang members”; and “7. Defendant not be in places frequented by known gang members[.]”
The numbers assigned to these conditions appear in the probation report.
We address defendant’s challenges to these conditions in turn.
Probation Condition Number 3.
Defendant contends and the People concede that this condition violated his constitutional rights because it imposed a vague and overbroad condition of probation. He asks that the condition be modified to include a knowledge qualifier.
We accept the People’s concession that the condition should be modified. In In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.), the California Supreme Court held that a probationary condition prohibiting the probationer from associating with anyone who is a member of a specified class of persons, without a requirement that the probationer know the person is a member of the class, is unconstitutionally vague (id. at pp. 889-892); that because such conditions present a pure question of law, a probationer’s failure to object to its imposition does not forfeit the issue for appeal (id. at pp. 888-889); and that an acceptable remedy when such a condition is challenged on appeal is for the appellate court to insert the knowledge requirement (id. at p. 892).
The challenged probation condition imposed on defendant here relates also to the places where defendant is allowed to be, but we find the condition imposed is similar for constitutional purposes to that of Sheena K., and we shall insert the knowledge requirement proposed by the parties. (See People v. Garcia (1993) 19 Cal.App.4th 97, 102-103.)
Probation Condition Number 6.
Defendant contends, and the People concede, that this condition (prohibiting defendant’s association with known gang members) violated his constitutional rights because it imposed a vague and overbroad condition of probation. He asks that the condition be modified to include a knowledge qualifier.
The probation report indicates defendant has numerous gang tattoos, and acknowledged an affiliation with the “Oak Park Blood” and “33rd Block” street gangs.
We agree. In People v. Lopez (1998)66 Cal.App.4th 615 (Lopez), the defendant’s probationary term barred him from any gang association, involvement in gang activities, display of any gang markings, or wearing of gang clothing. (Id. at p. 622.) The reviewing court found the term “gang” to be unconstitutionally vague and overbroad in that it failed to put the defendant on proper notice of those with whom he was prohibited from associating, what he could wear, and what activities in which he might lawfully engage. (Id. at pp. 628-631.) The court found an implied requirement of knowledge insufficient to overcome the constitutional infirmities. “Without at least the insertion... of a knowledge element, [the defendant] was subject to being charged with an unwitting violation of the condition because nothing in it required the police or the probation office to apprise [the defendant] of the ‘identified’ items of gang dress before he was charged with a violation.” (Id. at p. 634.) Hence, the court modified the conditions of probation to insert the Penal Code section 186.22, subdivisions (e) and (f) statutory definition of “criminal street gang” and to require that the defendant not associate with anyone known by him to be a gang member and not wearing clothing known by him to be gang attire. (Id. at p. 638.) With these minor modifications, the court found that the probationary terms passed constitutional muster.
We shall insert a knowledge requirement into probation condition number 6, in the form suggested by the People and approved by defendant.
Probation Condition Number 7
Defendant contends, and the People concede, that this condition (prohibiting defendant from places frequented by known gang members) violated his constitutional rights because it imposed a vague and overbroad condition of probation.
Here, however, the People assert that the condition of probation can overcome this challenge if it is modified to include the italicized language: “As directed by the probation officer, defendant shall not be in places that he knows to be frequented by gang members.” We agree that this modification both adds a knowledge component and limits its application to situations in which the probation officer identifies a particular place defendant must avoid.
Defendant responds that condition 7 cannot thus be constitutionally amended because it not only severely curtails his constitutional rights of association and his right to be in a place of his choosing, but gives the probation officer unfettered “discretion to prohibit defendant from going to any place that gang members may also go” (like a mall, park, or restaurant), even if no gang member is then also present.
We are unpersuaded. The phrase, “as directed by the probation officer,” which is used in the probation recommendations in connection with this condition, both helps to satisfy the knowledge requirement that was missing in Lopez and avoid overbreadth and vagueness concerns, because defendant could be found in violation of the condition only if he has been specifically advised by his probation officer as to what locations are prohibited. Similar language, which necessarily gives the probation officer discretion but properly narrows the scope of the probation condition, has been upheld in other cases. (E.g., People v. Lopez, supra, 66 Cal.App.4th at pp. 634, 638.)
DISPOSITION
Defendant’s conviction is affirmed.
Probation condition number 3 is modified to state: “Defendant is not to associate with individuals who he knows are unlawfully selling or using drugs and/or narcotics, and he is not to be in places where he knows drugs and/or narcotics are illegally present.”
Probation condition number 6 is modified to state: “Defendant is not to associate with any person who he knows, or who the probation officer informs him, to be a gang member. For the purpose of this condition, ‘gang’ means ‘criminal street gang’ as defined in Penal Code section 186.22, subdivisions (e) and (f).”
Probation condition number 7 is modified to state: “As directed by the probation officer, defendant shall not be in places that he knows to be frequented by gang members.”
As so modified, the order of probation is affirmed. The court is directed to amend its records to reflect the modifications and to forward the appropriate documents to defendant and to the probation department.
We concur: SIMS, J., BUTZ, J.