Opinion
F061491 Super. Ct. No. F10904729
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. BENITO LEONARDO LOERA, Defendant and Appellant.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Wiseman, Acting P.J., Dawson, J., and Franson, J.
APPEAL from a judgment of the Superior Court of Fresno County. Dale Ikeda, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On September 21, 2010, appellant, Benito Leonardo Loera, entered into a plea agreement in which he would admit one count of felony abuse of a spouse, cohabitant, or mother of a child (Pen. Code, § 273.5, subd. (a), count one) in exchange for dismissal of a count of felony dissuasion of a witness (§ 136.1, subd. (b)(1), count two). Appellant would be placed on probation on condition that he serve 365 days in local custody. Appellant executed a felony advisement, waiver of rights, and plea form acknowledging his constitutional rights pursuant to Boykin/Tahl and the consequences of his plea. Appellant waived his constitutional rights.
Unless otherwise designated, all statutory references are to the Penal Code.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
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The trial court determined that appellant understood his rights and signed the plea form voluntarily. The parties stipulated to a factual basis for the plea. Appellant pled no contest to a felony violation of section 273.5, subdivision (a). On October 20, 2010, the court placed appellant on probation upon various terms and conditions including that he serve 365 days in county jail and that he was "not to use or possess or associate with those who use or possess any dangerous drugs or narcotics, the only exception being those in a drug or alcohol treatment program with the defendant." The court granted appellant 38 days of custody credits and 38 days of conduct credits.
Appellant filed a timely notice of appeal but the trial court did not grant him a certificate of probable cause. Appellant contends, and respondent concedes, the above quoted condition of probation is constitutionally overbroad and vague because it does not require that appellant have knowledge that those people he may not associate with are in possession of drugs or narcotics. We agree with the parties and will order this condition of probation be modified.
DISCUSSION
Conditions of probation must be narrowly drawn, and must also be sufficiently precise for the probationer to know what is required of him or her. The courts must be able to determine whether the condition has been violated. (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) Without requiring that the probationer have explicit knowledge that those he or she may not associate with are people disapproved of by the probation officer, or are members of gangs, a condition banning all association violates the probationer's due process rights under the United States and California Constitutions. (Id. at pp. 890-891 [people not approved of by probation officer]; People v. Lopez (1998) 66 Cal.App.4th 615, 628-629 (Lopez)[prohibition of association with gang members without requiring knowledge of gang membership].)
As with the unconstitutionally overbroad conditions of probation in Sheena K. and Lopez, the challenged condition of probation here does not require that appellant know that those with whom he is associating are in possession of, or using, illegal narcotics. The trial court's condition will, therefore, be modified.
DISPOSITION
Appellant's condition of probation that he not associate with those who possess illegal narcotics is modified to require that appellant may not associate with anyone he knows uses or is in possession of illegal narcotics. As so modified, the judgment of the trial court and its conditions of probation are affirmed.