Opinion
NOT TO BE PUBLISHED
Monterey County Super.Ct.No. SS081127A
Duffy, J.
Defendant, Leonardo Ramirez, pleaded no contest to felony evasion of a police officer (Veh. Code, § 2800.2, subd. (a)). He claims that (1) a probation condition, as pronounced orally, is unconstitutionally vague and overbroad and (2) a minute order does not properly reflect the trial court’s orally announced disposition in a minor respect. We will modify the probation condition and minute order to cure any infirmity or incongruity. With these modifications, we will affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
Because defendant pleaded no contest, we take the facts from the probation report. On March 9, 2008, defendant was heading to the scene of an incipient illegal speed contest to watch it or participate in it. When defendant saw sheriff’s deputies arrive to interrupt others who were preparing to race, he fled. In the opinion of one deputy, defendant’s car reached a speed of more than 120 miles per hour. The car crashed into a tree and defendant was apprehended.
Defendant pleaded no contest to evading a police officer as noted above. The trial court sentenced him to three years’ formal probation, one condition of which was to serve 90 days in jail. In pronouncing sentence, the court told defendant that one condition of probation required him to “stay away from all locations where drugs are used, or present, or trafficked illegally.” The written minute order contained no analogous stay-away provision: the probation condition therein set forth told defendant that he must “[n]ot use or possess narcotics, intoxicants, drugs, or other controlled substances without the prescription of a physician; not traffic in, or associate with persons you know, or have reason to suspect, use or traffic in narcotics or other controlled substances.”
DISCUSSION
I. Constitutionality of Probation Condition
Defendant claims that the trial court’s orally pronounced probation condition that he stay away from any location where illegal drug-related activity is occurring is unconstitutional because it is vague and overbroad and interferes with his constitutional right to travel and his associational rights under the First and Fourteenth Amendments to the United States Constitution. The gravamen of his claim, however, is that the condition could cause him to violate his probation without his knowing that he did anything that infringed on the condition imposed.
The objectionable language appears in this recitation by the trial court: “You will not possess or consume any alcohol. You will stay away from all locations where the primary business is the sale or consumption of alcohol. Don’t even think you can get away with it one time. You will not possess or consume any controlled substance. You’ll stay away from all locations where drugs are used, or present, or trafficked illegally; and you will not associate with anyone known to you to use or traffic in illegal substances.” (Italics added.)
Defendant did not object to the probation condition. Nevertheless, he did not forfeit his constitutional challenge to it. (In re Sheena K. (2007) 40 Cal.4th 875, 889 [constitutional challenge to probation condition involving pure questions of law not forfeited despite failure to assert it in trial court].) The People agree that the challenge is not forfeited. Because we believe that defendant’s constitutional challenge to the probation condition constitutes a pure question of law, under the authority of Sheena K. we will address the claim on the merits.
A reviewing court reviews a trial court’s imposition of a probation condition for an abuse of discretion. (See People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.) The court may “impose conditions to foster rehabilitation and to protect public safety.” (Id. at p. 1120.) But the court’s discretion is not unbounded. A court has no discretion to impose a condition that violates the United States or California Constitutions or another provision of law. “The abuse of discretion standard... measures whether, given the established evidence, the act of the lower tribunal falls within the permissible range of options set by the legal criteria. ‘The scope of discretion always resides in the particular law being applied, i.e., in the “legal principles governing the subject of [the] action....” Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an “abuse” of discretion.’ ” (Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 831, fn. omitted.)
It is the oral pronouncement of probation conditions that informs a defendant’s probation terms (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2), and on appeal it is the oral pronouncement we must consider for any constitutional infirmities.
“ ‘A probation condition is subject to the “void for vagueness” doctrine....’ ” (In re H.C. (2009) 175 Cal.App.4th 1067, 1070.) The “underlying concern” of the void for vagueness doctrine “is the core due process requirement of adequate notice. ‘No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.’ [Citations.]” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115.) The question here is whether the doctrine demands an explicit knowledge requirement in the challenged probation condition. The People accept that it does and we, too, agree with defendant. Given “the rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights,” the knowledge requirement in probation conditions “should not be left to implication.” (People v. Garcia (1993) 19 Cal.App.4th 97, 102; cf. People v. Rubalcava (2000) 23 Cal.4th 322, 327, 331-332 [statute that criminalizes traditionally lawful conduct and does not define the requisite culpable mental state is construed to contain the mens rea element of knowledge].) Absent a requirement that defendant know he is disobeying the condition, he is vulnerable, and unfairly so, to punishment for unwitting violations of it. (See People v. Lopez (1998) 66 Cal.App.4th 615, 628-629; In re Justin S. (2001) 93 Cal.App.4th 811, 816.) The defect may be remedied by modifying the condition to include a definitive knowledge requirement, which we will do in our disposition.
Defendant further argues that the probation condition requires him to avoid places in which drug-related commerce occurs legally. We disagree—we read the condition as making the contrary clear, because the adverb “illegally” refers to all three activities that defendant must avoid. The condition does not bar defendant from entering a legitimate and licensed pharmacy or supermarket.
II. Modification of Minute Order to Reflect Case Disposition
At sentencing, the trial court stated that “I won’t require completion of the Choices and Pride Program at this point” but ordered that defendant enroll in and begin that rehabilitation program during his 90-day term at the Monterey County Jail “whether or not he has the opportunity to complete that program.” Defendant notes that a minute order nonetheless requires him to both enroll in and complete the program during his confinement in jail. The order, dated December 8, 2008, states that defendant must, “While in custody, enter and successfully complete the Choices and Pride Programs; upon completion of the Choices and Pride Programs, participate in and successfully complete any counseling or substance abuse program the Probation Officer deems necessary, including approved residential treatment or outpatient treatment.”
“The record of the oral pronouncement of the court controls over the clerk’s minute order....” (People v. Farell, supra, 28 Cal.4th at p. 384, fn. 2; cf. People v. Hatch (2000) 22 Cal.4th 260, 274 [conflicts in the clerk’s and reporter’s transcripts regarding the meaning of a dismissal under Penal Code section 1385 should be resolved on a case-by-case basis].) That is so because it is not the superior court but the court clerk who generates the minute order; the order’s preparation is not a judicial function, whereas the pronouncement of judgment is a judicial function. (People v. Mesa (1975) 14 Cal.3d 466, 471.) The People agree that defendant’s requested modification should be made. We will modify the minute order to reflect the pronouncement the court rendered in open court.
DISPOSITION
The trial court is ordered to modify the stay-away probation condition as follows:
“You will stay away from all locations where you know or your probation officer tells you that illegal drugs are present, used, or trafficked.”
The trial court is ordered to amend its minute order of December 8, 2008, as follows:
“While in custody, enroll in and enter the Choices and Pride Programs; participate in and successfully complete any counseling or substance abuse program the
Probation Officer deems necessary, including approved residential treatment or outpatient treatment.”
As so modified, the judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., McAdams, J.