P. v. Clayton
Filed 6/20/08 P. v. Clayton CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, Plaintiff and Respondent, v. KELLY ROSE CLAYTON, Defendant and Appellant. | C054905 (Super. Ct. No. 06F04163) |
A jury convicted defendant Kelly Rose Clayton of carjacking (Pen. Code, 215, subd. (a))[1]and found true an allegation that she was armed with a firearm during the commission of that offense ( 12022, subd. (a)(1)).[2]
The trial court sentenced defendant to six years in state prison, but suspended execution of sentence, and placed her on five years of formal probation subject to certain terms and conditions, including that she: (1) not be in places where narcotics and/or dangerous drugs are present; (2) not remain in any building or vehicle where any person has [a dangerous or deadly weapon], nor remain in the presence of any armed person; and (3) serve 283 days in county jail.
Defendant appeals, contending: (1) two of the probation conditions are unconstitutionally vague and overbroad and must be modified to include a knowledge requirement, and (2) she is entitled to an additional day of presentence custody credit. We agree with both of defendants contentions, and thus, shall modify the judgment (order of probation) accordingly, and affirm the judgment as modified.
DISCUSSION
I
Defendant contends, and the People concede, the probation conditions prohibiting her from being in places where narcotics and/or dangerous drugs are present, remaining in any building or vehicle where any person has a dangerous or deadly weapon, and remaining in the presence of any armed person are unconstitutionally vague and overbroad and must be modified to include a knowledge requirement.
The probation order provides in pertinent part:
(1) Defendant shall not associate with known or reputed users of marijuana, dangerous drugs or narcotics nor be in places where narcotics and/or dangerous drugs are present. (Italics added.)
(2) Defendant shall not own or possess any dangerous or deadly weapons nor remain in any building or vehicle where any person has such a weapon, nor remain in the presence of any armed person. (Italics added.)
Our Supreme Court recently held that a probation condition forbidding a defendant from associating with anyone disapproved of by probation (In re Sheena K. (2007) 40 Cal.4th 875, 889) was vague because it did not notify defendant in advance with whom she might not associate through any reference to persons whom defendant knew to be disapproved of by her probation officer (id. at pp. 891-892, italics added).
The same is true here. The probation conditions quoted above do not notify defendant in advance of the places she is prohibited from being through any reference to places in which she knows narcotics, dangerous drugs, dangerous or deadly weapons, or armed persons are present. Fair notice, as described in Sheena K., is not possible unless the probation condition[s] [are] modified to require that defendant must either know or reasonably should know that [a place contains narcotics, dangerous drugs, dangerous or deadly weapons, or armed persons] before [s]he is prohibited from being there. (People v. Turner (2007) 155 Cal.App.4th 1432, 1436.) We shall modify the conditions to include such a requirement.
II
Defendant contends, and the People concede, she is entitled to an additional day of presentence custody credit.
Defendant was in custody from May 9 until December 15, 2006, for a total of 221, not 220, days. The trial court awarded defendant 253 days of presentence custody credit, which included 220 actual days.[3] Thus, she is entitled to one additional day of presentence custody credit.
DISPOSITION
The judgment (order of probation) is modified to provide for one additional day of presentence custody credit, and to read as follows:
(1) Defendant shall not associate with known or reputed users of marijuana, dangerous drugs, or narcotics nor be in places where she knows or reasonably should know narcotics and/or dangerous drugs are present.
(2) Defendant shall not own or possess any dangerous or deadly weapon nor remain in any building or vehicle where she knows or reasonably should know any person has such a weapon, nor remain in the presence of any person she knows or reasonably should know is armed. [boldface indicates added text]
As modified, the judgment is affirmed. The trial court is directed to modify the minute order and order of probation and send a certified copy of the amended order to the Sacramento County Probation Department.
BUTZ , J.
We concur:
RAYE , Acting P.J.
CANTIL-SAKAUYE , J.
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[1] Undesignated statutory references are to the Penal Code.
[2] At the time of the offense, defendant was 16 1/2 years old. Although a minor, she was tried as an adult. (Welf. & Inst. Code, 707, subds. (d)(1), (b)(25).)
[3] Because carjacking is a violent felony within the meaning of section 667.5, subdivision (c)(17), defendants good conduct credit is limited to 15 percent ( 2933.1).
