P.
v. DeJesus







Filed
2/26/13 P. v. DeJesus
CA6

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SIXTH
APPELLATE DISTRICT


>

THE PEOPLE, Plaintiff and Respondent, v. MANUEL CESAR DeJESUS, Defendant and Appellant.

H038503 (Santa Clara County Super. Ct. No. C1107566)

Defendant
Manuel Cesar DeJesus pleaded no contest to misdemeanor resistance of an officer
in the performance of his duties. The
trial court placed defendant on three years formal probation with
conditions. On appeal, defendant
contends that one probation condition was unconstitutionally vague and
overbroad because it did not contain a “knowledge” requirement. The People concede this issue, and we agree
that the concession is appropriate. We
therefore modify and affirm the probation order.

BACKGROUND

The trial
court imposed the following probation condition, among others.

“The
defendant shall not possess any item under the href="http://www.fearnotlaw.com/">law that would be considered a deadly or
dangerous weapon during the period of probation.”

DISCUSSION

The obvious
jurisprudential trend is toward requiring that a term or href="http://www.mcmillanlaw.us/">condition of probation explicitly require
knowledge on the part of the probationer that he is in violation of the term in
order for it to withstand a challenge for unconstitutional vagueness. “[P]robation conditions that implicate
constitutional rights must be narrowly drawn” and the knowledge requirement in
these circumstances “should not be left to implication.” (href="http://www.fearnotlaw.com/">People v. Garcia (1993) 19
Cal.App.4th 97, 102.)

DISPOSITION

The
challenged probation condition is modified as follows: “The defendant shall not knowingly possess
any item under the law that would be considered a deadly or dangerous weapon
during the period of probation.” As so modified, the href="http://www.fearnotlaw.com/">order for probation is affirmed.











Premo,
J.











WE CONCUR:













Rushing, P.J.

















Elia, J.