P. v. Elliott
Filed 10/22/08 P. v. Elliott 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CHRISTOPHER T. ELLIOTT, Defendant and Appellant. | C057890 (Super. Ct. Nos. 06F10737, 07F05535) |
On December 8, 2006, gang enforcement officers observed defendant Christopher T. Elliot driving a car at a high rate of speed. After defendant failed to make a complete stop at a stop sign, the officers activated their lights and sirens. Defendants car fled at a high rate of speed with the officers in pursuit until his car struck a fence. Defendants car continued to flee but slowed to approximately 10 miles per hour. Defendant jumped out of the moving vehicle and fled on foot. The vehicle hit a cement wall and came to a stop.
On June 2, 2007, police conducted probation searches of several inhabitants of a residence, including defendant. Officers found two ecstasy pills on defendant, and he admitted owning a loaded revolver found in the living room. Defendant has a prior juvenile adjudication for possession of a firearm (Pen. Code, 12101, subd. (a)(1)), and is a validated gang member with the Del Paso Heights Bloods.
Defendant entered negotiated no contest pleas to felony evading a police officer while operating a motor vehicle (Veh. Code, 2800.2, subd. (a)) in Sacramento County case No. 06F10737 and possession of a firearm after previously being adjudged a ward of the juvenile court ( 12021, subd. (e)) in case No. 07F05535. In both cases the court suspended imposition of sentence and placed defendant on five years probation subject to various conditions, imposed consecutive 180-day jail terms, and awarded two days credit.
Having failed to obtain a certificate of probable cause, defendant appeals.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
We have identified an erroneous probation condition. The probation report separately listed largely identical probation conditions for each case. At sentencing, defendant objected to the condition that he 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, asserting it was overbroad. In making the objection, defense counsel identified the offending condition as term number six, a reference to the sixth probation condition listed in the probation report for case No. 06F10737. This condition is omitted from the courts terms of probation in case No. 06F10737, but the same condition remains as one of the terms in the order of probation for case No. 07F05535.
A condition of probation that prohibits appellant from associating with persons who, unbeknownst to him, have criminal records or use narcotics, is overbroad [and therefore] is not reasonably related to a compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights. [Citation.] (People v. Garcia (1993) 19 Cal.App.4th 97, 102; see also In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.); In re Justin S. (2001) 93 Cal.App.4th 811, 816.) The first sentence of defendants probation condition in issue was overbroad, as a person can be a reputed drug user or dealer without defendant knowing of this reputation. Although the first sentence also prohibits association with those known to use or sell drugs, the court was within its discretion to strike the entire sentence rather than editing this probation condition.
The remaining part of the probation condition, the prohibition on being in places where dangerous drugs are present, is also overbroad. In In re Kacy S. (1998) 68 Cal.App.4th 704, the minor challenged a condition which prohibited his association with any persons not approved by his probation officer[.] (Id. at pp. 707-708.) This court concluded the condition was overbroad by restricting contact with persons such as grocery clerks, mailcarriers and health care providers. (Id. at pp. 712-713.) Likewise, the condition in the present case would prevent defendant from innocent activities such as going to a pharmacy or hospital, and thus is clearly overbroad.
Whether a probation condition is vague or overbroad is a question of law that may be raised on appeal despite a defendants failure to object in the trial court. (Sheena K., supra, 40 Cal.4th at p. 888.) Therefore, defendants failure to raise an overbreadth objection to the identical provision in case No. 07F05535 does not forfeit an overbreadth challenge to the condition.
As we have already discussed, this condition is overbroad except for the provision prohibiting association with known drug users or dealers. As the court struck this particular probation condition in case No. 0610737, it is clear the court would have granted a motion to strike the entire probation condition in case No. 07F05535. In the interest of judicial economy we shall modify the order of probation in case No. 07F05535 to strike the condition prohibiting associating with drug users or dealers or being in places where drugs are present.
Having undertaken an examination of the entire record, we find no other arguable error in favor of defendant.
DISPOSITION
The order granting probation in case No. 07F05535 is modified to strike the condition stating: Defendant shall 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. In all other respects, the judgment is affirmed.
CANTIL-SAKAUYE , J.
We concur:
MORRISON , Acting P. J.
ROBIE , J.
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