P. v. Fujimoto
Filed 11/5/08 P. v. Fujimoto CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, Plaintiff and Respondent, v. GARY M. FUJIMOTO, Defendant and Appellant. | B202234 (Los Angeles County Super. Ct. No. TA088226) |
APPEAL from a judgment of the Superior Court of Los Angeles County.
Arthur M. Lew, Judge. Modified in part and remanded with directions, otherwise affirmed.
Irma Castillo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant contends that without the added element of knowledge the condition of his probation requiring that he stay away from places where users, buyers, or sellers congregate, is vague and overbroad. Respondent and this court agree.
STATEMENT OF THE CASE
On April 5, 2007, the Los Angeles County District Attorney filed an information charging appellant with: possession of methamphetamine (count 1, Health & Saf. Code, 11377, subd. (a), a felony)[1]; being under the influence of methamphetamine (count 2, 11550, subd. (a), a misdemeanor); and possession of a methamphetamine smoking device (count 3, 11364, subd. (a), a misdemeanor). Appellant pled not guilty.
On April 11, 2007, Fujimoto filed a motion to suppress evidence. On May 1, 2007, the trial court denied the motion.
On September 10, 2007, pursuant to a plea bargain, Appellant pled no contest to possession of methamphetamine and being under the influence of a narcotic (counts 1 and 2). Count 3 was dismissed.
Appellant was sentenced to formal probation for three years and ordered to stay away from places where users, buyers, or sellers congregate, and not associate with persons known . . . to be narcotic . . . users or sellers. Appellant was ordered to pay $200 in restitution (Pen. Code, 1202.4, subd. (b)), and a probation revocation fine of $200 (Pen. Code, 1202.44), the later of which was stayed. Appellant was ordered to pay a $50 lab fee (11372.5).
Appellant filed a timely notice of appeal.
STATEMENT OF FACTS
On December 20, 2006, at approximately 4:15 a.m., Los Angeles Deputy Sheriff Nancy Guzman was on patrol with her partner when she noticed a car with no rear license plate. Deputy Guzman and her partner stopped the car and appellant was the driver.
When Deputy Guzman contacted appellant, she noticed that he was extremely fidgety and sweating profusely, despite the cold. Appellant was also speaking very rapidly. Based on those observations, Deputy Guzman suspected appellant was under the influence of a stimulant and conducted an investigation. Deputy Guzman found appellants pupils were extremely dilated and did not respond to light; his pulse was twice the normal rate. Deputy Guzman concluded appellant was under the influence of a narcotic and arrested him for that offense.
Deputy Guzman searched appellant after his arrest. She located a glass pipe commonly used to smoke methamphetamine in appellants left front jacket pocket. Deputy Guzman then searched appellants vehicle and found a baggie of methamphetamine in the center console.
CONTENTIONS ON APPEAL and DISCUSSION
Appellant contends, and respondent agrees, that probation condition 21 (stay away from places where [narcotic] users . . . congregate) is unconstitutionally vague and overbroad and must be modified to add a requirement of knowledge. (In re Sheena K. (2007) 40 Cal.4th 875, 890, In re Justin S. (2001) 93 Cal.App.4th 811, 816.) We agree.
DISPOSITION
The case is remanded to the trial court with directions that probation condition 21 be modified to add that appellant is to stay away from places where he knows narcotics users congregate. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COOPER, P. J.
We concur:
FLIER, J.
BIGELOW, J.
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[1] All further undesignated statutory references are to the Health and Safety Code.
