P. v. Hamilton
Filed 12/1/08 P. v. Hamilton 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FLOYD LEROY HAMILTON, Defendant and Appellant. | C058646 (Super. Ct. No. 07F02032) |
Defendant Floyd Leroy Hamilton pled no contest to assault with a deadly weapon and admitted he personally inflicted great bodily injury during the attack. The trial court suspended imposition of sentence and placed defendant on four years probation on various terms and conditions.
Defendant contends, and the People concede, errors in two conditions of probation and in the computation of conduct credits. We accept the concessions and shall direct the probation order to be amended.
DISCUSSION
I
Probation Conditions
Probation condition No. 19 requires, among other things, that defendant not associate with known or reputed users of controlled substances, nor be in a place where controlled substances are present. (Italics added.) Defendant contends and the People concede that the italicized portion of this condition violated his constitutional rights because it imposed a vague and overbroad condition of probation. He asks that the condition be modified to include a knowledge qualifier.
We accept the Peoples concession that the condition should be modified. In In re Sheena K. (2007) 40 Cal.4th 875, the California Supreme Court held that a probationary condition prohibiting the probationer from associating with anyone who was a member of a specified class of persons, without a requirement that the probationer know the person was a member of the class, is unconstitutionally vague (id. at pp. 889-892); that because such conditions present a pure question of law, a probationers failure to object to its imposition does not forfeit the issue for appeal (id. at pp. 888-889); and that an acceptable remedy when such a condition is challenged on appeal is for the appellate court to insert the knowledge requirement (id. at p. 892).
The challenged portion of the probation condition imposed on defendant here relates to the places where he is allowed to be, but we find the condition imposed is similar for constitutional purposes to that of Sheena K., and we shall insert the knowledge requirement.
Defendant also complains that general probation condition No. 3 (You are not to remain away from your regular residence for more than 24 hours without having first secured permission from your Probation Officer) does not comport with the condition actually imposed by the court, which required that he need only obtain such permission if he were going to be absent for more than 72 hours. The People agree. We shall order the condition modified.
II
Presentence Credit
Finally, defendant contends he was erroneously denied three days of presentence conduct credit. Again, the People concede the error.
The trial court correctly awarded 22 days actual custody credit, but erred in failing to award any conduct credits. (Pen. Code, 2900.5, subd. (d).) Because defendant was convicted of a qualifying felony offense listed in Penal Code section 667.5 -- involving great bodily injury (subd. (c)(8)) -- he is entitled to no more than 15 percent conduct credits. (See People v. Ramos (1996) 50 Cal.App.4th 810, 817.) Fifteen percent of 22 days, calculated to the greatest whole number, is three days.
DISPOSITION
Probation condition No. 19 of defendants special conditions of probation is modified to state: Do not associate with known or reputed users of controlled substances, nor be in a place where you know or reasonably should know that controlled substances are present. General probation condition No. 3 is modified to state defendant may not remain away from his regular residence for more than 72 hours without having first secured permission from his probation officer. Finally, defendant shall receive an additional three days conduct credit, for a total of 25 days custody/conduct credit.
As so modified, the order is affirmed. The court is directed to amend its records to reflect the modification and to forward the appropriate documents to appellant and the probation department.
ROBIE , J.
We concur:
NICHOLSON , Acting P. J.
MORRISON , J.
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