P. v. Reyes
Filed 10/15/08 P. v. Reyes 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. LORENZO REYES, Defendant and Appellant. | C055511 (Super. Ct. No. 06F04381) |
A jury convicted defendant Lorenzo Reyes of theft of a firearm (Pen. Code, 487, subd. (d)), and defendant was placed on formal probation for four years.
The trial court imposed numerous conditions of probation, including a requirement that he not . . . remain in any building or vehicle where any person has such a weapon, nor remain in the presence of any unlawfully armed person[.]
Defendant contends and the People concede that the court violated his constitutional rights when it imposed this 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
(Sheena K.), 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 both to the places where he is allowed as well as with whom he can associate. We find the condition imposed is similar for constitutional purposes to that of Sheena K., and we shall insert the knowledge requirement.
DISPOSITION
Condition 3 of defendants special conditions of probation is modified to require that defendant shall not . . . remain in any building or vehicle where you know any person has such a weapon, nor remain in the presence of any person whom you know to be unlawfully armed[.] As 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.
HULL, J.
We concur:
SIMS , Acting P.J.
DAVIS , J.
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