P. v. Reyna
Filed 9/20/07 P. v. Reyna CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. EDWARD REYNA, Defendant and Appellant. | F051641 (Super. Ct. No. 6905490) OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Gregory T. Fain, Judge.
William I. Parks, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and Paul E. OConnor, Deputy Attorneys General, for Plaintiff and Respondent.
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Pursuant to a plea agreement, appellant Edward Reyna pled no contest to felony charges of false imprisonment (Pen. Code, 236)[1]and dissuading a witness by force
( 136.1, subd. (c)(1).).
Appellant was placed on three years probation and now appeals, claiming the probation condition that prohibits him from associating with persons using or possessing dangerous drugs is unconstitutionally vague and overbroad.
For the reasons that follow, we will modify the probation condition and otherwise affirm.
STATEMENT OF FACTS[2]
On July 5, 2006, police responded to a report of domestic violence involving appellant and his ex-wife, who, though divorced, had been living together with their three children for seven months. Even though a restraining order against appellant was in effect from prior domestic violence issues, appellants ex-wife explained that she wanted to help him fight a drug addiction.
Earlier that morning, appellant assaulted his ex-wife, and when she attempted to call police, he disabled or broke the telephones in the residence. She eventually fled and drove to her doctors office, where police were finally contacted.
DISCUSSION
Appellant argues that the probation condition that prohibits him from associating with persons using or possessing dangerous drugs is unconstitutionally vague and overbroad. In whole, the probation condition states [d]o not use or possess or associate with those who use or possess any dangerous drugs or narcotics. Submit to drug testing.
Appellant first argues that the probation condition should be modified to include a knowledge requirement, that is, for a violation to occur, appellant must know that the person he associates with uses or possesses drugs. In light of In re Sheena K. (2007) 40 Cal.4th 875,[3]respondent agrees with this proposed modification. We concur with both parties and order the addition of a knowledge requirement, as scripted in our disposition below.
Second, appellant argues that dangerous drugs is vague and overly broad. Appellant acknowledges that the condition obviously forbids him from associating with persons who use or possess illegal narcotics, but appellant also claims that nearly every pharmaceutical product is a dangerous drug if used improperly. Therefore, appellant argues, the probation condition is insufficiently precise and does not provide proper guidance.
Respondent contends that dangerous drugs is sufficiently precise because any reasonable person would interpret that phrase to encompass only illegal drugs, as opposed to validly prescribed medication.
We agree with respondent that a reasonable interpretation of dangerous drugs does not necessarily include prescription medication. Furthermore, we find it highly unlikely that any court or probation officer would find that appellant violated probation by properly using validly prescribed or over-the-counter medication or associated with someone using such products. Nonetheless, appellants claim has merit, since dangerous drugs can be interpreted in different ways. Accordingly, in the interest of clarity and precision, and since respondent does not object, we further order that controlled substances replace dangerous drugs in the disputed probation condition.
DISPOSITON
Probation condition No. 11 is modified to provide as follows: Do not use or possess or associate with those known to you to use or possess any controlled substances or narcotics. Submit to drug testing.The trial court is directed to modify the judgment accordingly.
As so modified, the judgment is affirmed.
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* Before Ardaiz, P.J., Vartabedian, J. and Cornell, J.
[1] All subsequent statutory references are to the Penal Code.
[2] In light of appellants plea, the facts are taken from the probation report.
[3]Sheena K. provides that a constitutional challenge to a probation condition on the grounds of vagueness or overbreadth that can be corrected without reference to the sentencing record presents a pure question of law that is not forfeited or waived if raised for the first time on appeal. (In re Sheena K., supra, 40 Cal.4th at pp. 887-888.) Further, Sheena K. held that a probation condition that prohibited the defendant from associating with anyone disapproved of by probation was unconstitutionally vague and overbroad because it lacked a knowledge requirement. (Id. at pp. 878-879, 891-892.)
