P.
v. Barrajas

















Filed 9/10/10 P. v. Barrajas CA6











NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



SIXTH
APPELLATE DISTRICT




>

THE PEOPLE, Plaintiff and Respondent, v. ESEQUIEL BARRAJAS, Defendant and Appellant.

H034742 (Santa Clara County Super. Ct. No. CC939975)

As part of
a plea agreement, defendant Esequiel Barrajas pleaded no contest to one felony
count of possession of a controlled
substance, methamphetamine (Health & Saf. Code, § 11377, subd.
(a)). He also admitted enhancement
allegations that he had served one prior prison term (Pen. Code, § 667.5, subd.
(b))[1] and
had one prior conviction that qualified as a strike under the Three Strikes Law
(§§ 667, subds. (b)-(i); 1170.12).
Pursuant to the plea agreement,
the court dismissed charges that defendant committed one count of misdemeanor
vandalism (§ 594, subd. (a), (b)). The
court subsequently granted defendant's motion pursuant to People v. Superior Court (Romero)
(1996) 13 Cal.4th 497 and struck the prior strike conviction. The court suspended imposition of sentence
and placed defendant on probation for three years, subject to various terms and
conditions, including six months in county jail and several gang-related
conditions.

On appeal,
defendant challenges two of the gang conditions of his probation, which (1)
preclude him from possessing, using, or displaying gang insignia or
paraphernalia and (2) direct him not to obtain any new gang tattoos. He contends that these conditions are
overbroad and violate his First Amendment right of free expression. We conclude that the tattoo condition is
unconstitutionally vague because it lacks a knowledge requirement. We will therefore modify the tattoo condition
and affirm the judgment as modified.

Facts
and Procedural History[2]

On April 10, 2009, the police stopped
defendant for riding his bicycle on the wrong side of the street (Veh. Code, §
21650.1) and discovered that he had a bottle containing two white plastic
â€