P. v. Bui
Filed 11/25/13 P. v. Bui CA6
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opinion has not been certified for publication or ordered published for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.
CUONG MANH BUI,
Defendant and
Appellant.
H039144
(Santa Clara
County
Super. Ct.
No. C1223208)
Defendant
Cuong Bui appeals from a judgment entered upon his plea of no contest to
that one of the conditions of his supervised release is impermissibly vague
because it does not include a knowledge element. He further contends that he is entitled to 16
days of additional presentence credit. We
will modify the judgment to correct these sentencing errors and otherwise
affirm.
Background
Defendant
was charged by information with cultivating marijuana (Health & Saf. Code,
§ 11358); possession of marijuana for
sale (Health & Saf. Code, § 11359); and felony vandalism (Pen. Code, §
594(a), subd. (b)(1)). The information
further contained the allegation that defendant had served a prior prison term within
the meaning of Penal Code section 667.5, subdivision (b).
Pursuant to
a negotiated disposition, appellant pleaded
no contest to count two, possession of marijuana for sale. He also admitted the allegation regarding the
prior prison term. Under the terms of
the plea agreement, defendant was to receive a sentence of 10 months in county
jail, followed by 26 months of mandatory supervision by the probation
department. He was also to receive
credit for time served and the prosecution would seek dismissal of the
remaining charges.
At
sentencing the trial court dismissed the first and third counts of the
information. Addressing count two, the
admitted charge, the court ordered defendant to serve 288 days in county jail,
with 288 days of credit for time served (144 actual days and 144 pursuant to
Pen. Code, § 4019). The court
further ordered defendant to serve 26 months and 12 days under mandatory
supervision by the probation department.
Defendant filed his notice of appeal the following day.
Discussion
1. Supervised Release Condition
The court's
grant of mandatory supervised release was subject to several conditions,
including the following: "The
defendant is not to possess or use illegal drugs or illegal controlled substances
or go anywhere where he knows illegal drugs or non-prescribed controlled
substances are used or sold." Defendant
seeks a modification to correct the vagueness that he believes results from the
absence of a knowledge requirement. The
People do not oppose this request.
The court
may grant probation "upon those terms and conditions as it shall
determine." (Pen. Code, § 1203.1,
subd. (a).) "In granting probation,
courts have broad discretion to impose conditions to foster rehabilitation and
to protect public safety pursuant to Penal Code section 1203.1. [Citations.]" (People
v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.) Nevertheless, "[a] probation condition
'must be sufficiently precise for the probationer to know what is required of
him, and for the court to determine whether the condition has been violated,'
if it is to withstand a challenge on the ground of vagueness. [Citation.]" (In re
Sheena K. (2007) 40 Cal.4th 875, 890; People
v. Lopez (1998) 66 Cal.App.4th 615, 630 [underlying concern of vagueness
doctrine is "the core due process requirement of adequate notice"].) Absent a requirement that defendant know he
is disobeying the condition, he is vulnerable, and unfairly so, to punishment
for unwitting violations of it. (
Cal.App.4th at pp. 628-629.) Accordingly,
a probation condition that prohibits possession of particular items must "specify
that defendant not knowingly possess the prohibited items." (People
v. Freitas (2009) 179 Cal.App.4th 747, 752; but see People v. Shiseop Kim (2011) 193 Cal.App.4th 836, 847 [no
modification necessary where statute includes implicit knowledge requirement].)
Just as an
appellate court is empowered to modify a probation condition in order to render
it constitutional (Sheena K., supra,
40 Cal.4th at p. 892), the same logic should apply to conditions of mandatory
supervision. We will therefore treat the
imposed conditions as akin to probation conditions. (Cf. People
v. Griffis (2013) 212 Cal.App.4th 956, 963, fn. 2.) Accordingly, in order to pass constitutional
muster, a requirement of knowledge should be included in some conditions of
mandatory supervision prohibiting the possession or use of specified
items. The law has no legitimate interest
in punishing a defendant on mandatory supervision who has no knowledge that he
is using or possessing a prohibited item. Knowledge requirements in conditions of
mandatory supervision "should not be left to implication." (Cf. People
v. Garcia (1993) 19 Cal.App.4th 97, 102.)
Modification is appropriate here.
2. Custody Credits
Defendant
contends that he should have received an additional 16 days of presentence
custody credit. The People maintain that
the appellate record does not permit a determination that defendant is entitled
to any additional credit; instead, they urge us to remand the matter to allow
the trial court to make that determination.
The point of dispute appears to be the date of arrest. The probation report lists January 13, 2012
as the arrest date; but at sentencing defense counsel represented that the
correct date was December 24, 2011. The
court, having already made "some corrections" to the term of the
sentence, responded, "All right," and continued with its imposition
of supervised release conditions.
The People
appear to be unwilling to concede explicitly that the date of arrest was
December 24, 2011; they do acknowledge, however, that the prosecutor remained
silent when defense counsel made the correction and the court apparently
accepted it. Our review of the record, including
the preliminary hearing transcript, supports defendant's assertion that he was
arrested on December 24, 2011. Rather
than disputing this premise, the People focus their argument on the period
17, 2012, the date defendant was first released on bail. The People suggest that it is
"unclear" from the record whether defendant was in continuous custody
during this period; consequently, they urge this court to remand the matter to
the trial court to make this determination and accordingly recalculate
defendant's credits if necessary.
We find
remand unnecessary. Nothing in the
record indicates error by the probation officer in listing the first release
date as January 17, 2012. Recognizing
the People's implicit concession below that defendant was in custody from
December 24, 2011 to January 17, 2012, we see no contrary evidence leading us
to question the underlying assumption of the parties below that defendant in
fact was in custody during this period. The
People, in questioning only the fact
of defendant's in-custody status between December 24, 2011 and January 17, 2012,
do not take issue with his calculation of the total number of days of credit he
should receive if those dates are accepted as correct. Our calculations, derived from the probation
department's representations together with the correction of the arrest date, produce
the same result as that derived by defendant, 152 days of actual credit. Consequently, we see no necessity for the
parties and the trial court to undergo the burden of remand for recalculation
of defendant's presentence custody
credits.
Disposition
The
judgment is modified to reflect the following probation condition: "The defendant must not knowingly possess
or use illegal drugs or illegal controlled substances or go anywhere where he
knows illegal drugs or non-prescribed controlled substances are used or sold." In addition, defendant's award of custody
credit is modified from 288 days to 304 days, thereby reducing the period of
mandatory supervision by 16 days. The
clerk of the superior court is directed to prepare an amended abstract of
judgment to reflect these modifications and to transmit a certified copy of the
amended abstract to the Department of
Corrections and Rehabilitation. As
so modified, the judgment is affirmed.
_______________________________
ELIA,
J.
WE CONCUR:
________________________________
RUSHING, P. J.
________________________________
PREMO, J.
