P. v. Huitt-Lopez

Filed 10/23/07 P. v. Huitt-Lopez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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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A jury found defendant John Romeo Huitt-Lopez guilty of first degree burglary and possession of a controlled substance, to wit, hydrocodone.

Granted probation, defendant appeals, claiming that the probation condition pertaining to his association with drug users and being in places where narcotics are present is overly broad. We will modify the condition.

BACKGROUND

A detailed recitation of the facts underlying defendants offenses is unnecessary in view of defendants contention on appeal. Suffice it to say that defendant entered the residence of the victim while she was away and ransacked it, taking jewelry, liquor, U.S. and foreign coins and currency, and her prescription for Vicodin which contains hydrocodone. Defendant was caught carrying the loot three blocks away.

DISCUSSION

Defendant admitted to the probation officer that he had smoked marijuana since he was six years old. The probation officer recommended probation subject to certain terms and conditions. The court adopted the following recommended condition: Defendant shall not associate with known or reputed users of marijuana, dangerous drugs or narcotics nor be in places where narcotics and/or dangerous drugs are present.

Defendant argues that he would be in violation of probation if he associated with a person who possesses or uses drugs unbeknownst to defendant as long as law enforcement or his probation officer knew of the persons reputation for using. Further, defendant claims he would be in violation if he went into or was found near a pharmacy. He requests that the case be remanded with instructions to the trial court to modify the condition to require the element of knowledge.

Citing People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, the People respond that defendants personal knowledge can be fairly implied in the condition. In the alternative, the People claim remand is unnecessary and that this court can modify the condition to narrow it to require defendants knowledge. We agree.

A condition of probation that prohibits appellant from associating with persons who, unbeknownst to him, have criminal records or use narcotics, is overbroad [and therefore] is not reasonably related to a compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights. [Citation.] (People v. Garcia (1993) 19 Cal.App.4th 97, 102; see also In re Sheena K. (2007) 40 Cal.4th 875, 889; In re Justin S. (2001) 93 Cal.App.4th 811, 816.)

In Acuna, the court found that a defendants knowledge could be fairly implied in the preliminary injunction which prohibited the defendants from associating with any other known VST (Varrio Sureno Town or Varrio Sureno Treces) or VSL (Varrio Sureno Locos) member. (People ex rel. Gallo v. Acuna, supra,14 Cal.4th at pp. 1110, 1117, italics omitted.)

Here, the condition provides that defendant is not to associate with known or reputed users. Defendants knowledge that a person is or has a reputation for being a user is fairly implied. However, the better practice is to draft a probation condition where this is explicitly, rather than impliedly, included.

The condition also prohibits defendant from being in places where narcotics and/or dangerous drugs are present. Defendants knowledge that he is at a place where drugs are present is fairly implied but we agree that the condition is otherwise overly broad in that it restricts benign activity. In In re Kacy S. (1998) 68 Cal.App.4th 704, the minor challenged a condition which prohibited his association with any persons not approved by his probation officer. This court concluded that the condition was overly broad in that it restricted contact with persons such as grocery clerks, mailcarriers and health care providers. (Id. at pp. 712-713.) Defendant argues that the condition here prohibits him from going to a grocery store which has a pharmacy department or to the home of a friend or relative who is on prescription medications. We agree and conclude that modification of the condition is required to prevent defendant from being in places where drugs are illegally present.

DISPOSITION

The judgment (order of probation) is modified to provide: Defendant shall not associate with those he knows to be users or reputed users of marijuana, dangerous drugs or narcotics nor be in places where he knows narcotics and/or dangerous drugs are illegally present. As modified, the judgment is affirmed.

ROBIE , J.

We concur:

BLEASE , Acting P.J.

MORRISON , J.

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