P. v. Lee and Wagner

Filed 6/18/07 P. v. Lee and Wagner CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Stephanie George, Judge. Affirmed.

Jean Ballantine, under appointment by the Court of Appeal, for Defendants and Appellants.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

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Sharon Denise Lee and Arthur Joseph Wagner pleaded guilty to commercial burglary in exchange for a grant of formal probation. In pleading guilty, both defendants signed and initialed a form entitled, Terms and Conditions of Felony Probation, which included a probation term requiring defendants to maintain . . . associates as approved by your probation officer. Defendants contend, and the Attorney General agrees, the probation condition is unconstitutionally vague because it does not require advance notice to the defendants of whom the probation officer disapproves.

In In re Sheena K. (2007) 40 Cal.4th 875, the California Supreme Court recently concluded that a probation condition prohibiting a juvenile defendant from associating with anyone disapproved of by probation was unconstitutionally vague because it failed to require the defendant know the identity of those individuals the probation officer did not approve. (Id. at pp. 890-892.) To render the term constitutional, the Supreme Court held that an appellate court may modify the probation condition to impose an explicit knowledge requirement. (Id. at p. 892.) Consequently, we accept the Attorney Generals concession and modify the judgment accordingly.

Probation condition No. 15, imposed on both defendants, is modified to read: Cooperate with your probation officer in any plan for psychological, psychiatric, alcohol, and/or drug treatment. Seek training, schooling, or employment, and maintain residence as approved by your probation officer. Do not associate with anyone you know is disapproved of by your probation officer. As modified, the judgment is affirmed.

Judgment affirmed.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

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