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People v. Freitas

November 23, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TONY FREITAS, DEFENDANT AND APPELLANT.



APPEAL from a probation order of the Superior Court of Yuba County, James E. Cadle, Judge. (Retired Judge of the San Joaquin Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified. (Super. Ct. No. CRF08-369).

The opinion of the court was delivered by: Sims, Acting P. J.

CERTIFIED FOR PUBLICATION

Following conviction of grand theft (Pen. Code, § 487, subd. (a))*fn1 upon a no contest plea, defendant Tony Freitas appeals from the probation order (§ 1237), contending the trial court imposed two probation conditions that are unconstitutionally vague and overbroad. We shall modify both conditions and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2008, defendant was charged with (1) grand theft (§ 487) and (2) second degree burglary (§ 459). Defendant entered a no contest plea as to the first count and a waiver under People v. Harvey (1979) 25 Cal.3d 754, as to the second count (agreeing the second count would be dismissed but could be considered for sentencing purposes).

As disclosed by the probation report, defendant told law enforcement officers that on May 12, 2008, he was driving his vehicle when he saw someone he knew (Buck Day). Defendant gave Day a ride to a power plant, where a third person was waiting, and helped Day load defendant‟s vehicle with scrap metal. Defendant then drove the two men to another location, where they unloaded the scrap metal. Defendant was aware the power plant had a video surveillance camera. He admitted that, although he was told the metal was not stolen, he suspected it was stolen.

The trial court dismissed the burglary count, convicted defendant of grand theft, and granted probation with various conditions, including that defendant:

"Not own, possess or have custody or*fn2 control of any firearms or ammunition[;]

"[N]or to possess stolen property." Defendant made no objection in the trial court.

DISCUSSION

We shall review defendant‟s contentions despite his failure to raise them in the trial court because they present pure questions of constitutional law which, if meritorious, would be easily remediable on appeal by modification of the probation conditions. (In re Sheena K. (2007) 40 Cal.4th 875, 889.)

Trial courts have broad discretion to prescribe probation conditions in order to foster rehabilitation and to protect public safety. (§ 1203.1; People v. Lopez (1998) 66 Cal.App.4th 615, 624 (Lopez).) However, probation conditions may be challenged on the grounds of unconstitutional vagueness and overbreadth. (Lopez, supra, 66 Cal.App.4th at p. 630.)

A probation condition may be "overbroad" if in its reach it prohibits constitutionally protected conduct. (Ibid.) "The underlying concern of the vagueness doctrine is the core due process requirement of adequate notice." (Ibid., italics omitted.) A probation condition which either forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application, violates due process. (Ibid.) To avoid being void for vagueness, a probation condition ""must be sufficiently precise for the probationer to know what is required of him....‟ [Citations.]" (Ibid.)

Defendant contends the two probation conditions -- prohibiting him from possessing guns/ammunition or stolen property -- are unconstitutionally void for vagueness because they do not require personal scienter on his part, i.e., they do not require that he know he is in possession of guns/ammunition or stolen property. Although the heading in defendant‟s brief ...


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