APPEAL from a judgment of the Superior Court of San Diego County, Daniel B. Goldstein, Judge. Affirmed. (Super. Ct. No. SCN268796)
The opinion of the court was delivered by: Haller, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This appeal arises out of Peter Joseph Duckworth, Jr.'s, plea of guilty to one count of possessing methamphetamine and proceeds in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende).
FACTUAL AND PROCEDURAL BACKGROUND
In October 2009, police arrested Duckworth for being under the influence of a controlled substance and, in a search incident to the arrest, found a baggie containing five bindles of methamphetamine in his wallet. He was later charged with one count each of possessing methamphetamine for sale, possessing methamphetamine and being under the influence of methamphetamine.
In December 2009, Duckworth agreed to plead guilty to the possession count in exchange for the prosecutor's dismissal of the remaining counts and agreement to have the court place him on probation and reduce the offense to a misdemeanor upon his successful completion of 24 months' probation. The plea agreement contained Duckworth's agreement to waive certain rights to appeal and indicated that he could face a possible sentence of three years in prison, a $20,000 fine and four years' parole if his probation was later revoked. The court released Duckworth on his own recognizance pending sentencing.
At the sentencing hearing, the prosecutor dismissed another pending criminal proceeding against Duckworth, and the court gave Duckworth credit for time served (62 actual days, plus 62 conduct credits pursuant to Penal Code section 4019), suspended the imposition of sentence and placed him on three years' formal probation, subject to various conditions, including that he (1) participate in substance abuse counseling, (2) abstain from alcohol and controlled substance use, (3) not associate with Posole street gang members or affiliates (condition 12.b.), or wear or possess clothing or items evidencing affiliation with that gang (condition 12.i.), (4) not knowingly occupy a stolen vehicle, (5) not own or possess a weapon, (6) not associate with anyone who has a firearm or weapon in his or her possession (condition 12.f.), and (7) not display gang signs or gestures (condition 12.k.). It also imposed an $800 fine, which it deemed satisfied by his time served in custody, a $300 restitution fine and a $300 probation revocation restitution fine, suspended subject to subsequent probation revocation.
Based on Duckworth's waiver of his appellate rights, the issues that he may assert on appeal are limited to matters occurring after the plea. His appellate counsel has filed a brief indicating that he has been unable to identify any argument for reversal and asking that this court review the record for error as mandated by Wende; the brief does not identify any possible, but not arguable, issues in accordance with Anders v. California (1967) 386 U.S. 738 (Anders). We invited Duckworth to file a brief on his own behalf, but he did not respond.
We have reviewed the record in accordance with Wende and, based thereon, requested that the parties brief the issues of whether (1) the probation conditions 12.b., 12.f., 12.i. and 12.k. are unconstitutionally vague or overbroad for their failure to include a requirement that Duckworth have knowledge of the relevant facts (e.g., that he not associate with persons who he knows are gang members) and (2) condition 12.f. (prohibiting the appellant from associating with persons who have firearms or weapons in their possession) is vague because it fails to define what constitutes a "weapon" and is overbroad in failing to distinguish between persons who possess weapons legally and those who do so illegally.
In their responsive letter briefs, the appellant argues, and the Attorney General correctly concedes, that modification of the gang-related conditions to include an express knowledge component is required. (See People v. Leon (2010) 181 Cal.App.4th 943, 949-950; People v. Lopez (1998) 66 Cal.App.4th 615, 627-629.) The Attorney General disagrees, however, with Duckworth's argument that condition 12.f. must also be further modified as ...