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The People v. Patricia Vasquez

December 21, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
PATRICIA VASQUEZ, DEFENDANT AND APPELLANT.



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

P. v. Vasquez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Santa Clara County Super. Ct. No. CC821880)

Defendant Patricia Vasquez appeals a judgment entered following a jury trial during which she was found guilty of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), and grand theft (§§ 484, 487, subd. (a)).*fn1 On appeal, defendant asserts the trial court erred by (1)imposing probation conditions without a knowledge requirement; (2) ordering defendant to pay probation supervision costs without a hearing to determine her ability to pay; and (3) failing to award defendant additional conduct credits pursuant to section 4019.

STATEMENT OF THE CASE*fn2

Defendant was charged by information in 2009 with second degree burglary (§§ 459, 460, subd. (b)), and grand theft (§§ 484, 487, subd. (a)). On June 11, 2009, defendant was convicted of all the charges.

In September 2009, the trial court suspended imposition of sentence and placed defendant on probation that included numerous terms and conditions. The court also ordered defendant to pay restitution in the amount of $1,369, and probation costs of $110. Defendant filed a timely notice of appeal.

DISCUSSION

Defendant asserts the trial court erred in ordering vague probation conditions, requiring her to pay probation fees, and failing to award her sufficient conduct credits under section 4019.

Probation Conditions Without Knowledge Requirement

As conditions of probation, the court ordered that defendant "shall not possess or consume alcohol or illegal drugs or knowingly be anywhere illegal drugs are used or sold or alcohol is the major item of sale," and that she shall not "own, possess, or have in her care or custody or control any firearm or ammunition for the rest of [her] life."

Defendant asserts, and the respondent concedes, that the conditions as stated above are unconstitutionally vague and overbroad, because they do not require that her possession or consumption be knowing.

A specific knowledge requirement is critical to the validity of a probation condition. The Supreme Court in In re Sheena K. (2007) 40 Cal.4th 875, considered a probation condition forbidding association with " 'anyone disapproved of by probation.' " (Id. at p. 878.) The court concluded that "in the absence of an express requirement of knowledge, the probation condition imposed upon defendant is unconstitutionally vague" because "the probation condition did not notify defendant in advance with whom she might not associate through any reference to persons whom defendant knew to be disapproved of by her probation officer." (Id. at pp. 891-892, fn. omitted.) It further agreed that "modification to impose an explicit knowledge requirement [was] necessary to render the condition constitutional." (Id. at p. ...


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