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The People v. Clarence Holmes

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT San Joaquin


March 3, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CLARENCE HOLMES, JR., DEFENDANT AND APPELLANT.

(Super. Ct. No. SF114668A)

The opinion of the court was delivered by: Duarte ,j.

P. v. Holmes 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Clarence Holmes, Jr., entered a negotiated plea of guilty to possession of a concealed knife (Pen. Code, § 12020, subd. (a)(4)). Imposition of sentence was suspended and defendant was placed on five years of conditional probation.

Defendant contends, and the People concede, error as to one of the conditions of probation. We accept the concession, agree with the parties' arguments, and shall direct that the probation order be amended accordingly.

DISCUSSION

As a condition of defendant's probation, the trial court orally ordered that defendant was "[n]ot to associate with any persons using or trafficking narcotics." The written conditions of probation, selected by checking boxes on a typed form, included the corresponding provision that defendant was not to "use or in any way traffic in narcotics and not to associate with any person using or in any way trafficking in narcotics."

The parties agree that this condition is unconstitutionally vague as described by In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.). In Sheena K., the California Supreme Court held that a probationary condition prohibiting the probationer from associating with anyone who is a member of a specified class of persons, without a requirement that the probationer know the person is a member of the class, is unconstitutionally vague (id. at pp. 889-892).

Sheena K. also explained that because the issue of the constitutionality of the condition of probation presents a pure question of law, a probationer's failure to object to its imposition does not forfeit the issue for appeal (id. at pp. 888-889), and that an acceptable remedy when such a condition is challenged on appeal is for the appellate court to insert the qualification that defendant have knowledge (id. at p. 892).

DISPOSITION

Defendant's conviction is affirmed. The probation condition at issue is modified to impose an explicit knowledge requirement as follows: "[Defendant is] not to use or in any way traffic in narcotics and not to associate with any person known to defendant to be using or in any way trafficking in narcotics." As modified, the order of probation is affirmed. The trial court is directed to amend its records to reflect this modification and to forward the appropriate documents to defendant and to the probation department.*fn1

We concur: NICHOLSON , Acting P.J. ROBIE ,J.


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