                                                                                                             FILED
                                                                                                  OOURT OF APPEALS
                                                                                                           DI ISI0e 3 II
                                                                                                 2013 OCT 22 AN 8;

                                                                                                 S TAT -            HINGT N
                                                                                                 BY
                                                                                                               I




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                 DIVISION II


STATE OF WASHINGTON,                                                           No. 44207 -8 -II


                                     Respondent,


         V. .



JEREMY LEE TAFT,                                                      UNPUBLISHED OPINION


                                     Appellant.




         JOHANSON, A.C. J. —         A jury found Jeremy Lee Taft guilty of third degree assault and

obstructing a law enforcement officer. The trial court sentenced Taft to probation and included a

sentence provision that he not possess any paraphernalia that could be used to ingest controlled

substances.     Taft appeals the legality of this provision in' his judgment and sentence and claims

the trial court erred in imposing it because it is ( 1) unconstitutionally vague and ( 2) unrelated to
                                                                                                   l
his   crime.    Based   on our    Supreme Court' s ruling in State      v.   Sanchez Valencia,         we accept the


State' s concession that the trial court imposed an unconstitutionally vague probation condition;
                                                                                             2
accordingly,    we strike   the   probation condition and remand      for resentencing.




1
    169 Wn.2d 782, 791 -92, 239 P. 3d 1059 ( 2010).

2 Because we find that the trial court imposed an unconstitutionally vague probation condition,
we need not address      Taft'    s argument   that the   condition was unrelated   to his   crime.
No. 44207 -8 - II



                                                             FACTS


           A jury found Taft guilty of third degree assault and obstructing a law enforcement

officer. The trial court included the following condition in Taft' s judgment and sentence:

           Defendant shall not possess or use any paraphernalia that can be used for the
           ingestion or processing of controlled substances or that can be used to facilitate
           the    sale   or    transfer   of   controlled    substances      including     scales,     pagers,   police

           scanners, or       hand held    electronic   scheduling     and    data   storage. devices.     Defendant

           shall not frequent known drug activity areas or residences.

Clerk' s Papers at 9.


           Taft appeals that condition of his judgment and sentence.3

                                                          ANALYSIS


                                                          VAGUENESS


           Taft argues that the trial court sentenced him to an unconstitutionally vague probation

condition. The State concedes the error. We accept the State' s concession.

           We review challenged probation conditions for abuse of discretion and will reverse if

they    are     manifestly     unreasonable.      State v. Sanchez Valencia, 169 Wn.2d 782, 791 -92, 239 P. 3d

1059 ( 2010).            Unconstitutionally vague probation conditions are manifestly unreasonable.

Sanchez Valencia, 169 Wn.2d at 792.


            The Fourteenth Amendment to the United States Constitution and article I, section 3 of

the Washington State Constitution require that citizens have fair warning of proscribed conduct.

State      v.    Bahl,   164     Wn.2d     739,    752,     193   P. 3d     678 ( 2008).          A probation condition is


unconstitutionally vague if it fails to inform ordinary people of what is and is not allowed, or if it

3
    Taft   appeals    his     entire   judgment   and sentence.       Br.   of   Appellant   at   3.   But, because Taft only
 challenged one specific probation condition in his brief, we only review that condition. See RAP
 10. 3( a)( 6).



                                                                  2
No. 44207 -8 -II



fails to   protect against      arbitrary   enforcement of    the   condition.    Sanchez Valencia, 169 Wn.2d at


791.


           The Washington Supreme Court previously ruled that the probation condition Taft is

                                                      See Sanchez Valencia, 169 Wn.2d                    785, 795.   In
challenging is unconstitutionally            vague.                                                 at




Sanchez Valencia, the challenged probation condition was as follows:


           Defendant shall not possess or use any paraphernalia that can be used for the
           ingestion or processing of controlled substances or that can be used to facilitate
           the sale or transfer of controlled substances including scales, pagers, police
           scanners, and hand held electronic scheduling and data storage devices.

169    Wn.2d     at   785.    The Supreme Court stated that language could encompass a wide range of


                                                  bags                       Sanchez Valencia, 169 Wn.2d at 794.
everyday items,          including "   sandwich          or paper."




Since the condition encompassed such a broad range of items, it left too much discretion with

individual corrections officers regarding who to arrest. Sanchez Valencia, 169 Wn.2d at 794 -95.

Thus, the condition was not specific enough to protect against arbitrary enforcement and was


unconstitutionally           vague.    Sanchez    Valencia,       168   Wn.2d    at   794 -95.   The Supreme Court


therefore struck Sanchez Valencia' s probation condition as being void for vagueness and

remanded to the trial court for resentencing. Sanchez Valencia, 169 Wn.2d at 795.

           Here,      Taft' s probation condition is almost identical to the unconstitutionally vague

condition     in Sanchez Valencia.          Since the conditions are essentially identical, Sanchez Valencia

controls our       decision. Like Sanchez Valencia, Taft' s probation condition is not specific enough


to     protect        against   arbitrary    enforcement      and       is    therefore    unconstitutionally   vague.




                                                              3
No. 44207 -8 -II



        We strike Taft' s probation condition as being void for vagueness and remand to the trial

court for correction of the judgment and sentence. See Sanchez Valencia, 169 Wn.2d at 795


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.



                                                                  1I ""


                                                                Johanson, A.C. J.




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