Filed 1/29/14 P. v. Sanchez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048344

         v.                                                            (Super. Ct. No. 11CF3118)

MIGUEL CUEVAS SANCHEZ,                                                 OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, David A.
Hoffer, Judge. Affirmed.
                   Jesse W.J. Male and David K. Rankin, under appointment by the Court of
Appeal, for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and
Warren Williams, Deputy Attorneys General, for Plaintiff and Respondent.


                                          *                  *                  *
              A jury convicted defendant Miguel Cuevas Sanchez of possession of a
controlled substance (Health & Saf. Code, § 11377, subd. (a)). The trial court suspended
imposition of sentence and placed him on three years formal probation.
              Defendant appeals, in part, because after the court stated the conditions of
probation in open court, the minute order added several additional provisions. Relying
on cases dealing with pronouncement of sentences, he argues the additions should be
struck. But “though the older rule is to give preference to the reporter’s transcript where
there is a conflict, the modern rule is that if the clerk’s and reporter’s transcript cannot be
reconciled, the part of the record that will prevail is the one that should be given greater
credence in the circumstances of the case. [Citations.] (In People v. Thrash (1978) 80
Cal.App.3d 898 [146 Cal.Rptr. 32], the appellate court held that probation conditions
‘need not be spelled out in great detail in court as long as the defendant knows what they
are; to require recital in court is unnecessary in view of the fact the probation conditions
are spelled out in detail on the probation order . . . .’ [Citation.]” (People v. Pirali (2013)
217 Cal.App.4th 1341, 1346.) Here defendant had access to the minute order and thus
notice of the conditions was sufficient. If he contends the minute order does not reflect
the intentions of the trial court, he could have sought correction in that court and failed to
do so. Defendant was placed on probation under Proposition 36 (Pen. Code, §§ 1210,
1210.1) and the conditions imposed are within the spirit of that proposition. (Pen. Code,
§ 1210.1, subd. (a).)
              In addition, defendant complains that several of the conditions of his
probation are vague or overbroad. We will review each of these.
              One of the conditions required defendant to “maintain a residence as
approved by probation.” He claims that this “impinges on constitutional entitlements –
the right to travel and freedom of association” and complains that the court should have
provided probation with criteria “upon which approval is to be based.” In support of his

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argument, defendant cites People v. Bauer (1989) 211 Cal.App.3d 937. But that decision
was based on the defendant’s unique relationship with his parents and the court’s
apparent conclusion the probation officer would likely prohibit defendant from living
with them. (Id. at p. 944.) The case is fact specific and relates to the needs of the parents
as well as defendant’s relationship with them. No such facts are presented here. The
requirement here must be seen in the light of defendant’s living in a house with other
users of illicit drugs at the time of his arrest.
               Defendant next complains of a condition prohibiting him from
“associat[ing] with person known to be on parole or on post release community
supervision or convicted felons or users or sellers of drugs – of illegal drugs or otherwise
disapproved by the probation office.” He argues this prohibition is overbroad “because it
precludes defendant’s participation in any group programs required for his
rehabilitation.” He cites no authority to support this argument. The condition relating to
“disapprov[al] by the probation office” would give the defendant the ability to attend
rehabilitation programs. “Associating” would extend beyond participation in a program
approved by probation.
               Finally, defendant objects to the condition that he “[u]se no unauthorized
drugs, narcotics, or controlled substances and submit to drug or narcotic testing as
directed by the probation or mandatory supervision officer, or any peace officer.” Citing
People v. Quiroz (2011) 199 Cal.App.4th 1123, he claims the terms are “vague in that it
is not clear what is authorized or who does the authorizing.” Quiroz is of little help to
him. It upheld a condition requiring the defendant to “‘[s]ubmit a record of income and
expenditures to the Probation Officer as directed’” against a claim this condition was too
vague or overbroad. (Id. at p. 1127.) Again, without citing applicable authority,
defendant contends this would preclude him from using physician prescribed



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medications. The prohibition is limited to “unauthorized” drugs, etc. Medication
prescribed by a physician would not be “unauthorized.”


                                    DISPOSITION


             The judgment is affirmed.




                                               RYLAARSDAM, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.




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