Filed 11/17/14 P. v. Ramirez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040728
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. Nos. CC776155, CC513156)

         v.

EVARADO CORTEZ RAMIREZ,

         Defendant and Appellant.


                                              I. INTRODUCTION
         In case No. CC513156, defendant pleaded guilty in 2006 to possession of cocaine
(Health & Saf. Code, § 11350, subd. (a)), misdemeanor providing a false name to a peace
officer (Pen. Code, § 148.9), and misdemeanor public intoxication (Pen. Code, § 647,
subd. (f)). Defendant also admitted that he had served a prior prison term (Pen. Code,
§ 667.5, subd. (b)). The trial court suspended imposition of sentence and placed
defendant on probation with various terms and conditions. Defendant’s probation was
revoked in 2008 and a bench warrant was issued. He was arrested in December 2013.
         In case No. CC776155, defendant pleaded no contest in 2014 to driving with a
blood alcohol level of 0.08 percent or more with one prior conviction (Veh. Code,
§§ 23152, subd. (b), 23550.5, subd. (a))1 and misdemeanor hit and run (§ 20002,


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        All further statutory references are to the Vehicle Code unless otherwise
indicated.
subd. (a)). Defendant also admitted that his blood alcohol level was 0.15 percent or more
(§ 23578), and that he had served a prior prison term (Pen. Code, § 667.5, subd. (b)).
       On February 19, 2014, in the case involving Vehicle Code violations
(No. CC776155), defendant was placed on probation with various terms and conditions,
including that he not possess or consume alcohol. That same day, the court reinstated
and terminated probation in the cocaine possession case (No. CC513156).
       On appeal, defendant does not raise any issues in the cocaine possession case
(No. CC513156). In the case involving Vehicle Code violations (No. CC776155),
defendant contends that the probation condition prohibiting possession of alcohol is
unconstitutionally vague and overbroad.
       For reasons that we will explain, we will modify the judgment relating to the
ordered condition of probation and, after correcting a clerical error, we will affirm the
judgment as modified.
               II. FACTUAL AND PROCEDURAL BACKGROUND
       In August 2007, defendant was charged by complaint with driving under the
influence of alcohol and drugs with one prior conviction (§§ 23152, former subd. (a),
23550.5, subd. (a); count 1), driving with a blood alcohol level of 0.08 percent or more
with one prior conviction (§§ 23152, subd. (b), 23550.5, subd. (a); count 2), and
misdemeanor hit and run driving causing property damage (§ 20002, subd. (a); count 3).
It was further alleged that he had served a prior prison term (Pen. Code, § 667.5,
subd. (b)), and as to counts 1 and 2 that his blood alcohol level was 0.15 percent or more
(§ 23578).
       Defendant was released to immigration authorities in October 2007. He was
arrested on a bench warrant in December 2013.
       In January 2014, based on the trial court’s indicated sentence of one year in county
jail, defendant pleaded no contest to count 2 (driving with a blood alcohol level of
0.08 percent or more with a prior conviction) and count 3 (misdemeanor hit and run). He

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also admitted the allegation of a blood alcohol level of 0.15 percent or more as to count 2,
and that he had served a prior prison term. The remaining count was submitted for
dismissal at the time of sentencing.
       On February 19, 2014, the trial court suspended imposition of sentence and placed
defendant on probation for three years with various terms and conditions, including that
he serve one year in county jail and that he not possess or consume alcohol. The
remaining count was dismissed. The court imposed various fines and fees, including an
$80 court security fee (now known as the court operations assessment) pursuant to Penal
Code section 1465.8.2
                                    III. DISCUSSION
       One of defendant’s probation conditions provides: “You shall not possess or
consume alcohol or illegal controlled substances or knowingly go to places where alcohol
is the primary item of sale.” On appeal, defendant contends the probation condition is
unconstitutionally vague and overbroad because it does not include a knowledge element
regarding the possession or consumption of alcohol.
       The Attorney General concedes that the probation condition should be modified to
include a knowledge element. The Attorney General argues that the knowledge element
should include actual and constructive knowledge.
       In People v. Rodriguez (2013) 222 Cal.App.4th 578, this court agreed that a
knowledge element should be added to a similar condition concerning alcohol and
controlled substances. This court noted that to the extent the probation condition
reinforced the defendant’s “obligations under the California Uniform Controlled
Substances Act, the same knowledge element which has been found to be implicit in
those statutes is reasonably implicit in the condition” (id. at p. 593), but that because the


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        The minutes of the hearing reflect a court security fee of $60 rather than $80.
We will order the minutes corrected accordingly.

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condition was “not limited to substances regulated by statute, but extend[s] to alcohol,”
an express knowledge requirement would “eliminate any potential for vagueness or
overbreadth in applying the condition” (id. at p. 594). Addressing gang probation
conditions, this court also determined that a constructive knowledge element does not
render the probation conditions unconstitutionally vague. (Id. at pp. 588-589; see also
People v. Mendez (2013) 221 Cal.App.4th 1167 [holding that a constructive knowledge
element in conditions prohibiting association with certain types of people did not make
the conditions unconstitutionally vague].)
       In this case, we will modify the probation condition concerning alcohol to include
an actual and constructive knowledge element as follows: “You shall not possess or
consume what you know or reasonably should know is alcohol or illegal controlled
substances or knowingly go to places where alcohol is the primary item of sale.”
                                   IV. DISPOSITION
       In case No. CC776155, the judgment (order of probation) is ordered modified as
follows. The probation condition stating, “You shall not possess or consume alcohol or
illegal controlled substances or knowingly go to places where alcohol is the primary item
of sale,” is modified to state as follows: “You shall not possess or consume what you
know or reasonably should know is alcohol or illegal controlled substances or knowingly
go to places where alcohol is the primary item of sale.” As so modified, the judgment is
affirmed. The minutes of the February 19, 2014 sentencing hearing are ordered corrected
to reflect the oral pronouncement of judgment by stating that the court security fee
imposed under Penal Code section 1465.8 is $80.




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                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MIHARA, J.




__________________________
GROVER, J.
