Filed 10/30/14 P. v. Dominguez CA6
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040302
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS121738A)

         v.

RUBEN AYALA DOMINGUEZ,

         Defendant and Appellant.


         After a vehicle stop for speeding, defendant Ruben Ayala Dominguez was found
in possession of marijuana and a loaded nine-millimeter handgun. The drugs and firearm
were found during a search of the vehicle, which was prompted by the odor of marijuana.
Following an unsuccessful motion to suppress the evidence seized during the warrantless
search, Dominguez pleaded no contest to carrying a concealed firearm in a vehicle. (Pen.
Code, § 25400, subd. (a)(3).)1 As part of the negotiated plea agreement, Dominguez
admitted the special allegation that he was not the registered owner of the firearm (id.,
subd. (c)(6)) and that the firearm was loaded. The court sentenced Dominguez to felony
probation, as called for by the plea agreement.
         Dominguez’s counsel has filed an opening brief in which no issues are raised and
asks this court for an independent review of the record as required by People v. Wende
(1979) 25 Cal.3d 436. We notified Dominguez of his right to submit a written argument
on his own behalf, but he has not done so.
         1
             Further unspecified statutory references are to the Penal Code.
       Pursuant to Wende, we reviewed the entire record and have concluded that, with
the exception of one error that we will address below, there are no arguable issues on
appeal. As required by People v. Kelly (2006) 40 Cal.4th 106, 110, we will provide “a
brief description of the facts and procedural history of the case, the crimes of which
defendant was convicted, and the punishment imposed.” We will further include
information about aspects of the trial court proceedings that might become relevant in
future proceedings. (Id. at p. 112.)
I.     FACTUAL BACKGROUND
       Our summary of the facts is taken from the testimony at the March 15, 2013
suppression hearing.
       On August 17, 2012, California Highway Patrol Officers Michael Palma and
Charles Rodriguez pulled Dominguez’s vehicle over for speeding. Officer Palma
testified that Officer Rodriguez, who was driving their marked patrol unit, determined
that Dominguez’s vehicle was travelling at 78 miles per hour in a 65 mile-per-hour zone
by maintaining the same speed as the vehicle for five to eight miles.
       When Officer Palma approached the passenger side of the vehicle he smelled the
odor of marijuana. The driver, who Officer Palma identified as Dominguez, admitted to
having a small amount of marijuana in the vehicle. Officer Palma asked Dominguez to
exit the vehicle, which he did. At Officer Palma’s request, Rafael Garcia, a deputy
sheriff with the Monterey County Sheriff’s Department who had arrived on the scene
shortly after the traffic stop, searched the vehicle. Deputy Garcia testified that he smelled
marijuana upon approaching the vehicle and saw a marijuana pipe containing marijuana
residue in the ashtray. Deputy Garcia opened a closed backpack sitting on the front
passenger seat and found a prescription bottle containing marijuana and a second
marijuana pipe. Under the driver’s seat Deputy Garcia found a box of ammunition.
Deputy Garcia lifted up the floorboard on the passenger’s side because it appeared to
have been tampered with and found a loaded nine-millimeter handgun under the

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floorboard. Deputy Garcia arrested Dominguez.
II.     PROCEDURAL BACKGROUND
        The Monterey County District Attorney filed an information on October 22, 2012,
charging Dominguez with one count of carrying a concealed firearm in a vehicle (§
25400, subd. (a)(3), count 1) and one count of misdemeanor possession of over 28.5
grams of marijuana (Health & Saf. Code, § 11357, subd. (c), count 2). The first count
included a special allegation that Dominguez was not the registered owner of the firearm
(§ 25400, subd. (a)(6)).
        On November 1, 2012, Dominguez moved for substitution of his appointed
counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). During a hearing in
closed court, Dominguez complained about what he perceived to be appointed counsel’s
unavailability and lack of interest in his case. Counsel explained that she had been on
vacation and had completed three jury trials in the span of approximately five weeks.
Concluding that counsel’s schedule had caused the communication issues and that there
had not been a breakdown in the attorney-client relationship, the court denied the
Marsden motion.
        Dominguez filed a motion to suppress on February 11, 2013, in which he argued
that the search of his vehicle violated his Fourth Amendment rights. The People opposed
Dominguez’s motion, urging that the odor of marijuana emanating from Dominguez’s
vehicle furnished probable cause to search the vehicle for contraband under the
automobile exception to the warrant requirement. Following a hearing at which Officer
Palma and Deputy Garcia testified, the court denied the suppression motion on March 15,
2013.
        The case was set for a jury trial. Four days before the trial was set to begin, the
district attorney filed an amended information. Count 1, carrying a concealed firearm in
a vehicle (§ 25400, subd. (a)(3)), and count 2, misdemeanor possession of over 28.5
grams of marijuana (Health & Saf. Code, § 11357, subd. (c)), remained unchanged. The

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amended information added a third count, misdemeanor transportation of not more than
28.5 grams of marijuana (id., § 11360, subd. (b)).
          On August 26, 2013, before trial began, the deputy district attorney told the court
that the information was amended because “[i]t was pled as a [Health and Safety Code
section] 11357[, subdivision] (c), which is more than 28.5 grams. This was less than that.
We’ve amended to add [Health and Safety Code section] 11360, which is possession of
less than an ounce [of marijuana] while being transported in a vehicle.”
          Before addressing the amended information, the court considered Dominguez’s
request for a two-week continuance to hire private counsel or, in the alternative, for
substitution of his appointed counsel under Marsden. The court denied the motion for a
continuance, noting that it had previously granted a defense motion to continue and
reasoning that the motion was a delay tactic. Following a second Marsden hearing, the
court denied Dominguez’s motion for new appointed counsel. During the Marsden
hearing, Dominguez stated that appointed counsel was negative towards him and failed to
explain things to him, including the People’s offer for a plea bargain. The court engaged
in a dialogue with Dominguez about his reluctance to go to trial or to plead because of
the consequences of a conviction. The court denied the Marsden motion, reasoning that
Dominguez’s goal was delay and that, despite communication problems, there had been
no mutual breakdown in the relationship between attorney and client.
          The court then ordered a recess to allow Dominguez and his appointed counsel to
discuss the plea offer. When the court reconvened, Dominguez waived formal
arraignment on the amended information and entered into a plea agreement. Pursuant to
the plea agreement, Dominguez pleaded no contest to carrying a concealed firearm in a
vehicle in violation of section 25400, subdivision (a)(3), a felony, as charged in count 1.
Dominguez also admitted that the firearm was loaded and the special allegation that he
was not the registered owner of the firearm, in violation of section 25400, subdivision
(a)(6).

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       Dominguez asked the court whether his violation of section 25400, subdivision
(a)(3) “could be dropped down, if I’m doing good, to a misdemeanor.” The court
responded, “[w]e’re not going to have a motion to reduce something to a misdemeanor
right now,” but explained that Dominguez could apply to have the offense reduced to a
misdemeanor in the future.
       After accepting Dominguez’s plea, the court suspended imposition of sentence,
placed Dominguez on formal probation, and imposed various fines, fees, and probation
conditions. Among the probation conditions imposed by the court was a prohibition
against “remain[ing] in any vehicle either as a passenger or driver which is known or
suspected to be stolen or contains any firearm or illegal weapon.”
       Dominguez filed a timely notice of appeal, which indicated that his appeal was
based on the denial of a motion to suppress and challenged the validity of the plea or
admission. The trial court granted Dominguez’s request for a certificate of probable
cause on November 5, 2013. In his request for a certificate of probable cause,
Dominguez recounted the traffic stop that led to his arrest and stated that he had not been
speeding, the vehicle did not smell of marijuana, and the gun and marijuana belonged to
his family members.
III.   DISCUSSION
       In examining the entire record, we identified an arguable issue related to the
probation condition barring Dominguez from “remain[ing] in any vehicle either as a
passenger or driver which is known or suspected to be stolen or contains any firearm or
illegal weapon.” Accordingly, we asked for and received additional briefing from the
parties as to whether that probation condition is unconstitutionally vague.
       As a threshold matter, we note that while Dominguez did not challenge the
condition in the trial court, we nevertheless may review its constitutionality as a matter of
law without reference to the sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875,
888-889.) Nor does the fact that Dominguez’s notice of appeal did not state the appeal

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was based on his sentence preclude us from considering the constitutionality of the
probation condition. (6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal
Appeal, § 163, p. 444 [“[a]n appeal is not limited to issues stated in the notice of
appeal”]; People v. Jones (1995) 10 Cal.4th 1102, 1109 disapproved of on other grounds
by In re Chavez (2003) 30 Cal.4th 643 [defendant’s failure to include claim regarding
erroneous imposition of probation conditions in notice of appeal did not render that claim
noncognizable on appeal].)
       To the extent the condition at issue requires Dominguez to speculate as to whether
a vehicle is stolen, it “fails to provide [him] with adequate notice of what is expected of
him when he lacks actual knowledge that a” vehicle is stolen. (People v. Gabriel (2010)
189 Cal.App.4th 1070, 1073.) As such, the condition is unconstitutionally vague on its
face. The condition also is subject to a facial challenge on vagueness grounds because it
requires Dominguez to vacate any vehicle that “contains any firearm or illegal weapon”
regardless of whether he is aware of the weapon’s presence. For the condition to pass
constitutional muster, an express knowledge requirement must be added. (In re Victor L.
(2010) 182 Cal.App.4th 902, 912-913 [modifying probation condition to prohibit
knowing presence of weapons or ammunition].)
IV.    DISPOSITION
       The probation condition stating “Not remain in any vehicle either as a passenger
or driver which is known or suspected to be stolen or contains any firearm or illegal
weapon” is modified to read “Not remain in any vehicle either as a passenger or driver
which he knows to be stolen or to contain any firearm or illegal weapon.”2 As modified,
the judgment is affirmed.




       2
           Following oral argument, the parties stipulated to this revised condition.


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                 Premo, Acting P.J.




WE CONCUR:




    Elia, J.




    Mihara, J.
