Filed 3/6/14 P. v. Parris CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B247678

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA385759)
         v.

TERRY PARRIS, Jr.,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Leslie A.
Swain, Judge. Affirmed as modified.
         Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and
Linda C. Johnson, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
                                    INTRODUCTION
       Defendant and appellant Terry Parris, Jr. pleaded guilty to one count of possession
of a controlled substance while armed with a loaded firearm (Health & Saf. Code, §
11370.1) (count 4) and was placed on probation on various terms and conditions. The
minute order for defendant’s sentencing hearing stated that the trial court dismissed
counts 1, 2, and 3 “pursuant to plea negotiation.” On appeal, defendant’s appointed
counsel filed an opening brief in accordance with People v. Wende (1979) 25 Cal.3d 436
requesting this court to conduct an independent review of the record to determine if there
are any arguable issues. On June 6, 2013, we gave notice to defendant that counsel had
failed to find any arguable issues and that defendant had 30 days within which to submit
by brief or letter any grounds of appeal, contentions, or arguments he wished this court to
consider. Defendant did not file a responsive brief or letter.
       After independently reviewing the record, we asked the parties to submit letter
briefs addressing whether the probation terms, as reflected in the trial court’s minute
order, that defendant “stay away from places where users or sellers [of narcotics,
dangerous or restricted drugs] congregate [and to] not associate with drug users or sellers
unless attending a drug treatment program” are unconstitutionally vague because they do
not include a knowledge requirement, i.e., that defendant stay away from places where he
knows illicit drug users or sellers congregate, and that he not associate with persons he
knows are illicit drug users or sellers. We further asked the parties whether this court is
required to strike the following probation terms from the trial court’s minute order
because they were not part of the trial court’s oral grant of probation: “Obey all rules and
regulations of the Probation Department”; “Do not associate with drug users or sellers
unless attending a drug treatment program”; “carry proof of registration [as a convicted
narcotics offender] at all times, display registration to any law enforcement officer upon
request”; and pay a $35 penalty assessment pursuant to Government Code section 76000.
Finally, we pointed out to the parties that although the trial court did not rule on the
prosecutor’s motion to dismiss counts 1, 2, and 3, the trial court’s minute order reflects
that the counts were “dismissed pursuant to plea negotiation.” We asked the parties, if

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they agreed that dismissal of counts 1, 2, and 3 was part of the plea agreement and that
the trial court inadvertently failed to orally dismiss those counts at the sentencing hearing,
whether this court may correct the error on appeal or must we remand the matter to the
trial court to conduct a new sentencing hearing at which the trial court orally dismisses
counts 1, 2, and 3. We order defendant’s probation term that he is to stay away from
places where users or sellers of narcotics, dangerous or restricted drugs congregate
modified to reflect a knowledge requirement; we order the remaining identified probation
terms stricken, except for the $35 penalty assessment pursuant to Government Code
section 76000; and we order counts 1, 2, and 3 dismissed. The judgment is otherwise
affirmed.


                              FACTUAL BACKGROUND1
       About 3:00 a.m. on June 18, 2011, Los Angeles Police Department Officer Jason
Haberkorn and his partner, Officer Horrigan, were working traffic detail in Hollywood.
As the officers stood next to their patrol car, they were approached by three or four
persons who stated that there was a Black man at the corner of Hollywood and
McCadden with a gun. They said the man was wearing a white T-shirt and dark pants.
When the group pointed toward the intersection, Officer Haberkorn saw a man who fit
the description—defendant.
       The officers contacted defendant with their guns drawn, and ordered him to lie on
the ground. The officers placed defendant in handcuffs, and took him into custody.
Defendant asked why he was being stopped. Officer Haberkorn, responded, “Due to
officer safety we’ll get to that as soon as we can, once we come and take you into
control.” The officer then explained that they were “conducting an investigation for a
possible man with a gun.” Defendant said that he had a gun in his waistband. Officer
Haberkorn searched defendant and recovered a loaded handgun. During a further search,


1     The factual background is taken from the hearing on defendant’s motion to
suppress evidence. (Pen. Code, § 1538.5.)

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the officer recovered five or six plastic baggies that contained a powered substance that
resembled powder cocaine.


                           PROCEDURAL BACKGROUND
       The District Attorney of Los Angeles County filed an information charging
defendant with having a concealed weapon on his person (former Pen. Code, § 12025,
subd. (a)(2), now Pen. Code, § 25400, subd. (a)(2)), carrying a loaded, unregistered
handgun (former Pen. Code, § 12031, subd. (a)(1), now Pen. Code, § 25850, subd. (a)),
and possession for sale of a controlled substance (cocaine) (Health & Saf. Code, §
11351). Defendant pleaded not guilty to all counts.
       The trial court heard and denied defendant’s suppression motion. After the
hearing on the suppression motion, the trial court permitted the prosecution to amend the
information to add the charge of possession of a controlled substance while armed with a
loaded firearm. (Health & Saf. Code, § 11370.1.) Defendant waived his constitutional
rights and pleaded guilty to violating Health and Safety Code section 11370.1. The trial
court suspended imposition of sentence, and placed defendant on formal probation for
three years under various terms and conditions. The minute order for defendant’s
sentencing hearing states that the trial court dismissed the remaining counts.


                                      DISCUSSION
       The parties agree, as do we, that the probation term that defendant stay away from
places where narcotics users or sellers congregate is unconstitutionally vague because it
does not include a knowledge requirement, i.e., that defendant stay away from places
where he knows illicit drug users or sellers congregate.2 (In re Sheena K. (2007) 40
Cal.4th 875, 890-891; In re Justin S. (2001) 93 Cal.App.4th 811, 816.) That term is
ordered modified to reflect such a knowledge requirement.

2      Although the parties agree that the probation term that defendant not associate
with drug users or sellers unless attending a drug treatment program suffers the same
constitutional infirmity, we do not address that term here as we order it stricken below.

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        “Where there is a discrepancy between the oral pronouncement of judgment and
the minute order or the abstract of judgment, the oral pronouncement controls.
[Citations.]” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) “The clerk cannot
supplement the judgment the court actually pronounced by adding a provision to the
minute order and the abstract of judgment.” (Id. at pp. 387-388.) Thus we agree with the
parties that this court is required to strike the following probation terms from the trial
court’s minute order because they were not part of the trial court’s oral grant of
probation: “Obey all rules and regulations of the Probation Department”; “Do not
associate with drug users or sellers unless attending a drug treatment program”; and
“carry proof of registration [as a convicted narcotics offender] at all times, display
registration to any law enforcement officer upon request.” Accordingly, those probation
terms are ordered stricken. (People v. Zackery, supra, 147 Cal.App.4th at pp. 385, 387-
388.)
        We disagree with the parties that we must strike the probation term that defendant
must pay a $35 penalty assessment pursuant to Government Code section 76000 because
the trial court did not orally impose that term. “Unless the Legislature has otherwise
provided, . . . penalty assessments under . . . Government Code section 76000 are
mandatory.” (People v. Martinez (1998) 65 Cal.App.4th 1511, 1521.)
        As to the trial court’s failure to rule on the prosecutor’s motion to dismiss counts
1, 2, and 3, the parties agree that dismissal of those counts was part of the plea agreement
and that we should dismiss them. Our Supreme Court has held, “[b]ecause a ‘negotiated
plea agreement is a form of contract,’ it is interpreted according to general contract
principles. [Citation.] Acceptance of the agreement binds the court and the parties to the
agreement. [Citations.]” (People v. Segura (2008) 44 Cal.4th 921, 930; see also
Santobello v. New York (1971) 404 U.S. 257, 262 [“when a plea rests in any significant
degree on a promise or agreement of the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be fulfilled”].) The prosecutor’s motion
to dismiss counts 1, 2, and 3 reflects that dismissal of those counts was part of the plea



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agreement. Accordingly, we order counts 1, 2, and 3 dismissed. (See People v. Segura,
supra, 44 Cal.4th at p. 930; see also Santobello v. New York, supra, 404 U.S. at p. 262.)
       We have otherwise examined the entire record and are satisfied that defendant’s
attorney has fully complied with his responsibilities and that no other arguable issues
exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)


                                     DISPOSITION
       The terms of defendant’s probation are modified to provide that defendant is to
stay away from places where he knows illicit drug users or sellers congregate. The
following probation terms are ordered stricken from the trial court’s minute order: “Obey
all rules and regulations of the Probation Department”; “Do not associate with drug users
or sellers unless attending a drug treatment program”; and “carry proof of registration [as
a convicted narcotics offender] at all times, display registration to any law enforcement
officer upon request.” Counts 1, 2, and 3 are dismissed. The judgment is otherwise
affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                 MOSK, J.

We concur:



              TURNER, P. J.



              MINK, J.


     Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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