Filed 4/16/13 P. v. Salinas CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H038428
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS111919)

         v.

CARLOS JOSE SALINAS,

         Defendant and Appellant.


         Defendant Carlos Jose Salinas pleaded guilty to evading an officer, driving with a
suspended license, and drinking an alcoholic beverage while driving. The trial court
placed him on formal probation for three years with conditions. The probation officer
thereafter filed a petition to modify the conditions of probation to include abstaining from
the use or possession of alcoholic beverages. The trial court granted the request. On
appeal, defendant contends that the trial court erred by modifying his probation
conditions without evidence of a change in circumstances. We disagree. Defendant
alternatively contends that the first and second modified conditions are unconstitutionally
vague and overbroad because they do not contain a “knowledge” requirement. The
People concede this issue, and we agree that the concession is appropriate. We therefore
modify and affirm the probation order.
                                                  BACKGROUND
         The trial court placed defendant on probation on August 26, 2010. On October 17,
2011, the case was transferred from Santa Cruz County to Monterey County. On March
23, 2012, the Monterey County Probation Department (MCPD) filed a petition to modify
the terms of defendant‟s probation conditions after discovering that, at the time defendant
was placed on probation, the trial court had not included any alcohol, drug, or search
conditions. It was standard practice of the MCPD to recommend such conditions when
the underlying crime was alcohol related.
       At the hearing on the modification motion, defense counsel objected to the
modification on the basis that defendant had been on probation for one year and eight
months without any probation violations, had no new offenses, and was working full
time. The probation officer opined that the crime was alcohol related and that “I can‟t
predict what his behavior is going to be. And we need to have the additional conditions
so we can properly supervise him.”
       The trial court found the following: “I do find that the requested conditions are
related to the original charges in this case 2800.2. [¶] The defendant had alcohol with him
at the time. He had consumed alcohol at the time of the offense. It may have reduced his
inhibitions such that it caused him to act the way in which he did. If he had not
consumed alcohol at the time or had an open container he may not have been present on
these charges. [¶] Motion to add additional conditions is granted.”
       The following conditions were added to defendant‟s probation: “You‟re to abstain
from the use [of] alcoholic beverages. You‟re not to purchase or possess alcoholic
beverages. Stay out of places you know alcohol to be the main item of sale. [¶] You‟re
not to use or possess alcohol, narcotics, intoxicants, drugs or other controlled substances
without the prescription of a physician. [¶] You‟re not to traffic in or associate with
persons known to you to use or traffic in narcotics or other controlled substances. [¶]
You‟re to submit to alcohol or narcotic field sobriety tests when requested by any
probation or peace officer. [¶] You‟re to permit the search of your person, your car,



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personal effects, or place of residence, night or day, without the necessity of a search
warrant at the direction of any probation or peace officer.”
                               PROBATION MODIFICATION
         “A court may revoke or modify a term of probation at any time before the
expiration of that term.” (People v. Cookson (1991) 54 Cal.3d 1091, 1095; Pen. Code, §
1203.3, subd. (a).) Any modification is within the trial court‟s discretion. (In re
Tantlinger (1935) 8 Cal.App.2d 157, 159.) “Probation is an act of clemency and may be
withdrawn if the privilege is abused. . . . In such case the court is specifically authorized
to modify and change any and all of the terms and conditions of probation.” (In re Bine
(1957) 47 Cal.2d 814, 817.) However, a change in circumstances is required before a
court has jurisdiction to extend or otherwise modify probation, and an order modifying
the terms of probation based upon the same facts as the original order granting probation
is in excess of jurisdiction of the court, for the reason that there is no factual basis for it.
(People v. Cookson, supra, at p. 1095; In re Clark (1959) 51 Cal.2d 838, 840; In re Bine,
supra, at p. 818.) A change in circumstances equates to a “fact” “ „not available at the
time of the original order.‟ ” (People v. Cookson, supra, at p. 1095.)
         The defendant contends that the trial court did not have jurisdiction to add
conditions of probation because there was no change in circumstances. We disagree.
         In Cookson, the California Supreme court found a change of circumstances
warranting modification of probation conditions when the conditions imposed an
incorrect monthly restitution calculation. (People v. Cookson, supra, 54 Cal.3d at p.
1094.) Cookson held that although the defendant had fully complied with conditions of
probation and the miscalculation of monthly payments was the fault of the probation
officer, defendant‟s inability to pay amounted to a change of circumstances. (Id. at p.
1095.)



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       We find Cookson dispositive. Here, though defendant had complied with
conditions of probation, the transfer of the case from Santa Cruz County to Monterey
County constituted a fact not available at the time of the original order. Defendant‟s
probation was now overseen by a new probation officer and court, with differing
standards of practice. It was standard policy of MCPD to recommend alcohol, drug, or
search conditions for probationers whose underlying crime is alcohol related. Thus, the
trial court had jurisdiction to modify the conditions of probation.
       KNOWLEDGE REQUIREMENT FOR CONDITIONS NO. 1 AND NO. 2
       The obvious jurisprudential trend is toward requiring that a term or condition of
probation explicitly require knowledge on the part of the probationer that he is in
violation of the term in order for it to withstand a challenge for unconstitutional
vagueness. “[P]robation conditions that implicate constitutional rights must be narrowly
drawn” and the knowledge requirement in these circumstances “should not be left to
implication.” (People v. Garcia (1993) 19 Cal.App.4th 97, 102.)
       Defendant contends that the newly added first and second conditions of probation
are unconstitutionally vague and overbroad. Defendant points out that newly added
condition No. 1 (abstaining from the use, purchase, or possession of alcoholic beverages
and staying out of places where alcohol is for sale) and newly added condition No. 2
(abstaining from the use or possession or trafficking of alcohol, narcotics, intoxicants,
drugs, or other controlled substances without prescription and not associating with people
known to be using or trafficking in narcotics or controlled substances) do not contain a
knowledge requirement.
       The People concede this issue and we agree that the concession is appropriate.
       Defendant also complains that newly added probation condition No. 2 is
additionally vague and overbroad because it does not adequately define the term



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“intoxicants.” According to defendant, he could be held in violation of probation by
possessing legal substances such as glue or gasoline.
       Defendant‟s apprehension that he will be forced to violate probation from such
innocent activities is unwarranted. The language of a condition must be read in context
of the situation and is not vague or overbroad “ „if any reasonable and practical
construction can be given its language or if its terms may be made reasonably certain by
reference to other definable sources.‟ ” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th
1090, 1117.) Here, the condition places “intoxicants” together with “other controlled
substances.” The condition, as reasonably and practically construed, limits the use and
possession of illegal intoxicants.
                                      DISPOSITION
       Newly added probation condition No. 1 is modified as follows: “The defendant
shall abstain from the use of alcoholic beverages; shall not knowingly purchase or
possess alcoholic beverages; and shall stay out of places the defendant knows alcohol to
be the main item of sale.” Newly added probation condition No. 2 is modified as
follows: “Defendant shall not knowingly use or possess alcohol, narcotics, intoxicants,
drugs, or other controlled substances without the prescription of a physician; defendant
shall not traffic in or associate with persons he knows, or has reason to suspect, use or
traffic in narcotics or other controlled substances.” As so modified, the order for
modification of the sentence is affirmed.




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                        Premo, J.




WE CONCUR:




    Rushing, P.J.




    Elia, J.




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