P. v. Villalobos CA5 ( 2013 )

Filed 7/2/13 P. v. Villalobos CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F065012
Plaintiff and Respondent,
(Super. Ct. No. F11903886)
v.
FRANCISCO ANTONIO VILLALOBOS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Don Penner,
Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez, Deputy
Attorney General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
Defendant and appellant Francisco Antonio Villalobos pled no contest to an
amended count of violation of Penal Code section 220, subdivision (a), assault with intent
to commit rape. The court suspended imposition of sentence and placed defendant on
formal probation with a term of incarceration as a condition of probation. This appeal
concerns one of the additional conditions of probation imposed by the court.
In its oral imposition of terms of probation, the court stated: “You are not to use
or possess or associate with those who use or possess any dangerous drugs or narcotics
and not to use or possess any dangerous drugs or narcotics without a lawful prescription.
You are to submit to drug testing.” This was translated in paragraph 33 of the minute
order of the sentencing hearing succinctly, but somewhat inaccurately, as: “Do not use
drugs.”
Defendant contends the orally imposed condition of probation is
unconstitutionally broad in its prohibition of association with anyone who uses or
possesses “dangerous drugs or narcotics.” He points out that pharmacies and doctors
offices stock drugs that might be viewed as dangerous, but that possession and
distribution of drugs by those entities are commonplace and lawful. Respondent agrees
that a probation condition that forbade a defendant from going to the doctor or to a
pharmacy would be overbroad (see In re Sheena K. (2007) 40 Cal.4th 875, 890), but
respondent contends such a construction of the court’s language in this case would be
unreasonable. The parties largely agree, however, on the appropriate language that
properly and narrowly conveys the condition intended by the trial court.
While we tend to agree with respondent about the reasonable interpretation of the
trial court’s oral statement, we are concerned that the version of the probation condition
in the minute order does not convey this interpretation. Accordingly, we will modify the
order for probation set forth in the minute order of April 4, 2012, to delete the entirety of
paragraph 33 of that order and to insert a new and different paragraph 33, to read as
follows: “Defendant shall not use or possess any dangerous drugs or narcotics without a
2.
lawful prescription. Defendant shall not knowingly associate with persons who
unlawfully use or possess controlled drugs or narcotics. Defendant shall submit to drug
testing as directed by the probation officer.” As modified, the order for probation will be
affirmed.
DISPOSITION
The minute order of April 4, 2012, is modified to delete the entirety of
paragraph 33 of that order and to insert a new and different paragraph 33, as follows:
“Defendant shall not use or possess any dangerous drugs or narcotics without a lawful
prescription. Defendant shall not knowingly associate with persons who unlawfully use
or possess controlled drugs or narcotics. Defendant shall submit to drug testing as
directed by the probation officer.” As modified, the April 4, 2012, order for probation is
affirmed.
3.