P. v. Diaz

Filed 11/30/05 P. v. Diaz CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, Plaintiff and Respondent, v. HECTOR EDUARDO DIAZ, Defendant and Appellant.

B178318 (Los Angeles County Super. Ct. No. VA081555)

APPEAL from an order of the Superior Court of Los Angeles County.

Ross M. Klein, Judge. Modified and remanded in part, otherwise affirmed.

California Appellate Project, Jonathan B. Steiner, Executive Director, and

Ronnie Duberstein, Staff Attorney, for Defendant and Appellant

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL HISTORY

On March 8, 2004, Los Angeles County Deputy Sheriff Gutierrez noticed appellant, Hector Eduardo Diaz, making an unsafe lane change. After Diaz’s vehicle stopped, the deputy noticed appellant moving inside as if he were hiding something in or getting something from the center portion of the car. The deputy ordered appellant out of the car and conducted a pat down search. Appellant told the deputy that he was not sure if he had a valid driver’s license and the deputy determined that appellant was driving with a suspended license. Diaz was detained in the back seat of the police vehicle.

A female passenger in the Diaz vehicle was arrested for being under the influence of a controlled substance (a stimulant). During an inventory search of appellant’s vehicle, a deputy noticed “a piece of plastic . . . protruding from the ashtray cigarette holder,” and retrieved a piece of plastic containing eight bindles with methamphetamine from a space under the ashtray. At trial, Deputy Gutierrez opined that the methamphetamine was possessed for sale, based on the amount, the packaging and the presence of a cell phone in the car. Appellant had a small amount of money in his wallet and did not exhibit any signs of being under the influence of a controlled substance.

In an information filed July 22, 2004, appellant was charged with one count of possession of a controlled substance (methamphetamine) for sale (Health & Saf. Code § 11378.) Following a jury trial, appellant was convicted of possession of a controlled substance (methamphetamine) (Health & Saf. Code § 11377.)

On September 13, 2004, imposition of sentence was suspended and appellant was placed on formal probation for three years under certain terms and conditions, pursuant to Proposition 36. On September 27, 2004, appellant failed to appear in court. Probation was revoked and a no-bail bench warrant was issued for appellant’s arrest. On September 28, 2004, probation under Proposition 36 was reinstated and the bench warrant was recalled.

Appellant filed a timely notice of appeal challenging the judgment entered on August 13, 2004.

DISCUSSION

The clerk’s transcript from the sentence indicates that the trial court imposed the condition of probation that appellant was not to use or possess any narcotics, dangerous or restricted drugs or associated paraphernalia, except with a valid prescription, and was to stay away from places where users, buyers or sellers congregate. The reporter’s transcript of the sentencing hearing, however, indicates that in making the oral pronouncement of sentence, the trial court did not include the proscription that appellant stay away from places where users, buyers or sellers congregate. As a result, appellant contends that the “clerk’s transcript should be ordered corrected to reflect the express pronouncement of the court, i.e., by deleting the condition of probation that appellant “stay away from places where users, buyers or sellers congregate.”

As a general rule, when the record of the court’s oral pronouncement regarding sentencing conflicts with the clerk’s minute order, the oral pronouncement controls. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Price (2004) 120 Cal.App.4th 224, 242; People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1415-1416.) However, other cases make clear that this rule is not absolute. People v. Smith (1983) 33 Cal.3d 596, 599 outlines what it termed the “correct approach” when such a conflict occurs: “‘It may be said . . . as a general rule that when, as in this case, the record is in conflict it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]. Therefore whether the recitals in the clerk’s minutes should prevail as against contrary statements in the reporter’s transcript must depend upon the circumstances of each particular case.’” (Ibid., quoting In re Evans (1945) 70 Cal.App.2d 213, 216; see also People v. Malabag (1997) 51 Cal.App.4th 1419, 1422-1423.)

In this case, the reporter’s transcript indicates that the trial court stated the following at the sentencing hearing:

“Imposition of sentence . . . is suspended. I am putting you on three years formal probation prop. 36 under the following terms and conditions: I will give you a copy of it after I summarize it for you. You probably know it since you heard me go over it with others.” (Emphasis added.)

The trial judge then recited the numerous terms and conditions of probation. The following text contains the relevant portion:

“You are not to drink or possess any alcoholic beverage. Stay out of places where they are the chief item of sale.

“Do not use of possess any narcotics or narcotic paraphernalia unless you have a valid prescription.

“You are not to associate with people known by you to be drug users or sellers except in your drug counseling program.”

The issue in this appeal is raised because the minute order for the same proceedings lists the following terms and conditions of probation:

“Not drink any alcoholic beverage and stay out of places where they are the chief item of sale.

“Not use or possess any narcotics, dangerous or restricted drugs or associated paraphernalia, except with valid prescription, and stay away from places where users, buyers or sellers congregate.

“Not associate with persons known by you to be narcotic or drug users or sellers.”

Appellant’s position is that because the condition that he “stay away from places where users, buyers or sellers congregate” was not stated by the trial court in the imposition of sentence, it is not authorized and therefore erroneously included in the minute order. We note the discrepancy, but disagree with appellant’s argument that there is a “conflict” between the minute order and the reporter’s transcript. First of all, the trial court said that he was going to summarize the conditions of probation and the oral pronouncement was announced to be a short version of the preprinted probation and sentencing order. The most appropriate way to reconcile the discrepancy between the differing versions would be to adopt the language from the probation and sentencing order.

If we were unable to reach this conclusion, the only reasonable alternative would be to remand this case to the trial court for clarification of the probation conditions. At that point, if appellant did not want to accept the clarified conditions of probation, he would have the ability to reject the offered alternative of probation and accept a sentence. Under the circumstances described in this appeal, we do not accept appellant’s recommendation to conform the minute order to the reporter’s transcript.

In a supplemental opening brief, appellant raises an additional objection to the language of the questioned probation in the minute order. As noted above the minute order condition ended with the clause “stay away from places where users, buyers or sellers congregate.” Appellant argues additionally that this probation condition is constitutionally overbroad.[1] Recent appellate cases have addressed a similar argument and we agree that this probation condition should be modified to order appellant to stay away from places where he knows drug users congregate. (In re Justin S. (2001) 93 Cal.App.4th 811, 816; In re Kacy S. (1998) 68 Cal.App.4th 704, 712-713; cf. In re Josh W. (1997) 55 Cal.App.4th 1, 5-6.)

DISPOSITION

The conditions of probation are modified to read: “Do not use or possess narcotics, controlled substances, poisons, or related paraphernalia; stay away from places where any persons known by defendant to be drug users, buyers or sellers congregate.” We remand for the trial court to enter a new probationary order containing this described modification. In all other respects, we affirm the order of the superior court.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P.J.

We concur:

RUBIN, J.

BOLAND, J.

Courtesy of California Legal Resource Directory, a source for providers and consumers of legal resources. Because we know legal.

Del Mar Lawyers are available and standing by to help you.

[1] Respondent did not submit a further opposition to this supplemental issue. We assume that respondent might have raised a waiver argument. Had the argument been made we would have rejected it and decided the issue on the merits.