P. v. Tamayo-Osua CA3

Filed 1/11/21 P. v Tamayo-Osua CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yolo) ---- THE PEOPLE, C091495 Plaintiff and Respondent, (Super. Ct. No. CRF195454) v. GENARO TAMAYO-OSUA, Defendant and Appellant. Defendant Genaro Tamayo-Osua appeals from a condition of probation imposed after he pled no contest to a drug offense. He contends the condition is unconstitutionally vague, and that the manner in which the trial court interpreted the condition violates his right to due process. We agree and shall clarify the condition to make clear that the three-year probationary period is not automatically suspended or tolled if defendant is deported. With this clarification, we affirm the judgment in all other respects. 1 FACTUAL AND PROCEDURAL BACKGROUND In October 2019, officers detained and searched defendant and his vehicle and located heroin and cocaine. A subsequent search of defendant’s house revealed additional heroin and cocaine as well as $5,000 in cash. Defendant was charged with transporting heroin and two counts of possession for sale of a controlled substance, heroin and cocaine. In January 2020, defendant pled no contest to possession of heroin for sale in exchange for dismissal of the remaining counts and a promise of probation with no initial county prison time. He also agreed to forfeit the assets seized during his arrest. The parties stipulated to the preliminary hearing transcript as the factual basis for the plea. At the sentencing hearing on February 7, 2020, defense counsel objected to proposed probation condition No. 4, which provided: “Should probationer be taken into custody by U.S. Immigration & Customs Enforcement and deported from this country, all probation terms and conditions are suspended while out of the country; should s/he return to this country under any circumstances, s/he must immediately contact the Probation Office of Yolo County and all terms of probation immediately come into full force and effect.” Counsel argued that the condition as proposed was vague and violated defendant’s due process rights because it implied that the term of probation would automatically be tolled if defendant were deported even without a petition to revoke probation or a revocation order from the court. The prosecutor replied that he did not “have an answer for [defense counsel’s] comments about probation term number four.” The prosecutor, however, surmised that the proposed condition “appear[ed] to be boilerplate language, that the terms and conditions follow [defendant] wherever he goes, not just here in the State of California.” After considering counsels’ arguments, the court ruled that it would impose condition No. 4 as written, finding it did not violate defendant’s due process rights. The court reasoned as follows: “[Condition No. 4] is a fair warning to him that if he does 2 ...

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