P. v. Dieck

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Filed 10/4/07 P. v. Dieck 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Trinity)
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THE PEOPLE,
Plaintiff and Respondent,
v.
ROLAND WILLIAM DIECK,
Defendant and Appellant.
C052606
(Super. Ct. No.
05F169)
After defendant Roland William Dieck pled no contest to
receiving stolen property and possession of marijuana, the trial
court granted him probation with 365 days in county jail. On
appeal, defendant contends: (1) the trial court erred when it
did not award him conduct credit under Penal Code section 40191
for five days he served in jail prior to sentencing and (2) the
probation condition that requires defendant not to be in any

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place where illegal substances are present should be amended to
include a knowledge element.
We reject defendant’s first argument because section 4019,
subdivision (e) precludes awards of conduct credit when a
defendant has served less than six days in jail. As to
defendant’s second argument, we modify the probation condition
to include a knowledge element.
PROCEDURE
Defendant was charged with the following counts:
(1) receiving stolen property in violation of section 496,
subdivision (a); (2) cultivation of marijuana in violation of
Health and Safety Code section 11358; and (3) felon in
possession of a firearm in violation of section 12021
subdivision (a)(1).
Defendant pled no contest to receiving stolen property and
possession of marijuana (Health & Saf. Code, § 11357, subd.
(a)), a lesser included offense of cultivation of marijuana. In
return, defendant was to receive probation with county jail
time.
After hearing sentencing recommendations from the district
attorney and probation officer, the court imposed the middle
1 All further statutory references are to the Penal Code
unless otherwise indicated.

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term of two years for receiving stolen property and imposed a
consecutive one-third of the middle term for possession of
marijuana, for a total prison term of two years eight months.
The court then suspended that sentence and placed defendant on
formal probation for five years, with a condition that he serve
365 days in county jail. Also as a condition of probation, the
court required that defendant not be “in any place where any
illegal substance is present.” Defendant was in jail for five
days prior to sentencing, and the court granted him credit for
those five days, with no conduct credit.
STATEMENT OF FACTS
Pursuant to a search warrant, sheriff deputies found in
defendant’s residence a set of Bavarian china, porcelain dolls,
and other figurines, all of which matched the description of
property stolen from defendant’s neighbor’s house. Police also
discovered in defendant’s residence a “grow room” containing 46
marijuana plants.
DISCUSSION
I
Conduct Credit
Defendant claims that the trial court should have granted
him an additional two days of conduct credit generated by his
five days in actual custody. He bases this claim on section
4019, subdivision (f). That provision states, “a term of six

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days will be deemed to have been served for every four days
spent in actual custody.” (§ 4019, subd. (f).)
However, defendant ignores subdivision (e) of the same
section. Subdivision (e) states, “No deduction may be made
under this section unless the person is committed for a period
of six days or longer.” (§ 4019, subd. (e).) The specific
provision that a defendant will not receive conduct credit for
presentence time less than six days prevails over the general
provision that a defendant will receive six days of credit for
each four actual days served. (See People v. Betts (2005) 34
Cal.4th 1039, 1058 [specific provision prevails over general].)
“‘If the plain, commonsense meaning of a statute's words is
unambiguous, the plain meaning controls. [Citation.]’
[Citation.]” (Templeton Development Corp. v. Superior Court
(2006) 144 Cal.App.4th 1073, 1081.) Here, the applicable
language is not ambiguous, and defendant does not argue
otherwise; therefore, the plain meaning of section 4019
subdivision (e) controls.
Defendant was in county jail for five days, a period of
time shorter than six days. Thus, defendant was not entitled to
any conduct credit. The trial court did not err when it did not
grant defendant conduct credit for serving only five days in
jail.

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II
Knowledge Element
A condition of defendant’s probation states that
“[d]efendant shall not be in any place where any illegal
substance is present.” Defendant argues that as written, this
condition is unconstitutionally vague and overbroad. He claims
that it would subject him to a probation violation for being in
a place where illegal substances are present, even if he does
not know about the illegal substances. Defendant thus requests
that the probation condition be modified to include a knowledge
element. The Attorney General concedes the condition must be
modified. We agree.
When a probation condition affects constitutional rights,
it must be narrowly drawn to reasonably relate to a compelling
state interest. (People v. Garcia (1993) 19 Cal.App.4th 97,
101-102.) In Garcia, the court held that a probation condition
prohibiting the defendant from associating with felons and drug
dealers was not narrowly drawn because it included persons not
known to the defendant to be felons or drug users. (Id. at p.
102.) The court stated, “A condition of probation that
prohibits appellant from associating with persons who,
unbeknownst to him, have criminal records or use narcotics, is
‘“overbroad [and therefore] is not reasonably related to a
compelling state interest in reformation and rehabilitation and

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is an unconstitutional restriction on the exercise of
fundamental constitutional rights.”’ [Citation].” (Id. at p.
102.) For a probation condition prohibiting association with
drug users to be valid, it must preclude the probationer from
associating with known users. (People v. Lopez (1998) 66
Cal.App.4th 615, 628-629, 638.)
Similarly, the validity of a condition forbidding a
probationer from being anywhere that illegal substances are
present depends on the probationer knowing that the forbidden
substances are present. Here, because the probation condition
restricts defendant from being in a place where illegal
substances are present, even if he is unaware of the illegal
substances, we must modify the condition to include a knowledge
element.
DISPOSITION
The probation condition is modified to read as follows:
“Defendant shall not be in any place where he knows any illegal
substance is present.” As it appears the trial court listed
defendant’s first name as “Ronald” instead of “Roland” in its
order, the trial court is directed to correct defendant’s name
in the order of probation. The trial court is also directed to

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send a copy of the amended order of probation to the probation
department. As modified, the judgment is affirmed.
NICHOLSON , Acting P.J.
We concur:
MORRISON , J.
CANTIL-SAKAUYE , J.

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