Opinion
D070014
01-20-2017
THE PEOPLE, Plaintiff and Respondent, v. ASHLEY LYNN BJORK, Defendant and Appellant.
Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE356184) APPEAL from an order of the Superior Court of San Diego County, Daniel G. Lamborn, Judge. Affirmed. Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
One night in late November 2015, Ashley Lynn Bjork, a homeless person, tried to steal beer from a refrigerator in the victims' open garage while she was on three grants of probation for various offenses committed that year. Bjork pleaded guilty to the felony offense of first degree residential burglary of an inhabited building while another person was present (Pen. Code, §§ 459, 460, subd. (a), 667.5, subd. (c)(21)). The trial court placed Bjork on three years of formal probation and imposed various terms and conditions.
All further statutory references are to the Penal Code.
On appeal, Bjork's principal contention is that condition No. 10(g) of her probation, which requires her to obtain the probation officer's approval of her residence and workplace, should be stricken because it violates her First Amendment rights to travel and freedom of association and is constitutionally overbroad. In light of Bjork's recidivist criminal behavior and indications in the record that she has an untreated substance abuse problem, we conclude condition No. 10(g) is not unconstitutionally overbroad because it is reasonably related to both preventing future criminality and serving the compelling state interest in Bjork's reformation and rehabilitation. Accordingly, we affirm the order imposing condition No. 10(g).
FACTUAL AND PROCEDURAL BACKGROUND
The summary of the facts is taken from the probation officer's report because Bjork pleaded guilty prior to trial or a preliminary hearing.
A. Factual Background
On November 27, 2015, at about 10:10 p.m., Bjork, a homeless transient, walked into the open garage of the victims' home in La Mesa, opened the garage refrigerator, and grabbed an armful of beer. As Bjork was stealing the beer from the refrigerator, the victims entered the garage from the house and spotted her. Bjork attempted to leave, nonchalantly telling the victims she was ''just getting some beer." The victims called the police and tried to restrain her until the police arrived. Bjork violently resisted the victims' attempts to restrain her and yelled at them, "If you leave your garage door open and have beer in there you should expect someone to take it."
When police arrived and tried to arrest her, Bjork continued to resist and repeatedly tried to kick the officers. Later, after she was arrested and transported to the police station, Bjork threatened one of the victims, stating, "I'll go back to the house and shoot that dude in the head."
B. Procedural Background
Pursuant to a plea agreement, Bjork pleaded guilty to the felony offense of first degree residential burglary of an inhabited building while another person other than an accomplice was present (count 1: §§ 459, 460, subd. (a), 667.5, subd. (c)(21)). In exchange, the prosecution agreed (among other things) to dismiss two other charges alleged in the felony complaint: making a criminal threat (count 2: § 422), and dissuading a witness from testifying (count 3: § 136.1, subd. (a)(1)). As the factual basis for her guilty plea, Bjork admitted she entered a garage attached to a residence with the intent to steal and people were in the residence at that time.
At the sentencing hearing on January 29, 2016, Bjork first pleaded guilty to another burglary, as a misdemeanor, in another case (People v. Bjork (Super. Ct. San Diego County, 2016, No. CE357239)) not at issue in this appeal. As the factual basis for her guilty plea in that case, Bjork admitted she had entered a locked car with the intent to steal.
The court then noted it had read and considered the probation report filed in the residential burglary case at issue here. The probation report informed the court that, "[i]n 2015, [Bjork] was arrested for an array of charges inclu[ding] resisting arrest, threatening an officer, vandalism, petty theft, and tampering with a vehicle"; and that, consequently, she "was sentenced to three grants of Summary Probation."
The probation report also informed the court that Bjork was on those three grants of probation when she committed her current burglary offense in late November 2015. Regarding Bjork's criminal history, the report showed that (1) she pleaded guilty to misdemeanor threatening of an officer (§ 69) after she was arrested in February 2015, and she was placed on three years of summary probation for that offense in March 2015; (2) she was arrested again in early June 2015 while on probation, she pleaded guilty to petty theft, and in late August 2015 she was sentenced to 30 days in jail; (3) she was arrested again in mid-June 2015 while on probation, she pleaded guilty to another petty theft, and later that month she was given her second grant of three years of summary probation; and (4) she was arrested again in early-July 2015 while on probation, she pleaded guilty to misdemeanor tampering of a vehicle, and on November 24, 2015—three days before she committed her current first degree burglary offense at issue in this appeal—she was given her third grant of three years of summary probation. Regarding Bjork's vehicle tampering offense, the probation report informed the court that Bjork fled when the owner found her inside the vehicle and, when the police found her on top of the roof of a nearby house and arrested her, she "appeared to be under the influence of a controlled substance and said she felt suicidal" (italics added).
The probation report informed the court that Bjork had refused to be interviewed to allow the probation department to use the COMPAS objective risk and needs assessment tool to determine the appropriate treatment plan and supervision level for her. Concluding that Bjork was presumptively ineligible for probation, the report stated:
Specifically, the probation report stated: "Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) is a research based, risk and needs assessment tool used to assist placing, supervising and case managing offenders in the community and secure settings. The COMPAS is an objective risk and needs assessment instrument utilized by [the] Probation Department to help determine supervision levels and appropriate treatment plans, as well as the Sheriff's Department to identify appropriate offenders for alternative custody options and treatment plans both within the custodial facilities and for those offenders released to alternative custody. [¶] [Bjork] was not assessed by the COMPAS assessment tool as she declined to be interviewed." (Italics added.)
"[Bjork] is presumptively ineligible for a grant of probation and the undersigned finds no compelling reason to believe she would be a suitable candidate. Although this is [Bjork's] first felony conviction, it is the undersigned's belief [that Bjork] will be a danger to others if not imprisoned as evidenced by her actions in which she continues to commit crimes without any regard for the color of authority and/or the victims in her crimes." (Italics added.)
Rejecting the probation department's recommendations that Bjork be denied another grant of probation and that she be sentenced to a term of four years in prison, the court suspended the imposition of sentence for three years, granted her formal probation subject to various terms and conditions, and ordered her to serve 270 days in jail.
Of particular importance here, the court imposed condition No. 10(g) in the section of the order granting formal probation titled "Violence and Sex Conditions." Condition No. 10(g) requires that Bjork "[o]btain [the probation officer's] approval as to . . . residence [and] employment."
DISCUSSION
Bjork's principal contention is that condition No. 10(g) of her probation, which requires her to obtain the probation officer's approval of her residence and workplace, should be stricken because it violates her First Amendment rights to travel and freedom of association and is constitutionally overbroad. In her opening brief, without indicating whether her constitutional challenge to condition No. 10(g) is a facial challenge or an as-applied challenge, Bjork relies principally on People v. Bauer (1989) 211 Cal.App.3d 937 (Bauer) in support of her assertion that the condition is constitutionally overbroad because "[i]t fails to give probation any guidelines in determining whether a particular place is appropriate for appellant to reside, and it places no limits on when a probation officer must approve a particular residence."
The Attorney General responds that if Bjork's constitutional challenge to condition No. 10(g) is an as-applied challenge, Bjork forfeited her claim on appeal because she did not raise her challenge in the trial court. Alternatively, the Attorney General argues that (1) if Bjork's constitutional challenge is a facial challenge, condition No. 10(g) should be upheld because Bjork cannot establish that this condition "will always be overbroad, no matter what the facts of the case . . . entail"; and (2) if Bjork's constitutional challenge is an as-applied challenge and this court exercises its discretion "to reach the merits despite the forfeiture bar," condition No. 10(g) should be upheld because "the need for probation to warn or protect [Bjork's] potential cohabitants or coworkers (either from theft or assault) is particularly strong" because she is "prone to violent, spontaneous outbursts, particularly where drugs and alcohol are involved," and condition No. 10(g) would properly serve "the state's interest in [Bjork's] rehabilitation."
In her reply brief, Bjork attempts to avoid the forfeiture bar by asserting her constitutional challenge to condition No. 10(g) is a facial challenge, not an as-applied challenge. Alternatively, Bjork maintains that, if this court concludes her challenge is an as-applied challenge, this court should exercise discretion to reach the merits of her claim and order condition No. 10(g) stricken because it "gives the probation officer the complete discretion to tell appellant where she could live or work, and therefore, impinges on constitutional entitlements, i.e., the right to travel and freedom of association, rather than being narrowly tailored to interfere as little as possible with these important rights."
A. Applicable Legal Principles
Section 1203.1, subdivision (j) gives a trial court that grants probation the authority to impose "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, . . . and generally and specifically for the reformation and rehabilitation of the probationer . . . ."
A trial court has broad discretion under section 1203.1 in selecting the conditions of a defendant's probation in order to foster rehabilitation and to protect public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) "If a probation condition serves to rehabilitate and protect public safety, the condition may 'impinge upon a constitutional right otherwise enjoyed by the probationer, who is "not entitled to the same degree of constitutional protection as other citizens." ' " (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355 (O'Neil), quoting People v. Lopez (1998) 66 Cal.App.4th 615, 624 (Lopez).)
Judicial discretion in selecting the conditions of a defendant's probation "is not unlimited." (O'Neil, supra, 165 Cal.App.4th at p. 1355.) A probation condition is unreasonable and will not be upheld if it (1) has no relationship to the crime of which the defendant was convicted, (2) relates to conduct that is not criminal, and (3) requires or forbids conduct that is not reasonably related to future criminality. (People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin); O'Neil, at p. 1355.) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (Olguin, at p. 379.) Thus, as a general rule, "even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (Id. at p. 380.)
However, "[j]udicial discretion to set conditions of probation is further circumscribed by constitutional considerations." (O'Neil, supra, 165 Cal.App.4th at p. 1356.) Under this second level of scrutiny, if an otherwise valid condition of probation impinges on constitutional rights, the condition must be carefully tailored so as to be reasonably related to the compelling state interest in the probationer's reformation and rehabilitation. (Ibid.; Bauer, supra, 211 Cal.App.3d at p. 942.)
A probation condition is unconstitutionally overbroad if it imposes limitations on the probationer's constitutional rights and it is not closely or narrowly tailored and reasonably related to the compelling state interest in reformation and rehabilitation. (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.); In re Victor L. (2010) 182 Cal.App.4th 902, 910.) "The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) In an appropriate case, a probation condition that is not " 'sufficiently narrowly drawn' " may be modified and affirmed as modified. (Lopez, supra, 66 Cal.App.4th at p. 629; see also In re E.O., at p. 1158.)
1. Forfeiture rule
Challenges to probation conditions ordinarily must be raised in the trial court or appellate review of those conditions will be deemed forfeited. (People v. Welch (1993) 5 Cal.4th 228, 234-235 [extending the forfeiture rule to a claim that probation conditions are unreasonable, when the probationer fails to object on that ground in the trial court].)
However, the forfeiture rule does not apply, and a defendant who did not object to a probation condition at sentencing may do so on appeal if the appellate claim "amount[s] to a 'facial challenge' " that challenges the condition on the ground its "phrasing or language . . . is unconstitutionally vague or overbroad" and the determination whether the condition is constitutionally defective "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court." (Sheena K., supra, 40 Cal.4th at pp. 885, 887.) Thus, "a challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law" (id. at p. 887), and such a challenge is reviewable on appeal even if it was not raised in the trial court (id. at p. 889).
2. Standard of review
"Generally, we review the court's imposition of a probation condition for an abuse of discretion." (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143, citing Carbajal, supra, 10 Cal.4th at p. 1121.) However, we independently review constitutional challenges to a probation condition. (In re Shaun R., at p. 1143.)
B. Analysis
We need not decide whether Bjork forfeited her claim that condition No. 10(g) is unconstitutionally overbroad by failing to challenge that condition at the time the court imposed it during the sentencing hearing. In the exercise of this court's discretion, we reach the merits of her claim.
As already discussed, a probation condition that "serves to rehabilitate [the probationer] and protect public safety . . . may 'impinge upon a constitutional right otherwise enjoyed by the probationer, who is "not entitled to the same degree of constitutional protection as other citizens." ' " (O'Neil, supra, 165 Cal.App.4th at p. 1355, quoting Lopez, supra, 66 Cal.App.4th at p. 624.)
Here, condition No. 10(g) constitutionally impinges upon Bjork's constitutional rights to travel and freedom of association because, as a probationer, she is " 'not entitled to the same degree of constitutional protection as other citizens' " (Lopez, supra, 66 Cal.App.4th at p. 624); and, although the condition grants broad discretionary authority to the probation officer in approving where she resides and works, the condition reasonably serves the compelling state interest in Bjork's reformation and rehabilitation and also reasonably serves to protect public safety by preventing future criminality. As discussed more fully in the factual and procedural background, ante, Bjork is a homeless recidivist offender with a substance abuse problem who committed a series of crimes in 2015. Demonstrating her unwillingness to remain law-abiding, Bjork committed her current offense, first degree residential burglary, in late November 2015 while she was on three grants of probation. When her victims confronted her as she was committing this crime in their garage, Bjork demonstrated both disdain for the law and a likelihood she would continuing committing such crimes when she petulantly yelled at them, "If you leave your garage door open and have beer in there you should expect someone to take it." The record also shows Bjork is prone to violent outbursts. In this case, she engaged in violent behavior not only toward her victims but also to the police officers who arrested her. Bjork also has demonstrated unwillingness to seek help for her homelessness and apparent substance abuse problems. Although Bjork refused to be interviewed to allow the probation department to use the COMPAS objective risk and needs assessment tool to determine the appropriate treatment plan and supervision level for her, the court showed extraordinary lenience in rejecting the probation department's recommendation that Bjork be sentenced to four years in prison.
See footnote 3, ante. --------
The foregoing record establishes that the imposition of condition No. 10(g) is necessary to protect public safety, deter future criminality, and serve the compelling state interest in Bjork's reformation and rehabilitation. Bjork's probation is subject to condition No. 6(n), which requires that she "[s]ubmit [her] person, . . . residence, [and] personal effects . . . to search at any time with or without a warrant, and with or without reasonable cause, when required by [her probation officer] or [a] law enforcement officer." Bjork's recidivist and violence-prone criminal behavior requires the strictest probationary supervision, and condition No. 10(g) will allow Bjork's probation officer to provide such supervision by making it possible to know in advance where Bjork will be living and, if she secures employment, where she will be working.
Bjork's reliance on Bauer, supra, 211 Cal.App.3d 937, is misplaced because it is factually distinguishable. In Bauer, the trial court required, as a condition of probation the probation department did not propose, that the defendant obtain his probation officer's approval of his residence. (Id. at pp. 940, 943.) The probation report showed the defendant was living at his parents' home where he had always lived, he had had close family relations all of his life, he had no plans to leave his parents' home, and his parents were getting older and would benefit from his helping them with work around the house. (Id. at pp. 943-944.) The Court of Appeal ordered the residency approval condition stricken, concluding it was unconstitutionally overbroad because it impinged on the defendant's constitutional rights to travel and freedom of association without being "narrowly tailored to interfere as little as possible with these important rights," and it gave the probation officer "the power to banish him" from living with or near his parents. (Id. at pp. 944, 945.) Bauer is distinguishable because the defendant in that case was not a recidivist homeless transient prone to violence and suffering from an untreated substance abuse problem who required strict probationary supervision, like Bjork.
For the foregoing reasons, we conclude that condition No. 10(g) is not unconstitutionally overbroad because it will enable Bjork's probation officer to effectively supervise her, and it is reasonably related to both preventing future criminality and serving the compelling state interest in Bjork's reformation and rehabilitation. (See Olguin, supra, 45 Cal.4th at pp. 380-381 ["[a] condition of probation that enables a probation officer to supervise his or her charges effectively is, therefore, 'reasonably related to future criminality' "]; Bauer, supra, 211 Cal.App.3d at p. 942 [a condition of probation that impinges on constitutional rights will be upheld if the condition is carefully tailored so as to be reasonably related to the compelling state interest in the probationer's reformation and rehabilitation].) By committing her current felony offense while on three grants of summary probation, Bjork has demonstrated that less restrictive conditions of probation are ineffective. Accordingly, we affirm the order imposing condition No. 10(g).
DISPOSITION
The order is affirmed.
NARES, J. WE CONCUR: McCONNELL, P. J. BENKE, J.