Opinion
H047912
10-26-2021
THE PEOPLE, Plaintiff and Respondent, v. STEVEN ANTHONY FIORENTINO, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. Nos. C1890877, C1905927)
BAMATTRE-MANOUKIAN, J.
I. INTRODUCTION
Defendant Steven Anthony Fiorentino appeals after pleading no contest in case No. C1890877 to making criminal threats (Pen. Code, § 422) with the personal use of a deadly and dangerous weapon (§ 12022, subd. (b)(1)), two counts of misdemeanor making criminal threats, misdemeanor dissuading a witness (§ 136.1), two counts of possession of a firearm by a felon (§ 29800, subd. (a)(1)), and possession of a silencer (§ 33410), and in case No. 1905927 to misdemeanor elder abuse (§ 368, subd. (c)). The trial court placed defendant on formal probation for three years and ordered him to serve 364 days in jail. Among other probation terms and conditions, the court ordered defendant to "seek and maintain gainful employment and/or maintain academic or vocational training as directed by the probation officer."
All further statutory references are to the Penal Code.
Defendant contends that the probation condition that he seek and maintain gainful employment and/or maintain academic or vocational training is facially overbroad and that his probation term must be reduced to two years pursuant to Assembly Bill No. 1950 (2019-2020 Reg. Sess.), which amended section 1203.1. The Attorney General asserts that defendant's overbreadth claim has been forfeited and is meritless. The Attorney General concedes that defendant's probation term must be reduced.
For reasons that we will explain, we uphold the challenged condition but modify the probation order to specify that defendant is granted formal probation for a period of two years. We affirm the judgment as modified.
Because the record on appeal does not include the factual basis for defendant's pleas, we do not include a summary of the facts. The facts are not relevant to the issues on appeal.
In case No. 1890877, the district attorney charged defendant with three counts of making criminal threats (§ 422; counts 1-3), dissuading a witness (§ 136.1, subd. (c)(1); count 4), two counts of possession of a firearm by a felon (§ 29800, subd. (a)(1); counts 5 and 7), two counts of unlawful possession of ammunition (§ 30305, subd. (a)(1); counts 6 and 8), and possession of a silencer (§ 33410; count 9). It was alleged that defendant personally used a deadly and dangerous weapon, a knife, in the commission of count 1 (§ 12022, subd. (b)(1)).
In case No. C1905927, the district attorney charged defendant with unlawful possession of ammunition (count 1), possession of a silencer (count 2), and misdemeanor elder abuse (§ 368, subd. (c); count 3.) It was alleged that defendant was out of custody on bail or on his own recognizance when he committed counts 1 and 2 (§ 12022.1).
In case No. 1890877, the court granted the district attorney's request to reduce counts 2 through 4 to misdemeanors. Defendant pleaded no contest to counts 1 through 5, 7, and 9, and admitted the section 12022, subdivision (b)(1) allegation. In case No. C1905927, defendant pleaded no contest to count 3.
The trial court placed defendant on three years of formal probation and ordered him to serve 364 days in jail. Among other probation terms and conditions, the court ordered defendant to "seek and maintain gainful employment and/or maintain academic or vocational training as directed by the probation officer."
III. DISCUSSION
A. Overbreadth of Employment and Schooling Probation Condition
Defendant contends that the probation condition that he "seek and maintain gainful employment and/or maintain academic or vocational training as directed by the probation officer" is unconstitutionally overbroad. Defendant concedes that he did not object to the condition below but argues that his overbreadth claim is not forfeited because it involves pure issues of law.
1. Legal Principles and Standard of Review
A trial court has broad discretion to impose probation conditions to foster rehabilitation of the defendant and to protect the public. (§ 1203.1, subd. (j); People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) However, "[a] probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) A restriction is unconstitutionally overbroad if it "(1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' [Citations.]" (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) "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." (Id. at p. 1153.)
A defendant may raise for the first time on appeal a facial constitutional defect in a probation condition where the claim involves"' "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." [Citations.]'" (Sheena K., supra, 40 Cal.4th at p. 889; see also id. at p. 887.) A facial constitutional challenge to the "phrasing or language of a probation condition . . . 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." (Id. at p. 885.)
In contrast, a constitutional defect that is "correctable only by examining factual findings in the record or remanding to the trial court for further findings" is subject to forfeiture if the claim was not raised in the trial court. (Sheena K., supra, 40 Cal.4th at p. 887.) In other words, not" 'all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." [Citation.] In those circumstances, "[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court." [Citation.]' [Citation.]" (Id. at p. 889.)
We review constitutional challenges to a probation condition de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
2. Analysis
Defendant first argues that the probation condition is overbroad because its requirement that he" 'maintain'" employment or schooling "fails to account for lack of opportunity," and that "his probation is doomed to fail" if there are no job or education options. We are not persuaded.
Defendant "takes no issue with the requirement that he 'seek' gainful employment and/or schooling."
Section 1203.1, subdivision (d) authorizes courts to "require as a condition of probation that the probationer go to work and earn money." Consequently," '[a]n order that a criminal defendant seek and maintain gainful employment as a condition of probation is one commonly imposed.' [Citations.] The same is true of conditions requiring a probationer to remain in school and 'maintain satisfactory grades.' [Citation.]" (People v. Sanchez (2019) 38 Cal.App.5th 907, 919 (Sanchez).) While defendant's ability to "maintain" employment or schooling may depend partially on factors outside of his control, noncompliance with this requirement based on circumstances beyond defendant's control "cannot give rise to a probation violation" because a" 'willfulness'" requirement is implied. (Ibid.; see People v. Hall (2017) 2 Cal.5th 494, 498 ["Revocation of probation typically requires proof that the probation violation was willful."].)
Defendant attempts to distinguish Sanchez by pointing out that in that case, the defendant's employment history demonstrated that compliance was not impossible, whereas here, defendant "has documented mental health issues." Certainly, "the possibility of noncompliance due to circumstances beyond a probationer's control precludes the imposition of the condition of probation in the first place . . . where the trial 'court can say as a matter of law [that] compliance would be impossible.' [Citation.]" (Sanchez, supra, 38 Cal.App.5th at p. 919, italics omitted.) However, to the extent that defendant argues that compliance with the condition is impossible based on his mental health, defendant's argument involves a factual issue that may not be raised for the first time on appeal because it is "correctable only by examining factual findings in the record or remanding to the trial court for further findings." (Sheena K., supra, 40 Cal.4th at p. 887; see also id. at p. 889.)
Relying on People v. O'Neil (2008) 165 Cal.App.4th 1351 (O'Neil) and People v. Bauer (1989) 211 Cal.App.3d 937 (Bauer), defendant next contends that the requirement that he seek and maintain gainful employment and/or schooling as directed by the probation officer is overbroad because "it gives unfettered discretion to his probation officer." Defendant argues that the condition authorizes the probation officer to prevent him from pursuing the career or schooling of his choice. We read the condition differently.
In O'Neil, the trial court imposed the condition that the defendant" 'not associate socially, nor be present at any time, at any place, public or private, with any person, as designated by [his] probation officer.'" (O'Neil, supra, 165 Cal.App.4th at p. 1354.) The Court of Appeal held that the condition was overbroad because it had "no limits on those persons whom the probation officer may prohibit defendant from associating with." (Id. at p. 1357.) The court found the "unlimited" condition "permits an unconstitutional infringement on defendant's right of association" and "allow[s] the probation officer to banish the defendant by forbidding contact with his family and close friends, even though such a prohibition may have no relationship to the state's interest in reforming and rehabilitating the defendant." (Id. at p. 1358.)
In Bauer, the trial court required the defendant "to obtain his probation officer's approval of his residence." (Bauer, supra, 211 Cal.App.3d at p. 940.) The Court of Appeal struck down the condition, finding that "[r]ather than being narrowly tailored to interfere as little as possible with [the right to travel and freedom of association], the restriction is extremely broad. The condition gives the probation officer the discretionary power, for example, to forbid [the defendant] from living with or near his parents-that is, the power to banish him." (Id. at p. 944.)
Here, in contrast, the challenged condition does not require defendant to obtain his probation officer's approval of his employment and/or schooling. Rather, the condition states that defendant must "seek and maintain gainful employment and/or maintain academic or vocational training as directed by the probation officer." (Italics added.) The condition is reasonably understood to mean that defendant's probation officer shall guide defendant in his efforts to find and maintain employment and/or schooling. (See People v. Olguin (2008) 45 Cal.4th 375, 382 ["A probation condition should be given 'the meaning that would appear to a reasonable, objective reader.' "].) It plainly does not give the probation officer unlimited authority to dictate defendant's choice of vocation or schooling. (Cf. People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240 ["Since the court does not have the power to impose unreasonable probation conditions, it could not give that authority to the probation officer through [a] condition"].)
For these reasons, we reject defendant's overbreadth claim.
B. Probation Term
Effective January 1, 2021, Assembly Bill No. 1950 (2019-2020 Reg. Sess.) amended section 1203.1 to limit the probation period for most felony convictions to two years. (§ 1203.1, subd. (a), as amended by Stats. 2020, ch. 328, § 2.) The parties agree that the amendment applies retroactively here because defendant's case is not final, and we concur. (See People v. Czirban (2021) 67 Cal.App.5th 1073, 1095; People v. Lord (2021) 64 Cal.App.5th 241, 245; People v. Stewart (2021) 62 Cal.App.5th 1065, 1073; People v. Sims (2021) 59 Cal.App.5th 943, 964; People v. Quinn (2021) 59 Cal.App.5th 874, 885.) Consequently, we will modify the probation order to specify that defendant is granted formal probation for a period of two years. (§ 1203.1, subd. (a).)
IV. DISPOSITION
The probation order is modified to specify that defendant is granted formal probation for a period of two years. As so modified, the judgment is affirmed.
WE CONCUR: ELIA, ACTING P.J., LIE, J.