Opinion
H045001
06-21-2018
THE PEOPLE, Plaintiff and Respondent, v. PAOLA HERNANDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS161523A)
Defendant Paola Hernandez pleaded no contest to a charge of felony child abuse (Pen. Code, § 273a, subd. (a).) On appeal, Hernandez challenges a probation condition requiring her to attend self-help meetings as directed by her probation officer. She contends that the probation condition improperly delegates judicial authority to the probation officer to determine the nature of "self-help" that is required, violating the separation of powers doctrine, and that the condition is unconstitutionally vague. We agree that the condition as phrased is unconstitutional and must be stricken or modified.
Unspecified statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Late one evening in September 2016, Salinas police officers responded to a fast-food restaurant in which a 10-year-old boy had been left unattended since that morning. The child said that he and his mother, Hernandez, were homeless, and that she typically left him at the restaurant for eight hours while she worked. An employee of the restaurant reported that it was the second consecutive day the boy had been left alone. Police contacted Hernandez; she arrived shortly after and appeared to be under the influence of alcohol. Hernandez explained that she had left her son there because there was Wi-Fi access and he did not like to go with her to work. She had been selling flowers in a nearby town and was late to pick him up because the car had broken down. She admitted to consuming three to four 32-ounce beers.
The district attorney filed an information in October 2016 charging Hernandez with two counts of child abuse under section 273a, subdivision (a). Hernandez subsequently pleaded no contest to one count on the condition that she serve four years of formal probation, with an opportunity to seek reduction to a misdemeanor conviction after one year pursuant to statute. The probation officer's report recommended conditions of probation, including that Hernandez attend self-help meetings at the direction of the probation officer, complete a one-year child abuser's treatment counseling program, and participate in substance abuse treatment or counseling. During the sentencing hearing, the prosecutor argued that the offense involved alcohol and urged the court to order participation in Alcoholics Anonymous (AA) classes. Defense counsel did not object to the proposed conditions.
The defense argument addressed issues not relevant to this appeal, including Hernandez's request to receive credit for time served and her inability to pay certain fines and fees.
The trial court suspended imposition of sentence and ordered four years of supervised probation subject to conditions, including that Hernandez attend AA meetings as directed by the probation officer, attend self-help meetings at the direction of the probation officer, complete one year of child abuser's treatment counseling, and participate in substance abuse counseling or treatment. The minute order from the sentencing hearing describes the self-help condition as "[a]ttend self-help or other support group meetings at the direction of the probation officer."
Hernandez filed a timely notice of appeal on August 18, 2017.
DISCUSSION
Hernandez challenges the self-help probation condition on two grounds. She contends that the condition violates the separation of powers doctrine by delegating judicial authority to the probation officer and that it is unconstitutionally vague. The People maintain that the condition is constitutional and, in any event, that Hernandez forfeited her challenge to it by failing to object at the time of sentencing.
We first address whether Hernandez forfeited her claim on appeal.
"A Court of Appeal may review the constitutionality of a probation condition, even when it has not been challenged in the trial court, if the question can be resolved as a matter of law without reference to the sentencing record." (People v. Pirali (2013) 217 Cal.App.4th 1341, 1345, citing In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.).) This is one such case. Though "in some instances, a constitutional defect may be correctable only by examining factual findings in the record or remanding to the trial court for further findings" (Sheena K., supra, at p. 887), the sentencing record here contains no pertinent factual findings or discussion. The validity of the order to participate in unspecified self-help meetings as directed by a probation officer presents a question of law based on "generalized legal concepts . . . ." (Id. at p. 885.) Our review of such a question is de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
Having found that Hernandez did not forfeit her challenge to the probation condition on appeal, we need not address the ineffective assistance of counsel argument.
We next consider the discrepancy between the probation condition as stated on the record of the oral proceedings and that in the unsigned minute order. Hernandez references the language of the minute order in her appeal, which requires her to "[a]ttend self-help or other support group meetings at the direction of the probation officer." The court's oral pronouncement is slightly more tailored. It states, "You must attend self-help meetings at the direction of the probation officer, which would include the AA meetings."
Our Supreme Court has indicated that if a record in conflict cannot be harmonized, the part of the record to prevail is that which is entitled to greater credence " 'because of its origin and nature or otherwise.' " (People v. Smith (1983) 33 Cal.3d 596, 599; accord People v. Harrison (2005) 35 Cal.4th 208, 226 [the prevailing portion of the record "will depend on the circumstances of each particular case"].) Here, we find the record of the trial court's oral pronouncement is entitled to greater credence under the circumstances because it offers the prospect of more specificity and clearer notice to the defendant. We will assess this narrower iteration of the condition against Hernandez's contentions on appeal.
Applying the record of the oral proceedings also is consistent with those cases that follow the reporter's transcript when there is a discrepancy. (See, e.g., People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073, citing People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 ["[t]he record of the oral pronouncement of the court controls over the clerk's minute order"]; People v. Contreras (2015) 237 Cal.App.4th 868, 880.) --------
The sentencing court has broad discretion to determine an eligible defendant's suitability for probation and the appropriate conditions. (§ 1203.1; People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) The court may look to the recommendations provided in the officer's probation report (§ 1203.7) but may not delegate the discretion to determine conditions to a probation officer. (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1372; People v. O'Neil (2008) 165 Cal.App.4th 1351, 1357-1358 (O'Neil).) Further, "[t]o withstand a constitutional challenge on the ground of vagueness, a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition." (People v. Hall (2017) 2 Cal.5th 494, 500 (Hall).) "[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' " (Sheena K., supra, 40 Cal.4th at p. 890.)
We find that the probation condition in question fails to specify the type of self-help the trial court intended for Hernandez, rendering it unconstitutionally vague, and improperly delegates that determination to the discretion of the probation officer.
To begin, the term "self-help" is inherently nonspecific. Webster's International Dictionary defines "self-help" in relevant part as "1 a: the act or an instance of providing for or helping oneself without dependence on others . . . ." (Webster's Third New Internat. Dict. (1993) p. 2060) or "1 a: the action or process of bettering oneself or overcoming one's problems without the aid of others . . . ." (Webster's Third New Internat. Dict., Unabridged <http://unabridged.merriam-webster.com> [as of May 7, 2018]). Following the premise that a probation condition should be given " 'the meaning that would appear to a reasonable, objective reader' " (Olguin, supra, 45 Cal.4th at p. 382), an order to attend self-help meetings could implicate nearly any type of program directed at personal improvement or overcoming obstacles, from meditation to life skills.
We observe that the trial court referred to the separate condition requiring AA attendance when it ordered Hernandez to "attend self-help meetings at the direction of the probation officer, which would include the AA meetings." This suggests that the court viewed the AA meetings as coming within the scope of self-help meetings. But it does nothing to clarify the term "self-help" or limit what other activities may fall under its broad umbrella. What is more, we agree with Hernandez that because the trial court separately imposed conditions including one year of child abuser's treatment counseling and "any counseling or substance abuse program the probation officer deems necessary," the self-help condition must refer to some other manner of activity or program.
In Sheena K., our high court deemed unconstitutionally vague a probation condition that ordered the juvenile defendant to " 'not associate with anyone disapproved of by probation.' " (Sheena K., supra, 40 Cal.4th at p. 878.) The court reasoned that "the probation condition did not notify defendant in advance with whom she might not associate through any reference to persons whom defendant knew to be disapproved of by her probation officer." (Id. at pp. 891-892.) In People v. Leon (2010) 181 Cal.App.4th 943 (Leon), a panel of this court found that the word "frequent" in the probation condition " 'You're not to frequent any areas of gang-related activity" rendered the condition unconstitutionally vague because it was "both obscure and ha[d] multiple meanings.' " (Id. at p. 952.)
So too here, Hernandez has no notice of the type or category of self-help she may be required to undertake, since the word "self-help" is nonspecific and subject to a wide range of applications. (Leon, supra, 181 Cal.App.4th at p. 952.) Given this lack of notice, the condition violates the due process concept of fair warning. (Sheena K., supra, 40 Cal.4th at p. 878.) We conclude that it is impossible to discern what the self-help condition requires of Hernandez with any " ' "reasonable degree of certainty" ' " (Hall, supra, 2 Cal.5th at p. 503), rendering it unconstitutionally vague.
Furthermore, the authority to "impose and require" reasonable conditions of probation "for the reformation and rehabilitation of the probationer" rests with the trial court. (§ 1203.1, subd. (j).) The court in turn "has authority to empower the probation department with authority to supervise the probation conditions." (People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240, citing §§ 1202.8 & 1203.) But a court order that in effect delegates discretion to a probation officer to determine the nature or scope of the probation condition exceeds this statutory authority and risks being unconstitutional.
Thus in People v. Cervantes (1984) 154 Cal.App.3d 353, the court rejected a trial court order requiring the defendant to pay restitution "in an amount and manner to be determined by the probation officer." (Id. at p. 355.) The court emphasized that prescribing the conditions of probation, including restitution to the victim, was "essentially [a] judicial function[]." (Id. at p. 358.) Directing the probation officer to decide the amount and manner of restitution exceeded the court's statutory powers because it granted the officer "unlimited discretion . . . to determine the propriety, amount, and manner of payment of restitution." (Ibid.)
Such an open-ended delegation of discretion to a probation officer also risks being unconstitutional. In O'Neil, supra, 165 Cal.App.4th 1351, a probation condition "authorized the probation officer to designate those with whom defendant could not associate" but "did not in any way define the class of persons who could be so designated." (Id. at p. 1358.) The appellate court found that the condition was overbroad and infringed on the defendant's constitutional right of association. (Ibid.) It explained that a trial court "may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation." (Id. at pp. 1358-1359.) But it could not leave "entirely open-ended" the determination of "the nature of the prohibition placed on a defendant as a condition of probation, and the class of people with whom the defendant is directed to have no association." (Id. at p. 1359.) The court ordered the trial court upon remand to either strike the condition or rewrite it "to provide the necessary specificity." (Ibid.)
And in Leon, supra, 181 Cal.App.4th at page 953, a panel of this court modified a probation condition that otherwise gave "unfettered discretion" to the probation officer to determine the defendant's right of access to court proceedings. (Id. at pp. 953-954.) The modified condition delineated a standard for the probation officer to apply in granting or withholding approval for the defendant to access a court. (Id. at p. 954.)
In contrast, the court in People v. Penoli (1996) 46 Cal.App.4th 298 rejected the defendant's contention that a probation condition authorizing the probation department to select a drug rehabilitation program for the defendant constituted an unlawful delegation of judicial authority. (Id. at pp. 307-308.) The court recognized that it might be desirable to narrow the probation officer's discretion but reasoned that it would pose serious practical difficulties for the trial court to specify the selection of a program. (Id. at p. 308.) The trial court's refusal to more narrowly define the drug program in which the defendant would be placed was therefore not erroneous. (Ibid.)
The probation condition at issue here operates much like the conditions in Leon and O'Neil. It authorizes the probation officer to direct Hernandez to attend self-help meetings but fails to specify the nature or class of self-help required and instead delegates the discretion to make that decision to the probation officer. (See O'Neil, supra, 165 Cal.App.4th at pp. 1358-1359.) Because the meaning of self-help is vague in this context, the delegation of authority is particularly problematic. The condition also stands in contrast to that in Penoli, which appropriately identified the class of program (drug rehabilitation) and left only selection of the specific program to the probation officer.
DISPOSITION
The trial court is ordered to strike the probation condition requiring Hernandez to "attend self-help meetings at the direction of the probation officer." The court may impose a more specific condition if it deems necessary. In all other respects, we affirm the judgment.
/s/_________
Premo, J. I CONCUR: /s/_________
Greenwood, P.J. I CONCUR IN JUDGMENT ONLY: /s/_________
Grover, J.