Opinion
C087236
11-05-2019
THE PEOPLE, Plaintiff and Respondent, v. STEPHEN WATTS JONES, JR. Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CR2589901)
The court placed defendant Stephen Watts Jones on felony probation. On appeal, defendant contends two of the conditions are unconstitutional as vague and overbroad and the court erred by not itemizing the statutory bases for the penalty assessments on the imposed fines. We agree one of the probation conditions is unconstitutional and direct the trial court to prepare an amended order of probation that details the specific fines, fees, and assessments imposed along with the statutory bases for each item.
FACTUAL AND PROCEDURAL BACKGROUND
The jury found defendant guilty of possession of a controlled substance for sale, transportation of a controlled substance for sale, possession of a nunchaku, slingshot, and blowgun. The jury also found the sale of a controlled substance occurred within 1,000 feet of a school while minors were using the facilities. At sentencing, the court determined defendant was eligible for probation. The court orally imposed the following conditions: "observe good conduct, obey all laws, follow the directions of [p]robation," and "[y]ou are not to be around people [who] you know are drug offenders."
In the written order of probation, general condition No. 1 provides: "[o]bserve good conduct and violate no city, county, state, or federal laws or ordinances," and special condition No. 9 provides defendant: "[n]ot associate with persons known to you to be drug offenders or persons using or possessing controlled substances during the period of probation." (Underlining omitted.) Defendant received a copy of the order of probation at sentencing.
The court imposed several fines and fees as part of the financial terms of probation, including a $405 drug program fee and a $185 criminal laboratory analysis fee. Defendant appeals.
DISCUSSION
I
Probation Conditions
Defendant contends general condition No. 1 and special condition No. 9 are facially vague and overbroad respectively; and as a result, he did not forfeit his appellate claims by failing to object in the trial court. We agree the conditions are not forfeited because they raise questions of law without need to reference the sentencing record. We further agree special condition No. 9 is overbroad but disagree general condition No. 1 is vague.
"Challenges to probation conditions ordinarily must be raised in the trial court; if they are not, appellate review of those conditions will be deemed forfeited." (In re J.S. (2019) 37 Cal.App.5th 402, 407-408.) However, a challenge that a probation condition is facially overbroad and violates fundamental constitutional rights, which is based on undisputed facts, may be treated as a question of law that is not forfeited by failure to raise it in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 [probation condition prohibiting the defendant from associating with " 'anyone disapproved of by probation' " was vague and overbroad despite lack of objection in the trial court].)
Defendant's challenged conditions are not forfeited because they are "facial constitutional challenges on vagueness and overbreadth that raise ' " 'questions of law that can be resolved without reference to the particular sentencing record developed in the trial court.' " ' " (People v. Connors (2016) 3 Cal.App.5th 729, 736.)
A
General Condition No. 1
Defendant argues, and the People concede, the portion of the condition requiring defendant to "[o]bserve good conduct" is unconstitutionally vague. We disagree.
The concept of fair warning and notice creates the bases for a vagueness challenge. "A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness." (In re Sheena K., supra, 40 Cal.4th at p. 890.) A probation condition may not be so vague that "people of 'common intelligence must necessarily guess at its meaning and differ as to its application.' " (People v. Hall (2017) 2 Cal.5th 494, 500.)
In Rhinehart, the court held the condition, " '[b]e of good conduct' " was not vague or unconstitutional. (People v. Rhinehart (2018) 20 Cal.App.5th 1123, 1129.) The court looked at the context of the whole condition to determine if the condition was vague. (Ibid.) "In context, the phrase '[b]e of good conduct' must be interpreted with its conjunctive phrase 'and obey all laws.' Applying context and common sense, the good behavior condition simply requires [the defendant] be a law-abiding citizen." (Ibid.) The court distinguished the case from In re P.O. (2016) 246 Cal.App.4th 288, 299, in which that court found "be of good citizenship and good conduct" vague. (Rhinehart, at p. 1129.) The court in Rhinehart concluded the two conjunctive phrases at issue in In re P.O. were distinguishable because they lacked the reasonable certainty attached to a phrase like "obey all laws." (Rhinehart, at p. 1129.) In Rhinehart, the two phrases were not vague because they linked to a concrete condition, e.g., obey all laws. (Ibid.)
Here, general condition No. 1 required defendant "[o]bserve good conduct and violate no city, county, state, or federal laws or ordinances." The condition must be read in context with the conjunctive phrase. The phrase "observe good conduct" does not add an additional element to the condition -- it merely reinforces the succeeding phrase of "obey all laws." More importantly, courts have continued to hold a "condition requiring defendants to ' "obey all laws" ' is a standard condition," demonstrating that the phrase "observe good conduct" is attached to a clear and understandable condition. (People v. Appelton (2016) 245 Cal.App.4th 717, 722.)
Accordingly, we do not modify this probation condition.
B
Special Condition No. 9
Defendant contends the condition prohibiting him from associating with people who use or possess a controlled substance is unconstitutionally overbroad because it prohibits him from associating with people who legally use or possess a controlled substance. The People argue the challenge is forfeited, and if not, the condition is valid under People v. Lent (1975) 15 Cal.3d 481. We agree with defendant that special condition No. 9 is overbroad and thus we modify it accordingly.
The People argue defendant is barred from bringing this challenge because it is not a facial challenge to his condition but instead requires an analysis of the particular facts of his case. However, as we stated, this is a facial constitutional challenge to defendant's First Amendment right to association. As such, the People's Lent argument has no basis. --------
In the context of probation conditions, "[a] restriction is unconstitutionally overbroad . . . if it . . . 'impinge[s] on constitutional rights,' and . . . is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' " [Citations.] 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.)
This court has held a "probation condition that literally requires the probation officer to approve [the defendant's] 'associat[ion]' with 'persons' such as grocery clerks, mailcarrier and health care providers," is overbroad. (In re Kacy S. (1998) 68 Cal.App.4th 704, 713.) Here, defendant contends the condition prohibits him from associating with persons known to use or possess controlled substances legally. The purpose of special condition No. 9 is to prevent future criminality and encourage reformation, which is not achieved by barring defendant from associating with law-abiding citizens. The restriction on his First Amendment right to association must be narrowly drawn to bar association with persons illegally using or possessing controlled substances.
We have the authority to modify a probation condition to render it constitutional. (People v. Turner (2007) 155 Cal.App.4th 1432, 1436; see In re Sheena K., supra, 40 Cal.4th at p. 892.) Accordingly, we will modify special condition No. 9 to expressly prohibit defendant's association with people who illegally use or possess controlled substances. The trial court is directed to amend the probation order to reflect this modification.
II
Imposition Of Fines
Defendant and the People agree remand is required for the court to itemize the statutory bases for the penalty assessments on the imposed fines. We also agree.
Trial courts must include in their judgments the statutory basis for every fine or fee imposed. "Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment." (People v. High (2004) 119 Cal.App.4th 1192, 1200.) An order of probation is subject to the same requirements. (People v. Eddards (2008) 162 Cal.App.4th 712, 718.) As such, a trial court errs when it does not include in an order of probation the statutory basis for every fine imposed.
Defendant was convicted of two drug crimes and each conviction requires payment for a drug program and criminal laboratory analysis fee. The statutory amount for the drug program fee is $150 and is $50 for the criminal laboratory analysis fee. (Health & Saf. Code, §§ 11372.7, subd (a), 11372.5, subd, (a).) In the order of probation, the court imposed $405 for the drug program and $185 for the criminal laboratory analysis fees. Thus, the drug program and criminal laboratory analysis fees exceed the amount authorized by statute. As a result, the increased amounts appear to be penalty assessments, for which the court failed to provide the required detailed breakdown and statutory bases. (People v. Eddards, supra,162 Cal.App.4th at p. 718.)
Accordingly, we will direct the trial court to amend the probation order to reflect the specific fines, fees, and penalty assessments imposed, along with the statutory bases for each.
DISPOSITION
Special condition No. 9 is modified to state defendant: Not associate with persons known to you to be drug offenders or persons illegally using or possessing controlled substances during the period of probation. The trial court is directed to prepare an amended order of probation containing this modification as well as detailing the specific fines, fees, and assessments imposed along with the statutory bases for each. The judgment is otherwise affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Duarte, J.