Opinion
G051965
12-21-2016
THE PEOPLE, Plaintiff and Respondent, v. SHANNON KIMBERLY STIPE, Defendant and Appellant.
Susan S. Bauguess, 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, Meagan J. Beale and A. Natasha Cortina, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13WF0049) OPINION Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals, Judge. Remanded with directions to modify probation condition and in all other respects affirmed. Susan S. Bauguess, 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, Meagan J. Beale and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted Shannon Kimberly Stipe of one count of possession for sale of a controlled substance in violation of Health and Safety Code section 11378 and found true the allegation, pursuant to Penal Code section 1203.073, subdivision (b)(2), that she possessed for sale and sold 57 grams and more of a substance containing methamphetamine. The trial court granted Stipe's motion to dismiss the allegation that was found true by the jury and sentenced Stipe to three years of formal probation conditioned on serving 180 days in jail.
One condition of probation was "[d]o not associate with persons known to you to be parolees, on post-release community supervision, convicted felons, users or sellers of illegal drugs, or otherwise disapproved of by probation or mandatory supervision." The trial court orally modified the condition to give the probation department the authority to decide with whom Stipe may associate and the terms of her living situation.
Stipe argues that probation condition is an invalid infringement on her constitutional right of association because her husband, Brian Ryan, is a convicted felon and parolee. We conclude the probation condition is valid with the trial court's oral modification. The court's oral modification is not, however, reflected in the court minutes. We will direct the probation condition modified to reflect the oral pronouncement and remand for the sole purpose of formulating the precise terms of the modification.
FACTS
Huntington Beach Police Officer Jesse Garber received a tip that Brian Ryan was selling methamphetamine out of his apartment. On December 1, 2012, Garber and his partner, Huntington Beach Police Officer Humberto Valdez, conducted a surveillance of the apartment to see who was going in and out. Shortly after the surveillance began, Garber saw Ryan leave the apartment and drive away, with Stipe, in a dark-colored vehicle. Ryan and Stipe were married to each other.
Garber initiated a traffic stop of the vehicle. Garber searched Ryan, who was on parole and subject to search terms, and found $500 cash on his person. Ryan was handcuffed and taken back to his apartment for a parole search. Stipe was left in the vehicle because she was not yet a suspect.
In Ryan's apartment, Valdez found four baggies of methamphetamine weighing a total of 136.6 grams, empty plastic baggies, and a black digital scale with white residue. The apartment was equipped with a surveillance system that had hidden cameras around the perimeter with a monitor in the living room. Ryan admitted being a methamphetamine user. He denied being a seller and said his roommate, Kelly Lewis, might be selling methamphetamine.
Stipe returned to the apartment. After waiving her rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, she admitted being a methamphetamine user and involved in sales. She said that she had placed the methamphetamine in the washing machine. She said that she had bought approximately six ounces of methamphetamine for $3,000 and usually sells it at $200 for a quarter-ounce. In searching Ryan's cell phone, the officers found a text message from Stipe that read, "you stayed out late and lied to me about where you are going and who you were taking dope to." Both Stipe and Ryan were arrested for selling methamphetamine.
Ryan testified as a defense witness. He testified the methamphetamine found in the apartment was for his personal use. Ryan claimed that Stipe was not involved in selling methamphetamine and did not know that he was. Ryan had been charged as a codefendant with Stipe but, about 15 months earlier, had pleaded guilty to possession for sale of over 28.5 grams of methamphetamine.
Stipe testified in her own behalf. She testified that she had lied about the methamphetamine being hers in order to protect Ryan from going to jail. She admitted using methamphetamine with Ryan and claimed she did not know where he got it.
DISCUSSION
I. Forfeiture
At sentencing, imposition of sentence was suspended and Stipe was placed on three years of formal probation conditioned on serving 180 days in jail. One condition of her probation was "[d]o not associate with persons known to you to be parolees, on post-release community supervision, convicted felons, users or sellers of illegal drugs, or otherwise disapproved of by probation or mandatory supervision."
The Attorney General argues Stipe forfeited her challenge to the probation condition by failing to object. The Attorney General argues this is not a situation in which a probation condition may be challenged for the first time on appeal because it is facially overbroad. (See In re Sheena K. (2007) 40 Cal.4th 875, 888.) According to the Attorney General, the validity of the probation condition turns on whether it is reasonably related to Stipe's rehabilitation and therefore does not present a pure question of law. But in the interest of justice, and to avert a claim of ineffective assistance of counsel, we will address Stipe's challenge to the probation condition. (People v. Crittenden (1994) 9 Cal.4th 83, 146.)
II. The Challenged Probation Condition is Valid.
After imposing the probation condition restricting association, the trial court stated: "Your husband was still in custody when he testified, but my impression was he is going to get out soon. What I just said gives probation authority to determine who you can associate with. I don't know how they are going to deal with the fact that you are married to a convicted felon on parole. But I am giving them authority to make whatever judgment they think is best in terms of your living situation so long as you are on probation."
The court minutes include the probation condition restricting association but not the court's statement regarding the authority of the probation department to implement the condition. The court's grant of authority to the probation department to determine whether and the extent to which Stipe could live with Ryan was not reflected in the court minutes. The trial court's oral pronouncement controls over the clerk's minute order. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) The Attorney General agrees the minute order should be modified to conform to the trial court's oral pronouncement.
"Conditions of probation prohibiting an individual from associating with other persons including spouses and close relatives, who have been involved in criminal activity have generally been upheld when reasonably related to rehabilitation or reducing future criminality." (People v. Wardlow (1991) 227 Cal.App.3d 360, 367.) "Because probation is a privilege and not a right [citation], a probationer is not entitled to the same degree of constitutional protection as other citizens. Accordingly, even a probation condition which infringes a constitutional right is permissible where it is '"necessary to serve the dual purpose of rehabilitation and public safety."' [Citation.]" (People v. Peck (1996) 52 Cal.App.4th 351, 362.)
Thus, when a defendant is convicted of drug possession, a condition of probation that the defendant not associate with other known admitted or suspected users is valid. (People v. Peck, supra, 52 Cal.App.4th at p. 363.) In In re Peeler (1968) 266 Cal.App.2d 483, 488, 492-493, the court upheld a probation condition prohibiting association with reputed drug users, even though the defendant's husband was a drug user and the condition required her to live apart from him.
In this case, the probation condition prohibiting Stipe from associating with persons known to her to be parolees, convicted felons, and users or sellers of illegal drugs was valid. Ryan was a probationer and parolee. He and Stipe used methamphetamine together. He had pleaded guilty to selling methamphetamine as Stipe's codefendant. Although Ryan is Stipe's husband, a probation condition restricting her contact and association with him was related to the crime of which she was convicted and reasonably related to her rehabilitation and future criminality. The trial court's oral modification grants the probation department the authority to implement the restriction in a manner to ensure it is reasonably related to Stipe's rehabilitation and does not arbitrarily and unnecessarily restrict her freedom of association.
Relying on U.S. v. Napulou (9th Cir. 2010) 593 F.3d 1041 (Napulou), Stipe argues the challenged probation condition, even as modified, is invalid because the trial court did not make necessary findings and articulate reasons for prohibiting or restricting association with Ryan. In Napulou, the United States District Court imposed a probation condition prohibiting the defendant from any and all contact with her life partner, who was a convicted felon. (Id. at pp. 1043, 1047, fn. 6.) The Ninth Circuit Court of Appeals struck down the probation condition. The court stated: "A condition of supervised release that prohibits association with convicted felons without the permission of a probation officer is a standard condition recommended by the Sentencing Commission. [Citation.] When, however, such a condition goes beyond the standard prohibition on contact with convicted felons, and singles out a person with whom the individual on supervised release has an intimate relationship, the sentencing court must undertake an individualized review of that person and the relationship at issue, and must provide a justification for the imposition of such an intrusive prohibitory condition. Without a record that reveals the person's background, present character, relationship with the defendant, and nexus to defendant's prospects for returning to a criminal life, it would be difficult, if not impossible, to determine whether the district court abused its discretion in imposing such a condition." (Id. at p. 1047, fn. omitted.)
Napulou did not apply or interpret California law, and we are not bound by decisions of the United States Court of Appeals. (People v. Seaton (2001) 26 Cal.4th 598, 653.) In any event, Napulou is distinguishable. The probation condition in this case did not single out Ryan as a person with whom Stipe could not associate. The condition prohibits Stipe from associating with a class of persons (known drug users, felons, parolees, etc.) of which Ryan is a member. The record reveals enough of Ryan's background, character, relationship to Stipe, and nexus to her prospects for returning to a criminal life, to support a finding that restricted contact with him is reasonably related to her rehabilitation and future criminality. In addition, as modified, the probation condition is not a blanket prohibition on any contact whatsoever between Stipe and Ryan. The trial court orally granted the probation department authority to implement the condition and make decisions about Stipe's living situation and contact with Ryan.
The court minutes therefore must be modified to reflect the trial court's oral pronouncement granting the probation department the authority to implement the probation condition restricting association and to determine Stipe's living situation. We remand the matter for the sole purpose of formulating the precise terms of the modification.
DISPOSITION
The matter is remanded to the trial court with directions to modify the condition in conformity with this opinion. In all other respects, the judgment is affirmed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.