Opinion
G053906
11-13-2017
THE PEOPLE, Plaintiff and Respondent, v. EMMANUEL REBOLLAR ALCOZER, Defendant and Appellant.
William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren Williams, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16WF0594) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed as modified. William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren Williams, Deputy Attorneys General, for Plaintiff and Respondent.
Emmanuel Rebollar Alcozer appeals from a judgment after he pleaded guilty to being a felon in possession of a firearm. Alcozer argues one of the probation conditions was unconstitutional. We agree and affirm the judgment as modified.
FACTS
In pleading guilty, Alcozer admitted he "willfully, unlawfully and knowingly possessed a firearm . . . when [he] had previously been convicted of a felony." (Pen. Code, § 29800, subd. (a)(1).) The trial court suspended the imposition of sentence and placed Alcozer on three years formal probation, with terms and conditions, and ordered him to serve 302 days in jail. As relevant here, the court imposed the following probation condition: "Do 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." (Italics added.)
DISCUSSION
Alcozer contends the last portion of the probation condition, "otherwise disapproved of by probation or mandatory supervision," is unconstitutionally vague and overbroad. We agree.
"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.) Probation is a privilege and not a right, and a probation condition that infringes a constitutional right is permissible where it is necessary to serve the dual purpose of rehabilitation and public safety. (People v. Olguin (2008) 45 Cal.4th 375, 384.) Vagueness and overbreadth objections to probation conditions are not forfeited by failing to object at trial. (In re Sheena K. (2007) 40 Cal.4th 875, 881-882, 886-887.) We review constitutional claims to probation conditions de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
People v. O'Neil (2008) 165 Cal.App.4th 1351 (O'Neil), is instructive. In that case, the trial court imposed the following probation condition: "'You shall not associate socially [i.e. socialize], nor be present at any time, at any place, public or private, with any person, as designated by your probation officer.'" (Id. at p. 1354.) The O'Neil court observed that, "[a]s written, there are no limits on those persons whom the probation officer may prohibit defendant from associating with." (Id. at p. 1357.) The court noted the condition failed to "identify the class of persons with whom defendant may not associate" or "provide any guideline as to those with whom the probation department may forbid association." (Id. at pp. 1357-1358.) The court explained that while a trial court may delegate to the probation officer "the many details" of probation, "the court's order cannot be entirely open-ended." (Id. at pp. 1358-1359.) The O'Neil court concluded that "[w]ithout a meaningful standard, the order is too broad and it is not saved by permitting the probation department to provide the necessary specificity." (Id. at p. 1358, fn. omitted.)
Here, the probation condition properly prohibits Alcozer from associating with "persons known to [him] to be parolees, on post-release community supervision, convicted felons, users or sellers of illegal drugs." But the probation condition also prohibits Alcozer from associating with persons "otherwise disapproved of by probation or mandatory supervision." Pursuant to O'Neil, that portion of the probation conditions is overbroad and "permits an unconstitutional infringement on defendant's right of association." (O'Neil, supra, 165 Cal.App.4th at p. 1358.)
Relying on Penal Code section 1202.8, subdivision (a), the Attorney General argues the challenged portion of the probation condition merely "gives guidance to the probation officer as to the general class of people with whom [Alcozer] is not to associate." We disagree. The challenged portion of the probation condition provides no details but gives the probation officer complete discretion to restrict Alcozer's contact with anyone "otherwise disapproved of by probation or mandatory supervision."
Penal Code section 1202.8, subdivision (a), provides, "Persons placed on probation by a court shall be under the supervision of the county probation officer who shall determine both the level and type of supervision consistent with the court-ordered conditions of probation." --------
Unlike the condition in O'Neil, the probation condition here identifies certain categories of persons with whom Alcozer may not associate ("persons known to you to be parolees, on post-release community supervision, convicted felons, users or sellers of illegal drugs"). Thus, the probation condition can be made constitutional without rewriting it by striking the challenged phrase "or otherwise disapproved of by probation or mandatory supervision."
DISPOSITION
The probation condition is modified to read as follows: "Do not associate with persons known to you to be parolees, on post-release community supervision, convicted felons, users or sellers of illegal drugs." The judgment is affirmed as modified.
O'LEARY, P. J. WE CONCUR: MOORE, J. ARONSON, J.