Opinion
C091975
08-25-2021
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY DAVID BULLARD, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. CRF160000983
BLEASE, ACTING P.J.
Following his conviction for manufacturing concentrated cannabis, the trial court granted defendant Timothy David Bullard probation. Approximately one year later, defendant admitted probation violations, and the trial court sentenced him to a split sentence, including one year on mandatory supervision. Defendant appeals the conditions of his mandatory supervision. Specifically, defendant contends the condition requiring general counseling is an improper delegation of judicial authority and unconstitutionally vague. We agree and modify the mandatory supervision order to strike the general counseling condition, but leave the substance abuse counseling condition intact. Defendant does not challenge that condition. Defendant also contends the condition requiring him to sign a release allowing for an exchange of information is unconstitutionally vague and broad. On this point, we agree and remand the matter to the trial court.
BACKGROUND
The facts underlying defendant's conviction and violation of probation are largely irrelevant to the issues raised on appeal and our resolution of them. Suffice it to say, defendant manufactured concentrated cannabis, a controlled substance, using a chemical extraction process at his home lab. (Health & Saf. Code, § 11379.6, subd. (a).)
The trial court placed defendant on three years' probation. In addition to the standard conditions of probation, the trial court imposed special conditions, one of which, as orally stated by the trial court, was that defendant “participate in and successfully complete any program of counseling deemed appropriate by Probation.” The trial court also ordered defendant “to follow all program directives” and not terminate counseling without probation's consent. And, he was “ordered to sign a release allowing for the exchange of information and pay any associated fees.” The trial court also “incorporate[d] by reference all the conditions in the drug addendum.”
The Drug Conditions addendum of the January 28, 2019 probation report, initialed by defendant and signed by the probation officer, stated more fully: “You will participate in and successfully complete any program of substance abuse counseling, to and including residential treatment, deemed appropriate by the probation officer and Mental Health staff, follow all program directives, not terminate said counseling without the consent of the probation officer, pay any designated fees required by the program, sign a release allowing for the exchange of information, and that no custody time credits accrue for participation in a residential treatment program.” Not marked or initialed on that Drug Condition addendum is the separate condition, applicable in a Proposition 36 case, requiring defendant “participate in any other program of counseling... as deemed appropriate by the probation officer, Mental Health Staff, or other licensed therapist....”
The minute order, in a check-the-box form, indicated the court ordered, as a condition of probation, that defendant “Participate in and successfully complete Substance Abuse Counseling/to and including residential drug treatment program/any program of counseling deemed appropriate by the/Probation Officer/Mental Health staff/Pay any associated fees./Sign a release allowing for the exchange of information./No custody credits shall accrue while in residential treatment.” The minute order also stated defendant was to “Follow all directions and conditions in the addendum attached to the Probation Report for/drug conditions.”
The slash marks indicate a box that was checked on the minute order form.
About one year later, defendant admitted he had violated probation by failing to: obey all laws, report to the county jail as ordered, and report to the probation office as directed. The trial court revoked probation and denied reinstatement. The trial court sentenced defendant to the middle term of five years, split four years to be served in county jail and one year on mandatory supervision. As to the mandatory supervision, the trial court stated, “The terms of mandatory supervision will mirror the terms of his probation and conditions.” The minute order has the same language as the check-the-box portion of the earlier minute order. The minute order also states defendant is required to “Follow all directions & conditions; in the drug addendum attached to the Probation report for drug conditions.; (01/28/2019); Active 01/28/2019.”
DISCUSSION
I
Counseling Condition
Defendant contends the condition ordering him to participate in any program of counseling is an improper delegation of judicial authority to the probation department, giving the probation officer unfettered discretion to order him to any type of counseling, and is unconstitutionally vague because it does not provide notice as to the type of counseling that is appropriate. The People argue defendant was ordered to complete substance abuse counseling, including inpatient treatment, and make no argument contending the general counseling provision was permissible. Given the lack of any objection to, or discussion of, this general counseling condition in the trial court at either the January 28, 2019 or March 20, 2020 sentencing hearings, it seems likely this is also how the parties understood the condition. Nonetheless, there were two conditions imposed, one of which requires defendant to participate in and complete “any program of counseling deemed appropriate by Probation.” So, we must address the propriety of that condition.
“It is well settled that courts may not delegate the exercise of their discretion to probation officers.” (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1372.) Trial courts must fashion precise supervision conditions, so the probationer knows what is required. (In re Sheena K. (2007) 40 Cal.4th 875, 888, 890.) A condition is invalid if it is “ ‘ “ ‘so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.' ”' ” (People v. Quiroz (2011) 199 Cal.App.4th 1123, 1128.) While a “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[] the court's order cannot be entirely open-ended.” (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1358-1359 [probation condition forbidding defendant from associating with all persons designated by his probation officer was “overbroad and permit[ted] an unconstitutional infringement on defendant's right of association”].) Where the type of treatment is specified, other specific details may be left somewhat open-ended, so as to provide probation with the flexibility to navigate the ever-changing circumstances of court ordered programs. (People v. Penoli (1996) 46 Cal.App.4th 298, 301, 308.) Permitting this flexibility is warranted, as a practical matter, as “[t]he trial court is poorly equipped to micromanage selection of a program, both because it lacks the ability to remain apprised of currently available programs and, more fundamentally, because entry into a particular program may depend on mercurial questions of timing and availability.” (Id. at p. 308.)
Here, the challenged condition of mandatory supervision orders defendant to “participate in and successfully complete any program of counseling deemed appropriate by Probation.” It does not define the type of counseling or treatment defendant is to obtain, instead giving the probation officer unlimited discretion to select both the specific treatment program and the type of counseling or treatment defendant is to receive. In People v. Brooks (2017) 15 Cal.App.5th 331 (Brooks), our colleagues at the Fourth Appellate District held a nearly identical condition improperly delegated judicial decisionmaking to the probation officer. (Id. at p. 333.) Although the court's reasoning is contained in an unpublished portion of the opinion, we reach the same conclusion based on the authorities set forth above.
Turning to the appropriate remedy, the Brooks court modified the condition to specify the type of treatment the defendant in that case was to receive, i.e., “ ‘a drug and alcohol counseling/educational program.' ” (Brooks, supra, 15 Cal.App.5th at p. 337.) In this case, such a specific substance abuse counseling condition already exists. Defendant does not object to that condition as either an improper delegation of judicial authority or vague and the People do not claim the more general condition should be upheld. We shall therefore strike the challenged condition and leave unmodified the condition requiring defendant to “participate in and successfully complete any program of substance abuse counseling, to and including residential treatment, deemed appropriate by the probation officer and Mental Health staff, follow all program directives, not terminate said counseling without the consent of the probation officer, pay any designated fees required by the program, sign a release allowing for the exchange of information, and that no custody credits accrue for participation in a residential treatment program.”
II
Information Release
Defendant contends the portion of the substance abuse condition requiring him to “sign a release allowing for the exchange of information” is unconstitutionally overbroad and vague. We review a claim that a term of mandatory supervision is unconstitutionally vague or overbroad de novo. (In re Sheena K., supra, 40 Cal.4th at p. 888 [analyzing a probation condition]; see People v. Relkin (2016) 6 Cal.App.5th 1188, 1194-1195 [constitutional overbreadth of mandatory supervision condition analyzed under the same standard developed for probation conditions].)
Vagueness and overbreadth are related, but distinct concepts. The essential question in a vagueness challenge is whether the condition gives fair warning of the conduct required or proscribed. (In re Sheena K., supra, 40 Cal.4th at p. 890.) To withstand a vagueness challenge, “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.) “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.) To withstand an overbreadth challenge, the probation condition must be narrowly tailored to its purpose. (Sheena K., at p. 890.)
We assume without deciding that the federal Constitution can in some circumstances protect convicted drug offenders from governmentally compelled disclosure of privileged communications with their psychotherapists. (See People v. Garcia (2017) 2 Cal.5th 792, 809-810 (Garcia).) In Garcia, the defendant, a convicted sex offender, challenged a similar condition requiring him to waive the “ ‘psychotherapist-patient privilege to enable communication between the sex offender management professional and supervising probation officer.' ” (Id. at p. 798.) The Garcia court upheld the condition, noting the state's “strong and legitimate interest” in allowing relevant parties such as a psychotherapist and the probation officer to “exchange relevant information about a probationer's reformation and rehabilitation, including information disclosed during the probationer's therapy.” (Id. at p. 811.) The court reasoned the professionals involved in “ ‘ “supervising, assessing, evaluating, treating, supporting, and monitoring sex offenders”' ” needed to be able to “communicate freely about the probationer's situation.” (Ibid.) The court concluded the condition was not unconstitutionally overbroad because it “extend[ed] only so far as is reasonably necessary to enable the probation officer and polygraph examiner to understand the challenges defendant presents and to measure the effectiveness of the treatment and monitoring program.” (Ibid.)
Here, the condition was imposed in the context of requiring defendant to participate in and complete substance abuse counseling. The record suggests the condition was imposed to further the defendant's successful completion of the substance abuse counseling program and monitor compliance with the terms and conditions of probation. As in Garcia, the state retains a legitimate interest in allowing appropriate parties to exchange relevant information about defendant's rehabilitation and reformation during his mandatory supervision. However, even when construed in the context of the substance abuse counseling condition in which it appears, the required waiver here is much broader than the one in Garcia. (Garcia, supra, 2 Cal.5th at p. 798.) This condition does not indicate the nature of the information that must be included in the release. Without identifying the type of information included within the release, we cannot say it provides defendant adequate notice that he has complied with the provision. Nor does the condition reveal amongst whom the information will be exchanged or limit it to information relevant to his substance abuse counseling. That is, the condition is not narrowly tailored to comport with its presumed purpose of facilitating defendant's substance abuse counseling. The condition must limit both the relevant information to be released and the appropriate parties amongst whom it may be exchanged to those necessary to design an appropriate treatment program, further successful participation in that program, and monitoring compliance with the terms and conditions of probation. Accordingly, we conclude the condition as worded is unconstitutionally vague and overbroad, and we will strike the condition. Because the trial court may be able to impose a valid condition, sufficiently specific to provide defendant notice of the conduct required and more narrowly tailored to the state's interests, we will remand to the trial court for it to consider fashioning a probation condition consistent with this opinion.
DISPOSITION
Mandatory supervision condition No. 11 is modified to strike the requirement defendant participate in and successfully complete any program of counseling deemed appropriate by the probation officer or mental health staff. The remaining requirements of condition No. 11 remain unmodified. We remand the matter to the trial court to modify the mandatory supervision conditions at issue to address the concerns expressed in this opinion. In all other respects, the judgment is affirmed.
We concur: HULL, J., RENNER, J.