Opinion
E063717
04-20-2017
THE PEOPLE, Plaintiff and Respondent, v. SONIA CARRILLO, Defendant and Appellant.
Laurel M. Nelson, 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, Charles C. Ragland and Kathryn Kirschbaum, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI1400720) OPINION APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed with modifications. Laurel M. Nelson, 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, Charles C. Ragland and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant of possession of methamphetamine for sale. (Health & Saf. Code, § 11378.) She was placed on 36 months of supervised probation with various orders and conditions, including serving one year in jail.
Defendant challenges eight of her probation conditions. She contends that five of the conditions (conditions 8, 9, 10, 12, and 14) are unconstitutionally vague and overbroad, two of the conditions (conditions 17 and 18) violate her constitutional right to freedom of association with her children's father, and one of the conditions (condition 22) violates her constitutional right to religious freedom. The People concede, and we agree, that two of the probation conditions (specifically conditions 8 and 9) should be modified, and they are unopposed to a modification of condition 22. In all other respects, we affirm.
The parties refer to two probation conditions as conditions "17 and 18," however it appears the probation condition "18," which the relevant minute order actually lists as condition "17" twice, is a typographical error. The two conditions are a single probation condition 17, and there is no condition 18. Accordingly, this Court will refer to a single probation condition 17 that is being challenged by defendant.
I
FACTUAL BACKGROUND
On February 24, 2014, a Barstow police officer recognized Steven Medina, as he sat in the passenger seat of a van, making a furtive movement. The officer, who had had previous contacts with Medina, contacted Medina. In the area where the officer had seen Medina make the furtive gesture, the officer located an off-white crystalline substance that the officer suspected to be methamphetamine.
The van was parked in front of a residence where Medina directed the officer to go. At the residence, the officer contacted defendant, who came outside. The officer asked defendant if she had any anything illegal on her person, and defendant responded that he could go ahead and check. After a patdown, the officer found $293 in currency in the right front pocket of her pants. The officer then asked defendant if there was anything illegal inside the residence. Defendant indicated there might be. The officer noticed a purse on a table about five to six feet behind her and asked defendant about it. Defendant acknowledged that the purse was hers and consented to a search of the purse.
Inside defendant's purse, the officer found a black, zippered coin-type purse which contained a clear red baggy containing suspected methamphetamine. Beneath that coin purse were approximately 88 small individual baggies and a clear red smoking pipe, consistent with pipes used to smoke methamphetamine. In addition, there was a small silver tin containing two larger baggies and one smaller baggy, each with residue of suspected methamphetamine. The officer then placed defendant under arrest.
Defendant was charged and convicted by jury of possession for sale of methamphetamine. (Health & Saf. Code, §11378.) The court granted probation on the condition that she serve one year in jail. At defendant's sentencing hearing, the court asked if she had read and understood all 22 terms and conditions of probation. Defendant indicated that she understood and accepted all the terms of probation. Defendant appealed.
II
DISCUSSION
1. Several of Defendant's Probation Conditions Require Modification
Defendant was placed on probation subject to various probation conditions. On appeal, defendant challenges conditions 8 (keep probation officer informed of place of residence and cohabitants and give 24-hour advance written notice of any changes), 9 (permit visits and warrantless searches of residence by probation officer or law enforcement, and not do anything to interfere with or deter officers in fulfilling this requirement), 10 (not possess or have under her control any dangerous or deadly weapons or explosive devices nor materials for making explosive devices), 12 (not use or possess any controlled substance without medical prescription), 14 (not possess any type of drug paraphernalia as defined by Health and Safety Code, section 11364.5, subdivision (d)), 17 (not associate with any persons know to be convicted felons or anyone actively engaged in criminal activity, or codefendants or victims, except persons involved in recovery), and 22 (attend Narcotics Anonymous (NA)/Alcoholics Anonymous (AA) meetings as directed by the probation officer).
See footnote 1, above.
The People agree that conditions 8 and 9 should be modified to include a knowledge requirement. The People also do not oppose a modification to condition 22, to allow defendant to attend a suitable alternative program approved by the probation officer. We also agree.
a. General Principles Governing Constitutionality of Probation Conditions
A trial court has broad discretion to impose conditions of probation that will foster rehabilitation and protect public safety. (Pen. Code, § 1203.1; People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) "An appellate court generally will not find that a trial court has abused its broad discretion to impose probation conditions so long as a challenged condition relates either generally to criminal conduct or future criminality or specifically to the probationer's crime." (People v. Barajas (2011) 198 Cal.App.4th 748, 753.) An appellant forfeits the appeal of the reasonableness of a probation condition if she fails to object in the trial court. (People v. Welch (1993) 5 Cal.4th 228, 237.) However, a facial challenge to the constitutional validity of a condition of probation presents a pure question of law and this court may determine that it was not forfeited. (In re Sheena K. (2007) 40 Cal.4th 875, 885, 888-889.)
A probation condition must be sufficiently precise for the probationer to know what is required of him or her, and for the court to determine whether the condition has been violated. (In re Sheena K., supra, 40 Cal.4th at p. 890.) A vague probation condition violates a probationer's due process right to fair and adequate notice. (In re Angel J. (1992) 9 Cal.App.4th 1096, 1101.) To withstand a challenge for vagueness, a probation condition " 'must be sufficiently precise for the probationer to know what is required of [her], and for the court to determine whether the condition has been violated.' [Citation.]" (In re Sheena K., at p. 890.) A probation condition's failure to require knowledge is a " ' "classic case of vagueness." ' " (In re Justin S. (2001) 93 Cal.App.4th 811, 816.)
An overbroad condition is one that restricts a defendant's fundamental constitutional rights to a greater degree than necessary to achieve the condition's purpose. (People v. Olguin (2008) 45 Cal.4th 375, 384 (Olguin).) The overbreadth doctrine requires that probation conditions, which may impinge on constitutional rights, be tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation. (In re Victor L. (2010) 182 Cal.App.4th 902, 910.) A reviewing court has the authority to modify a probation condition to render it constitutional. (In re Sheena K., supra, 40 Cal.4th at pp. 888, 892.)
b. Analysis
i. Probation Condition 8
Defendant contends that the requirement for her to give notice of a change in residence of her or her cohabitants 24 hours ahead of time, without a requirement that she know of the change in advance, is both unconstitutionally vague and overbroad.
As to the overbreadth contention, however, we find no violation. Defendant contends, without supporting authority, that it violates her constitutional right to freedom of association because she is unable to change her residence on a whim. However, except to the extent curtailed by other conditions, defendant is still free to associate—or cohabit—with whomever she wants. Because no constitutional right is involved, an overbreadth claim cannot lie. (In re Sheena K., supra, 40 Cal.4th at p. 890; see Olguin, supra, 45 Cal.4th at p. 380 [similar probation condition including a requirement to notify of pets upheld by California Supreme Court without discussing the change of residence aspect of the notification].)
As to the vagueness claim, respondent concedes, and we agree, that the condition should be modified. Specifically, the condition is unconstitutionally vague because if defendant's cohabitant moves without telling her 24 hours ahead of time, or if she is forced to move due to an emergency, defendant would not "know what is required of [her]" at the time that the condition requires her to submit written notice. (In re Sheena K., supra, 40 Cal.4th at p. 890.)
Accordingly, we direct that the condition be modified to include a knowledge requirement.
ii. Probation Condition 9
Defendant contends that the condition preventing her from "do[ing] anything to interfere" with or to "deter officers" from visiting and searching her residence is unconstitutionally vague. She contends that the condition against locked fences or gates is unreasonable given her and her children's security needs. Defendant also contends that the condition preventing her from having animals that would deter or threaten officers is both unconstitutionally vague and overbroad. Respondent concedes, and we agree, that the condition should be modified.
"Proper supervision includes the ability to make unscheduled visits and to conduct unannounced searches of the probationer's residence. Probation officer safety during these visits and searches is essential to the effective supervision of the probationer and thus assists in preventing future criminality." (Olguin, supra, 45 Cal.4th at p. 381.) This is especially true where the defendant's underlying offense was possession of controlled substances. Officers must have ready access to the probationer's residence to verify the probationer's compliance and prevent the disposal of illegal substances.
Locked gates and fences and potentially dangerous animals create unreasonable obstacles to monitoring probationers. (See Olguin, supra, 45 Cal.4th at p. 381 ["[a]nimals can be unpredictable and potentially dangerous when faced with a stranger in their territory, and some pose a great or even life-threatening hazard to persons in these circumstances"].) While "it would be unreasonable and impractical to leave it to a probationer to decide which pets could interfere with an officer's supervisory duties . . . it is reasonable to place the burden on a probationer to inform the probation officer which animals are present at his or her residence." (Id. at p. 382.)
However, the condition prohibiting defendant from "do[ing] anything to interfere" with the searches does not specify that defendant know that she is doing something that interferes or deters. It is vague because defendant may inadvertently do something to interfere with a search without "know[ing] what is required of [her]." (In re Sheena K., supra, 40 Cal.4th at p. 890.) For instance, as defendant illustrated, she could inadvertently deter officers from visiting and searching by locking her door when she leaves her residence, or locking a gate for her children's safety. Therefore, the condition should be modified to add a knowledge requirement. We will therefore modify the condition to include a knowledge requirement.
As to the prohibition against having any animals that would interfere with or deter or threaten the safety of officers, similar probation conditions have been upheld by the California Supreme Court, which has concluded there is no fundamental constitutional right to own unregulated animals. (Olguin, supra, 45 Cal.4th at p. 379, 385, fn. 3.) Because no constitutional right is involved, an overbreadth claim cannot lie. (In re Sheena K., supra, 40 Cal.4th at p. 890.) Nevertheless, there is a distinction between a probation condition that requires notice to the probation officer about the presence of animals, and one that prohibits "hav[ing] any animals on the premises that would reasonably deter, threaten the safety of, or interfere with, officers enforcing the term." To the extent the condition does not provide notice to defendant as to the type of animal that would be impermissible, it is vague. (In re Sheena K., at p. 890.) We therefore will modify the condition to instead require defendant to notify the probation officer of any animals at her residence, and to comply with the probation officer's reasonable requests concerning animals.
Accordingly, we modify the condition to include a knowledge requirement.
iii. Probation Condition 10
Defendant contends that the part of the condition prohibiting possession of a "dangerous or deadly weapon" is unconstitutionally vague because it can include common items, like kitchen knives or screwdrivers, that could be used to inflict serious injury on another. She also contends that the condition is vague because it does not require possession to be knowing. We disagree.
In determining whether a condition of probation is sufficiently definite, a court is not limited to the condition's text. (People v. Hall (2017) 2 Cal.5th 494, 500 (Hall), citing People v. Lopez (1998) 66 Cal.App.4th 615, 630-632.) "We must also consider other sources of applicable law [citation omitted], including judicial construction of similar provisions." (Hall, at p. 500.)
Where a probation condition implements statutory provisions that apply to the probationer independent of the condition and does not infringe on a constitutional right, it is not necessary to include in the condition an express scienter requirement that is necessarily implied in the statute. (People v. Kim (2011) 193 Cal.App.4th 836, 843 (Kim).) Penal Code section 29800 prohibits persons convicted of felonies from possessing firearms. As a probation condition that implements that statute, the condition precluding possession of a firearm should be given the same interpretation, even if the condition does not incorporate the statute by reference. (People v. Rodriguez (2013) 222 Cal.App.4th 578, 591 (Rodriguez), overturned on a different point in Hall, supra, 2 Cal.5th at p. 503, fn. 2.)
In Hall, supra, 2 Cal.5th at 494, the California Supreme Court disapproved of cases holding that an express knowledge requirement was necessary to prevent unwitting violations of possessory probation conditions. (Id., at pp. 503, fn. 2, disapproving of In re Kevin F. (2015) 239 Cal.App.4th 351, 361-366 & People v. Freitas (2009) 179 Cal.App.4th 747, 751-751.) The court also disapproved of cases holding that possessory probation conditions must include an express knowledge requirement where the prohibited item was not criminalized by statute but was merely related to criminality. (Hall, at p. 503, fn. 2, disapproving In re Ana C. (2016) 2 Cal.App.5th 333, 347-350 & Rodriguez, supra, 222 Cal.App.4th at p. 594.) That holding informs our reasoning and compels the result that no express knowledge element is required.
We also reject defendant's claim that without the addition of a knowledge requirement, she could unwittingly be found in violation of this condition. As noted in People v. Moore (2012) 211 Cal.App.4th 1179, 1186 (Moore), a court may not revoke a defendant's probation absent a finding that the defendant willfully violated the terms and conditions of his or her probation. (See People v. Patel (2011) 196 Cal.App.4th 956, 960 [noting the well-settled rule that a probationer cannot be punished for presence, possession, or association without proof of knowledge]; Kim, supra, 193 Cal.App.4th at p. 846 [knowledge is an implicit element in the concept of possession].) The unwitting possession of contraband does not sufficiently establish backsliding by a probationer, nor does it sufficiently threaten public safety, to merit revocation without proof of the probationer's state of mind to show the violation as willful. (Hall, supra, 2 Cal.5th at pp. 498, 500, 503, fn. 2.) It is unnecessary to add an express knowledge requirement to this condition of probation.
Here, condition 10 prohibited possession of deadly or dangerous weapons. Defendant's concern that she is unable to discern what conduct is prohibited and might accidentally possess an item prohibited by the probation condition is obviated by the fact she is prohibited by statute from possessing certain weapons, namely firearms (§ 29800, subd. (a)(1)) and the fact that only willful violations of probation can result in revocation. As for dangerous or deadly weapons not expressly prohibited by statute, case law has made clear that knowledge of the contraband's presence and of its restricted nature is implicit in probation conditions restricting possession thereof. (Moore, supra, 211 Cal.App.4th at p. 1186.) Due process does not require an explicit scienter requirement when scienter is implicit. (Id. at p. 1187.)
As the court reasoned in Moore, supra, 211 Cal.App.4th at p. 1186, citing In re R.P. (2009) 176 Cal.App.4th 562, 567-568, the term "dangerous or deadly weapon" has a plain, commonsense meaning prohibiting possession of items specifically designed as weapons and other items not specifically designed as weapons that the probationer intended to use as such. It is unnecessary to add a knowledge requirement to prevent unwitting violations of probation where that probation cannot be revoked for innocent possession. (People v. Contreras (2015) 237 Cal.App.4th 868, 887 ["it is unnecessary to add a knowledge requirement to prevent unwitting violations of the condition"]; Moore, p. 1188 ["addition of an express knowledge requirement would add little or nothing to the probation condition"].)
We find that it is "sufficiently precise" for defendant to know what is required of her and not unconstitutionally vague. (Moore, supra, 211 Cal.App.4th at p. 1186.)
iv. Probation Conditions 12, 14
Defendant contends that condition 12's prohibition against possession of any controlled substance without medical prescription is unconstitutionally vague because it does not require possession to be knowing. She makes a similar contention respecting condition 14, the proscription against possession of drug paraphernalia. However, as explained above in regard to probation condition 10, knowledge is an implicit element of both conditions and it is unnecessary to modify them. (Hall, supra, 2 Cal.5th at pp. 500-501; Kim, supra, 193 Cal.App.4th at p. 846.)
Particularly with respect to the drug paraphernalia condition, the probation term relates to Health and Safety Code section 11364.5, subdivision (d), so the probation condition only implements what is already proscribed by statute, and knowledge is an implicit element. (Kim, supra, 193 Cal.App.4th at p. 846.) As to the contention that the condition is overbroad, defendant cites no constitutional right to either possess controlled substances without a prescription, or to possess drug paraphernalia in violation of Health and Safety Code section 11364.5, subdivision (d). Thus, no constitutional rights are implicated, so an overbreadth claim cannot lie. (In re Sheena K., supra, 40 Cal.4th at p. 890.)
v. Probation Condition 17
Defendant contends that the condition that she not associate with convicted felons, codefendants, or anyone actively engaged in criminal activity unconstitutionally infringes on her First Amendment right to freedom of association, establish a family, and raise children by prohibiting contact with her children's father, who falls into all the prohibited categories. While the condition does limit contact with an intimate family member, such a limitation is not the sine qua non of an unconstitutional condition of probation.
"[C]onditions 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, citing In re Peeler (1968) 266 Cal.App.2d 483, 484.) Because probation is a privilege and not a right (In re York (1995) 9 Cal.4th 1133, 1150), 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." ' " (People v. Peck (1996) 52 Cal.App.4th 351, 362, quoting People v. Burden (1988) 205 Cal.App.3d 1277, 1281 & People v. Pointer (1984) 151 Cal.App.3d 1128, 1139.)
It is significant that defendant failed to object to this condition at the time of the sentencing hearing. Had she done so, the court could have made factual findings and modified the probation condition. As a claim of constitutional error and a facial challenge, we have determined that the condition is facially valid. If, as defendant argues, contact with her codefendant may be necessary to discuss matters relating to their children, her remedy is to ask the trial court to modify the probation condition. (In re Sheena K., supra, 40 Cal.4th at p. 885.)
vi. Probation Condition 22
Defendant contends that requiring her to attend AA and NA meetings unconstitutionally infringes on her First Amendment right to religious freedom because it requires belief in God. Although defendant failed to object, the People are not opposed to a modification of the condition.
The establishment clause guarantees that the "government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which 'establishes a [state] religion or religious faith, or tends to do so.' " (Lee v. Weisman (1992) 505 U.S. 577, 587.) A number of courts have recognized that AA has religious aspects which may infringe on religious freedom where the defendant has an opposing sincerely held religious belief. (Walker v. State Bar (1989) 49 Cal.3d 1107, 1120, fn. 4 [recognizing AA's religious component, but rejecting argument that defendant did not need to attend meeting given that he did not explain what sincerely held religious beliefs would be offended by attendance]; Warner v. Orange County Dept. of Probation (2d Cir. 1996) 115 F.3d 1068, 1076-1077; Kerr v. Farrey (7th Cir. 1996) 95 F.3d 472, 479-480 [conditioning parole eligibility on participation in AA violates establishment clause]; In re Personal Restraint of Garcia (Wash. Ct. App. 2001) 106 Wn.App. 625, 630 [requiring inmates' attendance at AA classes as part of chemical dependency treatment violates establishment clause].)
Compelling prisoners and probationers to participate in AA/NA or programs rooted in religious faith is unconstitutionally coercive. (Inouye v. Kemna (9th Cir. 2007) 504 F.3d 705, 713.) Where the defendant is given a choice between religious and secular treatment programs, there is no constitutional violation. (In re Personal Restraint of Garcia, supra, 106 Wn.App. at pp. 634-635 [no violation where defendant had a choice of programs].)
We will therefore order modification of the condition of probation so that it permits defendant to attend an alternative program approved by the probation officer.
III
DISPOSITION
Probation condition 8 is modified to read: "Keep the probation officer informed of the place of residence and cohabitants and give written notice to the probation officer 24 hours before any move or change in cohabitants, or as soon as she reasonably becomes aware of a move or change, but no later than 24 hours after the move or change. Prior to any move provide written authorization to the Post Office to forward mail to the new address."
Probation condition 9 is modified to read: "Permit visits and searches of places of residence by agents of the Probation Department and/or law enforcement for the purpose of ensuring compliance with the terms and conditions of probation; not to do anything to knowingly interfere with this requirement, or to knowingly deter officers from fulfilling this requirement. Probationer shall notify the probation officer of any locked gates and fences, and provide the probation officer with the means to access probationer's residence without having probationer unlock a gate or fence (for example, by supplying the probation officer with a key to the gate or fence). Probationer shall notify the probation officer of any animals at her residence, and comply with the officer's reasonable requests concerning animals."
Probation condition 22 is modified as follows: "Attend NA/AA meetings, or a suitable alternative program as directed by the Probation Officer and show proof of attendance to the Probation Department."
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: CODRINGTON
J. SLOUGH
J.