Opinion
F060381 Super. Ct. No. BF130555A
08-08-2011
THE PEOPLE, Plaintiff and Respondent, v. JOHN JACOB CLODFELTER, Defendant and Appellant.
John K. Cotter, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Kane, Acting P.J., Detjen, J., and Franson, J.
APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice, Judge.
John K. Cotter, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant, John Jacob Clodfelter, pled no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). On May 28, 2010, the court placed Clodfelter on probation for three years.
On appeal, Clodfelter contends: 1) one of his probation conditions is constitutionally vague and overbroad; and 2) the court erred when it ordered him to pay $40 towards the costs of probation supervision as a condition of probation. We will find merit to Clodfelter's contentions and modify the judgment accordingly. In all other respects we will affirm.
FACTS
On December 30, 2009, during a traffic stop of the vehicle Clodfelter was driving, officers found a small amount of methamphetamine in Clodfelter's wallet. During the stop, Clodfelter's passenger attempted to crush a glass methamphetamine pipe on the floorboard with his foot.
DISCUSSION
The Vagueness and Overbreath Claim
As a condition of probation the court ordered Clodfelter not to "be in, around or about any place where any controlled substance is illegally sold, supplied, stored or is present." Clodfelter contends this condition is vague and overbroad because it does not contain a knowledge requirement. Respondent contends the claim is not cognizable because Clodfelter did not obtain a certificate of probable cause. We agree with Clodfelter.
Preliminarily, we reject respondent's claim that Clodfelter was required to file a certificate of probable cause in order to raise this issue on appeal. Penal Code section 1237.5 provides:
All further statutory references are to the Penal Code.
"No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of
probation following an admission of violation, except where both of the following are met:
"(a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.
"(b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court."
Section 1237.5 applies when a defendant's appeal challenges the validity of his plea. (People v. Panizzon (1996) 13 Cal.4th 68, 76.) Respondent contends that Clodfelter agreed to the probation condition at issue as part of his plea. Therefore, according to respondent, Clodfelter's challenge to this condition amounts to a challenge to the validity of his plea requiring compliance with section 1237.5. Respondent is wrong.
Clodfelter's plea bargain provided only that, in exchange for his no contest plea to possession of methamphetamine, the court would place him on Proposition 36 probation and dismiss another count. Clodfelter acknowledged in the change of plea form that, as a consequence of his plea, he would be placed on probation subject to "any ... conditions deemed reasonable by the [c]ourt." However, this acknowledgement did not make the specific probation conditions subsequently imposed part and parcel of his plea agreement. Thus, we conclude that Clodfelter was not required to comply with section 1237.5 in order to raise the instant issue on appeal.
A trial court has "broad discretion" to prescribe probation conditions in order to foster rehabilitation and protect public safety. (People v. Freitas (2009) 179 Cal.App.4th 747, 750.) However, such conditions may be challenged for being unconstitutionally overbroad and vague. (Ibid.)A probation condition may be overbroad "if in its reach it prohibits constitutionally protected conduct. [Citation.]" (Ibid.) "[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' [Citation.]" (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).)
"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 [constitutional] challenge on the ground of vagueness. [Citation.] A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as constitutionally overbroad." (Sheena K., supra, 40 Cal.4th at p. 890.) A reviewing court is authorized to modify conditions of probation when necessary to correct such constitutional infirmities. (Id. at p. 892; People v. Turner (2007) 155 Cal.App.4th 1432, 1436.)
"In a variety of contexts, beginning with People v. Garcia (1993) 19 Cal.App.4th 97, ... (Garcia),California appellate courts have found probation conditions to be unconstitutionally vague or overbroad when they do not require the probationer to have knowledge of the prohibited conduct or circumstances. In Garcia, a probation condition prohibiting association with '"any felons, ex-felons, users or sellers of narcotics"' [citation] was found to impinge on the probationer's 'constitutional right of freedom of association' and accordingly had to be narrowly drawn. [Citation.] [This court] rejected the contention that it was implicit that the condition would only be violated if the probationer knew of the other person's status, stating 'the rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, lead us to the conclusion that this factor should not be left to implication.' [Citation.]" (People v. Kim (2011) 193 Cal.App.4th 836, 843.)
Here, Clodfelter could violate the probation condition at issue by being in a place where controlled substances are illegally sold, supplied, stored or are present even though he had no knowledge that these activities were taking place there. Thus, the condition severely restricts his constitutional right to travel lest he unwittingly violate this condition by visiting one of the prohibited places. Accordingly, we conclude that the probation condition at issue is vague and overbroad and we will add a knowledge requirement to it.
The Probation Supervision Fee
At Clodfelter's sentencing hearing the court ordered him to pay $40 towards the cost of probation supervision. Clodfelter contends the court erred in ordering him to pay this amount as a condition of probation. We agree.
Respondent misinterprets Clodfelter's contention as a challenge to the court's imposition of the $40 probation supervision fee without a determination of his ability to pay and she contends Clodfelter waived this issue by his failure to object.
Unlike orders for restitution and restitution fines which are statutorily required to be included as conditions of probation (§ 1202.4, subd. (m)), attorney fees and costs are not. Courts that have considered the question have held probation may not be conditioned upon the payment of either sum.
"People v. Bennett (1987) 196 Cal.App.3d 1054, 1056-1057 , ... held the costs of probation imposed pursuant to section 1203.1b may not be a condition of probation as the costs are collateral and the statute itself provides for enforcement of the order by civil collection. Several cases, [including] People v. Faatiliga (1992) 10 Cal.App.4th 1276, 1280, hold that payment of attorney fees may not be made a condition of probation as it exacts a penalty for the exercise of a constitutional right. Thus, the trial court may order defendant to pay for costs of probation and attorney fees, but may not condition defendant's grant of probation upon payment thereof." (People v. Hart (1998) 65 Cal.App.4th 902, 907.) In accord with Hart and the cases cited therein, we agree with Clodfelter that the court erred when it ordered him to pay $40 per month toward the costs of probation supervision as a condition of probation.
DISPOSITION
The probation condition discussed in the first section is modified to read that Clodfelter "shall not knowingly be in, around or about any place where any controlled substance is illegally sold, supplied, stored or is present." Additionally, Clodfelter's conditions of probation are modified to delete the requirement to pay the costs of probation supervision, however, the order that he pay such costs is affirmed. As modified, the probation order (judgment) is affirmed.