Opinion
F074569
10-02-2018
THE PEOPLE, Plaintiff and Respondent, v. DARREN DUANE COLEMAN, Defendant and Appellant.
Jonathan D. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Raymond L. Brosterhous II, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. F16901072, F16905041)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. James A. Kelley, Judge. Jonathan D. Roberts, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Franson, J. and Smith, J.
-ooOoo-
On September 7, 2016, pursuant to a plea bargain, appellant Darren Duane Coleman pled no contest to carrying a concealed weapon in a vehicle (Pen. Code, § 25400, subd. (a)(1)/count 1), carrying a loaded firearm in public (§ 25850, subd. (a)/count 2), and possession for sale of a controlled substance (Health & Saf. Code, § 11351)/count 3). The plea agreement also provided that Coleman would be sentenced to an aggregate local term of three years eight months: the middle term of three years on count 3, a consecutive eight-month term on count 1 (one-third the middle term of two years), and a concurrent two-year term on count 2. His sentence was to be split into 22 months of local custody and 22 months of mandatory supervision.
All statutory references are to the Penal Code, unless otherwise indicated.
On October 5, 2016, the court sentenced Coleman to an aggregate, local term of three years eight months, per his plea agreement.
On appeal, Coleman contends three of his conditions of mandatory supervision are constitutionally vague and overbroad on their face. We find partial merit to this contention and modify the judgment accordingly. In all other respects, we affirm.
DISCUSSION
The facts of the underlying offenses are omitted because they are not germane to the issues Coleman raises. --------
Introduction
At his sentencing hearing, the court ordered Coleman, as conditions of his mandatory supervision, "not to use or possess or knowingly associate with those who use or sell controlled substances. [¶] ... [¶] [N]ot to be in a gang or associate with any person who is in a criminal street gang as defined by ... section 186.22[,] subsection[s] (e) and (f). [¶] [N]ot to wear or possess any gang-related paraphernalia." Coleman contends these three conditions are constitutionally vague and overbroad. Respondent concedes with respect to the first condition.
The validity and reasonableness of terms of mandatory supervision are analyzed under the same standard as that developed for probation conditions. (People v. Martinez (2014) 226 Cal.App.4th 759, 763-764 (Martinez).) "[T]he imposition of a particular condition of [supervised release] is subject to review for abuse of ... discretion." (Id. at p. 764.)
A trial court has "broad discretion" to prescribe conditions of mandatory supervision in order to foster rehabilitation and protect public safety. (Martinez, supra, 226 Cal.App.4th at p. 764.) However, such conditions may be challenged for being unconstitutionally overbroad and vague. (People v. Freitas (2009) 179 Cal.App.4th 747, 750.)
"A [condition of supervised release] 'must be sufficiently precise for the [defendant] 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." (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) A reviewing court is authorized to modify conditions of supervised release when necessary to correct such constitutional infirmities. (Cf. Id. at p. 892; People v. Turner (2007) 155 Cal.App.4th 1432, 1436.)
A condition of supervised release may be overbroad "if in its reach it prohibits constitutionally protected conduct." (People v. Freitas, supra, 179 Cal.App.4th at p. 750.) "[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' " (Sheena K., supra, 40 Cal.4th at p. 890.)
The Conditions Prohibiting Coleman from Associating with Gang Members and Possessing Gang Paraphernalia
Coleman contends the condition that requires he not associate with any person who is a gang member and the condition that he not wear or possess any gang related paraphernalia are constitutionally vague and overbroad because they do not contain a knowledge requirement. We disagree.
In People v. Hall (2017) 2 Cal.5th 494 (Hall), the Supreme Court held that the qualifier "knowingly" need not be "expressly articulated" in a probation condition barring the possession of firearms and illegal drugs in order to provide a defendant with "fair warning" of what the condition required. (Id. at p. 500.) In so holding, the court reasoned that: "California case law already articulates not only a general presumption that violation of a probation condition must be willful, but also specifically provides that probation conditions barring possession of contraband should be construed to require knowledge of its presence and its restricted nature." (Id. at p. 501.) Although Hall involved probation conditions prohibiting possession of certain objects, this distinction from the instant case is immaterial. Hall relied, in part, on People v. Patel (2011) 196 Cal.App.4th 956, 960, which states: "[T]here is now a substantial uncontradicted body of case law establishing, as a matter of law, that a probationer cannot be punished for presence, possession, association, or other actions absent proof of scienter." (Hall, supra, 2 Cal.5th at pp. 498-499, italics added; cf. People v. Hartley (2016) 248 Cal.App.4th 620, 634 [" 'a probation violation must be willful to justify revocation of probation' "].)
Hall's reasoning is applicable here. Thus, we conclude that because Coleman cannot be found in violation of the conditions that prohibit him from associating with gang members and wearing and possessing gang paraphernalia unless his conduct was "willful," these conditions are not unconstitutionally vague for omitting an express knowledge requirement.
The Condition Involving Controlled Substances
Coleman contends the condition of supervised release that prohibits him from using or possessing controlled substances or "knowingly associating with those who use or sell controlled substances" is constitutionally overbroad because it prohibits him from: (1) taking prescribed medications that are controlled substances, and (2) associating with people who use medications that are controlled substances. He further contends that the word "knowingly" should be deleted from the condition and that the condition should be modified to prohibit him from associating "with individuals 'known by ... Coleman to illegally use or sell controlled substances.' " We find partial merit to these contentions.
The portion of the condition that prohibits Coleman from using or possessing controlled substances is unconstitutionally overbroad because it prohibits him from possessing and using controlled substances that are prescribed by a doctor. Similarly, the second portion of the condition is unconstitutionally overbroad because it prohibits him from associating with people who take prescribed medications that are controlled substances and people who are authorized to sell controlled substances, e.g., pharmacists.
However, there is no merit to Coleman's contention that the scienter requirement in the above condition should be modified. In Sheena K., the court declined to modify a probation condition that required the defendant to not " 'associate with anyone disapproved by probation' " to add the word "knowingly" before the word "associate." (Sheena K., supra, 40 Cal.4th at pp. 880, 892.) Instead, the court approved a modification of the probation condition that required the appellant to "refrain from associating with anyone who she knew was disapproved of by her probation officer[.]" (Id. at p. 880.) In Hall, the Supreme Court rejected the appellant's contention that Sheena K. compelled modification of the probation conditions at issue in Hall to require an express knowledge requirement. In doing so, the court stated, "It is telling that this court declined to modify the condition at issue in Sheena K. by inserting a requirement that the probationer avoid knowingly associating with the specified group of persons—which is the kind of modification defendant seeks here." (Hall, supra, 2 Cal.5th at p. 503.) Coleman relies on this quotation to suggest that in Hall and Sheena K., the court disapproved of the use of the word "knowingly" as a means of adding an express scienter requirement to a probation condition that is challenged as being unconstitutionally vague or overbroad. Not so.
In Sheena K., the probationer did not object that the condition was vague in failing to articulate the requisite scienter. Instead, she claimed that the category of prohibited persons was vague in that the condition failed to specify which persons the probation officer had disapproved of. (Hall, supra, 2 Cal.5th at pp. 502-503.) Thus, the court in Hall stated, "Because the condition [in Sheena K.] 'did not notify defendant in advance with whom she might not associate through any reference to persons whom defendant knew to be disapproved of by her probation officer' [citation], we agreed that the condition should have been modified to direct the probationer 'not to associate with anyone "known to be disapproved of" by a probation officer.' " (Hall, supra, 2 Cal.5th at p. 503.) Further, in stating that it was "telling" that in Sheena K. the court declined to insert a requirement that the probationer avoid "knowingly" associating with the specified group of persons, the court was apparently noting that its holding in Sheena K. was consistent with its holding in Hall, i.e., that it was unnecessary to add an express scienter requirement in the probation conditions challenged in that case. The court, however, did not disapprove of the use of the word "knowingly" as a means of articulating an express scienter requirement. Therefore, since the trial court "remains free to specify the requisite mens rea explicitly when imposing a condition of probation" (Hall, supra, 2 Cal.5th at pp. 503-504), we need not delete the scienter requirement in the above condition or modify the condition as suggested by Coleman.
DISPOSITION
The condition of supervised release that prohibits Coleman from using or possessing controlled substances or knowingly associating with those who use or sell controlled substances is modified to provide that Coleman shall not "unlawfully use or possess controlled substances or knowingly associate with anyone who unlawfully uses or sells controlled substances." As modified, the judgment is affirmed.