Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM025885
ROBIE, J.
Defendant Marilyn Gunn pled no contest to possession of marijuana for sale. The plea agreement included a Harvey waiver allowing the sentencing judge to “consider [her] prior criminal history and the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations,” which included two dismissed child abuse charges. Defendant was placed on probation.
People v. Harvey (1979) 25 Cal.3d 754.
We will refer to this charge interchangeably as child abuse, neglect, or endangerment.
Defendant now appeals, contending the trial court erred by imposing: 1) probation conditions regarding alcohol and her living environment that are unconstitutionally vague; and 2) a probation condition requiring parenting classes that is not reasonable. We agree with defendant that the vague probation conditions require modification, but otherwise affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2006, California Department of Justice agents, Butte Interagency Narcotics Task Force agents, and Butte County Sheriff’s deputies executed a search warrant for defendant’s property. During a search of the property, agents found large amounts of marijuana, cash, and multiple firearms. Defendant admitted growing the marijuana and having sold it before. She showed her medical marijuana recommendation and stated that she wanted to give the excess marijuana to a Sacramento cannabis club for cancer patients.
There were several other people living on the property, including Clayton Gunn, Cathy G., and Cathy G.’s two five-year-old children, who lived in a separate mobile home on the property. A social worker interviewed the children, and the children reported that they visited defendant and had watched her water the marijuana plants. They had also seen Clayton Gunn and their mother use marijuana and had been exposed to marijuana smoke. There was also information that the children lived in a metal shed that was not suitable for habitation.
The People filed a complaint against defendant alleging: (1) cultivation of marijuana; (2) possession of marijuana for sale; and (3) two counts of child abuse. The first two counts were enhanced by the special allegation that defendant (and a codefendant) were armed with firearms.
In January 2007, defendant entered a plea agreement. In exchange for the other charges being dropped, defendant pled no contest to possession of marijuana for sale. The dismissed charges were subject to a Harvey waiver. In fact, in receiving the plea, the court specifically stated that it could “order [her] to attend classes” based on the dismissed child abuse charges.
The court granted defendant probation subject to many probation conditions, three of which are before us. Special condition No. 5 forbids defendant from “enter[ing] any place of business or location where alcohol is the primary item for sale or use.” Special condition No. 10 requires defendant to complete a parenting class. Special condition No. 38 requires defendant to “[r]eside at a clean and sober living environment as approved by [her] probation officer.”
DISCUSSION
Defendant first contends the probation conditions requiring that she not enter any place where alcohol is the primary item for sale or use and that she maintain a clean and sober living environment subject to her probation officer’s approval are overbroad and vague. She asks the court to modify these conditions to add an element of knowledge. Defendant next argues the trial court abused its discretion in imposing parental education as a condition of probation because that condition is unreasonable under the circumstances.
I
Special Conditions Nos. 5 And 38 Are
Unconstitutionally Vague Without An Element Of Knowledge
Defendant contends the trial court imposed conditions that are vague and overbroad. She argues that if the conditions do not require knowledge, she might unwittingly violate them.
Whether a probation condition is vague or overbroad is a question of law that may be raised on appeal despite a defendant’s failure to object in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 888.)
Special condition No. 5 prohibits defendant from entering “any place of business or location where alcohol is the primary item for sale or use.” Defendant argues that the condition is vague and overbroad because it does not provide “‘fair warning.’” She argues that by requiring her to have knowledge that the location is one where alcohol is the primary item for sale or use, she would be given fair warning of when she risks violating her probation. Similarly, defendant contends that special condition No. 38, which requires her to maintain a clean and sober living environment “as approved by [her] probation officer,” is vague and overbroad because she could be in violation without any prior warning that the probation officer has not approved the environment.
In In re Sheena K., the California Supreme Court modified a probation condition requiring that a minor not associate with anyone disapproved of by her probation officer. (In re Sheena K., supra, 40 Cal.4th at pp. 890-892.) The court found the condition unconstitutionally vague without an express requirement that the minor have knowledge of the probation officer’s disapproval. (Ibid.) We find this case to be similar. Moreover, the People do not object to a modification of these conditions requiring knowledge. Accordingly, we will modify the judgment to add an element of knowledge to special condition No. 5 and special condition No. 38.
II
The Trial Court Did Not Abuse Its Discretion By Ordering Parental Education Classes As A Condition Of Probation
Defendant contends the trial court abused its discretion by imposing parental education classes as a probation condition. She argues the trial court did not have sufficient factual grounds to impose the restriction, nor does it have a sufficient relation to the crime of possession of marijuana for sale. The People argue that the Harvey waiver allowed the court to impose the condition, as defendant waived her right to exclude the dismissed charges from the court’s consideration when sentencing her.
The Legislature has given trial courts broad discretion in sentencing, including what probation conditions, if any, are appropriate. (People v. Lent (1975) 15 Cal.3d 481, 486.) However, this discretion is not absolute.
In challenging special condition No. 10, defendant relies on the following test set forth in Lent: “A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .’ [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.” (People v. Lent, supra, 15 Cal.3d at p. 486, fn. omitted.)
Defendant asserts that the parental education condition does not meet any of the above criteria. We conclude, however, that while this probation condition does not relate to the elements of the crime for which defendant was convicted, it does reasonably relate to other criminal conduct and to future criminality.
Defendant was originally charged with two counts of child endangerment as well as the drug charges. These charges were dropped as a part of the plea agreement, but were subject to a Harvey waiver. In Harvey, the California Supreme Court held that when imposing a sentence under a plea agreement, the court cannot look to any crimes where the charges were dismissed as a “‘Circumstance in Aggravation’” supporting a sentence for the upper term of the counts pled to. (People v. Harvey, supra, 25 Cal.3d at p. 758.) A prosecutor may require a Harvey waiver as a part of the plea agreement. (People v. Myers (1984) 157 Cal.App.3d 1162, 1167.) A Harvey waiver allows the trial court to consider “facts underlying dismissed counts in determining the appropriate disposition for the offense of which the defendant was convicted.” (People v. Moser (1996) 50 Cal.App.4th 130, 132-133.)
In this case, the Harvey waiver specifically allowed the court to look at “the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations or cases when granting probation, ordering restitution or imposing sentence.” Thus, the court was allowed to look at the facts underlying the child abuse charges while determining defendant’s probation conditions.
Even without the Harvey waiver, the trial court would not have abused its discretion in imposing a parental education condition because the Harvey court recognized an exception permitting consideration of dismissed charges that are “‘transactionally related’” to the admitted offense. (People v. Beagle (2004) 125 Cal.App.4th 415, 421, citing People v. Harvey, supra, 25 Cal.3d at p. 758.)
For example, in People v. Bradford (1995) 38 Cal.App.4th 1733, a defendant pled guilty to cultivation of marijuana in exchange for dismissal of a gun possession charge. The illegal shotguns were found in a cabin on the property where the marijuana was growing. (Id. at pp. 1736-1737.) The defendant entered into a plea agreement dismissing the weapons charges. (Id. at pp. 1735-1736.) The appellate court concluded that because the defendant was armed with the illegal weapons during the cultivation offense, the weapons charges were transactionally related to the drug charges. (Id. at p. 1739.) Thus, the court concluded the weapons charges were properly used as an aggravating factor on sentencing the defendant on the drug charges, even though there was no Harvey waiver concerning the weapons charges. (Id. at pp. 1737-1739.)
Here, as in Bradford, the circumstances of the crime suggest that the child abuse charges were transactionally related to the crime of conviction. Defendant stated that the children were “like her own grandchildren and visited her often.” Defendant’s home where the children visited her contained over 30 pounds of marijuana at the time of arrest. The children had also observed defendant tending to the marijuana. Thus, the endangerment of the children was transactionally related to the possession of the marijuana for sale because the exposure of the children to that quantity of marijuana could reasonably be deemed to constitute child endangerment.
Defendant further argues that the information underlying the child abuse charges was insufficient to allow the court to impose a parental education probation condition. She correctly states that a Harvey waiver on the dropped child abuse charges by itself does not authorize the probation condition. She also states that she is unconnected to some of the child abuse that occurred; defendant notes “[n]o one even alleged that there was a basis to suppose that [she] had any involvement [with] the children living in a metal shed.” However, there is sufficient evidence to show the trial court did not abuse its discretion in imposing parental education as a probation condition.
While in separate mobile homes, defendant lived on the same property as the children and their mother. The marijuana was grown on this same property. There were ammunition rounds, but no weapons on the part of the property where the children lived. There were several weapons recovered from defendant’s home. Some of the ammunition from the children’s home was compatible with the weapons defendant had on her portion of the property. One of the weapons in defendant’s home was loaded with seven live rounds. Defendant’s cohabitant was not allowed to be around firearms, a fact defendant stated she was unaware of. The children visited defendant often; she felt they “were like her own grandchildren.” The children watched defendant water the marijuana while they visited. Defendant had over 30 pounds of marijuana on the property at the time of her arrest. The children were exposed to significant danger, both from the weapons and the drugs. Parenting classes should educate defendant on both the previous danger the children were exposed to and how to prevent future danger.
For the foregoing reasons, the trial court acted reasonably when it imposed a parental education probation condition.
DISPOSITION
Special condition No. 5 is modified to require that defendant “Totally refrain from the use or possession of any alcoholic beverages and not knowingly enter any place of business or location where alcohol is the primary item for sale or use.” Special condition No. 38 is modified to require that defendant “Refrain from residing in a living environment that you know has not been approved by your probation officer as a clean and sober living environment.” As so modified, the judgment (order of probation) is affirmed.
We concur: NICHOLSON, Acting P.J., BUTZ, J.