Opinion
D059428
02-10-2012
THE PEOPLE, Plaintiff and Respondent, v. HAROLD DAVID HALGAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD226992)
APPEAL from a judgment of the Superior Court of San Diego County, David M. Szumowski, Judge. Affirmed as modified.
Harold David Halgas pleaded guilty to assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)). The court sentenced Halgas to three years of formal probation. He appeals, claiming the court imposed improper probation conditions, including that: (1) he not be within two blocks of the location where the assault took place; and (2) he not be in a place where alcohol is the main item for sale.
All statutory references are to the Penal Code unless otherwise noted.
As we explain, we reject these arguments and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
We view the evidence in the light most favorable to the judgment of conviction. (See People v. Osband (1996) 13 Cal.4th 622, 690.) Certain portions of the factual and procedural history related to Halgas's claims are discussed post, in connection with those issues.
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On April 27, 2010, Wanda Ballis returned home with Halgas, who is her boyfriend. Shortly after arriving home, Halgas walked over to the apartment of their next door neighbor James Ross. Ross had his front door open but the sliding screen door was closed. Halgas accused Ross of having an affair with Ballis and threatened to kill Ross if he came near Ballis or their apartment. Halgas pulled out a knife and started stabbing Ross's screen door. Halgas then opened Ross's screen door, stepped inside the apartment and began stabbing the doorjamb. While inside Ross's apartment, Halgas repeatedly told him, "I'll fuckin' kill you." Halgas then left Ross's apartment.
At sentencing, the court adopted the probation conditions recommended in the probation officer's report. The probation conditions in question required Halgas: (1) not to be within two blocks of 4121 Kendall Street, San Diego 92109; and (2) not to be in places, except in the course of employment, where alcohol is the main item for sale. Haglas, at the time of sentencing, did not object to any of the probation conditions, including the two he challenges on appeal.
DISCUSSION
Halgas contends that the probation condition that prevents him from being within two blocks of the apartment building where the offense took place is improper because it violates his right to intrastate travel and is not specifically tailored to his needs. Further, Halgas contends that the probation condition preventing him from being in a place, except for employment, where alcohol is the main item for sale is vague and overbroad.
The sentencing court has broad discretion to impose probation conditions to foster rehabilitation and reformation of the defendant and to protect the public. (§ 1203.1, subd. (j); Brown v. Superior Court (2002) 101 Cal.App.4th 313, 319.) As such, we apply a deferential abuse of discretion standard in reviewing probation conditions and will not overturn the court's determination unless it is arbitrary or capricious or exceeds the bounds of reason, all of the circumstances being considered. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
Although Halgas did not object to the conditions of his probation and the issue is deemed waived (see People v. Norman (2003) 109 Cal.App.4th 221, 229), we nonetheless turn to the merits of his contention in the interest of judicial economy and to prevent the inevitable ineffective assistance of counsel claim. (See id. at p. 230.)
A probation condition may limit a constitutional right if "the governmental entity seeking to impose those conditions . . . establish[es]: (1) that the conditions reasonably relate to the purposes sought by the legislation which confers the benefit; (2) that the value accruing to the public from imposition of those conditions manifestly outweighs any resulting impairment of constitutional rights; and (3) that there are available no alternative means less subversive of constitutional right, narrowly drawn so as to correlate more closely with the purposes contemplated by conferring the benefit." (Parrish v. Civil Service Commission (1967) 66 Cal.2d 260, 271.)
In addition, where a probation condition impinges on a fundamental constitutional right, the condition must not be "impermissibly overbroad." (People v. Pointer (1984) 151 Cal.App.3d 1128, 1139.) "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 unconstitutionally overbroad." (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
Further, a probation condition that forbids conduct which is " 'not itself criminal,' " like being within the vicinity of a public location or a business that predominantly sells alcohol, is valid if that conduct is " 'reasonably related to the crime of which the defendant was convicted or to future criminality.' " (People v. Carbajal, supra, 10 Cal.4th at p. 1121; People v. Lent (1975) 15 Cal.3d 481, 486, superseded on another ground as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290-292.) Although a court has broad discretion to impose probation conditions to foster rehabilitation and to protect the public (Brown v. Superior Court, supra, 101 Cal.App.4th at p. 319), its discretion is not without limits. (People v. Carbajal, supra, 10 Cal.4th at p. 1121.)
Halgas first argues that the condition prohibiting him from being within two blocks of the apartment where the assault took place violates his right to intrastate travel and is not specifically tailored to his needs. However, as to intrastate travel, probation by its very nature often limits the exercise of what would be unqualified constitutional rights, including the right of travel. (In re White (1979) 97 Cal.App.3d 141, 149-150.) Further, the requirement that Halgas not come within two blocks of the victim's apartment is directly related to the crime of which Halgas was convicted. Thus, placing this narrowly drawn "security blanket" on an area of interest, such as a home where the assault took place, is fundamentally within the scope and intent contemplated by the governmental interests and is therefore valid. (See id. at p. 150.)
Moreover, the societal interest of protecting the victim from any further harm reasonably outweighs Halgas's interest in being within two blocks of the scene of the crime. If Halgas is able to show a pressing need to be within the precluded vicinity of the apartment for reasons of employment, school or other related matters, he has the option of seeking a modification. (See e.g., People v. Lopez (1998) 66 Cal.App.4th 615, 638.) Accordingly, we conclude the trial court properly exercised its discretion when it imposed this probation condition.
Halgas next argues that the condition prohibiting him from being in a place, unless for employment purposes, where alcohol is the "main" item for sale is vague and overbroad. Specifically, Halgas contends that in order for this condition to be constitutional, he would have to know that alcohol was the main item for sale. As such, Halgas asks us to modify this condition to include an appropriate mental state that would put him on notice of when his presence in certain locations would deviate from acceptable.
The court in In re Justin S. (2001) 93 Cal.App.4th 811 (Justin S.) considered an issue similar to the one Halgas presents. In Justin S., the minor alleged a probation condition restricting gang involvement without a knowledge requirement was "unconstitutionally overbroad." (Id. at p. 816.) The court concluded that the minor's contention was "well taken": "Prohibiting association with gang members without restricting the prohibition to known gang members is ' "a classic case of vagueness" ' [and] 'suffers from constitutionally fatal overbreadth.' " (Ibid.) Therefore, the court there determined the appropriate remedy was to modify the probation condition "to narrow its reference to persons known to the probationer to be associated with a gang." (Ibid.)
Here, on the one hand, we recognize that applying a common sense standard to the definition of "main" in the condition that Halgas shall not be in places, except for employment, where alcohol is the "main item for sale" may not be ambiguous at all. On the other hand, we also recognize that what may seem clear and unambiguous to some may not be clear and unambiguous to others.
We thus modify this condition of probation to read as follows: Halgas "shall not be in places, except in the course of employment, where he knows or reasonably should know that alcohol is the main item for sale." (Italics added.)
DISPOSITION
The judgment of conviction is affirmed as modified. The trial court shall amend the abstract of judgment to reflect the change to the probation condition and notify the Department of Corrections and Rehabilitation of the modification.
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BENKE, Acting P. J.
WE CONCUR:
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NARES, J.
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AARON, J.