Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F18982.
Bamattre-Manoukian, J.
I. INTRODUCTION
Defendant Jose Luis Vazquez Hernandez pleaded guilty to possession for sale of methamphetamine (Health & Saf. Code, § 11378). The trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that he not possess or use controlled substances, that he not use paraphernalia or possess paraphernalia “for the use of ingestion or injection of drugs, ” and that he not possess any “indicia of drug sales.”
Defendant testified at a hearing that his name is “Jose Luis Hernandez Vasquez.” The reporter’s transcript does not reflect that he was asked to spell his name. In some documents in the record on appeal, including his written plea form and his notice of appeal, it is spelled “Vazquez.” Further, the notice of appeal, in which he signed his name as “Jose Luis Hernandez, ” identifies him as “Jose Luis Vazquez Hernandez.”
All further statutory references are to the Health and Safety Code unless otherwise indicated.
On appeal, defendant contends that the probation conditions are unconstitutionally vague and overbroad. More specifically, he argues that the probation conditions must include a knowledge requirement. He also proposes that the probation conditions concerning controlled substances be narrowed to state that he not knowingly use or possesses any controlled substance “without the prescription of a physician.” He further requests that the probation condition concerning “indicia of drug sales” be modified to state that he not knowingly possess any materials “whose primary purpose is to be used in the sale of controlled substances.”
For reasons that we will explain, we will reverse the judgment. We will order the contested probation conditions concerning controlled substances and paraphernalia modified to include a knowledge requirement. We will also order the contested probation conditions concerning controlled substances modified to exclude prescribed medication that is medically necessary with notice to the probation officer. Lastly, we will direct the trial court to hold a new sentencing hearing solely with respect to the probation condition prohibiting defendant from possessing any “indicia of drug sales.” The trial court shall reconsider the purpose and need for this probation condition, and after reconsideration it may impose a more specific condition as it deems necessary.
II. FACTUAL AND PROCEDURAL BACKGROUND
In July 2010, defendant was charged by information with possession for sale of methamphetamine (§ 11378; count 1), falsely identifying himself to a police officer (Pen. Code, § 148.9, subd. (a), a misdemeanor; count 2), and driving without a valid license (Veh. Code, § 12500, subd. (a), a misdemeanor; count 3). Defendant filed a motion to suppress evidence, which was denied after a hearing.
On October 15, 2010, defendant pleaded guilty to possession for sale of methamphetamine (§ 11378; count 1) with the understanding that he would be placed on probation with various terms and conditions and the remaining counts would be dismissed. According to the transcript of the preliminary examination, a sheriff’s deputy found 11 small plastic bags in defendant’s wallet. Eight of the bags contained a white crystalline powder and three of the bags contained a white crystalline residue. The powder in the eight bags appeared to be crystal methamphetamine, and each of the eight bags weighed.3 grams. The deputy tested one of the eight bags and it was “[p]resumptive positive for methamphetamine.” After being advised of his Miranda rights, defendant admitted selling methamphetamine.
Miranda v. Arizona (1966) 384 U.S. 436.
On October 15, 2010, the trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions. The remaining two counts were dismissed. Relevant here, the court stated that the terms and conditions of defendant’s probation included the following: “Comply with the terms on the... front and back of the probation form, ” “You must not possess any controlled substances or paraphernalia for the use or ingestion of drugs, ” and you must “[n]ot possess any indicia of drug sales.” The court also signed, along with defendant, a “Probation/Conditional Sentence Order” on October 15, 2010. The order indicates that it is a two-sided document, and provides that the terms and conditions of defendant’s probation include the following: “Totally abstain from the use of controlled substances and paraphernalia, ” “Do not possess paraphernalia for the use of ingestion or injection of drugs, ” and “Do not possess any indicia [of] drug sales.” Defendant did not raise an objection to any of the probation conditions in the trial court.
III. DISCUSSION
The Trial Court’s Oral Pronouncement and Written Order Regarding Probation Conditions
As an initial matter, we observe that defendant and the Attorney General refer to the probation conditions as specified in the trial court’s oral pronouncement on October 15, 2010, and they do not consider the language in the court’s written probation order, which was also signed by defendant. At the sentencing hearing, the court orally advised defendant of the terms and conditions of his probation, and it also ordered him to comply with both sides of a two-sided “probation form.” It appears from the record on appeal that in the latter regard, the court was referring to its written probation order, which is on a preprinted, two-sided form entitled “Probation/Conditional Sentence Order.” In orally stating the terms and conditions of defendant’s probation, it appears the court was paraphrasing or summarizing the terms and conditions from the written probation order. Certainly nothing in the record on appeal suggests that the court intended by its oral statements to modify the probation conditions as stated in its written order. The judge signed the written probation order, and defendant, in also signing the document, indicated that he understood and agreed to “fulfill the terms and conditions” set forth in the order. Defendant is therefore subject to the terms and conditions of probation as stated in the written probation order. (See People v. Thrash (1978) 80 Cal.App.3d 898, 901-902 [probation “conditions need not be spelled out in great detail in court as long as the defendant knows what they are; to require recital in court is unnecessary in view of the fact the probation conditions are spelled out in detail on the probation order”]; In re Frankie J. (1988) 198 Cal.App.3d 1149, 1154-1155 [same].) Under these circumstances, while defendant in this appeal agrees that he is bound by the terms and conditions of probation as orally stated by the court, we will also consider the conditions as stated in the court’s written probation order, to the extent they are similar to the probation conditions orally stated by the court that defendant now challenges on appeal.
We now turn to the parties’ competing contentions concerning whether defendant has forfeited his claims on appeal.
Forfeiture
Defendant challenges the probation conditions on the grounds that they are unconstitutionally vague and overbroad. Defendant contends that an objection on these grounds “need not be made at the time of sentencing as long as appellate review does not require scrutiny of individual facts....”
The Attorney General argues that defendant’s objections to the probation conditions have been forfeited because the probation conditions “do not implicate [defendant’s] fundamental constitutional rights.” The Attorney General further contends that defendant’s claims “fail on the merits.”
Our Supreme Court has determined that the forfeiture rule does not apply when a probation condition is challenged as unconstitutionally vague or overbroad on its face and the claim can be resolved on appeal as a pure question of law without reference to the sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.); see also People v. Leon (2010) 181 Cal.App.4th 943, 949 (Leon)).) In this case, to the extent defendant’s arguments on appeal raise such constitutional challenges and present pure questions of law without reference to the sentencing record, we will consider the substance of those arguments.
Probation Conditions
“In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. [Citations.]” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121; Leon, supra, 181 Cal.App.4th at p. 948.) Reasonable probation conditions may infringe upon constitutional rights provided they are narrowly tailored to achieve those legitimate purposes. (People v. Olguin (2008) 45 Cal.4th 375, 384 (Olguin); Sheena K., supra, 40 Cal.4th at p. 890.) “[P]robation is a privilege and not a right” (Olguin, at p. 384), and “[i]nherent in the very nature of probation is that probationers ‘do not enjoy “the absolute liberty to which every citizen is entitled.” ’ ” (U.S. v. Knights (2001) 534 U.S. 112, 119; Griffin v. Wisconsin (1987) 483 U.S. 868, 874.)
“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.” (Sheena K., supra, 40 Cal.4th at p. 890; Leon, supra, 181 Cal.App.4th at pp. 948-949.) In addition, “[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, ’ if it is to withstand a [constitutional] challenge on the ground of vagueness.” (Sheena K., at p. 890; Leon, at p. 949; People v. Freitas (2009) 179 Cal.App.4th 747, 750 (Freitas).)
Knowledge requirement
Based on the trial court’s oral pronouncement and its written probation order, defendant is prohibited from possessing or using controlled substances, from using paraphernalia or possessing paraphernalia “for the use of ingestion or injection of drugs, ” and from possessing any indicia of drug sales. On appeal, defendant contends that the probation conditions are unconstitutionally vague and overbroad because “they do not explicitly require that [he] know that the substance or item is prohibited.” Specifically, defendant complains that the probation conditions do not contain a requirement that he “know that the substance he possesses is a prohibited one” and a requirement that he “knowingly possess the prohibited substance.” Defendant asserts that “possession can be constructive” and that under the probation conditions, he “could violate his probation by borrowing a car and driving it without knowing that there are drugs in the trunk.”
Relying on People v. Kim (2011) 193 Cal.App.4th 836 (Kim), an opinion from this court, the Attorney General responds that “an explicit knowledge requirement is not a constitutionally required element of every probation condition, ” and that an explicit knowledge requirement is not needed in the probation conditions at issue in this case.
In reply, defendant contends that Kim is distinguishable and that a knowledge requirement should be added to the probation conditions.
As we stated above, “[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, ’ if it is to withstand a [constitutional] challenge on the ground of vagueness. [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890; Leon, supra, 181 Cal.App.4th at p. 949; Freitas, supra, 179 Cal.App.4th at p. 750.) In order to be sufficiently precise for the probationer to know what is required of him or her, a requirement of knowledge should be included in probation conditions prohibiting the possession of specified items. (Freitas, at pp. 751-752; see also People v. Garcia (1993) 19 Cal.App.4th 97, 102 [the knowledge factor in probation conditions “should not be left to implication”].) “[T]he law has no legitimate interest in punishing an innocent citizen who has no knowledge of the presence of [the prohibited items].” (Freitas, supra, 179 Cal.App.4th at p. 752.)
In Kim, the defendant was prohibited as a condition of probation from owning, possessing, or having within his custody or control “any firearm or ammunition for the rest of [his] life under Section[s] 12021 and 12316[, subdivision] (b)(1) of the Penal Code.” (Kim, supra, 193 Cal.App.4th at p. 840.) On appeal, the defendant contended that the probation condition lacked a scienter requirement. This court concluded that “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 which is necessarily implied in the statute.” (Id. at p. 843.)
In contrast to Kim, the probation conditions at issue in this case do not explicitly reference statutory provisions that contain a scienter requirement. We shall therefore modify the probation conditions regarding controlled substances and paraphernalia by including a knowledge requirement. The knowledge requirement in the probation condition specified in the trial court’s oral pronouncement on October 15, 2010, is satisfied by inserting the word “knowingly” so that the condition states (italics showing change) as follows: “You must not knowingly possess any controlled substances or paraphernalia for the use or ingestion of drugs.” The knowledge requirement in the probation conditions specified in the trial court’s October 15, 2010 written probationorder is satisfied by inserting the word “knowingly” so that the conditions state (italics showing change) as follows: “Totally abstain from the knowing use of controlled substances and paraphernalia, ” and “Do not knowingly possess paraphernalia for the use of ingestion or injection of drugs.”
As we will explain below, the probation conditions concerning controlled substances must be further modified.
With respect to the probation condition prohibiting defendant from possessing indicia of drug sales, as we will explain below the condition is vague and the case must be remanded so that the trial court may modify this condition. We therefore do not address defendant’s contention that the probation condition should include an explicit knowledge requirement. To the extent defendant believes the probation condition requires a knowledge requirement following modification of the condition by the trial court on remand, he may raise that objection in the trial court in the first instance.
Controlled substances
Defendant’s probation conditions prohibit him from possessing or using controlled substances. On appeal, defendant contends that the term “controlled substances” must be “narrowed” to exclude medication that has been legally prescribed to him. He argues that he must have “ ‘fair warning’ of what actions will violate his probation.” He proposes that the probation conditions be modified to state that he not knowingly use or possesses any controlled substance “without the prescription of a physician.”
The Attorney General responds that the term “controlled substances” is not vague because, as defendant acknowledges, that term is defined in the Health and Safety Code. Further, to the extent defendant contends that the probation condition is overbroad, the Attorney General contends that “it is not necessarily so on its face. Given that prescription drugs, like illicit ones, can be abused, there is no basis to assume that the trial court did not intend to restrict [defendant’s] possession of all controlled substances.”
In reply, defendant states that the Attorney General’s argument “does not address [defendant’s] concern that possession of controlled substances for which he has a valid prescription would put him in violation of his probation” and that the “term must be narrowed to exclude such substances.”
We determine that the challenged probation conditions concerning controlled substances are written so broadly that they may prohibit defendant from possessing or using prescribed medication that is medically necessary. We ascertain no rehabilitative purpose in preventing defendant from utilizing necessary medication in accordance with a valid prescription. Therefore, we shall modify the probation conditions concerning controlled substances by adding an exception for prescribed medication that is medically necessary with notice to the probation officer. The controlled substances condition specified in the trial court’s oral pronouncement on October 15, 2010, shall state as follows (italics showing change and including the knowledge requirement specified above): “You must not knowingly possess any controlled substances or paraphernalia for the use or ingestion of drugs, except when medically necessary and in accordance with a valid prescription, and with notice to the probation officer.” The controlled substances condition specified in the trial court’s October 15, 2010 written probationorder shall state as follows (italics showing change and including the knowledge requirement specified above): “Totally abstain from the knowing use of controlled substances and paraphernalia, except when medically necessary and in accordance with a valid prescription, and with notice to the probation officer.”
Indicia of drug sales
As a condition of probation, defendant was ordered not to possess any “indicia of drug sales.” On appeal, defendant contends that the probation condition is vague and overbroad because “it fails to give the required ‘fair warning’ to [him] of what is prohibited and is not precise enough for [him] to know what he must avoid possessing.” Defendant argues that the probation condition gives the probation officer “unfettered discretion” to hold him in violation of probation based on the possession of “mundane objects” that may have legitimate uses, such as cellular phones, pagers, and “zip lock baggies.” He requests that the probation condition be modified to state that he not knowingly possess any materials “whose primary purpose is to be used in the sale of controlled substances.”
The Attorney General responds that the condition need not be modified. The Attorney General acknowledges that the possession of a single item, such as a cellular phone, “without more, may not support a finding that the phone is ‘indicia’ of drug sales, ” but that possession of the phone with a “pay-owe sheet” would be sufficient to support such a finding. The Attorney General also objects to defendant’s suggestion to include language concerning the item’s “primary purpose” in the probation condition. The Attorney General argues that an item may not have a “primary purpose” related to drug sales, but “in some instances” the item “may nonetheless constitute ‘indicia’ of drug sales.”
“[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders’ [citation], protections that are ‘embodied in the due process clauses of the federal and California Constitutions. [Citations.]’ [Citation.] The vagueness doctrine bars enforcement of ‘ “a statute which either forbids or requires the doing of an act in terms so vague that men [and women] of common intelligence must necessarily guess at its meaning and differ as to its application.” [Citation.]’ [Citation.] A vague law ‘not only fails to provide adequate notice to those who must observe its strictures, but also “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” [Citation.]’ [Citation.] In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that ‘abstract legal commands must be applied in a specific context, ’ and that, although not admitting of ‘mathematical certainty, ’ the language used must have ‘ “reasonable specificity.” ’ [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.)
In this case, we believe that the probation condition prohibiting defendant from possessing any “indicia of drug sales” is unconstitutionally vague. The condition does not adequately identify the items that may fall within the prohibition. Even the Attorney General acknowledges that a certain item may be an indication of drug sales in one context but the same item might not be an indication of drug sales in another context. The language of the probation condition does not provide reasonable specificity as to which items are prohibited in any given context. Further, as both parties observe, the probation condition potentially applies to objects commonly used in everyday life. To provide fair warning to defendant of the items that are prohibited and to prevent arbitrary enforcement, we determine that the probation condition requires modification.
We will not, however, order that the probation condition be modified to include language concerning the item’s “primary purpose, ” as proposed by defendant. As the Attorney General points out, an item’s primary purpose might not be related to drug sales, but the item might nevertheless be an indicator of drug sales. Defendant’s proposed modification may be too narrow to accomplish the trial court’s intended purpose in barring defendant from possessing items that are “indicia of drug sales.” We will remand this case to allow the trial court an opportunity to determine how the phrase “indicia [of] drug sales” should be modified, after reconsidering the purpose and need for the condition.
We make one final observation in this case. As we stated above, defendant did not raise any objection to the probation conditions in the trial court. Although some objections are not forfeited on appeal, defendant’s trial counsel should still raise in the trial court any objections to the probation conditions that counsel believes have merit. Particularly where an objection is based on established case law, providing the trial court with an opportunity in the first instance to address the objection may often eliminate the need by defendant to utilize appellate resources to address the issue, which furthers the interests of fiscal and judicial economy.
IV. DISPOSITION
The judgment (order granting probation) is reversed. The probation condition concerning controlled substances and paraphernalia, as specified in the trial court’s oral pronouncement on October 15, 2010, shall be modified to state as follows: “You must not knowingly possess any controlled substances or paraphernalia for the use or ingestion of drugs, except when medically necessary and in accordance with a valid prescription, and with notice to the probation officer.” The probation conditions specified in the trial court’s October 15, 2010 written probation order shall be modified to state as follows: “Totally abstain from the knowing use of controlled substances and paraphernalia, except when medically necessary and in accordance with a valid prescription, and with notice to the probation officer, ” and “Do not knowingly possess paraphernalia for the use of ingestion or injection of drugs.” The trial court is directed to hold a new sentencing hearing solely with respect to the probation condition prohibiting defendant from possessing any “indicia of drug sales.” The trial court shall reconsider the purpose and need for this probation condition, and after reconsideration it may impose a more specific condition as it deems necessary.
WE CONCUR: RUSHING, P.J., LUCERO, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.