Opinion
B162619.
7-31-2003
DIVISION EIGHT THE PEOPLE, Plaintiff and Respondent, v. MARY JANE SKVERSKY, Defendant and Appellant.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin and Lance E. Winters, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant contends the condition of her probation providing that she is not to associate with known drug users is invalid as applied to her co-defendant, who is also her fiance. We affirm.
STATEMENT OF THE CASE
Appellant, Mary Jane Skversky, along with co-defendant, Richard [* 2] Rosenfeld, was charge by information with the following: three counts of commercial burglary (Counts 1, 7 and 15, a violation of Pen. Code § 459 ); three counts of grand theft of personal property (Counts 2, 11, and 16, violation of § 487, subd. (a); five counts of forging and/or uttering a forged check (Counts 4, 5, 8, 9 and 17; a violation of § 476); two counts of defrauding an innkeeper (Counts 12 and 13; § 537, subd. (a)(2)); one count of theft involving a credit card (Count 14, violation of § 484e, subd. (d)); and one count of receiving stolen property (Count 19; a violation of § 496, subd. (a).)
Rosenfeld, appellants fiance and father of her child, was jointly charged in counts 1, 2, 7, 11-17, and 19. He was also charged with four additional counts. There was no count 10. Rosenfeld is not a party to this appeal.
All further undesignated statutory references will be to the Penal Code.
On June 8, 2001, pursuant to a plea agreement, appellant pleaded [* 3] no contest to Counts 2 (grand theft), 12 (defrauding an innkeeper), 14 (fraudulent use of an access card) and 17 (forgery.) All remaining counts were dismissed. In accordance with the terms of the plea agreement, the court suspended imposition of sentence and placed appellant on probation for 36 months, on various terms and conditions. Included in the conditions of probation were the following: appellant was not to associate with persons known to be narcotic or drug users or sellers, she was to cooperate in a plan for an AB 2034 program through Pacific Clinics, and was to submit to periodic anti-narcotic testing as directed by the programs.
There has been no objection to the imposition of drug conditions in general, although there are no drug convictions in this case. We are assuming for purposes of this appeal that appellant had substance abuse problems and the drug conditions were an agreed part of the disposition.
Appellant filed a timely notice of appeal from the judgment of conviction.
STANDARD OF REVIEW
Our courts have repeatedly said that probation is not a right but an act of "grace and clemency." In types of crimes where probation is permitted by statute the judge is vested with a wide discretion, which will not be disturbed in the absence of abuse. (People v. Hainline (1933) 219 Cal. 532, 534, 28 P.2d 16; People v. Mancha (1963) 213 Cal. App. 2d 590, 592, 29 Cal. Rptr. 72.)
A trial court may impose conditions of probation "as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer . . . ." (§ 1203.1, subd. (j).) The courts discretion is broad in this regard, but not absolute: a probation condition is valid unless it "(1) has no relationship to the crime of which the [defendant] was convicted, (2) relates to conduct [that] is not in itself criminal, and (3) requires or forbids conduct [that] is not reasonably related to future criminality . . . . [Citation.]" (People v. Lent (1975) 15 Cal.3d 481, 485-487, 124 Cal. Rptr. 905, 541 P.2d 545 (Lent); People v. Carbajal (1995) 10 Cal.4th 1114, 1121, 899 P.2d 67 (Carbajal).) We review a probation condition for abuse of discretion. (Carbajal, supra, at p. 1121; Lent, supra, at pp. 485-487.)
CONTENTIONS ON APPEAL
Appellant contends that the condition of probation prohibiting her from associating with known drug users is an improper infringement on the right to freedom of association. The complaint about the condition of probation is that it would preclude her association with her fiance who is the father of her child and also her co-defendant in this case. Respondent submits appellant waived the claim by not objecting for over a year after the condition had been imposed. They argue further that the probation condition is valid because it reasonably related to appellants rehabilitation and the protection of society.
DISCUSSION
Factual Background
On June 8, 2001, appellant pled no contest and was sentenced to probation. One of the conditions of probation was that appellant was to "not associate with persons known to be narcotic users or sellers."
Appellants interpretation is that this probation condition applies to her contact with Rosenfeld because he was identified as a narcotics user based on his probation condition that he remain in a 180-day live-in narcotics program.
On April 2, 2002, a hearing was held on appellants progress on probation. At the hearing, appellant requested permission to move in with Rosenfeld. The court told appellant that when she finished her parenting classes, she would be permitted to move in with her fiance and she was directed to bring proof of completion to the next progress hearing.
At the next hearing on June 20, 2002, appellant asked the court to remove the "stay away" order from Rosenfeld, with whom appellant had a child. The courts response was, "The more distance [sic] she is from Jessie Rosenfeld the better off she is. Thats why he went to prison and she didnt." He continued:
"In terms of you associating with him on a regular basis, I am not comfortable at this point that she has been clean and sober long enough that she can comfortably live around such a negative influence as Mr. Rosenfeld. I am not prepared to put him back in that house."
The court was then advised that appellant and Rosenfeld hoped to get married and were requesting some visitation. The court then stated:
"I am going to bring her back on a progress report. I can tell you that I feel so strongly that once she is once again involved [* 7] with Mr. Rosenfeld I am going to be taking her into custody. It is that strong. There is little doubt in my mind that he will once again immediately go back to the lifestyle that he finds comfortable and drag her with him. [P] . . . [P] So, I am not prepared to alleviate the stay away order. If you want to bring her back in a 6-month time frame or something and have probation check out the home situation and check out the situation with Mr. Rosenfeld and see whether or not they believe she can now be in his company without being, you know, led astray, that will be fine. I am more than happy to do it."
WAIVER
Respondent argues appellant has waived any challenge to the no-association condition of probation by failing to object when it was initially imposed. As a general rule, the failure to object, at the time the probationary conditions are imposed, waives a claim of error on appeal. (People v. Welch (1993) 5 Cal.4th 228, 237, 851 P.2d 802 (Welch).)
However, as the Supreme Court noted in People v. Smith (2001) 24 Cal.4th 849, citing Welch and other cases, "we have . . . created a narrow exception to the waiver rule for " unauthorized sentences" or sentences entered in "excess of jurisdiction."" [Citation.] Because these sentences could not lawfully be imposed under any circumstance in the particular case [citation], they are reviewable regardless of whether an objection or argument was raised in the trial and/or reviewing court. [Citation.] We deemed appellate intervention appropriate in these cases because the errors presented pure questions of law [citation] and were "clear and correctable" independent of any factual issues presented by the record at sentencing. [Citation.] In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable." (People v. Smith, supra, 24 Cal.4th 849 at p. 852.)
Although our Supreme Court has not addressed whether failure to object waives a constitutional challenge, the Courts of Appeal have concluded it does. (People v. Gardineer (2000) 79 Cal.App.4th 148, 151-152.)
Here appellants challenge to the association condition presents a pure question of law that requires consideration of only the language of the challenged condition; it does not require reference to the factual matters presented in the record. Therefore, it falls into the category of non-waivable claims. (People v. Smith , supra, 24 Cal.4th at p. 852; People v. Kacy (1998) 68 Cal.App.4th 704, 713 [Welch waiver rule did not preclude appellate review of over breadth-based challenge, raised for first time on appeal, to probation condition restricting probationers freedom of association]. (See also, In re Justin S. (2001) 93 Cal.App.4th 811.)
Additionally, "probation conditions that implicate constitutional rights must be narrowly drawn." (People v. Garcia (1993) 19 Cal.App.4th 97, 102). Therefore, review of the application of this probation condition to her association with Mr. Rosenfeld is reviewable to evaluate its scope.
ASSOCIATION WITH KNOWN DRUG USERS
The Penal Code grants the authority to the court to impose various conditions and terms upon granting a criminal defendant probation. (Pen. Code, § 1203.1 , subd. (j).) In this respect a condition imposed will only be invalid if 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.]" (People v. Lent, supra, 15 Cal.3d 481 at p. 486.)
Within these parameters the court has broad discretion to impose conditions of probation to foster rehabilitation and protect public safety. (People v. Carbajal, supra, 10 Cal.4th 1114 at pp. 1120-1121.) "The court may impose and require . . . [such] reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer . . . ." (§ 1203.1, subd. (j).) The general condition of appellants probation which raises the questions in this appeal is a general proscription against associating with known drug users. There was no objection made to the general proscription, only as it applied to Mr. Rosenfeld. If this condition of probation was imposed because the court determined that drug abuse was a cause of appellants criminal activity, then this general probation condition would withstand scrutiny.
The trial courts discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, section 1203.1 has been interpreted to require that probation conditions that regulate conduct "not itself criminal" be "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.) As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or ""exceeds the bounds of reason, all of the circumstances being considered."[Citations.]" (People v. Welch, supra, 5 Cal.4th at p. 234.)
Because probation conditions foster rehabilitation and protect the public safety, they may impinge upon the constitutional rights of the probationer, who is "not entitled to the same degree of constitutional protection as other citizens." (People v. Peck (1996) 52 Cal.App.4th 351, 362 (Peck).) As a result, it has been frequently held that restrictions placed upon the probationers right of association are permissible if reasonably necessary to accomplish the needs of the state. (People v. Robinson (1988) 199 Cal. App. 3d 816, 818, 245 Cal. Rptr. 50.)
In People v. Robinson (1988) 199 Cal. App. 3d 816, 817, 245 Cal. Rptr. 50, the court adopted the probation officers recommendation that "defendant not associate with anyone of known criminal record." The Court of Appeal affirmed holding:
"First, a condition that defendant avoid the company of those persons known to have a criminal record is related to her selling of cocaine. This court does not require a sociological study to establish that illegal drug dealers frequently possess lengthy criminal records. On the other hand, associating with persons known to have criminal records is not criminal conduct. Finally, the environment in which a probationer serves probation is an important factor on the likelihood that probation will be successfully completed. The challenged condition is reasonably related to avoidance of future criminality. By prohibiting defendant from associating with persons having a known criminal record, the court was placing a control over defendant that would assist her in successfully completing probation. [P] We hold that the challenged condition was permissible in the circumstances of this case. We also perceive no constitutional infirmity in the condition of probation." (Robinson, supra, 199 Cal. App. 3d at p. 818.)
ASSOCIATION WITH ROSENFELD
Within the guidelines set forth above, trial courts have broad discretion to impose conditions of probation. But, conditions, which restrict constitutional rights, are subject to special scrutiny to determine whether the restriction serves the goals of rehabilitation of the offender and protection of the public. Conditions of probation that "impinge on constitutional rights must be tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation . . . . [Citation.]" (People v. Delvalle (1994) 26 Cal.App.4th 869, 879.)
The United States Supreme Court has noted that marriage is " one of the basic civil rights of man, fundamental to our very existence and survival." (Loving v. Virginia (1967) 388 U.S. 1, 12, 18 L. Ed. 2d 1010, 87 S. Ct. 1817, citing Skinner v. Oklahoma (1942) 316 U.S. 535, 541, 86 L. Ed. 1655, 62 S. Ct. 1110.) Therefore, marriage as a basic civil right is entitled to constitutional protection. Accordingly, a condition of probation restricting marital association plainly implicates the constitutional rights of privacy, liberty and freedom of association and must be subjected to special scrutiny.
While discouraging a probationer from associating with former partners in crime is obviously related to the goal of rehabilitation, precluding association between marital partners is just as obviously an extreme restriction of liberty, even if the marital partners were once partners in crime. In this type of case, it is conceivable that a limitation on contact between marital partners might be justified by case-specific circumstances demonstrating actual necessity and the lack of less restrictive alternatives. In such a case, however, to avoid unnecessary intrusion on marital privacy, it would seem appropriate to tailor a close fit between the scope of the order restricting marital association and the specific needs of the case at hand.
We recognize that appellant and Rosenfeld are not yet married. However we are aware that there is an expressed intention to marry and the couple has a child together. Our research located a number of cases all approving relatively broad restrictions in cases dealing with fiances or girlfriends. (Eg. United States v. Bortels (6th Cir.1992) 962 F.2d 558; State v. Davis (Idaho App. 1984) 107 Idaho 215, 687 P.2d 998; State v. Donovan (Ariz. App. 1977) 116 Ariz. 209, 568 P.2d 1107.)
Most of the California cases that have considered the issue of the right of association with spouses and/or relatives have concluded that conditions restricting such association pass constitutional muster.
In People v. Celestine (1992) 9 Cal.App.4th 1370, 1375-82, the appellant contended the "do not associate" with his co-arrestee girlfriend probation condition was invalid. The challenged probation condition was held to satisfy the Lent test. Appellant having been convicted of cocaine possession and having made admissions that he was a cocaine user, it was within the discretion of the trial court to prohibit him from associating with other admitted cocaine users and suspected cocaine sellers such as his girlfriend, Juanita Johnson. (See also, People v. Robinson, supra 199 Cal. App. 3d 816, 245, 245 Cal. Rptr. 50; In re Peeler (1968) 266 Cal. App. 2d 483, 72 Cal. Rptr. 254.)
In People v. Lent, supra, 15 Cal.3d 481, the Supreme Court approved the holding in People v. Dominguez (1967) 256 Cal. App. 2d 623, 627, 64 Cal. Rptr. 290 where the court adopted a three-pronged test for assessing the validity of probation conditions. "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.]" (People v. Lent,supra , 15 Cal.3d at p. 486.)
In People v. Wardlow (1991) 227 Cal. App. 3d 360, 278 Cal. Rptr. 1, Wardlow pleaded guilty to four counts of child molesting. On appeal, he challenged conditions imposed on his probation involving a prohibition against associating with two of his brothers [no contact directly or indirectly]. Wardlow contends this condition was overbroad and not reasonably related to his crimes. The record, however, showed these brothers not only had a past history of molesting children, but also, at the time of Wardlows sentencing, faced additional charges of child molestation. One of these brothers, James, charged as a codefendant, had molested some of the same children under the same circumstances and had, in Wardlows estimation, been the reason why Wardlow himself was a child molester. The Fourth District Court of Appeal held:
"Conditions of probation prohibiting an individual from associating with other persons including spouses and close relatives, who have been involved in criminal activity have generally been upheld when reasonably related to rehabilitation or reducing future criminality. (See In re Peeler, supra, 266 Cal. App. 2d 483 [spouse]; State v. Donovan (1977) 116 Ariz. 209 ; Isaacs v. State (Fla.App. 1977) 351 So. 2d 359 [brother]; Edwards v. State (1976) 74 Wis.2d 79 ; Annot. (1980) 99 A.L.R.3d 967 [prospective spouse]. [P] Here, the condition related to two persons who were repeat child molesters. Keeping Wardlow from associating with other child molesters was reasonably related to rehabilitation and future criminality, particularly since Wardlow, himself, believed he had become a child molester because his brother had molested him. The condition was not overbroad; the court tailored the condition narrowly to include only those family members who were child molesters. We find no abuse in the imposition of this condition." (People v Wardlow, supra, 227 Cal. App. 3d at p. 367, 484, 488, emphasis added.)
In re Peeler, supra, 266 Cal. App. 2d 483, 484, 488, the appellant pled guilty to possession of marijuana. She later petitioned for a modification of probation because she had married after the plea, but before sentencing and certain of her probation conditions were "inimical to her status as a married woman." The trial court modified her probation to provide that she was not to associate with known or reputed users of drugs. Compliance with the condition was "effectually, a command that she live apart from her husband."
"Our detailed summary of facts has served its purpose if it has given a picture of the brink of the precipice upon which this petitioner precariously is perched. Whether she was or is a good or poor risk for probation-for self— rehabilitation—only time can tell. The trial judge was doubtful. After a close study of this record we share his doubts. Petitioners repetition of the offense after arrest and her tendency to minimize her involvement with narcotics do not augur well for this girls chances. Yet she has been given that chance. The conditions imposed under the original order of probation were designed by the trial court to aid petitioner in the difficult course she faces. This reviewing court is of the opinion that they were reasonably designed. A new fact arose. Placing to one side for the moment petitioners marriage and its effect upon the courts powers, that new fact is this: petitioner is consorting with and proposes now to live with a person presently charged with involvement in the narcotics traffic much more seriously than petitioner is thought to be. Peeler faces trial imminently for alleged offenses such that if he is found guilty as charged will stamp him as a young man up to his neck in the narcotics traffic. We have no doubt whatever that the facts before the court justified the imposition of the new conditions of probation—again begging the marital status question.
"We now turn to a discussion of the validity of the order in the context of the fact of that marriage. [P] . . . [P] The trial court here has not severed the marital union of petitioner and Peeler. Had it denied or revoked probation it would have more permanently affected the probability of the durability of the marriage. . . .
"We have not lost sight of the eventual acquittal of the presumptively innocent husband, with his ability to demonstrate that he is a fit consort for this petitioner, plus petitioners own development of a mature sense of responsibility which will permit the court again to modify the terms of probation to the end that petitioner and her husband may live happily ever after.
"We hold that under the peculiar circumstances of this case the conditions imposed by the court were reasonable and valid pro tempore. (The terms imposed insofar as they affect the marital status of this couple are temporary.) Our ruling does not extend to a blanket endorsement by this court of the separation of husbands and wives as a condition of probation under all circumstances. Decision must be on a case-by-case basis. (In re Peeler, supra, 266 Cal. App. 2d at pp. 491-493.)
The conclusion reached is that restriction on association with criminal partners, whether they are marital partners or otherwise is allowable. The restriction on appellant here, while seemingly onerous, puts the key to relief in the hands of appellant and her fiance. The court expressed a willingness to monitor the progress of this appellant to see whether a modification or elimination of this condition would be appropriate in the future. We find no basis on which to strike or modify the condition of probation that is the subject of this appeal.
DISPOSITION
The order of the trial court is affirmed.
We concur: RUBIN, J., BOLAND, J.