Opinion
B162836.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. STEVEN A. NEJERA, Defendant and Appellant.
Janice Wellborn, 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, Jaime L. Fuster, Supervising Deputy Attorney General and Erin M. Pitman, Deputy Attorney General, for Plaintiff and Respondent.
In this appeal, we must decide whether the condition of Steven Najeras probation that he "stay away from places where users or sellers congregate" is void for vagueness. We find that it is, modify it, and otherwise affirm the judgment. In reaching this conclusion, we reject the Attorney Generals argument that Najera forfeited his right to raise the issue by failing to object to it in the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Najera pled nolo contendere to one count of possession of a controlled substance. (Health & Saf. Code § 11350.) Najera also admitted a prior conviction. The court suspended imposition of sentence and placed Najera on probation for three years. One condition of probation was that Najera "stay away from places where users or sellers congregate." Najera did not object to this probation condition in the trial court. This appeal followed.
DISCUSSION
Najera contends that the condition of probation that he "stay away from places where users or sellers congregate" is vague and overbroad, thereby violating his right to due process. The Attorney General argues that this claim is forfeited because Najera failed to raise it in the trial court. The Attorney General also maintains that "[a]s a matter of common sense, a place is out of limits under this condition only if there are some outward signs, of which appellant would be obviously aware upon seeing, that it is a meeting place for drug users."
It is clear that the failure to object, in the trial court, to the reasonableness of a probation condition results in waiver. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) "A timely objection allows the court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case." (Id. at p. 235.) However, as Justice Arabian explained in a concurring opinion, the reasonableness of a probation condition differs from the legality of a probation condition: "legal error in the imposition of probationary conditions can arise, implicating fundamental principles of policy and constitutional guaranties. In those limited circumstances, the prerequisite of an objection to appellate review would frustrate rather than subserve the interests of justice; and I do not understand the majority rule to impose such a formalistic impediment." (Id. at p. 241.)
Relying on Welch, Division Four of this court held that appellate review is proper where a defendant presents "`pure questions of law that can be resolved without reference to this particular sentencing record developed in the trial court." (People v. Justin S. (2001) 93 Cal.App.4th 811, 814, quoting People v. Welch, supra, 5 Cal.4th at p. 235.) Citing Welch, Division Five reached a different result, holding that constitutional objections must be made in the trial court to preserve the issue for appellate review. (In re Josue S. (1999) 72 Cal.App.4th 168, 171.) In People v. Gardineer (2000) 79 Cal.App.4th 148, 151-152, the Third District followed In re Josue S., holding that a constitutional challenge cannot be raised for the first time on appeal.
We agree with the reasoning and result in People v. Justin S., and apply it here. Review of the provision at issue in this case is a pure legal question and such review is consistent with the function of this court. (People v. Cromer (2001) 24 Cal.4th 889, 894, fn.1 ["appellate courts, by virtue of their position at or near the top of the judicial hierarchy, are better able to ensure that the law is construed and applied in the same way regardless of the specific case or the parties involved."].) It is also consistent with Welch as explained in Justice Arabians concurrence. In addition, present review of the probation condition will forestall a future claim of ineffective assistance of counsel. (See People v. Cox (1991) 53 Cal.3d 618, 682.)
We find persuasive Najeras argument that the provision requiring him to "stay away from places where users or sellers congregate" is unconstitutionally vague. In People v. Lopez (1998) 66 Cal.App.4th 615, the court explained the vagueness doctrine as follows: "The underlying concern of the vagueness doctrine is the core due process requirement of adequate notice: [& para;] . . . [¶] `[A] law that is "void for vagueness" 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.] [¶] A probation condition is subject to the `void for vagueness doctrine, and thus `must be sufficiently precise for the probationer to know what is required of him . . . . [Citations.]" (Id. at p. 630.)
The condition requiring Najera "stay away from places where users or sellers congregate" fails to provide adequate notice of the prohibited conduct because it is not clear where such persons congregate or what indicia are sufficient to show that a particular location is one where users or sellers congregate. The Attorney General reads an implicit knowledge requirement into the probation condition, but the constitution requires an explicit one. (People v. Garcia (1993) 19 Cal.App.4th 97, 102 ["[T]he rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, lead us to the conclusion that this factor should not be left to implication."].) Accordingly, we grant Najeras request to modify the probation condition. Because we find the probation condition to be void for vagueness, we do not consider the Najeras overbreath claim.
DISPOSITION
The probation condition requiring Najera to "stay away from places where users or sellers congregate" is modified to require Najera to "stay away from places known to you to be locations where users or sellers congregate." In all other respects, the judgment is affirmed.
We concur: RUBIN, J. and BOLAND, J.