Opinion
H044887
05-16-2018
THE PEOPLE, Plaintiff and Respondent, v. ABEL JUAN PEREZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS161262)
I. INTRODUCTION
Defendant Abel Juan Perez pleaded no contest to making a criminal threat (Pen. Code, § 422, subd. (a)), false imprisonment by violence (§ 236), dissuading a witness (§ 136.1, subd. (a)(1)), and distributing an intimate image (§ 647, subd. (j)(4)(A)). The trial court suspended imposition of sentence and placed defendant on probation for three years.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that three conditions of probation are unconstitutionally overbroad: (1) a restriction on defendant's attendance at certain court proceedings; (2) a requirement that defendant seek and maintain gainful employment or enroll as a full-time student; and (3) a requirement that defendant waive "all" physician/patient privileges to allow his probation officer to obtain information about his prescriptions and dosages. For reasons that we will explain, we will modify the probation condition concerning court proceedings, modify the probation condition concerning employment, and order the probation condition concerning defendant's physician/patient privilege corrected to reflect the trial court's oral pronouncement. As modified, we will affirm the order of probation.
II. BACKGROUND
As defendant was convicted by plea, the summary of his offenses is taken from the probation report. --------
At approximately 11:47 a.m. on July 31, 2016, Jane Doe reported that defendant had forced her to accompany him into his vehicle earlier that day. Doe had obtained a restraining order against defendant in February 2016.
The day before, defendant had asked Doe to bring him lunch at his workplace. Doe instead made defendant a lunch and left it outside of her residence. Defendant became angry and sent Doe threatening texts such as, "See what happens when I get a hold of you; watch."
At about 11:00 a.m. on July 31, 2016, defendant appeared at Doe's residence and verbally threatened her until she got into his vehicle. While driving, defendant became angry because Doe would not answer his questions, and he slapped her repeatedly in the face. When defendant tried to take Doe's cell phone from her, she jumped out of the vehicle. The car was moving at approximately 55 miles per hour. Defendant drove off, returned, then left again after he saw other motorists had stopped to help Doe. Defendant then texted Doe, asking her not to make him go to jail, to tell him what she had told the police, and to not press charges against him. Doe was treated at a local hospital for road rash on her back, right shoulder, right hip, left elbow, feet and ankles. She also suffered a broken toe.
Defendant was transported to the Salinas Police Department for questioning. Defendant acknowledged the text messages that he had sent Doe could cause her to fear for her safety because she had known him since he was a Norteño Acosta Street criminal street gang member. Defendant also later admitted that he had posted a "sex tape," which featured Doe naked, to an online site while he and Doe were in his vehicle the morning of July 31, 2016.
B. Procedural History
On September 23, 2016, defendant was charged with kidnapping (§ 207, subd. (a); count 1), making a criminal threat (§ 422, subd. (a); count 2), false imprisonment by violence (§ 236; count 3), dissuading a witness (§ 136.1, subd. (a)(1); count 4), stalking (§ 646.9, subd. (a); count 5), resisting arrest (§ 148, subd. (a)(1); count 6), violating a protective order (§ 166, subd. (c)(1); count 7), distribution of an intimate image (§ 647, subd. (j)(4)(A); count 8), and battery on a cohabitant (§ 243, subd. (e)(1); count 9).
On March 28, 2017, defendant pleaded no contest to making a criminal threat (count 2), false imprisonment by violence (count 3), dissuading a witness (count 4), and distributing an intimate image (count 8).
Prior to the sentencing hearing, defendant disclosed to his probation officer that he had been diagnosed with bipolar disorder and schizophrenia and that he had been taking Seroquel to treat his symptoms.
On May 30, 2017, the trial court suspended imposition of sentence and placed defendant on probation for three years. The court imposed a number of probation conditions, including three that defendant contends are overbroad.
The first challenged probation condition provides: "You should not be present in any criminal court proceeding where a member of a criminal street gang is present or the proceeding concerns a member of a criminal street gang, unless you are a party, you're a defendant in a criminal action, or you're subpoenaed as a witness, or you have prior permission of your probation officer."
For the second challenged probation condition, the trial court orally stated that defendant must "[s]eek and maintain gainful employment or become enrolled as an active full time student." The signed minute order provides that defendant must "[s]eek and maintain gainful employment or become enrolled as a full-time student as available." (Italics added.)
For the third challenged probation condition, the trial court orally stated, "You are to waive the physician/patient privilege to allow your probation officer information on the prescriptions and the dosages that you are being provided." (Italics added.) The signed minute order provides that "[t]he Defendant is to waive all physician/patient privileges to allow the Probation Officer information regarding prescription use and dosage." (Italics added.)
III. DISCUSSION
Defendant contends that three probation conditions imposed by the trial court are unconstitutionally overbroad: (1) the restriction on defendant's attendance at certain court proceedings; (2) the requirement that defendant seek and maintain gainful employment or enroll as a full-time student; and (3) the requirement that defendant waive "all" physician/patient privileges to allow his probation officer information on his prescriptions and dosages.
A. Standard of Review and Overbreadth
"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.) A restriction is unconstitutionally overbroad if it "(1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' [Citations.]" (In re E.O. (2010) 188 Cal.App.4th 1149, 1153 (E.O.).) "The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (Id. at p. 1153.) We review constitutional challenges to a probation condition de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
B. Restriction on Court Proceedings
Defendant contends that the first of the probation conditions at issue prevents defendant from attending a gang-related court proceeding: (1) if he or an immediate family member is a victim; (2) to testify voluntarily or address the court in a setting, such as a sentencing hearing, where comments from members of the public might be received; or (3) to address the court if asked to do so by a party's attorney.
Defendant contends that this condition is overbroad because it impermissibly interferes with his constitutional right of access to the courts and must be either stricken or revised to mirror a probation condition suggested by this court in E.O., supra, 188 Cal.App.4th 1149.
"[T]he right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances." (Bill Johnson's Restaurants, Inc. v. NLRB (1983) 461 U.S. 731, 741.) "[I]n general, the First Amendment right of access applies to civil proceedings as well as to criminal proceedings." (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1209.) However, restrictions on court attendance have been "upheld as 'aimed at preventing the gathering of gang members to intimidate witnesses at court proceedings.' " (E.O., supra, 188 Cal.App.4th at p. 1156.)
In E.O., the minor challenged, as overbroad, a probation condition directing him to " 'not knowingly come within 25 feet of a Courthouse' " when he knows gang related proceedings are occurring. (E.O., supra, 188 Cal.App.4th at p. 1152.) The minor was allowed court access if he was " 'a party in the action or subpoenaed as a witness or needs access to the area for a legitimate purpose or has prior permission from his Probation Officer.' " (Ibid.) The minor argued that the probation condition "unnecessarily infringe[d] his specific right under the state Constitution to attend and participate in court proceedings if he or a family member is a victim of a crime. [Citations.]" (Id. at p. 1155.) This court agreed, explaining that "[t]he condition not only interfere[d] with these rights, but would also prevent [the minor] from testifying voluntarily or addressing the court in a setting, such as a sentencing hearing, where comments from members of the public might be received." (Ibid.) In addition to striking the condition, this court suggested appropriate language if the trial court found the condition necessary on remand. (Id. at p. 1157, fn. 5.) This court suggested the probation condition be revised to provide: "You must not attend any gang-related case unless at least one of these things is true: [¶] (1) You are a party to the case. [¶] (2) You or a member of your immediate family is a victim of the activity charged in the case. [¶] (3) You are there to obey a subpoena, summons, court order, or other official order to attend. [¶] (4) A party's attorney has asked you to testify or to speak to the court." (Ibid.)
The Attorney General contends that the probation condition is adequate as written because defendant can seek the permission of his probation officer to attend court proceedings. However, defendant points out that the probation condition in E.O. was not "saved by virtue of the possibility that the probation officer might grant permission to enter the courthouse." (See E.O., supra, 188 Cal.App.4th at p. 1152.)
Here, as in E.O., defendant's probation condition lacks an exception for him to attend and participate in court proceedings if he or a family member is a victim of a crime. To prevent overbreadth, we will order modification of the condition as noted in italics: "You should not be present in any criminal court proceeding where a member of a criminal street gang is present or the proceeding concerns a member of a criminal street gang, unless you are a party, you're a defendant in a criminal action, or you're subpoenaed as a witness, you or a member of your immediate family is a victim of the activity charged in the case, a party's attorney has asked you to testify or speak to the court, or you have prior permission of your probation officer." (See E.O., supra, 188 Cal.App.4th at p. 1157, fn. 5.)
C. Requirement of Employment or Student Enrollment
Defendant contends that the probation condition requiring him to "[s]eek and maintain gainful employment or become enrolled as an active full time student" is overbroad because it fails to account for lack of opportunity. Although the clerk's minute order provides that defendant must "[s]eek and maintain gainful employment or become enrolled as a full-time student as available," the trial court's oral pronouncement did not include the "as available" language. Generally, the trial court's oral pronouncement of judgment controls over the clerk's minute order. (See People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073 (Gabriel).)
Defendant argues that the probation condition as orally stated by the trial court "does not make clear that [defendant] can succeed by seeking employment, and maintaining employment that is available or by seeking full time enrollment in a school that he can afford." Defendant contends that "success or failure should hinge on effort rather than outcome," and he requests that the condition be modified to include language that will give him notice of what is required of him to satisfy the condition. We consider defendant's claim to be a vagueness challenge rather than one of overbreadth.
A restriction is unconstitutionally vague if it is not " ' "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." ' [Citations.]" (E.O., supra, 188 Cal.App.4th at p. 1153.) "A probation condition should be given 'the meaning that would appear to a reasonable, objective reader.' [Citation.]" (People v. Olguin (2008) 45 Cal.4th 375, 382.) "[T]he probation condition should be evaluated in its context, and only reasonable specificity is required. [Citation.]" (People v. Forrest (2015) 237 Cal.App.4th 1074, 1080.) "Merely because a condition could have been drafted with more precision does not make it unconstitutional. [Citation]" (People v. Holzmann (2018) 18 Cal.App.5th 1241, 1246.)
The Attorney General contends it is unnecessary to modify the condition to include the phrase "as available" arguing that the reasonable and practical interpretation of the probation condition is that defendant "must use his best efforts to maintain gainful employment or to attend school." (See People v. Hall (2017) 2 Cal.5th 494, 565 [a probation condition should not be invalidated as unconstitutionally vague if any reasonable and practical construction can be given to its language].) The Attorney General argues that the "as available" modifier is implied, and points out that the signed minute order included the "as available" language.
Even if doing so is not strictly necessary, we will order the condition modified to reflect the addition of the "as available" language to give defendant clear notice of what is required of him. (See E.O., supra, 188 Cal.App.4th at p. 1153.)
D. Waiver of Physician / Patient Privilege
Defendant contends that the requirement he waive all physician/patient privileges, as stated in the signed minute order, is overbroad. The minute order states that "[t]he Defendant is to waive all physician/patient privileges to allow the Probation Officer information regarding prescription use and dosage." (Italics added.) However, the trial court had orally ordered, "You are to waive the physician/patient privilege to allow your probation officer information on the prescriptions and the dosages that you are being provided." (Italics added.) Defendant does not object to and "takes no issue with the condition as orally stated by the trial court."
This court need not reach defendant's argument that the condition is overbroad based on the word "all," as generally "[w]hen there is a discrepancy between the minute order and the oral pronouncement of judgment, the oral pronouncement controls. [Citation.]" (Gabriel, supra, 189 Cal.App.4th at p. 1073.) Thus, we will modify the probation condition to reflect the trial court's oral pronouncement: "Y ou are to waive the physician/patient privilege to allow your probation officer information on the prescriptions and the dosages that you are being provided." (Italics added; see People v. Rowland (1988) 206 Cal.App.3d 119, 123 ["If the judgment entered in the minutes fails to reflect the judgment pronounced by the court, the error is clerical, and the record can be corrected at any time to make it reflect the true facts."].)
IV. DISPOSITION
The probation condition that provides: "You should not be present in any criminal court proceeding where a member of a criminal street gang is present or the proceeding concerns a member of a criminal street gang, unless you are a party, you're a defendant in a criminal action, or you're subpoenaed as a witness, or you have prior permission of your probation officer," is modified to provide: "You should not be present in any criminal court proceeding where a member of a criminal street gang is present or the proceeding concerns a member of a criminal street gang, unless you are a party, you're a defendant in a criminal action, or you're subpoenaed as a witness, you or a member of your immediate family is a victim of the activity charged in the case, a party's attorney has asked you to testify or speak to the court, or you have prior permission of your probation officer." The trial court is directed to prepare an amended minute order for the May 30, 2017 sentencing hearing that reflects the above modification.
The probation condition that provides: "Seek and maintain gainful employment or become enrolled as an active full time student," is modified to provide: "Seek and maintain gainful employment or become enrolled as a full-time student as available."
The trial court shall also amend the minute order to reflect the probation condition concerning defendant's physician/patient privilege as orally pronounced at the sentencing hearing. The probation condition that provides: "The Defendant is to waive all physician/patient privileges to allow the Probation Officer information regarding prescription use and dosage," is modified to provide: "You are to waive the physician/patient privilege to allow your probation officer information on the prescriptions and the dosages that you are being provided."
As modified, the order of probation is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.