Opinion
C083500
03-28-2018
THE PEOPLE, Plaintiff and Respondent, v. KISHA DONNETTE SANDERS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CM044175)
Defendant Kisha Donnette Sanders pleaded no contest to forgery related to an item exceeding $950 (Pen. Code, § 475, subd. (a)) and was sentenced to 365 days in county jail followed by a period of mandatory supervision. Among other terms and conditions of mandatory supervision, defendant was required to maintain her residence as approved by the probation officer and to not change her residence without the prior written approval of the probation officer; she was also required to refrain from residing in a living environment that she knew had not been approved by her probation officer as a clean and sober living environment. The court further ordered that defendant report to her probation officer, no later than the next working day, any arrests or any contacts with or incidents involving any peace officer.
Undesignated statutory references are to the Penal Code.
Although she did not object to any of the conditions below, defendant contends on appeal that (1) both residency-approval conditions are vague, (2) the condition requiring the probation officer's written approval before changing her residence is overbroad, and (3) the police-contact condition is both vague and overbroad. She also contends that (4) her counsel was constitutionally ineffective for failing to object to the conditions limiting her to a residence approved by the probation officer and requiring her to report any police contact as unreasonable. The People concede the police-contact condition as worded is vague and overbroad requiring remand, but otherwise dispute defendant's appellate contentions.
We agree the police-contact condition is unconstitutionally vague and overbroad. We conclude the residency-approval conditions are not vague, but that the condition requiring the probation officer's approval of defendant's residence and any changes to her residence is overbroad because there are no limits on the probation officer's discretion to withhold approval of defendant's choice of residence. We order the matter remanded to the trial court to modify the conditions consistent with this opinion.
FACTS AND PROCEEDINGS
The parties stipulated to a factual basis for the plea as recounted in the probation report. According to the probation report, on January 1, 2016, a California Highway Patrol officer stopped a car driven by Jessica Marie Gomes on Highway 99 in Chico. Gomes said the car belonged to defendant.
When Gomes opened the glove box to search for the vehicle registration and proof of insurance, the officer observed several $100 bills. The car's steering column was "cracked open," and it was subsequently determined that the car had been stolen. Inside the car officers found cash, including several $100 bills, stuffed behind the glove box, a used ignition lock in the center console, a shaved Honda ignition key, multiple retail store receipts, and documents belonging to defendant. The money was later determined to be counterfeit.
After reviewing surveillance video footage of Gomes purchasing items at several stores with $100 bills, officers retrieved a $100 bill from one of the stores and determined it was counterfeit. A search of a hotel room defendant shared with Gomes revealed cards inscribed with defendant's name, six $100 bills, one $5 bill, and counterfeiting materials. All of the money was determined to be counterfeit.
Defendant was arrested after she attempted to flee the hotel room. She told the officers that she had bought the car for $800 from "Natasha." Defendant also claimed that the counterfeit bills and counterfeiting materials belonged to Gomes. Evidence showed that the counterfeit currency may have been used at several different stores.
Natasha Breedlove later told an officer that she had introduced defendant to a friend named "Johnny" who sold defendant the car. According to Breedlove, after the transaction Johnny called Breedlove to complain that defendant had paid for the car with counterfeit money.
Defendant was charged in an amended complaint with taking a vehicle without consent (Veh. Code, § 10851, subd. (a)); receiving stolen property, a motor vehicle, (§ 496d, subd. (a)); and forgery exceeding $950 (§ 475, subd. (a)). In exchange for a maximum sentence of three years, defendant pleaded no contest to the forgery charge and the court dismissed the remaining charges with a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754.
The court sentenced defendant to the upper term of three years, with the first 365 days to be served in the county jail, and with the final 731 days to be served on mandatory supervision. The court imposed various terms and conditions of supervision, including conditions concerning residency approval and police contact reporting requirements. She did not object to any of the conditions as imposed. Defendant timely appealed, challenging only the validity of certain mandatory supervision conditions and not the validity of the underlying plea.
DISCUSSION
I
Conditions of Mandatory Supervision
Defendant challenges three conditions of mandatory supervision, arguing the conditions are unconstitutionally vague, overbroad, or both. General condition No. 4 and special condition No. 38 both contain residency approval requirements. General condition No. 13 contains a police contact reporting requirement. She did not object to any of the conditions below. A. Forfeiture
Preliminarily, we note that the failure to make a timely objection to a probation condition generally forfeits the claim of error on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 881 (In re Sheena K.).) A claim that a probation condition is facially overbroad and violates fundamental constitutional rights that is based on undisputed facts may be treated as a question of law which is not forfeited by failure to raise it in the trial court. (Id. at pp. 888-889 [probation condition prohibiting the defendant from associating with " 'anyone disapproved of by probation' " was vague and overbroad despite lack of objection in the trial court].)
Defendant impliedly asserts, and the People appear to agree, that her constitutional vagueness and overbreadth challenges to the three conditions are not forfeited despite the lack of objection below because the conditions present a pure question of law turning on undisputed facts. We shall therefore consider defendant's constitutional challenge to each condition. B. Standard of Review
By contrast, defendant concedes her reasonableness challenges to condition No. 4 and condition No. 13 have been forfeited given her argument that her trial counsel was ineffective for failing to object on reasonableness grounds. (People v. Welch (1993) 5 Cal.4th 228, 234-238 [extending the forfeiture rule to a claim that probation conditions are unreasonable when the defendant fails to object on that ground in the trial court]; In re P.O. (2016) 246 Cal.App.4th 288, 294 ["The failure to object that a probation condition is unreasonable under [People v.] Lent [(1975)] 15 Cal.3d 481 generally forfeits the contention on appeal"].)
Before considering the merits of defendant's claims, however, we first address the People's argument regarding the proper standard to apply when evaluating a condition of mandatory supervision. Although "[s]ection 1170, subdivision (h)(5)(B)(i), provides that a defendant ordered to mandatory supervision ' "shall be supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation," ' " (People v. Relkin (2016) 6 Cal.App.5th 1188, 1193 (Relkin)), courts have found that "the Legislature has decided a county jail commitment followed by mandatory supervision imposed under section 1170, subdivision (h), is akin to a state prison commitment; it is not a grant of probation or a conditional sentence." (People v. Fandinola (2013) 221 Cal.App.4th 1415, 1422.)
Relying on the above quoted language, the People argue that the Fourth Amendment test for reasonableness articulated in Bell v. Wolfish (1979) 441 U.S. 520, 559 (Bell) should apply when determining the validity and reasonableness of mandatory supervision conditions because the supervisee is still serving a prison commitment and is not on probation or parole. As articulated in Bell, the test of reasonableness under the Fourth Amendment "requires a balancing of the need for the particular search against the invasion of personal rights that the search entails . . . consider[ing] the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." (Bell, at p. 559.) Applying that test, Bell concluded that visual body cavity searches of inmates after visits from someone outside a correctional facility were reasonable despite being personally invasive given the facility's legitimate security concerns about inmates trying to smuggle drugs, money, weapons, and other contraband into the facility. (Id. at pp. 558-559.) In the People's view, the Bell test allows for conditions of mandatory supervision to be more restrictive than probation and parole conditions.
The People concede, however, that most courts have evaluated the validity of mandatory supervision conditions under the test articulated in People v. Lent (1975) 15 Cal.3d 481 (Lent), which has been applied to both probation conditions and parole conditions. (See, e.g., People v. Martinez (2014) 226 Cal.App.4th 759, 762-763 (Martinez); In re Stevens (2004) 119 Cal.App.4th 1228, 1233 ["The criteria for assessing the constitutionality of conditions of probation also applies to conditions of parole."].) Under the Lent test, a probation or parole condition " '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. . . ." ' " (Martinez, at p. 764, citing Lent, at p. 486.) "This test is conjunctive--all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin).)
Recently in Relkin, this court analyzed conditions of supervised release using the Lent test even after acknowledging that mandatory supervision does not constitute probation or a conditional sentence. (Relkin, supra, 6 Cal.App.5th at p. 1194.) We see no reason to depart from Relkin, especially since as defendant points out, the person released on mandatory supervision is, by definition, not confined. (Id. at p. 1194; see also Martinez, supra, 226 Cal.App.4th at p. 763.) This feature of mandatory supervision distinguishes it from actual prison incarceration where Bell's Fourth Amendment reasonableness test applies and makes it more similar to parole--where a parolee is released from actual confinement but is still constructively a prisoner subject to correctional authorities. (Martinez, at p. 763.) Like in Relkin, we analyze the mandatory supervision conditions challenged here under the same standards applied to parole conditions.
Trial courts generally have "broad discretion in fashioning terms of supervised release, in order to foster the reformation and rehabilitation of the offender, while protecting public safety." (Martinez, supra, 226 Cal.App.4th at p. 764.) The imposition of any particular condition is subject to review for abuse of discretion. (Ibid.) " 'As with any exercise of discretion, the court violates this standard when it imposes a condition of probation that is arbitrary, capricious or exceeds the bounds of reason under the circumstances.' " (Ibid.)
Supervised release conditions are further circumscribed by constitutional considerations. The Lent test "may be supplemented by a second level of scrutiny: where an otherwise valid condition of probation impinges on constitutional rights, such conditions must be carefully tailored, [and] ' "reasonably related to the compelling state interest in reformation and rehabilitation . . . ." ' " (People v. Bauer (1989) 211 Cal.App.3d 937, 942 (Bauer).) " '[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.' " (Olguin, supra, 45 Cal.4th at p. 384.) A restriction " 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated' " to withstand a vagueness challenge. (In re Sheena K., supra, 40 Cal.4th at p. 890; see also Relkin, supra, 6 Cal.App.5th at p. 1194.) Whether such a condition is vague or overbroad presents a question of law, which we review de novo. (Martinez, supra, 226 Cal.App.4th at p. 765.) C. Residency-approval Conditions (General Condition No. 4 & Special Condition No. 38)
A citizen has a basic constitutional right to interstate and intrastate travel, including the right to live where one chooses. (In re White (1979) 97 Cal.App.3d 141, 148; In re E.J. (2010) 47 Cal.4th 1258, 1295 ["a restriction on where an ex-offender may live infringes upon that person's right to intrastate travel, which includes as one component the right to choose where to live and not to live"]; People v. Beach (1983) 147 Cal.App.3d 612, 622.) "Many other fundamental rights such as free speech, free assembly and free association are often tied in with the right to travel." (Beach, at p. 622.)
In this case, the trial court imposed two conditions restricting defendant's choice of residence. General condition No. 4 provides that defendant "must maintain [her] residence as approved by the probation officer and not change [her] residence without the prior written approval of the probation officer." Special condition No. 38 states that defendant must "[r]efrain from residing in a living environment that you know has not been approved by your probation officer as a clean and sober living environment."
Defendant contends the conditions are unconstitutionally vague because they purportedly contradict each other regarding whether she must seek permission to change residences. She urges us to strike condition No. 4 in order to make special condition No. 38 reasonably specific by eliminating any contradiction between the two conditions. We disagree.
The due process concept of "fair warning" underlies a vagueness challenge. (In re Sheena K., supra, 40 Cal.4th at p. 890.) "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. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).' " (Ibid.)
"The vagueness doctrine bars enforcement of ' "[a supervision condition] which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." [Citation.]' " ( In re Sheena K., supra, 40 Cal.4th at p. 890.) A vague condition " '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.]' " (Ibid.) When determining the adequacy of any notice afforded those bound by a legal restriction, we recognize 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." ' " (Ibid.)
Here, general condition No. 4 mandates that defendant obtain her probation officer's written approval before changing her residence. Special condition No. 38 requires her to refrain from living in a residence that she knows her probation officer has not approved as a safe and sober living environment. The language of both restrictions is sufficiently clear to determine whether defendant has complied with the conditions.
Rather than contradict one another as defendant contends, the conditions work in tandem. Because she must seek approval before moving and cannot knowingly live any place that her probation officer has not approved as a safe and sober living environment, defendant can easily comply with both conditions by ensuring that the probation officer's written approval to move acknowledges that the new residence qualifies as a safe and sober living environment.
Defendant's overbreadth challenge to general condition No. 4, however, is different. " '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.' " (People v. Stapleton (2017) 9 Cal.App.5th 989, 993.)
Defendant does not contend that special condition No. 38 is overbroad. --------
Defendant argues that the condition is overbroad because it places no limits on the probation officer's discretion to deny her permission to live in the residence of her choice. She analogizes the condition to a similar one struck down on overbreadth grounds in Bauer, supra, 211 Cal.App.3d at page 944. There, the probation condition required the defendant to obtain his probation officer's approval of his residence (id. at p. 940), and appeared to be designed to prevent the defendant from living with his overprotective parents. (Id. at p. 944.) In striking the residence-approval condition, the court concluded that the condition impinged on the right to travel and freedom of association, and was extremely broad since it essentially gave the probation officer the power to "banish him" from living with his parents. (Ibid.)
Defendant also cites People v. O'Neil (2008) 165 Cal.App.4th 1351, 1356 (O'Neil). In O'Neil, the court disapproved a probation condition prohibiting the defendant from associating with any person designated by the probation department, finding that it was a broader than necessary impingement on the defendant's First Amendment right of association. (Id. at pp. 1355-1359.) The condition contained no standard by which the probation department was to determine the class of people with whom the defendant could or could not associate. (Id. at pp. 1357-1359.) The court explained that a trial court "may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation" but "the court's order cannot be entirely open-ended." (Id. at pp. 1358-1359.) "Without a meaningful standard, the order is too broad and it is not saved by permitting the probation department to provide the necessary specificity." (Id. at p. 1358, fn. omitted.)
The challenged condition here is similar to those struck down in Bauer and O'Neil. General condition No. 4 is untailored and overbroad because it gives the probation department absolute power to approve or disapprove defendant's residence. In other words, as written the condition gives the probation officer unfettered discretion to disapprove defendant's choice of residence for any reasons, or for no reason at all. There is simply nothing in the plain language of the condition that purports to place any limit on such unbridled discretion.
In an attempt to salvage the overbroad language, the People argue that the condition does not permit the probation officer to arbitrarily and capriciously disapprove defendant's choice of residence. But courts have rejected the notion that a constitutionally overbroad probation condition may be upheld on the presumption the probation officer will behave reasonably in enforcing the condition.
In People v. Leon (2010) 181 Cal.App.4th 943, 946, 952-953, for example, the court rejected the argument that a probation officer would judiciously enforce a probation condition that prohibited the defendant, who pleaded no contest to several drug possession offenses and admitted a criminal street gang enhancement, from going to court unless he was a party, subpoenaed as a witness, or had the probation officer's permission. In doing so, the court reasoned, "[w]hile the trial court might expect the probation officer to routinely grant permission to defendant to be present at a court proceeding or courthouse unless defendant appeared to have an unlawful purpose, a gang-related purpose, or some other purpose related to future criminality, the probation condition [did] not provide this standard for granting or withholding approval." (Id. at p. 954.) In O'Neil, supra, 165 Cal.App.4th at p. 1358, the court noted that "[w]hile the [trial] court may well have anticipated that the probation officer would specify individuals known to be using or dealing in illicit drugs [for the condition authorizing the probation officer to designate those with whom the defendant could not associate] . . . 'this factor should not be left to implication.' "
The People's argument that defendant's purported transient lifestyle justifies the condition as written is likewise unpersuasive. According to the probation report, defendant has lived with her grandmother and minor daughter at the same residence for the five years preceding her conviction in this case. After her arrest, she obtained gainful employment and her employer spoke on her behalf at the sentencing hearing.
Like the probation conditions in Bauer, O'Neil, and Leon, the condition imposed here is unlimited. It essentially allows the probation officer to banish defendant by forbidding her to live with her family even though such a prohibition may have no relationship to the state's interest in reforming and rehabilitating her. As expressly written, condition No. 4 is overbroad and unconstitutionally infringes on defendant's rights of association and travel.
It is one thing to require notification to the probation officer of where defendant resides or of reasonable notice of any residential changes. (See, e.g., Olguin, supra, 45 Cal.4th at pp. 380-381 [probation condition that required the defendant to " '[k]eep the probation officer informed of place of residence, cohabitants and pets, and give written notice to the probation officer twenty-four (24) hours prior to any changes' " was reasonably related to the supervision of the defendant and hence to his rehabilitation and potential future criminality].) It is another to require the probation officer's approval of a choice of residence, with no guiding standards on what places may be disapproved. Upon remand, general condition No. 4 must be modified to include standards by which the probation officer may withhold his or her approval of defendant's choice of residence. D. Police-contact Condition (General Condition No. 13)
Defendant contends that general condition No. 13, which requires that she "report to the probation officer, no later than the next working day, any arrest or any contacts with or incidents involving any peace officer," is vague because the court did not define the phrase "any contacts with." She further contends that the condition is overbroad because the language requires her to report any contact with a peace officer even if the contact is not criminal or worthy of reporting such as greeting an officer on the street. The People concede the condition as written is vague and overbroad. We agree.
This court considered a nearly identical condition in Relkin. (See Relkin, supra, 6 Cal.App.5th at pp. 1196-1198.) We found the portion of the condition referring to " 'any contacts with . . . any peace officer' " vague and overbroad because the language "leave[s] one to guess what sorts of events and interactions qualify as reportable." (Id. at p. 1197.) Because the language did not delineate between saying "hello" to a police officer or attending an event where police officers were present and being interviewed as a witness to a crime, the language cast an excessively broad net over what would otherwise be activity not worth reporting. (Ibid.)
We shall remand the matter to the trial court with directions to modify the condition to address the concerns highlighted in Relkin.
III
Ineffective Assistance of Counsel
Defendant contends her trial counsel provided ineffective assistance of counsel because he failed to object to both general condition No. 4 and general condition No. 13 as unreasonable. According to her, neither condition relates forgery--the crime of conviction--nor do they relate to future criminality. We need not decide whether her counsel's performance was constitutionally ineffective because defendant has failed to demonstrate prejudice.
To prevail on an ineffective assistance of counsel claim, defendant must establish trial counsel's representation fell below professional standards of reasonableness and must affirmatively establish prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] (Strickland); People v. Price (1991) 1 Cal.4th 324, 386.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Strickland, at p. 697.)
As noted above, under Lent, a supervision condition "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.]" (Lent, supra, 15 Cal.3d at p. 486, fn. omitted.) "This test is conjunctive--all three prongs must be satisfied before a reviewing court will invalidate a probation term." (Olguin, supra, 45 Cal.4th at p. 379.) Thus, "even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (Id. at p. 380.)
Our Supreme Court has recognized that "[a] condition of probation that enables a probation officer to supervise his or her charges effectively is . . . 'reasonably related to future criminality.' " (Olguin, supra, 45 Cal.4th at pp. 380-381.) In Olguin, the court found that a probation condition requiring the defendant, who pleaded guilty to driving while intoxicated, to notify his probation officer of the presence of any pets at his place of residence was reasonably related to the defendant's supervision, and, hence, to his rehabilitation and potential future criminality. (Id. at pp. 378, 380.) The condition helped to ensure the probation officer's safety when conducting unscheduled compliance visits, which, in turn, facilitated the search of the residence by mitigating the potential of any pets impeding or otherwise endangering probation officers in the exercise of their supervisory duties. (Id. at pp. 381-382.)
General condition No. 4, the residency-approval condition, reasonably relates to future criminality because it serves to inform the probation officer charged with monitoring defendant's compliance with specific conditions of supervision about her present living arrangements. "Proper supervision includes the ability to make unscheduled visits and to conduct unannounced searches of the probationer's residence." (Olguin, supra, 45 Cal.4th at p. 381.) " ' "The purpose of an unexpected, unprovoked search of [the] defendant is to ascertain whether he is complying with the terms of probation; to determine not only whether he disobeys the law, but also whether he obeys the law. Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given the defendant and his amenability to rehabilitation." [Citation.]' " (Id. at p. 382.) Here, the residency-approval condition keeps the probation officer apprised of where defendant resides thus enabling him to make unscheduled visits to ensure she is complying with the terms of her supervision. The condition, then, is reasonable under Lent and defendant suffered no prejudice from her counsel's failure to object on reasonableness grounds.
Likewise, general condition No. 13, the police-contact condition, facilitates the effective supervision of defendant's compliance with other probation conditions. The specific terms of defendant's probation require her to obey all laws, ordinances, and legal regulations. Requiring defendant to immediately report contacts with law enforcement aides her probation officer in determining whether she is in fact complying with the law. Given that general condition No. 13 reasonably relates to future criminality, her counsel's failure to object to the condition as unreasonable was not prejudicial.
DISPOSITION
The judgment is affirmed. We remand the matter to the trial court with directions to modify general condition No. 4 and general condition No. 13 to address the concerns expressed in this opinion.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Duarte, J. /s/_________
Renner, J.