Opinion
D058652
10-13-2011
THE PEOPLE, Plaintiff and Respondent, v. KEITH WAYNE SEKERKE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCS226587)
APPEAL from an order of the Superior Court of San Diego County, Kathleen M. Lewis, Judge. Affirmed.
Keith Wayne Sekerke pleaded guilty to battery by a prisoner on a nonconfined person (Pen. Code, § 4501.5; count 1) and possession of a deadly weapon by a prisoner (§ 4502, subd. (a); count 2). At sentencing, the court suspended execution of a stipulated five-year prison term, ordered Sekerke to serve 365 days in jail, imposed fines and placed Sekerke on formal probation for three years. Sekerke's probation officer subsequently arrested him for violating the conditions of his probation. After a hearing, the court revoked Sekerke's probation and executed the previously stayed prison sentence.
All further undesignated statutory references are to the Penal Code.
The sentence consisted of four years on count 1, plus a consecutive term of one year on count 2.
On appeal Sekerke challenges the trial court's finding that he failed to complete a program of drug treatment and aftercare as directed by his probation officer, contending that the meaning of "complete" is ambiguous. We affirm the order.
FACTS
In a negotiated plea agreement, Sekerke pleaded guilty to battery by a prisoner on a nonconfined person (§ 4501.5) and possession of a deadly weapon by a prisoner (§ 4502, subd. (a)) for beating and stabbing a prison guard while Sekerke was an inmate. In exchange, imposition of sentence was stayed and Sekerke was granted three years of formal probation. Among the conditions of probation to which Sekerke agreed were the following: (1) report to his probation officer as directed, including within 72 hours of any release from custody; (2) attend and successfully complete psychiatric and substance abuse counseling programs as directed by his probation officer; (3) complete a program of residential treatment and aftercare as directed by his probation officer; and (4) not use or possess any controlled substance without a valid prescription and submit a valid sample for testing for the use of controlled substances/alcohol when required by the probation or law enforcement officer, or treatment provider.
In accordance with his probation conditions, Sekerke entered the House of Metamorphosis residential treatment program on February 22, 2010. Seventy-nine days later, House of Metamorphosis terminated Sekerke from its program for continued defiant and disrespectful behavior toward program staff. On May 14, 2010, Sekerke entered Community Connections residential treatment program, where he stayed for 14 days until he was discharged after punching a wall and breaking his hand. Sekerke next enrolled at the Lighthouse residential treatment program, where he remained until he was transferred to Affirmation House, a smaller residential treatment program run in association with the Lighthouse program.
On August 11, 2010, Affirmation House granted Sekerke a travel pass to meet with his probation officer, Eric Schick. After meeting Schick, however, Sekerke did not return to Affirmation House as required. The probation department notified the court of Sekerke's absence from Affirmation House on August 13, 2010, and the court summarily revoked his probation and issued a warrant for his arrest.
On September 27, 2010, Sekerke was administered a drug test at Affirmation House. The drug test was positive for methamphetamine, and Sekerke admitted that he had used methamphetamine a few days earlier. On September 29, 2010, he was terminated from Affirmation House because he had left the facility on three separate occasions without permission. Sekerke next called Schick on October 5, 2010. Schick instructed Sekerke to report to Schick's office, where Sekerke was arrested for violating the conditions of his probation.
After an evidentiary hearing, the court found Sekerke violated the terms of his probation by: (1) failing to report to his probation officer as directed, including within 72 hours of any release from custody; (2) failing to attend and successfully complete psychiatric and substance abuse counseling programs as directed by his probation officer; (3) failing to complete a program of residential treatment and aftercare as directed by his probation officer; and (4) using or possessing a controlled substance without a valid prescription. The court formally revoked his probation and executed the previously stayed five-year prison sentence.
DISCUSSION
A. Standard of Review
A court is authorized to revoke probation "if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation." (§ 1203.2, subd. (a).) At a probation revocation hearing, the standard of proof sufficient to give the court "reason to believe" that a probationer has violated the conditions of his or her probation is preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447.) We review a judicial determination to revoke probation under the substantial evidence standard of review, giving great deference to the trial court's decision. (People v. Urke (2011) 197 Cal.App.4th 766, 773 (Urke).) "'[T]he discretion of the court to revoke probation is analogous to its power to grant the probation, and the court's discretion will not be disturbed in the absence of a showing of abusive or arbitrary action.'" (Ibid.) B. The Trial Court Properly Revoked Sekerke's Probation for Failure to Complete a Drug Treatment Program
Sekerke contends the trial court improperly revoked probation on the ground he failed to complete a program of drug treatment and aftercare as directed by his probation officer. According to Sekerke, the term "complete" in this context is ambiguous. We disagree.
Although Sekerke does not expressly articulate his argument in the terms of the vagueness doctrine, the sole authority that he relies on, People v. Angel J. (1992) 9 Cal.App.4th 1096, 1101, analyzed a challenge to a probation condition by applying that doctrine. Under the vagueness doctrine, a probation condition "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." (People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325; accord, In re Sheena K. (2007) 40 Cal.4th 875, 889 [applying same rule in context of juvenile probationer].) The underlying concern is the due process concept of "fair warning," which prevents arbitrary law enforcement and provides adequate notice to potential offenders. (People v. Castenada (2000) 23 Cal.4th 743, 751 (Castenada).) Thus, a condition of probation is invalid if it is so vague that people of common intelligence must necessarily guess at its meaning and differ as to its application. (Ibid.) Reasonable specificity, not mathematical certainty, is the standard under the vagueness doctrine. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115.) If a term has a "plain commonsense meaning, which is well settled, the [condition] is not vague." (People v. Rodriquez (1975) 50 Cal.App.3d 389, 398 (Rodriquez).)
The condition Sekerke challenges as vague is the one that required him to "[c]omplete a program of residential treatment and aftercare as directed by the probation officer." Sekerke argues that because the word "complete" is subject to two reasonable interpretations, he did not understand what was required of him. The word "complete" is commonly used in everyday speech, and according to several dictionaries means to finish successfully. (See, e.g., Webster's 3d New Internal Dict. (2002) p. 465, col. 1 [to "end after satisfying all demands or requirements"]; Merriam-Webster's Collegiate Dict. (11th ed., 2006) p. 254 ["to carry out . . . successfully"]; Black's Law Dict. (6th ed. 1990) p. 285 [to complete is to "finish; accomplish that which one starts out to do"].) The consistency among these dictionaries, which are "the best arbiter of ordinary and popular meaning" of words (Golden Security Thrift & Loan Assn. v. First American Title Ins. Co. (1997) 53 Cal.App.4th 250, 256), indicates that the meaning of "complete" is well settled (Rodriquez, supra, 50 Cal.App.3d at p. 398). Using that meaning, the trial court properly found that Sekerke had not completed a program of residential treatment and aftercare because Sekerke was terminated from multiple programs for inappropriate behavior before he could satisfy their demands or requirements.
Even if the term "complete" were ambiguous, Sekerke's own conduct demonstrated that he understood the meaning of "complete" and what was required of him. Where the meaning of a term in an agreement is disputed, a court will enforce the meaning given to the term as demonstrated by the conduct of a party to the agreement before the dispute arose. (Shelton, supra, 37 Cal.4th at p. 767; Barham v. Barham (1949) 33 Cal.2d 416, 423.) Before probation was revoked, Sekerke was terminated from multiple treatment programs, and after each termination he immediately enrolled in another program. Further, when asked by Schick about his repeated failure to complete a residential treatment program, Sekerke said that if given another chance, he would be successful, indicating he understood that he had not successfully completed a program. Indeed, Sekerke went so far as to "accept responsibility for screwing up, no excuses." This conduct indicates Sekerke knew that he had not satisfied the demands or requirements of any of the treatment programs he entered, and had therefore not "completed" a treatment program.
"A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles." (People v. Shelton (2006) 37 Cal.4th 759, 767 (Shelton).) Conditions of probation are part the plea agreement when they are part of the express negotiations. (People v. Segura (2008) 44 Cal.4th 921, 935.) At the sentencing hearing, Sekerke expressly accepted the conditions of probation, including that requiring him to complete a residential treatment program.
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Accordingly, we conclude the probation condition requiring Sekerke to complete a treatment program was sufficiently precise to give him "fair warning" of what was required of him. (Castenada, supra, 23 Cal.4th at p. 751.) We further conclude the trial court properly found that he violated that condition, thereby justifying revocation of probation. (§ 1203.2, subd. (a).) C. The Trial Court Properly Revoked Sekerke's Probation Because He Violated Other Conditions of His Probation
Even if Sekerke were correct that the probation condition requiring him to complete a residential treatment program was so vague that he did not know what was required of him and therefore that condition should not be enforced against him, the evidence that he violated other probation conditions fully justified the trial court's decision to revoke his probation. A court may revoke probation if it "has reason to believe . . . that the person has violated any of the conditions of his or her probation." (§ 1203.2, subd. (a), italics added.) At the probation revocation hearing, the probation officer presented evidence, and the court found, that (1) Sekerke tested positive for methamphetamine on September 27, 2010; (2) Sekerke failed to report to his probation officer within 72 hours of leaving Affirmation House on September 29, 2001, because he did not report to probation until October 5, 2010; and (3) Sekerke failed to attend substance abuse counseling because he was absent from Affirmation House without permission on three separate occasions. Sekerke does not challenge these findings on appeal, and each alone constituted a sufficient ground for the court to revoke probation. (See, e.g., People v. Vanella (1968) 265 Cal.App.2d 463, 470 [probation revoked for engaging in narcotics activity]; In re Davis (1957) 150 Cal.App.2d 790, 792 [probation revoked for failing to report and pay restitution in full].)
Accordingly, based on substantial evidence presented at Sekerke's probation revocation hearing, the court had "reason to believe" that Sekerke violated several probation conditions and properly revoked his probation. (§ 1203.2, subd. (a); Urke, supra, 197 Cal.App.4th at p. 773.)
DISPOSITION
The order is affirmed.
IRION, J. WE CONCUR:
MCINTYRE, Acting P.J.
AARON, J.