Opinion
A148111
05-26-2017
THE PEOPLE, Plaintiff and Respondent, v. JACOB EUGENE SELLMER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUKCRCR1582871)
Jacob Eugene Sellmer (appellant) appeals from a judgment entered after he pleaded guilty to vehicle theft (Veh. Code, § 10851, subd. (a)) and the trial court sentenced him to probation for three years with various conditions. He contends: (1) the court abused its discretion in imposing a probation condition requiring him to pass the General Educational Development (GED) test during his probationary period; and (2) the probation condition requiring him to obtain his probation officer's approval before traveling outside of the state is unconstitutionally overbroad. We reject his contentions and affirm the judgment.
Appellant also argues that trial counsel was ineffective to the extent he failed to object to the imposition of the probation conditions. In light of our conclusion that the court did not err in imposing the conditions, we reject appellant's ineffective assistance claim. (Strickland v. Washington (1984) 466 U.S. 668, 684 [defendant must show both that counsel's performance was deficient and that the deficiency resulted in prejudice].)
FACTUAL AND PROCEDURAL BACKGROUND
On September 22, 2015, an information was filed charging appellant with vehicle theft (Veh. Code, § 10851, subd. (a)). The information stemmed from an incident in which a woman reported to police that her son's vehicle was stolen from a parking lot. Officers later saw appellant seated in the stolen vehicle; appellant explained the vehicle had belonged to a deceased friend of his and that he had permission to drive it. When asked where he picked up the vehicle, appellant said he was "done talking," and was thereafter transported to the county jail. A witness reported that appellant had been trying to sell the vehicle.
On October 5, 2015, appellant's counsel declared a doubt as to appellant's competency, and criminal proceedings were suspended. On November 9, 2015, after receiving a competency report under Penal Code, section 1368, the trial court found appellant to be incompetent and referred him for treatment. On January 29, 2016, the court found appellant had been restored to competency and reinstated criminal proceedings.
All further statutory references are to the Penal Code unless otherwise stated.
Thereafter, appellant pleaded no contest to vehicle theft. The trial court suspended imposition of sentence and placed appellant on probation for three years, with various conditions including that he obtain his GED during his probationary period, and that he not travel outside California without prior approval of probation. The court also ordered appellant to serve 308 days in county jail, with 308 days of credit for time served.
DISCUSSION
GED
Appellant contends the trial court abused its discretion in imposing a probation condition requiring him to pass the GED test during his probationary period. We reject the contention.
" 'Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation.' (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) . . . A grant of probation is 'qualitatively different from such traditional forms of punishment as fines or imprisonment. Probation is neither "punishment" (see § 15) nor a criminal "judgment" (see § 1445). Instead, courts deem probation an act of clemency in lieu of punishment, and its primary purpose is rehabilitative in nature.'[] (People v. Howard (1997) 16 Cal.4th 1081, 1092.) [] Accordingly, . . . a grant of probation is an act of grace or clemency, and an offender has no right or privilege to be granted such release. (People v. Anderson (2010) 50 Cal.4th 19, 32.) [] Stated differently, '[p]robation is not a right, but a privilege.' (People v. Bravo (1987) 43 Cal.3d 600, 608.)." (People v. Moran (2016) 1 Cal.5th 398, 402.)
"If a defendant believes the conditions of probation are more onerous than the potential sentence, he or she may refuse probation and choose to serve the sentence. (People v. Mason (1971) 5 Cal.3d 759, 764, [] disapproved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1.) [] Additionally, at the sentencing hearing, a defendant can seek clarification or modification of a condition of probation. (See, e.g., People v. Bravo (1987) 43 Cal.3d 600, 610, fn. 7 [] ['Oral advice at the time of sentencing . . . afford[s] defendants the opportunity to clarify any conditions they may not understand and intelligently exercise the right to reject probation granted on conditions deemed too onerous']; see also § 1230.3, subd. (a) ["The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence."].)" (People v. Olguin (2008) 45 Cal.4th 375, 379.)
We review conditions of probation for abuse of discretion. (See People v. Carbajal, supra, 10 Cal.4th at p. 1121.) "Generally, '[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.) This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. (Id. at p. 486, fn. 1; see also People v. Balestra (1999) 76 Cal.App.4th 57, 68-69 [].) 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. (See Carbajal, supra, 10 Cal.4th at [p.] 1121.)" (People v. Olguin, supra, 45 Cal.4th at pp. 379-380.)
Here, at sentencing, appellant's counsel objected to a probation condition that stated: "You shall successfully complete your high school education by attaining a diploma or GED equivalent during your probationary period and provide proof of completion to your probation officer." Counsel argued there was "no direct evidence to suggest that this was related to his criminality or to his future criminality." Counsel continued, "And as I stated in front of the court before, I think it's a good idea for those who do not have their G.E.D. or their high school diploma, to seek out those things. And there's no question that Mr. Sellmer would benefit from increased levels of education. But I do not think that it's an appropriate condition of probation." The prosecutor submitted on the report and recommendation.
The probation officer stated, "We ask that the court keep the G.E.D. requirement. We feel it would be helpful in his rehabilitation." The trial court responded, "But isn't that a standard? I've seen that a lot lately, and there is a question as to whether it's appropriate as a probation condition." The probation officer replied, "We have been requesting the G.E.D. requirement, especially when defendants are younger and have not completed high school." The court stated, "In light of the fact that there are not other particularly onerous requirements of his probation, I think I'll leave it. I do think that it would be the best thing for him in terms of his rehabilitation." Appellant's counsel again objected, and the court noted the objection and imposed the condition.
Appellant asserts that in light of his "age, mental health issues, and homelessness," obtaining his GED is "beyond his capacity," and the probation condition requiring him to do so is therefore unreasonable. The record, however, contains evidence to support a finding that appellant was capable of obtaining his GED during his probationary period.
Appellant was 27 years old at the time of sentencing. He had completed 10th or 11th grade at Ukiah High School. In the initial competency examination, Dr. Kevin Kelly found that appellant was "very intelligent, but his intelligence was compromised . . . by internal distractions and confusion." According to Kelly, appellant used "a sophisticated vocabulary and he spoke of bona fide concepts in philosophy and psychology." Kelly was "impressed that [appellant] was aware of" "the research of Yochelson and Samenow regarding the effects of childhood trauma." Kelly noted that appellant "seemed intellectually slow, but clearly, he was not developmentally delayed. He espoused ideas that were clearly out-of-touch with reality, but he also espoused some other ideas that were grounded in philosophy and psychology." Kelly opined that appellant's competency could be restored if his "mental status were improved by a positive response to psychiatric medications."
According to the probation report, appellant completed 10th grade. According to the initial competency examination, appellant reported he had completed 11th grade.
In a follow-up report, Kelly found that appellant's competency had been restored, "primarily by benefit of psychiatric medication and by stabilization while in custody." Kelly "noted that [appellant's] vocabulary and his world references were exceptionally rich." Appellant said "he read a lot and that he never forgot anything that he had read." When Kelly asked appellant if he would continue taking his prescribed medication, appellant said, "I will if the judge says he likes my attitude and where I'm going. Then I'll take it for sure." Kelly discussed with appellant the importance of taking responsibility for management of his mental health, stabilizing his life, and avoiding drugs, alcohol, and frequent stays in jail. Appellant said he was "already thinking of staying on the medication" and that he had the support of his sister, who is "focused" and "on [his] side." His sister was going to help him submit an application to obtain Supplemental Security Income (SSI) benefits, although he "hope[d] not to stay on it for long." He said he previously had negative peer pressure to use alcohol and drugs, and acknowledged he would benefit from positive peer pressure from people who were completing their education and working steady jobs. Kelly concluded that appellant's mental health status "was significantly improved under treatment" and that "[n]o impairment of competency due to mental health disorder was found at this time." He felt that appellant had "a fair prognosis for retaining adequate mental health status and competency when released from jail if he takes medication, remains abstinent of substances, and if he takes help from his sister."
Moreover, when appellant spoke to the probation officer prior to sentencing, he said he would "continue to take his medication as prescribed." He planned to obtain employment and "discussed taking GED classes so he can take the test." He planned to move in with his sister, who was the caregiver for one of appellant's sons. The probation officer's report stated, "The defendant will no longer be homeless and will be able to focus on attaining his goals." At sentencing, appellant's counsel described appellant as "a vastly different person who has been the beneficiary of regular, routine medication." He confirmed that appellant's sister, who was going to assist him in obtaining SSI benefits, was going to be able to provide a stable home for him. Thus, although appellant asserts he lacks the financial ability to obtain a GED, the trial court could reasonably determine he had the capacity to do so, with the financial support of his sister and SSI benefits and his plan to obtain employment. Under these circumstances, and in light of the fact that obtaining a GED would assist appellant in his rehabilitation by improving his chance of becoming employed and decreasing his potential for committing crimes—a fact appellant does not dispute—the probation condition was not unreasonable, and the court did not abuse its discretion in imposing it.
If circumstances change such that appellant lacks the financial capacity to obtain his GED, e.g., he is unable to obtain his sister's support or qualify for SSI benefits, etc., he has the option of seeking modification of the GED probation condition below. (§§ 1203.3 [a court may revoke or modify a term of probation at any time during the probationary period]; 1203.2, subd. (b) [a court may modify, revoke, or terminate probation in the interests of justice]; In re Clark (1959) 51 Cal.2d 838, 840 [a court has jurisdiction to modify probation based on a change in circumstances].)
Prior Approval to Leave the State
The trial court imposed the following probation condition: "You shall not leave the State of California without the prior written approval of your Probation Officer. You do hereby waive extradition to the State of California from any jurisdiction in or outside the United States where you may be found and also agree that you will not contest any effort by any jurisdiction to be returned to the State of California." Appellant contends that the portion of the condition requiring him to obtain approval before leaving California is unconstitutionally overbroad, both facially and as applied, because "it significantly infringes on his constitutional right to travel, and allows the probation officer unfettered discretion to deny such travel . . . ." Assuming, without deciding, that appellant did not forfeit the claim by failing to object below, we conclude his contention fails on the merits.
Appellant acknowledges that the Uniform Act for Out-of-State-Probationer or Parolee Supervision (§ 11175 et seq.) requires probationers to obtain approval before permanently relocating out of state, but he argues the requirement that he obtain prior approval for "any interstate travel, no matter how short in duration," is unconstitutionally overbroad. --------
Whether a term of probation is unconstitutionally overbroad presents a question of law, which we review de novo. (E.g., In re J.H. (2007) 158 Cal.App.4th 174, 183.) "If a probation condition serves to rehabilitate and protect public safety, the condition may 'impinge upon a constitutional right otherwise enjoyed by the probationer, who is "not entitled to the same degree of constitutional protection as other citizens." ' " (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355.) "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.' [Citation.] 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." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
The right to travel and freedom of association are "constitutional entitlements." (People v. Bauer (1989) 211 Cal.App.3d 937, 944.) However, as noted, a probation condition may restrict these rights so long as it reasonably relates to rehabilitation and public safety. (People v. O'Neil, supra, 165 Cal.App.4th at p. 1355.) As the California Supreme Court recently observed: "Imposing a limitation on probationers' movements as a condition of probation is common, as probation officers' awareness of probationers' whereabouts facilitates supervision and rehabilitation and helps ensure probationers are complying with the terms of their conditional release. (See, e.g., Hayes v. Superior Court (1971) 6 Cal.3d 216, 220 [] [probation condition prohibited defendant from leaving the state without permission]; People v. Vogel (1956) 46 Cal.2d 798, 806 (dis. opn. of Shenk, J.) [same]; People v. Cruz (2011) 197 Cal.App.4th 1306, 1309 [probation condition prohibited defendant from leaving the state without permission].)" (People v. Moran, supra, 1 Cal.5th at p. 406.) Thus, "[a]lthough criminal offenders placed on probation retain their constitutional right to travel, reasonable and incidental restrictions on their movement are permissible." (Id. at pp. 406, 407 [a probation condition requiring the probationer to stay away from all Home Depot stores in California and adjacent parking lots did not infringe on the defendant's constitutional right to travel].)
Appellant relies on People v. Bauer (1989) 211 Cal.App.3d 937, 945, and People v. Soto (2016) 245 Cal.App.4th 1219, in which probation conditions restricting the defendants' residence and travel were struck down. In People v. Bauer, supra, 211 Cal.App.3d at page 944, the trial court imposed a probation condition that was designed to prevent the defendant from living with his overprotective parents, even though nothing in the record suggested the defendant's home life contributed to his crimes or that living with his parents was reasonably related to future criminality. While noting that probation conditions requiring approval before traveling or moving can be appropriate under some circumstances, the Court of Appeal held that in the defendant's case, the condition impinged on his constitutional right to travel and freedom of association because it forbade him "from living with or near his parents—that is, the power to banish him." (Ibid.)
In People v. Soto, supra, 245 Cal.App.4th at page 1226, the Court of Appeal struck down a probation condition requiring the defendant, who was convicted of driving under the influence of alcohol and with a suspended license, to obtain prior approval before changing his place of residence from Monterey County or leaving the state. The Court of Appeal did not reach the question whether the condition was constitutionally overbroad, but held it was unreasonable under the facts of its case and therefore an abuse of discretion to impose it. (Ibid.) The Court of Appeal stated, "like the Bauer defendant, there is nothing in the record to indicate that defendant's living situation contributed to his crime or would contribute to his future criminality. The only mention of defendant's living situation is contained in the probation report, which indicated that defendant had a stable residence and was living with his brother. In sum, there is nothing to suggest that leaving Monterey County or the State of California would have an effect on defendant's rehabilitation." (Ibid.)
The instant case is distinguishable. Appellant had a history of homelessness and instability, mental health issues, and failure to take prescribed psychiatric medication. The probation officer stated that in light of this history, and in order for appellant to be successful on probation, he "needs to focus on remaining sober and follo[w] the directives of mental health professionals." Probation believed appellant could "change but remaining sober and following medical advice will be paramount. He also needs to ensure he maintains contact with Probation and does not abscond to Oregon [where some family members including his girlfriend and a newborn child live] but follows the proper channels." In light of these statements, the trial court could reasonably determine that the probation supervision and oversight contained in the challenged probation was necessary in this case. Without the limitations placed by the condition, appellant could, for example, opt to leave for Oregon for extended periods of time, thereby depriving himself of the stability and supervision he needs to succeed on probation.
Further, one of the factors the trial court considered in granting probation was that appellant was going to be moving in with his sister and one of his children. Appellant's sister, who was "focused" and was his "support system," was going to provide him with a stable home and assistance in obtaining SSI benefits, among other things. The court also had before it a competency report stating that one of the factors affecting appellant's prognosis was that he accept assistance from his sister. The probation officer's report stated in recommending probation that appellant, who was going to move in with his sister, "will no longer be homeless and will be able to focus on attaining his goals." Thus, unlike the defendants in the above cases, there was evidence here that appellant's residence and location would affect his reformation and rehabilitation.
Appellant claims the probation condition was unconstitutionally overbroad for the additional reason that it gave probation "unfettered discretion" in deciding whether to allow appellant to leave the state. He relies on People v. O'Neil, supra, 165 Cal.App.4th 1351, 1354, 1359, in which this court struck down an "entirely open-ended" and overly restrictive probation condition that prohibited the defendant from associating "socially, nor be present any time, at any place, public or private, with any person, as designated by your probation officer." The case is distinguishable, however, because a probation condition prohibiting a defendant from associating with or being in the presence of any person unless approved of by probation affects the daily activities of the defendant and is far more restrictive than a condition involving out-of-state travel, which is an issue that may come up only periodically within a probationary period. Furthermore, the condition in People v. O'Neil, at page 1358, was considered overbroad because it was "unlimited and would allow the probation officer to banish [the defendant] by forbidding contact with his family and close friends, even though such a prohibition may have no relationship to the state's interest in reforming and rehabilitating [him.]." In contrast, as we have previously discussed, the probation condition in this case is rationally related to the state's interest in reforming and rehabilitating appellant.
Contrary to appellant's claims, there is nothing to suggest that appellant's reasonable requests to travel out of state to visit relatives or friends would be disapproved. Our Supreme Court in People v. Olguin, supra, 45 Cal.4th at page 382, stated that a probation condition "should be given 'the meaning that would appear to a reasonable, objective reader.' " We view the travel approval condition here in light of People v. Olguin and presume a probation officer will not withhold approval for irrational or capricious reasons. (Id. at p. 383; see People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240 [probation conditions are limited by reasonableness "[s]ince the court does not have the power to impose unreasonable probation conditions, [and therefore] could not give that authority to the probation officer"].) Under the circumstances of this case, we conclude the travel approval condition is not unconstitutionally overbroad.
DISPOSITION
The judgment is affirmed.
/s/_________
McGuiness, P.J. We concur: /s/_________
Pollak, J. /s/_________
Jenkins, J.