Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Super. Ct. No. CC631359.
Mihara, J.
Defendant Emily Morago Supnet pleaded no contest to possession of methamphetamine (Health & Saf. Code, § 111377, subd. (a)) and possession of controlled substance paraphernalia (Health & Saf. Code, § 11364). The trial court suspended imposition of sentence and placed defendant on probation for two years under the Substance Abuse and Crime Prevention Act of 2000 (“Proposition 36”). The trial court imposed several conditions of probation, including that defendant “not possess or consume alcohol or illegal drugs or frequent places where they are sold or consumed.” Defendant contends that this condition is unconstitutionally vague and overbroad. We agree and modify the condition. As modified, the order is affirmed.
I. Statement of Facts
At approximately 11:52 p.m. on May 28, 2006, Officer Michael Johnson observed an object hanging from the rear-view mirror of defendant’s vehicle. Since he believed that the object violated the Vehicle Code, he made a traffic stop. After determining that defendant did not have a driver’s license and her passenger’s driver’s license was suspended, Johnson impounded defendant’s vehicle. During the inventory search, Johnson found a purse containing methamphetamine, methamphetamine paraphernalia, and indicia showing that the purse belonged to defendant. Defendant was arrested.
II. Discussion
Defendant contends that the probation condition barring her from places where alcohol or illegal drugs are used or sold is unconstitutionally vague and overbroad.
A. Forfeiture of Claim
The People argue that defendant has forfeited her challenge by failing to object at the time of sentencing. We disagree.
In In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.), the minor argued that the portion of the juvenile court’s order that she “not associate with anyone ‘disapproved’ of by ‘probation’ ” was unconstitutionally vague and overbroad. (Id. at p. 878.) Though the minor had failed to object in the juvenile court, the California Supreme Court held that the issue had not been forfeited on appeal. (Id. at p. 888.) The court reasoned that the issue was “a pure question of law, easily remediable on appeal by modification of the condition. [Citations.]” (Ibid.)
The People rely, however, on People v. Thurman (2005) 125 Cal.App.4th 1453 and People v. Welch (1993) 5 Cal.4th 228 (Welch). Both cases are inapposite. In Thurman, the defendant objected to the probation condition at the time of sentencing. (Thurman, supra, 125 Cal.App.4th at p. 1458.) In Welch, the California Supreme Court held that the failure to timely challenge the reasonableness of a probation condition resulted in forfeiture of the issue on appeal. (Welch, at pp. 234-238.) Here, the issue is whether the probation condition is constitutional on its face. Moreover, the Sheena K. court explicitly “decline[d] to apply the rule of Welch to a facial constitutional challenge [to a probation condition] made on the grounds of vagueness and overbreadth.” (Sheena K., supra, 40 Cal.4th at p. 885, fn. 5.)
The People also argue that Sheena K. is distinguishable, because the present case involves questions of fact. They claim that a review of defendant’s record is necessary to determine whether the challenged condition is reasonable. As previously noted, the issue here is not whether the probation condition is reasonable. The issue is a question of law, that is, whether the condition is unconstitutionally vague and overbroad on its face. Thus, we will consider defendant’s challenge to her probation condition.
B. Constitutionality of Probation Condition
Defendant argues that the probation condition restricts her constitutional right to travel.
Courts have modified or stricken probation conditions that restrict a probationer’s exercise of his or her constitutional rights when the probation conditions are not narrowly drawn to serve the important interests of public safety and rehabilitation. (People v. Keller (1978) 76 Cal.App.3d 827, 839, overruled on other grounds by Welch, supra, 5 Cal.4th at p. 237.)
In examining whether a probation condition is void for vagueness, courts have considered whether the condition is “ ‘sufficiently precise for the probationer to know what is required of him [or her] . . . .’ ” (Sheena K., supra, 40 Cal.4th at p. 890, quoting People v. Reinertson (1986) 178 Cal.App.3d at pp. 324-325.) “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ ” (Sheena K., at p. 890.)
The overbreadth doctrine focuses on other, though related, concerns. Under this doctrine, “ ‘ “a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” ’ [Citations.]” (In re Englebrecht (1998) 67 Cal.App.4th 486, 497.) “ ‘A law’s overbreadth represents the failure of draftsmen to focus narrowly on tangible harms sought to be avoided, with the result that in some applications the law burdens activity which does not raise a sufficiently high probability of harm to governmental interests to justify the interference.’ [Citation.]” (Ibid.)
Case law supports defendant’s position that the probation condition at issue impermissibly infringes on her constitutional rights. In In re Justin S. (2001) 93 Cal.App.4th 811 (Justin S.), the reviewing court held that the probation condition that prohibited a minor’s association with “ ‘any gang members’ ” without a knowledge requirement was unconstitutionally overbroad. (Id. at pp. 813, 816.) Consequently, the court modified the condition to preclude the minor from associating with persons known by him to be associated with a gang. (Id. at p. 816.) Similarly, in People v. Garcia (1993) 19 Cal.App.4th 97 (Garcia), the defendant claimed that a probation condition that prohibited him from associating with people not known to him to be users and sellers of narcotics, felons, or ex-felons was unconstitutional. (Id. at p. 102.) The reviewing court agreed, stating that “[a] condition of probation that prohibits appellant from associating with persons who, unbeknownst to him, have criminal records or use narcotics, is ‘ “ overbroad [and therefore] is not reasonably related to a compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights.” ’ (People v. Hackler, supra, 13 Cal.App.4th at p. 1058.)” (Ibid.)
Here, as stated by the trial court, defendant could be criminally prosecuted for frequenting a place not known to her as a location where people are using or selling illegal drugs. Thus, as in Justin S. and Garcia, without an explicit knowledge requirement, the probation condition is constitutionally defective.
The People argue that a “knowledge requirement would allow her to visit the homes of reputed drug dealers or street intersections where drug dealers congregate, so long she did not actually ask whether drugs would be present.” This argument is unpersuasive. There are several ways in which defendant could learn that illegal drugs are used or sold at a particular location.
The probation condition is invalid on another ground, because it interferes with defendant’s constitutionally protected activity in many ways unrelated to present or future criminality. As imposed by the trial court, this condition would bar defendant from all places where alcohol is sold or used, such as supermarkets, drugstores, restaurants, ballgames, and concerts. Since the condition is not narrowly drawn, defendant would be precluded from shopping for food at most supermarkets or obtaining medication from most drugstores or even seeking employment at these establishments. In our view, no conceivable probationary purpose would be served by such an extensive prohibition. Accordingly, we will modify the condition to locations where alcohol is a major item of sale.
The People contend that, if the probation condition is vague and overbroad, remand is necessary. They suggest that “[a] strict liability standard, or one that she not ‘negligently frequent’ places where drugs or alcohol are sold, would more accurately reflect the rehabilitative goals of the court’s condition.” We find no merit to this contention. As previously discussed, remand is unnecessary because this constitutional issue was “a pure question of law, easily remediable on appeal by modification of the condition.” (Sheena K., supra, 40 Cal.4th at p. 888.) The People’s suggested modification fails to acknowledge that probation conditions that infringe upon constitutional rights must be narrowly drawn. (Id. at p. 890.)
III. Disposition
The probation condition requiring that defendant “not possess or consume alcohol or illegal drugs or frequent places where they are sold or consumed” is hereby modified to require that defendant “not possess or consume alcohol or illegal drugs and not go to places where she knows illegal drugs are used or sold or alcohol is the major item of sale.” As modified, the order is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., McAdams, J.