Opinion
D071045
04-03-2017
THE PEOPLE, Plaintiff and Respondent, v. CHARLES E. TURNER, Defendant and Appellant.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD263712) APPEAL from a judgment of the Superior Court of San Diego County, Michael S. Groch, Judge. Affirmed as modified. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Charles E. Turner was charged by information with 23 counts as follows: five counts of using personal identifying information of another (Pen. Code, § 530.5, subd. (a); counts 1, 3, 5, 18 & 21); eight counts of burglary (§ 459; counts 2, 4, 6, 8, 10, 12, 15 & 17); five counts of making a false financial statement (§ 532, subd. (a)(1); counts 7, 9, 11, 14 & 16); one count of possession of a forged driver's license (§ 470b; count 13); two counts of failure to appear while on bail, with an allegation of a felony committed while on bail (§§ 1320.5, 12022.1, subd. (b); counts 19 & 20); one count of petty theft (§ 484; count 22); and one count of false personation, with an allegation of a felony committed while on bail (§§ 529, subd. (a)(3), 12022.1, subd. (b); count 23). The information further charged Turner with two probation priors (§ 1203, subd. (e)(4)) and two prison priors (§§ 667.5, subd. (b) & 668).
All further statutory references are to the Penal Code unless otherwise noted.
Under an agreement, Turner pleaded guilty to counts 1, 11 and 20 and admitted the enhancement charged in connection with count 20, in return for the dismissal of the remaining charges and a stipulated term of five years four months. The court imposed a split sentence of three years eight months in county jail and one year eight months in mandatory supervision.
On appeal, Turner contends that the court's imposition of mandatory conditions requiring his probation officer's approval of residence and employment (condition 7g) and his participation in any "assessment program" as directed by his probation officer (condition 1q) were overbroad and unenforceable. As we explain, we affirm the imposition of condition 7g as stated. As to condition 1q, we modify this condition so that it expressly relates to "assessment programs" concerning "treatment, therapy or counseling" as set forth in condition 4b, which condition Turner did not object to and, thus, must comply with while subject to mandatory supervision.
OVERVIEW
The facts are taken from the factual basis of Turner's plea. --------
"[Turner] willfully used the personal identifying information of another to commit theft. [Turner] made a false statement related to [his] financial condition and used a false social security number . . . in writing to obtain money or a loan. [Turner] willfully failed to appear while charged with the commission of a felony and did so while out on bail for a felony offense."
Turner in September 2016 filed a timely notice of appeal and sought issuance of a certificate of probable cause. The trial court on September 15, 2016 issued an order denying the request for a certificate, finding Turner "has not shown reasonable constitutional, jurisdictional, or other grounds for appeal relating to the legality of the proceedings."
As a result of the trial court's September 15 order, this court issued the following order on September 22, 2016:
"Appellant's request for a certificate of probable cause was denied and, as part of his plea, he waived issues relating to any suppression motion denials, to any prior strike convictions and to his stipulated sentence. The issues on appeal are thus limited to matters occurring after the plea that do not involve prior strike convictions or the sentence imposed."
DISCUSSION
A. Guiding Principles
Although supervised release is to be monitored by county probation officers "in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation" (§ 1170, subd. (h)(5)(B)), "this does not mean placing a defendant on mandatory supervision is the equivalent of granting probation or giving a conditional sentence. Indeed, section 1170, subdivision (h), comes into play only after probation has been denied. [Citation.] Moreover, section 667.5 provides for a one-year enhancement for 'prior prison terms,' including a 'term imposed under the provisions of paragraph (5) of subdivision (h) of [s]ection 1170, wherein a portion of the term is suspended by the court to allow mandatory supervision.' (§ 667.5, subd. (b).) Thus, 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.)
Because "mandatory supervision is more similar to parole than probation" (People v. Fandinola, supra, 221 Cal.App.4th at p. 1423), we therefore will analyze the validity of the terms of supervised release under standards analogous to the conditions applied to terms of parole.
"In California, parolee status carries distinct disadvantages when compared to the situation of the law-abiding citizen. Even when released from actual confinement, a parolee is still constructively a prisoner subject to correctional authorities. [Citations.] The United States Supreme Court has characterized parole as 'an established variation on imprisonment' and a parolee as possessing 'not . . . the absolute liberty to which every citizen is entitled, but only . . . the conditional liberty properly dependent on observance of special parole restrictions.' [Citations.] Our own Supreme Court holds a like opinion: 'Although a parolee is no longer confined in prison his [or her] custody status is one which requires . . . restrictions which may not be imposed on members of the public generally.' " (People v. Lewis (1999) 74 Cal.App.4th 662, 669-670.)
The fundamental objectives of parole are " 'to help individuals reintegrate into society as constructive individuals' [citation], ' "to end criminal careers through the rehabilitation of those convicted of crime" ' [citation] and to [help them] become self-supporting." (In re Stevens (2004) 119 Cal.App.4th 1228, 1233.) In furtherance of these goals, "[t]he state may impose any condition reasonably related to parole supervision." (Ibid.) These conditions "must be reasonably related to the compelling state interest of fostering a law-abiding lifestyle in the parolee." (Id. at p. 1234.)
The validity and reasonableness of conditions of mandatory supervision/parole are analyzed under the same standard as that developed for probation conditions. (In re Hudson (2006) 143 Cal.App.4th 1, 9; In re Stevens, supra, 119 Cal.App.4th at p. 1233 [noting the "criteria for assessing the constitutionality of conditions of probation also applies to conditions of parole"].) A court has broad discretion to impose "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, . . . and generally and specifically for the reformation and rehabilitation of the [parolee]." (§ 1203.1, subd. (j); see People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) "If a . . . condition serves to rehabilitate and protect public safety, the condition may 'impinge upon a constitutional right otherwise enjoyed by the [parolee], 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 condition of mandatory supervision will not be upheld, however, if it (1) has no relationship to the crime of which the defendant was convicted, (2) relates to conduct that is not criminal, and (3) requires or forbids conduct that is not reasonably related to future criminality. (See People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin).) Our high court has clarified that this "test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a . . . term." (Id. at p. 379.)
However, "[j]udicial discretion to set conditions of [parole] is further circumscribed by constitutional considerations." (People v. O'Neil, supra, 165 Cal.App.4th at p. 1356.) "A . . . 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.) "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.)
"Generally, we review the court's imposition of a [parole] condition for an abuse of discretion." (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) However, we independently review constitutional challenges to a condition of mandatory supervision/parole. (Ibid.)
B. Analysis
1. Forfeiture
Initially, we note the failure to challenge the conditions of mandatory supervision in the trial court results in a forfeiture of that issue on appeal. (See People v. Welch (1993) 5 Cal.4th 228, 234-235 [extending the forfeiture rule to a claim that probation conditions are unreasonable when the probationer fails to object on that ground in the trial court].) However, the forfeiture rule does not apply if the claim "amount[s] to a 'facial challenge' " that is "capable of correction without reference to the particular sentencing record developed in the trial court." (In re Sheena K., supra, 40 Cal.4th at pp. 885, 887.) Here, we need not decide whether Turner forfeited this claim of error because we exercise our discretion to adjudicate its merits to forestall any future claim of ineffective assistance of counsel. (See In re Victor L. (2010) 182 Cal.App.4th 902, 928 [noting although a defendant forfeited his challenge to a probation condition, the court in the exercise of its discretion reached the merits of the claim to eliminate defendant's ineffective assistance of counsel claim].)
2. Residence and Employment
Here, we conclude parole condition 7g reasonably serves the compelling state interest in Turner's reformation and rehabilitation and also reasonably serves to protect public safety by preventing future criminality. (See Olguin, supra, 45 Cal.4th at pp. 379-380.) The record shows as an adult, Turner "has been granted summary probation five times in San Diego and Northern California, sustaining revocations on nearly each grant. In 2014, he was granted formal probation. After sustaining a new felony conviction for escape from Work Furlough, he was sentenced to 16 months in state prison on [July 14, 2014]. He was released from custody on [February 11, 2015] on Post Release Community Supervision (PRCS). Since that time, he has sustained three flash incarcerations. He is currently active to PRCS. Overall, his compliance with community supervision has been poor, given his continued violations of the law and conditions of supervision."
At or near the time of the instant offenses, the record shows officers contacted Turner after a traffic collision. "During the investigation, Turner displayed symptoms of impairment. Field sobriety tests were performed and Turner was determined to be under the influence of drugs. He was arrested and transported to the hospital for an evaluation. He told officers he consumed 5mg of Percocet, 350 mg of Soma and 10mg of Norco. He last smoked methamphetamine two days prior. He was found in possession of .4 grams of methamphetamine."
The record shows at the sentencing in connection with the instant offenses, Turner told the court when he committed the instant offenses he was "pretty much addicted to [his] own prescription medication." Turner also told the court he was a veteran; that he was denied "veteran's treatment court"; that he also was denied "rehab"; and that, while he was out on bail when he committed the instant offenses, he was "pretty much still in [his] addiction."
The July 7, 2016 probation report states Turner began using pain medicine for his back in 2013 and admitted to " 'somewhat' exceeding the dosage." The July 7 report further states that Turner participated in an outpatient treatment program from February until August 2015, but that he did not complete the program; and that Turner did "not feel he is in need of treatment."
The July 7 report also states that Turner was residing with his "children's mother" since his release from state prison in February 2015 and that he will either "reside with his mother or his wife" after he is released from jail on the instant offenses. The July 7 report went on to note that Turner was last employed in 2013 and that "he has not had employment" since his release from prison in February 2015.
In light of the foregoing, we independently conclude that, during Turner's period of mandatory supervision, there is a compelling need to monitor his activities and he requires strict supervision particularly given his recent struggle with—using his own words—"addiction" to drugs, which he admitted to the court but then denied to probation. (See Olguin, supra, 45 Cal.4th at p. 380; see also People v. Balestra (1999) 76 Cal.App.4th 57, 65, quoting People v. Lent (1975) 15 Cal.3d 481, 486 [noting if a condition serves the "statutory purpose of 'reformation and rehabilitation[,]' . . . it necessarily follows that such a condition is 'reasonably related to future criminality' and thus may not be held invalid whether or not it has any 'relationship to the crime of which the offender was convicted' "].)
We further conclude that condition 7g, when considered in connection with some of the other conditions to which Turner did not object—including that he seek and maintain full-time employment, report any change of address or employment within 72 hours and obtain consent to leave San Diego County or the state—will assist Turner's probation officer in this endeavor by making it possible to know in advance both where Turner will be living (after he completes residential drug treatment, as directed by probation) and, if and when he secures employment, where he will be working. (Compare People v. Bauer (1989) 211 Cal.App.3d 937 [striking a residence condition ostensibly designed to prevent the defendant from living with his overprotective parents because unlike the instant case, there was nothing in the record there to suggest that defendant's living at home with his parents was reasonably related to future criminality].) As such, we conclude that imposition of condition 7g was both reasonable and not unconstitutionally overbroad.
3. Assessment
Turner next contends condition 1q requiring him to participate in an "assessment program if directed by the [probation officer]" is unenforceable. Again, we reach the merits of this issue to forestall any claim of ineffective assistance of counsel. (See In re Victor L., supra, 182 Cal.App.4th at p. 928.)
When it comes to participation in court-ordered programs, conditions leaving the selection and scheduling of programs within the discretion of the probation officer have been upheld. (See People v. Penoli (1996) 46 Cal.App.4th 298, 308 [noting a "trial court is poorly equipped to micromanage selection of a program, both because it lacks the ability to remain apprised of currently available programs and, more fundamentally, because entry into a particular program may depend on mercurial questions of timing and availability"].) Even if the court could be more specific in its order, that does not necessarily render it unreasonable or overbroad. (Ibid.)
Here, the record shows condition 4b was also imposed as part of Turner's mandatory supervision. This condition required Turner to "[p]articipate in treatment, therapy, counseling, or other course of conduct as suggested by validated assessment tests." (Italics added.) We note Turner did not object to condition 4b.
In light of Turner's self-admitted "addiction" to drugs, his recognition for the need for drug treatment that up to the time of the instant offenses he ostensibly was unable to receive, and his decision not to object to condition 4b, we conclude condition 1q should be limited to "assessment programs" that are related to "treatment, therapy [or] counseling" as set forth in condition 4b.
DISPOSITION
Condition 1q of the order granting mandatory supervision is modified to state that Turner, while subject to such supervision, shall participate in any "assessment program" related to "treatment, therapy [or] counseling" as set forth in condition 4b. As modified, the judgment of conviction is affirmed.
BENKE, Acting P. J. WE CONCUR: NARES, J. AARON, J.