Opinion
H044157
01-30-2018
THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE ZENDEJAS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Benito County Super. Ct. No. CR-16-01038)
Defendant Enrique Zendejas pleaded no contest to possession of methamphetamine for purposes of sale in violation of Health and Safety Code section 11378 and admitted probation violations in three other cases. The trial court stayed imposition of sentence and placed defendant on three years' formal probation subject to various conditions, including that he "[a]bstain from the use/possession of controlled substances (without a valid prescription) or alcoholic beverages, and not be present or frequent any location where those substances are present, available, or being used."
On appeal, defendant's counsel filed an opening brief in which no issues are raised and asked this court to independently review the record under People v. Wende (1979) 25 Cal.3d 436. We notified defendant of his right to submit a written argument on his own behalf. He has not done so.
After independent review of the record, we requested supplemental briefing as to whether the use of the term "frequent" in the probation condition set forth above rendered it unconstitutionally vague. We conclude that, in the context of the condition, it does not and will affirm. I. FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the probation report and the police report, which the parties agreed provided a factual basis for defendant's plea. --------
San Benito County Sheriff's Office deputies went to defendant's home on the morning of July 20, 2016 to conduct a probation search after he failed to report as required by the terms of his probation. Deputies rang the doorbell and knocked, but defendant did not answer. They made contact with Adelina Ryburn through an open bedroom window and she told them defendant was not home. Deputies entered the home through a back door and found defendant in the bedroom. After handcuffing defendant and Ryburn, deputies conducted a probation search of the home. Defendant told the deputies that he did not have the keys to his vehicle, which deputies wanted to search pursuant to the terms of his probation. They found the keys in defendant's dresser and searched the vehicle, where they found 12.39 grams of a white crystallized substance that tested presumptive positive for methamphetamine and an Arizona Iced Tea can with a false compartment.
On July 22, 2016, the San Benito County District Attorney charged defendant by complaint with felony possession of methamphetamine for purposes of sale (Health & Saf. Code, § 11378, count 1) and misdemeanor resisting, obstructing, and delaying a peace officer (Pen. Code, § 148, subd. (a)(1), count 2).
On September 9, 2016, defendant pleaded no contest to count 1 and admitted probation violations in other cases in exchange for the dismissal of count 2. Before accepting defendant's plea, the court advised him of the nature and consequences of his plea and of his constitutional rights, which he waived in open court. The parties agreed that the police report provided a factual basis for defendant's plea.
On October 12, 2016, the court stayed imposition of sentence and placed defendant on formal probation for three years, with the condition that he serve 100 days in county jail, with 100 days of credit for time served. The court also ordered that defendant, among other probation conditions, "[a]bstain from the use/possession of controlled substances (without a valid prescription) or alcoholic beverages, and not be present or frequent any location where those substances are present, available, or being used." The court ordered defendant to pay an unspecified $400 fine; a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)) with an additional $300 probation revocation restitution fine, which was suspended pending successful completion of probation (Pen. Code, § 1202.44); a $50 crime laboratory analysis fee; a $150 drug program fee (Health & Saf. Code, § 11372.7); $1,389 in penalty assessments; a $40, 20 percent surcharge; a $45.78, 2 percent State automation fee (Gov. Code, § 68090.8); a $4 EMS air transport fee (Gov. Code, § 76000.10); a $150 presentence investigation fee (Pen. Code, § 1203.1b); a $40 court operations assessment (Pen. Code, § 1465.8); a $30 criminal conviction assessment (Gov. Code, § 70373); and a $30 monthly probation supervision fee (Pen. Code, § 1203.1b).
Defendant admitted violating the terms of his probation at a hearing on November 3, 2016. Prior to accepting that admission, the court advised defendant of his rights, which defendant waived. The court reinstated defendant's probation with the modifications that he serve 90 days in jail, be assessed by the San Benito County Behavioral Health Department, and enroll in any treatment program indicated by that assessment.
Defendant timely filed a notice of appeal challenging the validity of his plea and requested a certificate of probable cause. In that request, he claimed that he did not knowingly or intelligently waive his constitutional rights, his Fourteenth Amendment due process rights were violated, he received ineffective assistance of counsel, and the trial court erred by disregarding Proposition 47. The trial court granted the request. On December 6, 2014, defendant filed a supplemental notice of appeal indicating his intent to appeal based on the sentence and other matters occurring after the plea as well.
On June 26, 2017, defendant's appointed appellate counsel requested by letter that the trial court correct several errors in the fines, fees, and assessments imposed on defendant. In particular, appellate counsel maintained (1) the $400 fine was unauthorized; (2) the penalty assessments imposed were excessive and the court should have specified the statutory bases for them; (3) the 2 percent State automation fee was unauthorized; and (4) the EMS air transport fee was unauthorized. The trial court referred the matter to the Probation Department, which reviewed the fines, fees, and assessments imposed and issued recommendations to the court. On July 19, 2017, the court modified its prior order by: (1) specifying that the $400 fine was imposed under Penal Code section 672; (2) reducing the penalty assessments to $1086; (3) vacating the 2 percent State automation fee; and (4) vacating the EMS air transport fee.
II. DISCUSSION
As noted above, one of defendant's probation conditions requires him to "[a]bstain from the use/possession of controlled substances (without a valid prescription) or alcoholic beverages, and not be present or frequent any location where those substances are present, available, or being used." This court has noted that the word "frequent" "is both obscure and has multiple meanings," such that its use can render a probation condition unconstitutionally vague. (People v. Leon (2010) 181 Cal.App.4th 943, 952 [probation condition prohibiting defendant from "frequent[ing] any areas of gang-related activity" held unconstitutionally vague].) In Leon, this court substituted the phrase "visit or remain in" for the word "frequent." (Ibid.) In view of that precedent, we requested supplemental briefing as to whether the use of the term "frequent" renders the condition at issue here unconstitutionally vague.
The People contend the condition is not vague because it bars defendant from even "be[ing] present" in any location where controlled substances or alcoholic beverages are present, available, or being used. They claim that, at worst, the words "or frequent" are redundant in that context, but that no modification is required. Defendant argues the word "frequent" is vague because it is not clear whether it encompasses "hanging out directly outside a location."
"[T]he void-for-vagueness doctrine . . . , which derives from the due process concept of fair warning, bars the government from enforcing a provision that 'forbids or requires the doing of an act in terms so vague' that people of 'common intelligence must necessarily guess at its meaning and differ as to its application.' [Citations.] To withstand a constitutional challenge on the ground of vagueness, a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition." (People v. Hall (2017) 2 Cal.5th 494, 500 (Hall).) "[T]he vagueness doctrine demands ' "no more than a reasonable degree of certainty." ' " (Id. at p. 503.) In determining whether a probation condition affords the probationer adequate notice as to what is required, we are guided by the principle that "abstract legal commands must be applied in a specific context. A contextual application of otherwise unqualified legal language may supply the clue to a law's meaning, giving facially standardless language a constitutionally sufficient concreteness." (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116.)
"Frequent" is defined in relation to a place as "to visit or make use of . . . often." (Oxford English Dict. Oxford University Press, 2018. <http://www.oed.com/view/Entry/74517> [as of Jan. 30, 2018].) In isolation, the term creates a fair warning problem because it fails to inform either the probationer or the court of how many visits or uses are required to violate the condition. But, here, no such uncertainty exists because the condition prohibits defendant from even "be[ing] present" in the locations he is not permitted to "frequent." Thus, context demonstrates that a single visit to any location where controlled substances (without a valid prescription) or alcoholic beverages are present, available, or being used constitutes a probation violation. We find defendant's interpretation of the term—"hanging out directly outside a location"—to be unfounded.
Defendant's supplemental letter brief advances a second vagueness challenge to the probation condition based on the absence of an express knowledge requirement. Defendant urges us to modify the condition to refer to locations where he knows controlled substances (without a valid prescription) or alcoholic beverages are present, available, or being used. The suggestion appears to that he understands what he is barred from doing, but he might unwittingly do that which is prohibited.
Our Supreme Court recently considered whether the state of mind required to sustain a violation of probation "must be expressly articulated in the probation condition itself to provide defendant with fair warning of what the condition requires." (Hall, supra, 2 Cal.5th at p. 500.) At issue there were conditions barring the possession, custody, or control of firearms, illegal drugs, and related items. Noting that "California case law already articulates not only a general presumption that a violation of a probation condition must be willful, but also specifically provides that probation conditions barring possession of contraband should be construed to require knowledge of its presence and its restricted nature," the court declined to modify the "conditions simply to make explicit what the law already makes implicit." (Id. at pp.501-503.)
Courts have applied Hall to conditions that do not bar possession of contraband. For example, in In re Edward B. (2017) 10 Cal.App.5th 1228, 1236-1238, our colleagues in the First District rejected a vagueness challenge to a probation condition prohibiting a juvenile from being on a school campus unless enrolled despite the absence of an express requirement that the juvenile know he is on a school campus. The court reasoned that, under Hall, "a violation of a probation condition must be willful" such that the juvenile would "not violate the school campus provision if . . . he should simply happen to find himself to be present on a school campus without knowing it." (Id. at p. 1237.) We likewise conclude that Hall forecloses defendant's argument that the condition is unconstitutionally vague absent an express scienter requirement.
III. DISPOSITION
The order of probation is affirmed.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.