Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge, Super. Ct. No. BF118737A
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Dawson, Acting P.J., Hill, J., and Kane, J.
INTRODUCTION
Appellant, Benito Trevino Castillo, was charged in an information with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count one) and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a), count two). At the conclusion of a jury trial on August 30, 2007, the jury found appellant guilty of count one but failed to reach a verdict on count two. On September 5, 2007, the trial court granted the prosecutor’s motion to dismiss count two and placed appellant on probation for three years pursuant to Proposition 36.
Appellant contends the trial court improperly delegated its authority to select a particular drug treatment program and to determine when it is successfully completed to the probation department. Appellant contends the trial court’s order that appellant not associate with anyone on probation or parole was vague and overbroad. Appellant finally argues that the trial court failed to obtain a proper waiver from appellant that as a term of probation appellant would not be permitted time in a treatment facility as custody credit.
FACTS
The probation officer’s report included a recommendation that appellant “successfully complete an appropriate drug treatment program, job training program, adult literacy classes, and any other appropriate Proposition 36 programs as approved by the Probation Officer ....” At the sentencing hearing, the trial court stated it was placing appellant on Proposition 36 probation as outlined in his probation papers. The papers the court was referring to included a summary of the terms and conditions of probation signed by appellant. Because appellant was apparently not fluent in English, the court interpreter read the document to appellant.
Because the only issues on appeal are related to the conditions of appellant’s probation, we do not recount the facts underlying his conviction.
Both the interpreter and appellant acknowledged that the interpreter read the conditions of probation document to appellant.
Condition three stated that appellant was “not to associate with anyone on probation or parole, unless given specific approval by the Probation Officer.” Condition 14 was that appellant was “to successfully complete an appropriate drug treatment program, job training program(s), Adult Literacy classes or any other appropriate program(s) as approved by the Probation Officer....” Condition 16 was that appellant “waived credit for the time to be served at a treatment center.”
COURT’S DELEGATION TO PROBATION DEPARTMENT
Appellant contends the trial court erred in delegating the selection of a drug treatment program and to determine when it is successfully completed to the probation department. Appellant argues that Proposition 36, codified by Penal Code section 1210.1, requires the trial court to make the determination concerning what drug treatment programs are appropriate and the court cannot shift this responsibility to the probation officer. Although appellant primarily focuses his argument on the trial court’s failure to choose a specific drug treatment program, he also argues that the trial court delegated too much authority to the probation officer to require appellant to complete any other appropriate program.
Unless otherwise designated, all statutory references are to the Penal Code.
Appellant’s argument substantially rests on this court’s decision in People v. Cervantes (1984) 154 Cal.App.3d 353 (Cervantes). In Cervantes, the trial court delegated its statutory authority under section 1203, subdivision (b), which at that time required the court to hear and determine an application for victim restitution, to the probation officer to make a determination as to the amount of restitution. (Cervantes, supra, 154 Cal.App.3d at pp. 356-358.) Cervantes noted that section 1203.1 granted the discretion to determine the terms and conditions of probation to the court, not the probation officer. (Id. at p. 357.) Cervantes held that the matter of restitution did not rest within the sole discretion of the probation officer. (Id. at pp. 360-361.)
The statutory provisions analyzed in Cervantes were superseded by later legislative enactments that permitted the defendant to waive the right to a hearing on the amount of victim restitution by the court and for the court to delegate the determination to the probation department. (People v. DiMora (1992) 10 Cal.App.4th 1545, 1549.)
An argument similar to appellant’s was made and rejected in People v. Penoli (1996) 46 Cal.App.4th 298, 307-308 (Penoli). As in the instant action, the issue in Penoli was a challenge to a condition of probation that granted the probation department the unilateral authority to select a residential drug rehabilitation program and to determine if the defendant successfully completed that program. (Id. at p. 307.) Penoli found that cases questioning inappropriate delegations of judicial authority to probation officers, including Cervantes, bore only superficial resemblance to the delegation in Penoli. (Ibid.)
Penoli observed that “The 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.” (Penoli, supra, 46 Cal.App.4th at p. 308.) Penoli specifically noted that, unlike Cervantes, there were no statutes that specifically required the court to make the specific determination being challenged. (Penoli, supra, 46 Cal.App.4th at p. 308.) Penoli further observed that the defendant could always seek judicial intervention to modify the probation order. (Ibid.) Penoli further rejected the contention that the trial court itself had to make a determination as to when the defendant successfully completed a treatment program. (Id. at pp. 308-310.)
We agree with respondent that nothing in section 1210.1 mandates that the trial court make the actual selection from the available treatment options for a probationer or to determine when appellant has successfully completed such a program. Section 1210.1 merely states in relevant part that “[A]s a condition of probation the court shall require participation in and completion of an appropriate drug treatment program.” Nothing in section 1210.1 states or implies that the trial court has improperly delegated its judicial decision making powers to the probation officer when it orders that a defendant participate in and complete a drug treatment program merely because the probation officer has the discretion to select the particular program the defendant must attend or to determine when a defendant has successfully completed a treatment program.
We find that appellant’s argument improperly equates the trial court’s delegation of the selection of a particular program to the probation officer with the entire abdication of judicial decision making in selecting the amount of restitution that occurred in Cervantes. The two delegations in question are not equivalent to each other. The trial court has not violated section 1210.1 or section 1203.1 in permitting the probation officer to select a particular program for the probationer or in determining when that program is successfully completed. We therefore find that the trial court did not abuse its broad discretion to impose probation conditions. (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).)
We agree with appellant, however, that the trial court’s order that appellant complete any other appropriate program as approved by the probation officer was an improper delegation of judicial authority to the probation officer. The trial court failed to place any boundary on the probation officer’s discretion to choose “other” programs. A trial court’s discretion to choose conditions of probation is not boundless. (Cervantes, supra, 154 Cal.App.3d at p. 356.) Furthermore, a condition of probation must be sufficiently precise for the probationer to know what is required of him or her. Otherwise, it cannot withstand a challenge on vagueness grounds. (Sheena K., supra, 40 Cal.4th at p. 890.) An order granting the probation officer discretion to choose any “other” programs is not precise enough to notify the appellant of what is required of him by the court. The existing order does not specify whether it is to be a residential or day program, the length of the program commitment, the program’s structure or any other program requirements. We will order the trial court to strike this condition of probation.
ASSOCIATION CONDITION
Appellant contends that the trial court’s order that appellant not associate with anyone who is on probation or parole without prior permission of his probation officer is vague and overbroad because there is not the requirement that appellant have prior knowledge that his associates are on probation or parole. Respondent concedes that appellant must “know” that his associates are on probation or parole for the condition to be valid. We have so held in People v. Lopez (1998) 66 Cal.App.4th 615, 626-635. (Also see Sheena K., supra, 40 Cal.4th at pp. 890-892.) Accordingly, we will remand for the trial court to modify this condition of probation so that it limits appellant’s ability to associate with individuals that he knows are on probation or parole unless he obtains permission from his probation officer.
JOHNSON WAIVER
Appellant contends the trial court failed to obtain an express waiver of custody credits for time spent in a drug treatment facility pursuant to People v. Johnson (2002) 28 Cal.4th 1050, 1054-1055 (Johnson). Appellant argues that he did not knowingly and intelligently waive his right to future credit for time spent in a treatment facility. We disagree.
In People v. Arnold (2004) 33 Cal.4th 294, 308 (Arnold), the California Supreme Court found that a defendant’s waiver of presentence custody credits must be knowing and intelligent. Arnold stated that the better practice is for sentencing courts to expressly admonish defendants who waive custody credits pursuant to Johnson that such waivers will apply to any future prison term should probation ultimately be revoked. (Arnold, supra, 33 Cal.4th at p. 309.) Arnold noted, however, that a sentencing court’s failure to include such an explicit advisement will not invalidate an otherwise knowing and intelligent waiver of custody credits by a defendant. (Ibid.)
In People v. Jeffrey (2004) 33 Cal.4th 312, 315-318(Jeffrey), the California Supreme Court found that the defendant could enter into a waiver of future custody credits to be earned in a residential drug or alcohol treatment facility. Jeffrey further found that on an otherwise silent record, the waiver of credits for a term imposed in county jail as a condition of probation must be presumed to be a waiver of credits for all purposes on an otherwise silent record. (Id. at pp. 319-320.)
The trial court did not obtain an express waiver of appellant’s custody credits and did not expressly admonish appellant that his waiver of custody credits constituted a waiver of future custody credits should he be sentenced to prison. Appellant, however, acknowledged reading the form setting forth the terms and conditions of his probation. Appellant signed this form. Signing a document agreeing to waive all custody credits while in a residential treatment program, as appellant has done here in agreeing to condition 16, constitutes evidence that appellant acknowledged, understood, and accepted the conditions of probation. (See People v. Bowen (2004) 125 Cal.App.4th 101, 108-109.) Accordingly, the trial court’s failure to further admonish appellant concerning the waiver of his custody credits, if it was error at all, was harmless error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The case is remanded for the limited purpose for the trial court: (1) to strike the condition of probation that appellant is subject to other appropriate programs as approved by the probation officer, and (2) to modify condition three of the terms of probation to indicate that appellant may not associate with anyone on probation or parole that the appellant knows to be on probation or parole without the prior approval of his probation officer. The judgment is otherwise affirmed.