Opinion
A152508
09-28-2018
THE PEOPLE, Plaintiff and Respondent, v. LLOYD LEWIS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR934839A, CR934650, CR936587B)
Lloyd Lewis challenges the constitutionality of two conditions placed on his mandatory supervision imposed as part of a split sentence after the court revoked his probation. His contention that the conditions are unconstitutionally vague or overbroad are meritless, so we affirm.
BACKGROUND
In April 2014 Lewis pleaded no contest to grand theft auto and related charges. The court suspended imposition of sentence and placed him on probation subject to conditions including that he submit to drug testing, not use or possess illegal drugs or controlled substances, not use or possess "any product such as 'Herbal Clean', 'Klear', or any other similar product whose primary purpose is to mask or flush the presence of drugs from the defendant's system," and not leave the county or state without his probation officer's written permission.
Lewis performed poorly on probation. Following an August 2014 no contest plea to burglary, the court found him in violation and reinstated his probation. In September 2015 Lewis admitted to violating probation by failing to complete substance abuse counseling. The court revoked and reinstated probation on the original terms and conditions plus 28 days in jail. In December 2015 Lewis admitted making a false report of an emergency in violation of Penal Code section 148.3, subdivision (a). His probation was extended to January 2019 subject to the original terms and conditions and with additional jail time.
In March 2017 Lewis's probation officer reported that Lewis missed probation appointments, drug tests and a court appearance; possessed and used methamphetamine; and failed to participate in a drug counseling program. This time the court summarily revoked probation and issued an arrest warrant. Lewis admitted the violation and, according to a September 2017 supplemental probation report, admitted frequent marijuana and methamphetamine use. His probation officer recommended a five-year split sentence to include six months of mandatory supervision upon release from jail, subject to conditions that were to include the previously imposed prohibitions against travel outside of the county or state without permission and using or possessing "any product such as 'Herbal Clean', 'Klear', or any other similar product whose primary purpose is to mask or flush the presence of drugs from the defendant's system."
The court revoked Lewis's probation and imposed the recommended sentence and conditions. Lewis did not object.
This appeal is timely.
DISCUSSION
I. Use or Possession of Drug-Masking Products
Although he did not object at sentencing, Lewis contends the condition prohibiting his possession of Herbal Clean, Klear, or similar products whose primary purpose is to mask or flush the presence of drugs from his system is unconstitutionally vague. Specifically, he asserts "the term 'primary purpose' lacks reasonable specificity to provide adequate notice as to what products a defendant must avoid" beyond Herbal Clean and Klear. Not so. Even if we assume his argument is cognizable on appeal despite his failure to object, the contention is meritless.
The standards that govern the validity and reasonableness of probation and parole conditions generally apply to conditions of mandatory supervision. People v. Martinez (2014) 226 Cal.App.4th 759, 763-764.
Lewis acknowledges that pursuant to People v. Hall (2017) 2 Cal.5th 494, 497, the possession condition implicitly encompasses a knowledge qualification such that he may be found in violation only if he knowingly possesses a substance it prohibits, i.e., one that is similar to the specifically listed products and whose primary purpose is to obscure or flush drugs from his system. For that reason alone, Lewis can only violate the condition if he knows that a substance's primary purpose is to mask the presence of or flush drugs from his system. Thus, his professed confusion about whether "primary purpose" refers to his own subjective intent in owning or using such a product or the manufacturer's reason for selling it is unconvincing. To avoid violating the condition he need only refrain from using or possessing any substance when he knows its primary purpose is to mask or remove drugs from his system.
Moreover, the term "primary purpose" has a reasonably certain and specific meaning. "In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that 'abstract legal commands must be applied in a specific context,' and that, although not admitting of mathematical certainty, the language used must have reasonable specificity." (In re Sheena K. (2007) 40 Cal.4th 875, 890; see People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116-1117 (Gallo).) A statute "will not be held void for vagueness 'if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources.' " (Gallo, supra, at p. 1116.) In the present context, it is clear that "primary" means "principal," a standard, plain-English meaning of the word. (See Merriam-Webster's Collegiate Dict. (10th ed. 2001) p. 923.) The "primary purpose" of a product is easily understood as the purpose for which it is principally or most commonly made or used. The term is " 'sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated.' " (Sheena K., supra, at p. 890.) And as our Supreme Court reminds us, it is not " 'unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line. ' " (Gallo, supra, 14 Cal.4th at p. 1117.)
II. Travel Beyond the County or State Border
Lewis contends that the condition requiring him to obtain his probation officer's permission before leaving the county or state is unconstitutionally overbroad because it gives the probation officer complete discretion to restrict his constitutional right to travel. He proposes that the matter be remanded to the trial court "to fashion a narrower alternative that specifies grounds on which a probation officer should grant or deny [him] permission to travel." Assuming again that Lewis's failure to object in the trial court did not forfeit the issue for appeal, it is meritless.
"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." ' [Citation.] [¶] The court's discretion, however, is not unlimited. A probation condition is unreasonable if 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.] But 'a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.' [Citation.] ' "As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or ' "exceeds the bounds of reason, all of the circumstances being considered." ' " ' " (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355-1356 (O'Neil).)
"Judicial discretion to set conditions of probation is further circumscribed by constitutional considerations. [Citation.] 'The Dominguez/Lent test of the validity of a condition of probation may be supplemented by a second level of scrutiny: where an otherwise valid condition of probation impinges on constitutional rights; such conditions must be carefully tailored, " 'reasonably related to the compelling state interest in reformation and rehabilitation. . . .' " ' " (O'Neil, supra, 165 Cal.App.4th 1351 at p. 1356.)
Here, Lewis's repeated probation violations demonstrate his unwillingness or inability to comply with the law, the court's orders and the probation officer's directions. His behavior during the four years between his first felony offense and the imposition of the challenged sentence shows an escalating and interdependent pattern of methamphetamine use, probation violations, and criminal offenses. All of this indicates a strong need for intensive supervision upon his release. Lewis has also expressed both the desire and potential ability to leave Lake County, which would thwart the probation department's ability to carry out that supervision. Because the six-month travel restriction prohibits Lewis from evading supervision unless his probation officer is satisfied with his progress and performance, the condition is appropriately tailored to serve the state's compelling interest in his reformation and rehabilitation. (In re E.O. (2010) 188 Cal.App.4th 1149, 1153; People v. Olguin (2008) 45 Cal.4th 375, 380-381 ["[a] condition of probation that enables a probation officer to supervise his or her charges effectively is . . . 'reasonably related to future criminality' "].)
Lewis suggests the condition is invalid because his probation officer might abuse his or her discretion by arbitrarily denying him permission to leave the county without a valid reason, but such mere speculation does not invalidate the condition. We "presume a probation officer will not withhold approval for irrational or capricious reasons. [Citation.] A probation officer cannot issue directives that are not reasonable in light of the authority granted to the officer by the court. Thus, a probation officer cannot use the residence condition to arbitrarily disapprove a defendant's place of residence. The condition does not grant a probation officer the power to issue arbitrary or capricious directives that the court itself could not order." (People v. Stapleton (2017) 9 Cal.App.5th 989, 996-997; People v. Arevalo (2018) 19 Cal.App.5th 652, 658 [affirming probation condition requiring probation officer to approve defendant's residence].) Likewise, we presume Lewis's probation officer will not withhold permission for him to leave Lake County unless he or she believes it necessary for Lewis's rehabilitation— which, in light of Lewis's criminal history and methamphetamine addiction, may well be the case.
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, P.J. We concur: /s/_________
Jenkins, J. /s/_________
Ross, J.
Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------