Opinion
D072062
04-18-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE OLASCOAGA, Defendant and Appellant.
Shawn E. Fields, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Anthony Da Silva and Scott Taylor, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD270559) APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed as modified. Shawn E. Fields, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Anthony Da Silva and Scott Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Jose Olascoaga pleaded guilty to unlawfully exhibiting a firearm in a threatening manner to an occupant of a motor vehicle (Pen. Code, § 417.3) and exhibiting a deadly weapon, a misdemeanor (§ 417, subd. (a)(1)). As part of a negotiated plea, the trial court sentenced Olascoaga to three years of probation and 20 days of public work service. Upon successful completion of probation, the court agreed to dismiss the felony section 417.3 charge on the condition that if Olascoaga violated any condition of probation he would subject himself to up to three years in prison and four years of parole.
Undesignated statutory references are to the Penal Code.
Olascoaga challenges 10 probation conditions as unconstitutionally vague and overbroad. Additionally, he challenges three conditions as unreasonable under People v. Lent (1975) 15 Cal.3d 481, 486 (Lent). As we shall discuss, we agree with his Lent challenges but reject his constitutional challenges.
FACTUAL AND PROCEDURAL BACKGROUND
On an afternoon in January 2017 an Uber driver was pulling out of a gas station when Olascoaga honked his horn long and hard. Olascoaga claimed that he was driving home from work when the Uber driver cut in front of him and then responded to the horn by yelling "fuck you" and "flipping off" Olascoaga with his middle finger. As the Uber driver waited in a turning lane, Olascoaga pulled his car up at an angle to block the Uber driver's car, took an unloaded handgun from inside his glove box and showed it to the Uber driver. The Uber driver called the police and later identified Olascoaga at a curbside lineup.
Olascoaga told the probation officer that he knew what he did was wrong and that his " 'mother and father did not raise me like that. I feel really bad and regret everything.' " At the time of the incident, Olascoaga was 21 years old, living with his family, pursuing his high school general education certificate and employed at two restaurants. Olascoaga had no prior criminal record, reported no psychological or medical issues and denied any involvement with gangs. Olascoaga admitted that he started drinking alcohol and using marijuana when he was 18 years old and that he consumes about six to eight beers twice a month and uses less than a gram of marijuana once a month. He also tried cocaine once when he was 19 years old.
The probation department evaluated Olascoaga under the COMPAS (Correctional Offender Management Profiling for Alternative Sanctions) assessment tool. The assessment suggested that Olascoaga was "likely to be successful with minimal intervention and that felony summary probation or banked formal probation would adequately serve to protect the community." The probation officer noted that Olascoaga "took full responsibility for his actions" and expressed hope that this was an "isolated incident" and that Olascoaga "ha[d] learned his lesson."
DISCUSSION
I. GENERAL LEGAL PRINCIPLES
A trial court has broad discretion to impose probation conditions to foster rehabilitation and reformation of the defendant and protect the public. (§ 1203.1, subd. (j); Brown v. Superior Court (2002) 101 Cal.App.4th 313, 319.) Because probation conditions foster rehabilitation and protect public safety, they may infringe the constitutional rights of the defendant, who is "not entitled to the same degree of constitutional protection as other citizens." (People v. Peck (1996) 52 Cal.App.4th 351, 362.) Where a court imposes a probation condition that regulates conduct "not itself criminal," the condition must be reasonably related to the defendant's crime or to future criminality. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; Lent, supra, 15 Cal.3d at p. 486.)
We apply the deferential abuse of discretion standard in reviewing probation conditions and the court's determination will be overturned only when it is arbitrary, capricious, or exceeds the bounds of reason under the circumstances. (People v. Carbajal, supra, 10 Cal.4th at p. 1121.) Under Lent, "[a] condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .' " (Lent, supra, 15 Cal.3d at p. 486.) This "test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) The failure to object to a probation condition on Lent grounds in the trial court forfeits the claim on appeal. (People v. Welch (1993) 5 Cal.4th 228, 237.) Failure to raise a constitutional issue in the trial court at sentencing does not necessarily forfeit the issue for review on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.) Rather, a defendant may advance a facial constitutional challenge that does not require scrutiny of individual facts and circumstances, but instead requires only the review of abstract and generalized legal concepts. (Id. at p. 885.) However, the forfeiture doctrine does apply if the objection involves a discretionary sentencing choice or unreasonable probation conditions "premised upon the facts and circumstances of the individual case." (Id. at pp. 885, 888.)
We review constitutional challenges to probation conditions de novo. (In re Sheena K., supra, 40 Cal.4th at pp. 888-889.)
II. ANALYSIS
Olascoaga challenges 10 conditions of probation. He raises a Lent challenge to three conditions pertaining to a curfew, a continuous alcohol monitoring device, and obtaining probation officer approval to change residence or employment. He challenges 10 probation conditions as unconstitutionally vague and overbroad because they give the probation officer unguided discretion. Assuming we find that the trial court did not impermissibly delegate its judicial authority to the probation officer, Olascoaga argues we should nevertheless find that the 10 probation conditions are unconstitutionally vague because they fail to give him fair notice of what conduct is prohibited. Finally, he asserts that three of the 10 conditions that impose a curfew require probation officer approval to change residence or employment, and require him to follow the probation officer's directions are overbroad because they infringe on constitutional rights and are not narrowly tailored to achieve a compelling state interest.
We first address Olascoaga's challenges under Lent. We conclude that the three conditions pertaining to a curfew, a continuous alcohol monitoring device, and obtaining probation officer approval to change residence or employment are unreasonable because they have no relationship to Olascoaga's crime, do not relate to criminal conduct, and are not related to Olascoaga's rehabilitation or future criminality. We reject Olascoaga's remaining constitutional challenges.
A. Reasonableness Challenge Under Lent
1. Curfew
Olascoaga objected to the condition that, if directed by the probation officer, he comply with a curfew. Defense counsel argued that the condition was unreasonable given Olascoaga's age, lack of criminal history and ability to work two jobs. The trial court declined to strike the condition, stating that if the probation officer ordered curfew Olascoaga could contest the condition at that time. On appeal, Olascoaga contends that the probation condition authorizing the probation officer to impose a curfew is invalid under Lent because it bears no relation to the underlying crime, is not related to conduct that is itself criminal, and is not reasonably related to preventing future criminality.
Here, the curfew condition is not related to Olascoaga's road rage incident which occurred in the afternoon when Olascoaga was driving home from work. Olascoaga has no criminal history and there is no evidence in the record suggesting how a curfew is related to the crime. The curfew also relates to noncriminal conduct since Olascoaga is an adult. (People v. Nassetta (2016) 3 Cal.App.5th 699, 703 (Nassetta) ["[I]t is undisputed that it is not a crime for an adult to be outside between 10:00 p.m. and 6:00 a.m."].)
The Attorney General does not contest that the curfew condition has no relationship to Olascoaga's crime and relates to conduct not itself criminal. Instead, he focuses on the third prong, arguing that the curfew condition aids Olascoaga's rehabilitation by making it easier for him to avoid situations that might tempt him to engage in drug-related activities or excessive alcohol consumption, and by making it easier for his probation officer to monitor his whereabouts. However, similar arguments can be made for any adult convicted of virtually any crime. Olascoaga's social history does not suggest the possibility of night time criminality. Additionally, his lack of any prior criminal history reveals that he has been able to remain law abiding without a curfew.
In Nassetta, supra, 3 Cal.App.5th 699, the Court of Appeal considered the validity of curfew condition under Lent in a case where the defendant was pulled over at about 2:15 a.m. and later convicted of driving under the influence and possessing cocaine for sale. (Nassetta, at p. 701.) Even through the crime occurred at night, the Nassetta court concluded that the curfew condition was not reasonably related to preventing future criminality because "[n]either possession of cocaine for sale nor driving under the influence requires the offense be committed at night." (Id. at p. 707.) Similarly here, there was no evidence in the record suggesting that road rage incidents occur more frequently at night, or that Olascoaga is more likely to become enraged during the nighttime. On this record, the curfew condition must be stricken. This conclusion moots Olascoaga's constitutional arguments regarding this condition.
2. Residence and employment approval
Olascoaga is required to obtain probation officer approval as to his residence and employment. Olascoaga argues, and the Attorney General does not dispute, that choosing one's own residence and place of employment does not relate to criminal conduct and that this condition has no relationship to Olascoaga's crime. Thus, the question becomes whether this condition is reasonably related to preventing rehabilitation and future criminality. With no explanation, the Attorney General asserts that where Olascoaga lives and works directly affects his rehabilitation and future criminality. We are not convinced by this argument.
In People v. Bauer (1989) 211 Cal.App.3d 937 (Bauer), the defendant was convicted of false imprisonment and assault. As a probation condition, the trial court required the defendant to "obtain his probation officer's approval of his residence." (Id. at p. 940.) The Bauer court held this condition failed the requirements for probation conditions, as it was not related to the defendant's crime or to future criminality. (Id. at p. 944.) The Bauer court further concluded that the restriction was unconstitutionally overbroad, explaining "[t]he condition is all the more disturbing because it impinges on constitutional entitlements—the right to travel and freedom of association. Rather than being narrowly tailored to interfere as little as possible with these important rights, the restriction is extremely broad" and gave the probation officer broad power over the defendant's living situation. (Id. at pp. 944.)
Nothing in the record suggests that Olascoaga's home life or employment contributed to the crime of which he was convicted, or that his home life or employment are reasonably related to future criminality. The nature of Olascoaga's crime, lack of criminal history and his social history do not suggest a need for oversight in these areas. Nor does Olascoaga's residence or employment have a foreseeable effect on his rehabilitation for his road rage incident. Moreover, Olascoaga remains subject to the condition that he "[r]eport any change of address or employment" to the probation officer, obtain probation officer approval before leaving San Diego County, receive the court's and the probation officer's written consent to move out of State, submit his residence to warrantless search, and maintain fulltime employment or schooling if directed by the probation officer. These conditions adequately achieve the goal of proper supervision and rehabilitation.
We do not agree with the Attorney General that the Supreme Court's opinion in Olguin, supra, 45 Cal.4th 375 impacts the viability of Bauer. In Olguin, our high court reviewed a condition of probation that required the probationer to inform the probation officer of any pets owned by the probationer and to inform the probation officer within 24 hours of any such changes. (Olguin, at p. 380.) The court noted, among other things, that "the protection of the probation officer while performing supervisory duties is reasonably related to the rehabilitation of a probationer for the purpose of deterring future criminality." (Id. at p. 381.)
The approval condition here is unlike that in Olguin, where the probationer needed to notify the probation officer of a pet in the home and did not need approval to have a pet in his home. Rather, the Olguin court expressly distinguished the notification condition from one that would require approval of a pet by the probation officer. (Olguin, supra, 45 Cal.4th at pp. 383, 385.) Thus, Olguin is distinguishable because it did not involve probation officer approval of a pet, much less that of a residence.
We strike the residence and employment approval condition because it is not reasonably related to Olascoaga's crime, future criminality or rehabilitation. Because we strike the condition as unreasonable, we need not address Olascoaga's claims regarding the constitutionality of this condition.
3. Alcohol monitoring
The trial court imposed the condition that, if directed by the probation officer, Olascoaga "[p]articipate in, comply with, and bear all costs associated with a continuous alcohol monitoring device." Olascoaga objected to this condition as being not related to his crime. Relying on People v. Malago (2017) 8 Cal.App.5th 1301 (Malago), the Attorney General claims the condition is adequately related to rehabilitation and future criminality under Lent because Olascoaga has a history of drug and alcohol use.
Alcohol monitoring is not related to Olascoaga's crime, nor is it related to conduct that is criminal. Thus, our focus is again on the last prong of the Lent analysis—whether alcohol monitoring is reasonably related to preventing future criminality and Olascoaga's rehabilitation. The alcohol monitoring condition is not reasonably related to rehabilitation because there is no evidence in the record suggesting that Olascoaga abuses alcohol such that he would require continuous alcohol monitoring. Although Olascoaga started drinking alcohol when he was 18 years old, he is now 21 years old and limits his alcohol consumption to beer twice a month. While a nexus exists "between drug use and alcohol consumption" (People v. Smith (1983) 145 Cal.App.3d 1032, 1035), Olascoaga does not have a drug abuse problem. He tried cocaine once and uses marijuana, now legal in California for adults, once a month.
The Attorney General urges us to follow Malago, where we upheld an alcohol monitoring condition and several other alcohol- and drug-treatment-related conditions. (Malago, supra, 8 Cal.App.5th 1301.) In Malago, the defendant was not under the influence during the commission of the crime, importing a controlled substance. (Id. at pp. 1303, 1307.) However, he had a juvenile record and failed to successfully complete the terms of his juvenile probation. (Id. at p. 1307.) As an adult, he had a prior conviction for possessing a controlled substance for sale and a prior arrest for a similar offense. (Ibid.) He started drinking alcohol at age 15 and admitted that he drank six 12-ounce beers twice a week. (Ibid.) He had also experimented with marijuana and cocaine in the past and had never previously received drug or alcohol treatment. (Ibid.) The facts here are materially different.
Moreover, if the probation officer believes Olascoaga is developing a drug or alcohol problem, Olascoaga remains subject to the conditions that, if directed by a probation officer, he: (1) not knowingly use or possess alcohol; (2) attend self-help meetings; (3) submit to any chemical test of blood, breath, or urine to determine blood alcohol content and authorize release of results to the probation officer or the court; (4) participate and comply with any assessment program; (5) attend and successfully complete individual, group, substance abuse, and cognitive behavioral therapy counseling program; and (6) complete a program of residential treatment and aftercare. These conditions adequately achieve the goal of proper supervision and rehabilitation without the expense of continuous alcohol monitoring. Accordingly, we strike the alcohol monitoring condition.
As discussed post, at parts II. B and C, we reject Olascoaga's constitutional challenges to these conditions. --------
B. Challenge to Probation Officer Discretion Conditions
Olascoaga asserts that 10 probation conditions giving his probation officer discretion to impose certain conditions in the future are unconstitutionally vague and overbroad because they impermissibly delegate judicial authority to the probation officer and give the probation officer unfettered discretion. We have already struck the curfew, residence and employment approval, and alcohol monitoring conditions; thus, we will not address these conditions here. (Ante, pt. II. A.) The remaining probation conditions at issue are those requiring that, if directed by a probation officer, Olascoaga: (1) follow such course of conduct communicated to him; (2) participate and comply with any assessment program; (3) attend and successfully complete individual, group, substance abuse, and cognitive behavioral therapy counseling program; (4) not knowingly use or possess alcohol; (5) attend self-help meetings; (6) submit to any chemical test of blood, breath, or urine to determine blood alcohol content and authorize release of results to the probation officer or the court; and (7) complete a program of residential treatment and aftercare. We refer to these conditions as the "if directed conditions."
Subdivision (a) of section 1202.8 states that "[p]ersons placed on probation by a court shall be under the supervision of the county probation officer who shall determine both the level and type of supervision consistent with the court-ordered conditions of probation." Subdivision (a) of section 1203 provides in part, " 'probation' means the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer."
Taken together, these statutes provide that the court orders conditions of probation and the probation officer supervises compliance with them. The if directed conditions do not constitute a delegation of the court's authority to order probation conditions; rather, the court has already ordered the conditions. Where a court-ordered probation condition provides it applies "if directed" by the probation officer, the court has merely vested the probation officer with the power to set the time and place for administration of these court-ordered probation conditions based on the probation officer's statutory authority to "determine both the level and type of supervision consistent with the court-ordered conditions of probation." (§ 1202.8, subd. (a); People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240 (Kwizera) ["When the clear words of [ ] sections 1202.8 and 1203 are applied, the trial court has authority to empower the probation department with authority to supervise the probation conditions."].) As our high court observed in Olguin, supra, 45 Cal.4th 375, the probation department's authority to supervise compliance with the conditions of probation does not empower the department to engage in irrational conduct or make irrational demands. (Id. at p. 383.) Thus, we reject Olascoaga's claim that the probation officer could decide to impose different conditions at whim depending on the day of the week.
For those if directed conditions requiring participation in court-ordered programs, another court has noted that "[t]he 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." (People v. Penoli (1996) 46 Cal.App.4th 298, 308 (Penoli).) Even if the court could be more specific in its order, that does not necessarily render a condition overbroad. (Ibid. ["Desirable as such a narrowing of the probation officer's discretion might be, however, we are not prepared at this time to hold that its absence constitutes prejudicial error."].)
As the Penoli court noted, "[a] defendant who is concerned about particular risks can bring those concerns to the court's attention at or prior to sentencing, asking it (for instance) to approve or disapprove specific programs identified by the defense. Failing that, the defendant can seek judicial intervention—by moving to modify the probation order, if nothing else—if and when the probation officer seeks to exercise the delegated authority. (See § 1203.3.)" (Penoli, supra, 46 Cal.App.4th at p. 308.)
Nor are the if directed conditions unconstitutionally vague. To avoid a challenge of vagueness, the condition "must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated." (People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325.) The Penoli court found that notice was satisfied if the probationer's trial attorney had actual knowledge of what the program ordered by the court would typically entail in terms of treatment and duration. (Penoli, supra, 46 Cal.App.4th at p. 309.) Such an order also does not have to be specific regarding how compliance with the program will be assessed since it is ultimately up to the sentencing court to determine compliance with conditions of probation, not the probation officer. (Id. at p. 310.)
Olascoaga argues that the challenged conditions are vague because the discretion vested in the probation officer prevents him from knowing what is required of him. He suggests it is impossible to plan his life if at any time the probation officer can direct him to move out of his house, change his job, or go home based on a new curfew. We view the if directed conditions in light of Olguin and presume a probation officer will not interpret them in an irrational or capricious manner, such as directing Olascoaga to not use alcohol one day and reversing that directive the following day. (Olguin, supra, 45 Cal.4th at p. 383.) If the probation officer interprets the if directed conditions in any arbitrary manner, Olascoaga may file a petition for modification of his probation condition. (See §§ 1203.2, subd. (b)(1), 1203.3, subd. (a); see People v. Keele (1986) 178 Cal.App.3d 701, 708 [trial court retains jurisdiction to review probation officer's actions].)
C. Constitutional Overbreadth Challenges
Olascoaga asserts that three probation conditions are overbroad because they infringe on constitutional rights and are not narrowly tailored to achieve a compelling state interest. Specifically, he challenges the curfew, residence and employment approval, and follow such course of conduct communicated to him conditions on this ground. We have already struck the curfew and the residence and employment approval conditions; thus, we will not address these conditions here. (Ante, pt. II.A.) We refer to the remaining condition that Olascoaga "[f]ollow such course of conduct that the [probation officer] communicates to him" as the "catch-all" condition.
To avoid a challenge of overbreadth, a probation condition that impinges on constitutional rights must be carefully and narrowly tailored to the compelling state interests of reformation and rehabilitation. (In re White (1979) 97 Cal.App.3d 141, 146.) In Kwizera, supra, 78 Cal.App.4th 1238, we held that the catch-all probation condition did not conflict with Lent, supra, 15 Cal.3d 481. (Kwizera, at pp. 1240-1241.) The Kwizera court concluded that the catch-all condition "is reasonable and necessary to enable the department to supervise compliance with the specific conditions of probation. It does no more. Since the court does not have the power to impose unreasonable probation conditions, it could not give that authority to the probation officer through [this] condition []. When the clear words of [ ] sections 1202.8 and 1203 are applied, the trial court has authority to empower the probation department with authority to supervise the probation conditions. [This condition] does not conflict with [Lent] or authorize the probation officer to irrationally tell a defendant 'to jump,' as defense counsel fears. [This condition] is a reasonable probation condition to enable the department to supervise compliance with the other probation conditions." (Ibid.)
Olascoaga notes in his reply brief that the defendant in Kwizera challenged the catch-all condition on the ground it was unreasonable under Lent and did not raise a constitutional overbreadth challenge. While the analysis of a probation condition under Lent differs from the analysis of a probation condition for overbreadth, Olascoaga fails to acknowledge that the Kwizera court did not apply the traditional Lent test in evaluating the catch-all condition. Rather, the court's analysis applies equally to Olascoaga's constitutional overbreadth challenge and we adopt it. Again, we presume the probation officer will not interpret this condition in an irrational or arbitrary manner and Olascoaga may file a petition for modification if he believes future direction by the probation officer under the catch-all condition is irrational or arbitrary. (See Ante, pt. II.B.)
DISPOSITION
Probation conditions 6e (curfew), 10g (residence and employment approval), and 8j (alcohol monitoring) are stricken. The judgment is affirmed as modified.
NARES, Acting P. J. WE CONCUR: O'ROURKE, J. AARON, J.