Opinion
F072936
10-17-2017
THE PEOPLE, Plaintiff and Respondent, v. ROXANNE NICOLE WILLIAMS, Defendant and Appellant.
Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF318930)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge. Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Before Peña, Acting P.J., Meehan, J. and Black, J.†
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Defendant Roxanne Nicole Williams was convicted by no contest plea of assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) and resisting a peace officer (§ 148, subd. (a)(1)). On appeal, she contends the probation conditions that restrict her residence and travel are unconstitutionally overbroad. We affirm.
All statutory references are to the Penal Code.
BACKGROUND
On June 3, 2015, at about 6:20 p.m., Carol C. heard fighting and screaming from her next door neighbor's trailer in Tulare County. The neighbor (Kenny) was screaming for help. Carol went over to the neighbor's trailer and encountered defendant, who was also screaming. Carol told defendant to leave, but she refused. Carol told defendant to go to her grandmother's residence before someone called the police. Defendant ran outside, yelled at Carol, and spat in her face. Defendant then picked up a brick and threw it at her. The brick struck Carol, cutting and bruising her arm, then shattered on the driveway. When police arrived, defendant was noncompliant and combative.
On June 30, 2015, defendant was charged with assault with a deadly weapon (§ 245, subd. (a)(1); count 1) and resisting a peace officer (§ 148, subd. (a)(1); count 2).
On July 23, 2015, the trial court heard and denied defendant's Marsden motion. The court ordered medical personnel to interview defendant and submit a report pursuant to section 4011.6.
People v. Marsden (1970) 2 Cal.3d 118.
On July 27, 2015, defendant underwent a mental health assessment. The practitioner diagnosed her with a mental health condition and recommended follow-ups with her doctor, substance abuse treatment services, and Adult Mental Health Services for continued mental health and support services.
On August 4, 2015, on the prosecution's motion, count 1 was amended to a violation of section 245, subdivision (a)(4) to make defendant eligible for Mental Health Court. Defendant pled no contest to both counts 1 and 2. The court informed her she could serve up to four years if she was found unsuitable for Mental Health Court.
Section 245, subdivision (a)(4) provides: "Any person who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment." --------
On August 7, 2015, the court ordered defendant to contact the Mental Health Department for an evaluation. Defendant's father informed the court that defendant could live with him in Fresno, and he would be able to bring her to court once a week in Tulare County.
On August 13, 2015, the court ordered defendant to report to Visalia Adult Integrated Clinic that day.
On August 27, 2015, defendant informed the court that her father was not going to be able to bring her to Tulare County on a weekly basis, and thus she had started mental health treatment in Fresno. The father reported that defendant was doing extremely well in his home. The court stated that defendant would not be able to continue with the program in Tulare County and therefore the probation department would prepare a custody update to discuss at the next hearing.
On November 12, 2015, at the sentencing hearing, defendant stated she was participating in mental health treatment in Fresno, but was now staying in Tulare County so she could spend time with her mother and possibly enroll herself in an inpatient program. She explained that she was still going to meetings and "just talk[ing] with the lady" in Fresno, but she was not engaged in formal counseling. The court stated it believed a more formal and concrete arrangement should be made through the Probation Department. Accordingly, the court declined to omit the probation condition that read:
"20. The defendant [is to] submit to a mental health evaluation and comply with any prescribed treatment. There is to be a free flow of information between the mental health treatment provider, the Probation Department and the Court."The following probation conditions, at issue here, were also included:
"10. The defendant [is to] reside in the State of California, County of Tulare, unless permission is granted, in writing, by the Probation Officer to reside elsewhere.
"11. The defendant is not to leave the State of California for any reason, including vacation or other travel unless permission is granted, in writing, by the Probation Officer. . . ."
The court granted three years' felony probation with no incarceration time on count 1 and credit for time served on count 2.
The probation officer's report noted that Carol suffered no monetary loss and had "always wanted the defendant to get the help she needs."
DISCUSSION
I. Law
Probation is "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." (§ 1203, subd. (a).) Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety. (People v. Welch (1993) 5 Cal.4th 228, 233.) "Persons 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." (§ 1202.8, subd. (a).) "[P]robation is an ' " 'act of clemency and grace,' " ' not a matter of right. [Citation.] '[T]he granting of probation is not a right but a privilege, and if the defendant feels that the terms of probation are harsher than the sentence for the substantive offense[,] he [or she] is free to refuse probation.' [Citations.]" (People v. Rubics (2006) 136 Cal.App.4th 452, 459-460, disapproved on another ground in People v. Martinez (2017) 2 Cal.5th 1093, 1099-1107 & fn. 3.)
"In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to . . . section 1203.1. [Citations.] 'The court may impose and require . . . [such] 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, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.' (. . . § 1203.1, subd. (j).) The trial court's discretion, although broad, nevertheless is not without limits . . . ." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.)
A condition will not be invalidated as unreasonable unless it satisfies each of the following criteria: (1) it has no relationship to the crime of which the offender was convicted; (2) it relates to conduct that is not itself criminal; and (3) it requires or forbids conduct that is not reasonably related to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent); accord, People v. Carbajal, supra, 10 Cal.4th at p. 1121.) The test is conjunctive; all three prongs must be satisfied before an appellate court will find the condition invalid. (Lent, at p. 486.) "[E]ven if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (People v. Olguin (2008) 45 Cal.4th 375, 380 (Olguin).) A condition of probation that enables a probation officer to effectively supervise a probationer is reasonably related to future criminality. (People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240-1241.)
However, "[j]udicial discretion to set conditions of probation is further circumscribed by constitutional considerations." (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1356.) "A probation condition that imposes limitations on a person's constitutional rights[—such as the right to travel—]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 (Sheena K.); see In re White (1979) 97 Cal.App.3d 141, 148 [recognizing the right to travel as a basic constitutional right].) "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.)
Appellate courts have modified or stricken conditions that restrict a probationer's constitutional rights when the conditions are not narrowly drawn to serve the goals of rehabilitation and protection of the public. (See, e.g., In re Bushman (1970) 1 Cal.3d 767, 776-777 [condition requiring petitioner to seek psychiatric treatment at his own expense was beyond the court's jurisdiction where there was no evidence he needed psychiatric care], disapproved on another ground in Lent, supra, 15 Cal.3d at p. 486, fn. 1; People v. Keller (1978) 76 Cal.App.3d 827, 839 [narcotics search condition not narrowly drawn where the defendant's conviction was for theft of a $0.49 ballpoint pen], disapproved on other grounds in People v. Welch, supra, 5 Cal.4th at p. 237.)
"Generally, we review the court's imposition of a probation condition for an abuse of discretion." (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) When the challenge is a constitutional one, however, we review it independently. (Ibid.)
A claim that a probation condition is facially overbroad does not rely on reference to the sentencing record, and we may treat it as a pure question of law, which is not forfeited by failure to object in the trial court. (Sheena K., supra, 40 Cal.4th at p. 885 [appellate claim that the language of a probation condition is unconstitutionally vague or overbroad "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court"]; id. at p. 887 ["An obvious legal error at sentencing that is 'correctable without referring to factual findings in the record or remanding for further findings' is not subject to forfeiture."]; ibid. ["a challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law"].) II. Analysis
Defendant asserts that the residency and travel conditions are overbroad because they give the probation officer "unfettered control" over the location of her residence and where she can travel. She argues the conditions are unconstitutionally overbroad because they are not narrowly tailored and not reasonably related to the state's interest in her rehabilitation or the promotion of public safety. She acknowledges the failure to object below, but maintains these claims are facial challenges constituting pure questions of law that require no reference to the record and therefore fall within the forfeiture exception articulated in Sheena K. (Sheena K., supra, 40 Cal.4th at pp. 887-889.)
Defendant argues the residency condition must be more narrowly drawn to require that she merely notify the probation officer if she moves, rather than obtain the officer's permission to move. As for the travel condition, she asserts it must be stricken altogether. However, the California Supreme Court has established that probation officers do not have unlimited discretion, but rather have an inherent obligation to act reasonably in the supervision of probationers and in the application of probation conditions; furthermore, we presume they will fulfill that obligation. (Olguin, supra, 45 Cal.4th at pp. 380-383 [on a facial challenge to a probation condition, we assume that a probation officer will not apply it in an arbitrary or capricious manner; "[w]hat action the officer may choose to take . . . is beyond the scope of a facial attack on the . . . condition itself"]; see People v. Stapleton (2017) 9 Cal.App.5th 989, 996 [probation officer "cannot use the residence condition to arbitrarily disapprove a defendant's place of residence"].)
Here, we cannot say that either the residency condition or the travel condition are facially overbroad based on their language and legal concepts, but we recognize they could be factually overbroad in certain circumstances, while entirely appropriate in others. Certain probationers simply require more intensive supervision and monitoring, as the specific facts of each case demand.
Defendant relies on People v. Bauer (1989) 211 Cal.App.3d 937 (Bauer), in which the court struck a similar residency condition, but that reliance is misplaced. Bauer was decided before Olguin, supra, 45 Cal.4th 375 and, in any event, did not conclude the condition was invalid in every context, but instead relied primarily on an analysis of the specific facts of the case and the reasonableness test set forth in Lent. (Bauer, at pp. 944-945; see People v. Stapleton, supra, 9 Cal.App.5th at pp. 995-997 [upholding a similar condition and distinguishing Bauer based on Olguin, and concluding Olguin had changed the legal landscape since Bauer].) Here, defendant cannot assert the conditions are unreasonable under Lent, based on the specific facts of her case, because she has forfeited this claim.
Nevertheless, we note that defendant has mental health issues and is required to undergo mental health evaluation and treatment by probation condition No. 20. Thus, the state has a legitimate interest in ensuring she obtains this ongoing mental health treatment, and in ensuring the probation officer maintains continuous supervision and awareness of her status. The residency and travel conditions properly serve the state's interest in reformation and rehabilitation because where defendant lives and where she travels directly affect her access to treatment, supervision, and rehabilitation. Thus, these conditions are sufficiently tailored to a legitimate state interest and are not unconstitutionally overbroad.
DISPOSITION
The judgment is affirmed.
† Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article IV, section 6 of the California Constitution.