Opinion
E064319
12-20-2016
THE PEOPLE, Plaintiff and Respondent, v. REBECCA ANN ZULAUF, Defendant and Appellant.
Alissa Bjerkhoel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Britton Lacy, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1400101) OPINION APPEAL from the Superior Court of Riverside County. Stephen J. Gallon, Judge. Affirmed as modified in part, reversed in part. Alissa Bjerkhoel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Britton Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Rebecca Ann Zulauf guilty of one count of felony filing a fraudulent insurance claim (Pen. Code, § 550, subd. (a)(1); count 1); one count of felony presenting a document in support of a fraudulent claim (§ 550, subd. (a)(5); count 2); two counts of felony providing false statements in support of an insurance claim (§ 550, subd. (b)(1); counts 3 & 4); and one count of misdemeanor filing a false report of vehicle theft (Veh. Code, § 10501, subd. (a); count 5). After the trial court reduced counts 3 and 4 to misdemeanors, defendant was sentenced to three years of formal probation on various terms and conditions. On appeal, defendant argues her conviction on count 5 must be reversed because it was prosecuted in violation of the one-year statute of limitation under Penal Code sections 802 and 804; and, alternatively, there was insufficient evidence to support her conviction on count 5. Defendant further asserts the trial court erred in imposing several probation conditions and therefore they must be modified or stricken.
All future statutory references are to the Penal Code unless otherwise stated.
For the reasons explained below, we conclude count 5 was governed by the one-year limitation period; and therefore, prosecution of that offense was time barred. We also find one of defendant's challenged probation conditions should be modified. Otherwise, we affirm.
I
FACTUAL BACKGROUND
Defendant had a car insurance policy with the Automobile Club of Southern California (AAA). Under that policy, she insured her blue 1998 BMW Z3 Roadster.
On July 19, 2011, defendant reported to a AAA claims adjuster that her BMW had been stolen. Defendant described the car as being in "excellent condition," and noted the car had a Harman Kardon aftermarket stereo, no major mechanical issues, and no significant damage to the exterior. Defendant explained to the claims adjuster that her primary residence was in Santee, but she was temporarily working as a nurse in Temecula and living in a portable trailer on her friend's property. She had towed the trailer from Santee to Temecula with her pickup truck, which she then returned to Santee and exchanged for her BMW. Defendant further stated that on July 8, 2011, she decided she wanted to tow her trailer back to Santee, but she wanted both her truck and BMW in Temecula, so she paid a man she met $20 to take her to Santee to pick up her truck. Before leaving for Santee, defendant parked her BMW on a street near a Denny's restaurant in Temecula. She intended on returning to Temecula on July 11, 2011, but her dog or dogs were hit by a car and she did not return until July 14, 2011. On July 18, 2011, she decided to retrieve her BMW and went to the location where she had left the car. However, when she got to the location, she discovered her car was gone and reported her missing BMW as stolen to law enforcement officials.
The claims adjuster was suspicious of defendant's story and reported her suspicions to the AAA Special Investigation Unit. The claim was subsequently assigned to Bill Lovold, an investigator in the unit. Lovold conducted further investigation and defendant participated in an examination under oath on October 12, 2011. Defendant stated that she had purchased the BMW in 2006, she had the engine rebuilt in 2009, and she had the transmission overhauled in 2010. She claimed that she had receipts for all of the work done on her BMW, but never actually produced any receipts. Defendant also stated that she owned seven cars at the time, but no other BMWs. After the investigation, AAA decided to pay defendant, finding no basis to deny the claim.
However, AAA reopened the investigation in 2012 after receiving information from one of defendant's tenants while investigating an unrelated insurance claim pertaining to a fire at one of defendant's properties. Lovold then referred defendant's stolen BMW claim to California Department of Insurance detective Todd Wollard.
During the investigation, in April and May 2013, Wollard interviewed Kevin Burnett, who did various maintenance and mechanical work for defendant, and Burnett's wife. Burnett indicated that in 2012 he worked on defendant's 1967 Ford pickup that needed parts. Defendant picked him up and drove him to a house where she had another car that he could get parts from for the Ford. The car defendant took him to was the allegedly stolen BMW. Defendant told Burnett that she had staged the theft of the BMW and recovered $5,000, which was not as much money as she thought she was going to get, from her insurance company. Burnett took various parts from the BMW and brought them back to defendant's residence for the Ford pursuant to defendant's instructions. Burnett took the CD player and amplifier because defendant failed to pay him for his work. Burnett turned these items over to Wollard. The amplifier was a Harman Kardon, which was an upgrade for a 1998 BMW Z3.
On one occasion, Burnett's wife accompanied him to get parts from the BMW, and took pictures of the interior and exterior of the BMW as she was concerned about her husband's involvement with an allegedly stolen vehicle. She also took photos of the BMW's license plates, which were in the backseat of the car, and an insurance card for the BMW with defendant's name on it. Burnett's wife then anonymously reported her findings to AAA. Burnett and his wife also provided Wollard with all of the information and evidence they had collected.
Wollard interviewed Glen Green, one of defendant's tenants. Green knew that defendant's BMW was having mechanical issues and that defendant had looked into the cost to repair the vehicle, but it was more than she wanted to spend. Green also reported that defendant had told him her BMW had not been stolen, but that it was in a garage somewhere. Green further stated that defendant said she was not scared of getting caught; that she had done it before; and that the insurance investigator was stupid.
Wollard also interviewed Rhonda Hale, defendant's former tenant and employee. Hale recalled that defendant had a BMW, which she saw defendant drive on several occasions, and that defendant looked into getting the BMW repaired but ultimately did not get it fixed due to the cost. Hale further stated that once she met defendant and followed her to a location defendant stated was her daughter's house; and that defendant drove her BMW there, parked it, and told Hale, "if anybody asks, tell them it was stolen."
By the time Wollard went to the location where the BMW had been stored, it was gone. However, during a search of defendant's residence, investigators located numerous BMW parts, including an engine and transmission. The VIN label on the engine and attached transmission matched the VIN for defendant's allegedly stolen BMW. The rest of the BMW parts, which were not VIN-specific, belonged to either a 1997 or 1998 BMW Z3.
II
DISCUSSION
A. Statute of Limitations
Defendant argues her misdemeanor conviction under Vehicle Code section 10501 for filing a false report of vehicle theft must be reversed, because it was prosecuted in violation of the one-year statute of limitations under Penal Code section 802. For purposes of this appeal, it appears the parties agree that the offense was alleged to have occurred on July 18, 2011, and that the prosecution was commenced more than one year later, but less than three years later, on July 1, 2014. Accordingly, the issue on appeal is whether the statute of limitations on filing a false report of vehicle theft (count 5) was one year under sections 802 and 804, as defendant contends, or three years or four years under sections 801, 801.5, 803, subdivision (c), and 805, as the People argue.
This offense was charged by information on July 1, 2014.
Defendant raises this issue even though she failed to raise the issue in the court below. However, defendant may raise the issue at any time as it is jurisdictional in nature. (See People v. Chadd (1981) 28 Cal.3d 739, 756-757.)
The proper interpretation of a statute presents a question of law that is subject to de novo review. (Coito v. Superior Court (2012) 54 Cal.4th 480, 488.) The principles of statutory construction are well settled. " 'The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law.' [Citation.] In approaching this task, we 'must first look at the plain and commonsense meaning of the statute because it is generally the most reliable indicator of legislative intent and purpose.' [Citation.] 'If there is no ambiguity or uncertainty in the language, the Legislature is presumed to have meant what it said, and we need not resort to legislative history to determine the statute's true meaning.' [Citation.] '[W]e do not construe statutes in isolation, but rather read every statute "with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness." [Citation.]' [Citation.]" (People v. Skiles (2011) 51 Cal.4th 1178, 1185.) "[S]tatutes of limitation are to be strictly construed in favor of the accused." (People v. Zamora (1976) 18 Cal.3d 538, 574; see People v. Price (2007) 155 Cal.App.4th 987, 992.)
Vehicle Code section 10501, subdivision (a), states: "It is unlawful for any person to make or file a false or fraudulent report of theft of a vehicle required to be registered under this code with any law enforcement agency with intent to deceive." "This offense is a misdemeanor unless the person has been previously convicted of the same offense, in which case it is punishable as either a misdemeanor or a felony." (People v. Murphy (2011) 52 Cal.4th 81, 88, citing Veh. Code, §§ 10501, subd. (b), 40000.9.) Here, defendant was not previously charged with or convicted of violating Vehicle Code section 10501, subdivision (a).
Specifically, subdivision (b) of Vehicle Code section 10501 provides: (b) If a person has been previously convicted of a violation of subdivision (a), he or she is punishable by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months, or two or three years, or in a county jail for not to exceed one year."
The general statute of limitations for a misdemeanor is one year. (See Pen. Code, § 802, subd. (a).) However, the People respond that the offense is a "wobbler," an offense which can be either a felony or a misdemeanor, and therefore the applicable statute of limitations is three years. (See People v. Superior Court (Ongley) (1987) 195 Cal.App.3d 165, 167 (Ongley).) Under section 805, subdivision (a), the statute of limitations for any "wobbler" offense is that of the felony: three years. Thus, the People argue, the offense is a felony for purposes of statute of limitations, irrespective of the actual level of offense charged. (See Ongley, at p. 169.) We agree that "a 'wobbler' (an alternate felony-misdemeanor) filed as a misdemeanor was not time-barred when filed more than a year after the commission of the offense because wobblers, no matter how filed, enjoy the three-year statute of limitations applicable to most felonies. [Citations.]" (People v. Ognibene (1993) 12 Cal.App.4th 1286, 1290, fn. 1, disapproved on another ground in Cowan v. Superior Court (1996) 14 Cal.4th 367, 375.)
Prosecution for an offense "not punishable by death or imprisonment in the state prison shall be commenced within one year after commission of the offense." (Pen. Code, § 802, subd. (a).)
Section 805, subdivision (a), provides that to determine "the applicable limitation of time . . . . [¶] (a) An offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed. Any enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute for an offense."
Nevertheless, the People's three-year wobbler argument is fundamentally incorrect under the circumstances of this case. The People here charged defendant with, and prosecuted the case, under Vehicle Code section 10501, subdivision (a), a misdemeanor. Defendant was not charged with, and there is no evidence in the record to show defendant had previously been convicted of this offense in violation of Vehicle Code section 10501, subdivision (b). As such, the People could not have charged defendant with an alternate felony/misdemeanor in this case for the three-year limitations period to apply. Where a wobbler offense is not involved, only the general misdemeanor statute of limitations applies. (People v. Soni (2005) 134 Cal.App.4th 1510, 1517, citing People v. Mincey (1992) 2 Cal.4th 408, 453.) The offense charged here is not a wobbler, and thus cannot be treated as a felony for purposes of determining the applicable limitations of actions. Hence, the one-year limitation term for a misdemeanor applied in this case, and not the three-year general limitations term for a felony.
Although there is not a case directly on point, this conclusion seems compelled by how some related sentencing issues have been resolved. For example, in In re McSherry (2007) 157 Cal.App.4th 324, the Court of Appeal held that the three-year statute of limitations applied to a prosecution for attempted "felony" annoyance or molestation of a child under the age of 18 years with a prior lewd act conviction (§§ 801, 647.6, subd. (c)(2).) It is clear from an analysis of the case however, that the three-year statute applied because the defendant had a prior lewd act conviction, raising the offense from a misdemeanor to a felony in the first instance.
Likewise, in People v. Johnson (2006) 145 Cal.App.4th 895 (Johnson), the appellate court held that the three-year statute of limitations applied when a defendant is charged with a felony violation of indecent exposure under section 314 based upon the fact that he has one or more prior convictions for violating this statute. (Johnson, at p. 902.) To resolve that issue, the court first had to determine " 'the maximum punishment prescribed by statute for the offense,' " disregarding " '[a]ny enhancement of punishment prescribed by statute.' [Citation.]" (Id. at p. 904, italics omitted.) The court characterized section 314 as a "hybrid offense, classified as a misdemeanor or felony, with greatly increased maximum punishment, dependent upon the presence or absence of certain factors. [Citation.]" (Johnson, at p. 904.) It further determined that the "maximum punishment specifically prescribed under section 314, subdivision 1 is imprisonment in state prison." (Id. at p. 905.) Therefore, the court held that the felony statute of limitations applies to a charge that a defendant has committed a felony violation of section 314. (Johnson, at p. 907.) In reaching its decision, the Johnson court expressly rejected the argument that "the felony punishment applicable to recidivist offenders under section 314, subdivision 1 is an 'enhancement' of punishment that cannot be considered in defining the 'maximum punishment' under that section . . . ." (Johnson, at p. 902.) The court also rejected the contention that "any statutory use of prior convictions to increase punishment necessarily relates not to the punishment prescribed by statute for the offense, but only to the circumstances of a particular offender." (Id. at p. 904, italics omitted.)
As explained in People v. Crabtree (2009) 169 Cal.App.4th 1293, 1309-1310: "Based on similar reasoning, if an offense is an alternative felony/misdemeanor (wobbler) initially charged as a felony, the three-year statute of limitations for felonies applies, without regard to the ultimate reduction to a misdemeanor after the filing of the complaint. [Citations.] If, however, the initial charge is a felony, but the defendant is convicted of a necessarily included misdemeanor, the one-year limitation period for misdemeanors applies. [Citation.]" In this case, the offense of filing a false report of vehicle theft (count 5) was originally filed as a misdemeanor and defendant had no prior convictions under Vehicle Code section 10501. For this reason, the conviction on count 5 must be reversed as time barred.
The People also assert that because Vehicle Code section 10501 inherently involves fraud, a four-year statute of limitations applies. However, under Penal Code section 803, subdivision (c), a limitations period of four years is provided for all fraud-type felonies. Section 803, subdivision (c), provides: "A limitation of time prescribed in this chapter does not commence to run until the discovery of an offense described in this subdivision. This subdivision applies to an offense punishable by imprisonment in the state prison or imprisonment pursuant to subdivision (h) of Section 1170 , a material element of which is fraud or breach of a fiduciary obligation . . . ." A four-year term is provided under section 801.5, if the offense is one that falls under the terms of section 803, subdivision (c). Here, defendant could not be charged with a felony because she had no prior conviction for filing a false vehicle theft report under Vehicle Code section 10501, a prerequisite to a felony charge. Accordingly, the extended four-year limitations period for all fraud-type felonies does not apply under the circumstances of this case.
Section 803, subdivision (c), lists the following offenses: "(1) Grand theft of any type, forgery, falsification of public records, or . . . bribe[ry] by a public official . . . . [¶] (2) A violation of section 72, 118, 118a, 132, 134 or 186.10. [¶] (3) A violation of section 25540 . . . or 25541 of the Corporations Code. [¶] (4) A violation of Section 1090 or 27443 of the Government Code. [¶] (5) Felony welfare fraud or Medi-Cal fraud . . . . [¶] (6) Felony insurance fraud . . . . [¶] (7) A violation of Section 580, 581, 582, 583, or 584 of the Business and Professions Code. [¶] (8) A violation of Section 22430 of the Business and Professions Code. [¶] (9) A violation of Section 103800 of the Health and Safety Code. [¶] (10) A violation of Section 529a. [¶] (11) A violation of subdivision (d) or (e) of Section 368."
Since the charging information was not filed until July 1, 2014, more than one year after the July 18, 2011 offense date, the prosecution of count 5 was time barred, and the conviction on that count must therefore be reversed.
Because we find defendant's misdemeanor conviction on count 5 must be reversed, we need not address defendant's alternative claim of whether there was sufficient evidence to support the guilty verdict on that count.
B. Probation Conditions
Defendant argues that two of her probation conditions—that she " 'reside at a residence approved by the probation officer' " (italics added) and that she "participate and complete . . . any counseling, rehabilitation/treatment program deemed appropriate by [the] probation officer" (italics added)—are unconstitutionally vague and/or overbroad and must be stricken or modified. Defendant did not object to these probation conditions and expressly agreed to all of the conditions of her probation. The People argue defendant forfeited her challenge to the probation conditions because she failed to object at the sentencing hearing and her claims do not fall under the narrow exception to the forfeiture rule. In the alternative, the People assert the challenged probation conditions are valid.
As noted by the parties, the California Supreme Court was considering the constitutionality of a similarly worded probation condition in People v. Schaeffer (2012) 208 Cal.App.4th 1 (Schaeffer), review granted October 31, 2012, S205260. As in this case, the condition at issue there required the defendant to reside at a residence approved by the probation officer and not to move without prior approval. However, recently on September 21, 2016, the California Supreme Court dismissed the case as moot and remanded it to this court.
In general, trial courts are given broad discretion in fashioning terms of probation in order to foster the reformation and rehabilitation of the offender while protecting public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Thus, the imposition of a particular condition of probation is subject to review for abuse of that discretion. "As with any exercise of discretion, the court violates this standard when it imposes a condition of probation that is arbitrary, capricious or exceeds the bounds of reason under the circumstances. [Citation.]" (People v. Jungers (2005) 127 Cal.App.4th 698, 702.)
However, constitutional challenges are reviewed under a different standard. Whether a term of probation is unconstitutionally vague or overbroad presents a question of law, which we review de novo. (In re J.H. (2007) 158 Cal.App.4th 174, 183; In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) The failure to object below that a condition of probation is unconstitutionally overbroad does not forfeit review of the issue on appeal, as it is a pure issue of law. (See In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.); People v. Welch (1993) 5 Cal.4th 228, 235.) As the court in Sheena K. explained, the doctrine of forfeiture on appeal does not apply to challenges to probation conditions based on "facial constitutional defects" that do "not require scrutiny of individual facts and circumstances." (Sheena K., at pp. 885-886.) 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.)
Here, defendant claims that even though she did not object to the challenged conditions at sentencing, her overbreadth and/or vagueness arguments present facial constitutional challenges with pure questions of law based on undisputed facts and, thus, can be properly raised on appeal for the first time. We agree with defendant and reject the People's forfeiture argument. However, we focus on the constitutionality of the condition, not whether it is reasonable as applied to defendant. (See People v. Lent (1975) 15 Cal.3d 481, 486 [test for reasonableness of probation conditions].) By failing to object below, defendant has forfeited all claims except a challenge "based on the ground the condition is vague or overbroad and thus facially unconstitutional." (Sheena K., supra, 40 Cal.4th at p. 878.)
To be valid, a probation condition "must (1) . . . relate[] to the crime of which the defendant was convicted, or (2) relate to conduct that is criminal, or (3) require or forbid conduct that is reasonably related to future criminality." (People v. Bauer (1989) 211 Cal.App.3d 937, 942 (Bauer).) "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." ' " (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355 (O'Neil).) But an otherwise valid condition that impinges upon constitutional rights "must be carefully tailored, ' "reasonably related to the compelling state interest in reformation and rehabilitation . . . ." ' " (Bauer, supra, 211 Cal.App.3d at p. 942; accord, People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).)
A probation condition cannot be overbroad. (Olguin, supra, 45 Cal.4th at p. 384; Sheena K., supra, 40 Cal.4th at p. 890.) "A restriction is unconstitutionally overbroad . . . if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' [Citations.] 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.)
Moreover, a probation condition cannot be vague; it " ' "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. Barajas (2011) 198 Cal.App.4th 748, 753, quoting Sheena K., supra, 40 Cal.4th at p. 890.) On the other hand, probation is a privilege and not a right, and adult probationers, in preference to incarceration, may validly consent to limitations upon their constitutional rights. (Olguin, supra, 45 Cal.4th at p. 384.) For example, probationers may agree to warrantless search conditions or restrictions on their constitutional right of association. (Id. at pp. 384 & 385, fn. 4, citing People v. Ramos (2004) 34 Cal.4th 494, 506; People v. Medina (2007) 158 Cal.App.4th 1571, 1580 ["a suspicionless search pursuant to a probation search condition is not prohibited by the Fourth Amendment"]; People v. Balestra (1999) 76 Cal.App.4th 57, 68-69 [upholding a probation condition requiring submission to alcohol and drug testing at the discretion of the probation officer]; People v. Peck (1996) 52 Cal.App.4th 351, 363 [condition prohibiting association with known possessors, users, or traffickers of controlled substances]; and other cases.)
However, even a facial challenge to constitutionality requires more than a one-size-fits-all approach. Our inquiry does not take into account the individual facts pertaining to this particular probationer—as would an "as applied" challenge—but it must take into account the nature of the case and the goals and needs of probation in general. For example, what is constitutional in a case involving drug usage is not necessarily the same as what is constitutional in a theft-related case or, as here, a case involving insurance fraud. This broad consideration of the nature of the case must inform all decisions about whether the condition has been "narrowly tailored," even where, as here, we do not reach the personal circumstances of the probationer.
1. Residency term
Defendant contends the term " 'Reside at a Residence Approved by the Probation Officer' " is unconstitutionally overbroad and violates her right to travel. Defendant relies primarily on Bauer, supra, 211 Cal.App.3d 937.
The right to travel and freedom of association are undoubtedly "constitutional entitlements." (Bauer, supra, 211 Cal.App.3d at p. 944.) But, as discussed, a probation condition may restrict these rights so long as it reasonably relates to reformation and rehabilitation. (In re White (1979) 97 Cal.App.3d 141, 146.) In Bauer, the reviewing court struck a residence condition apparently designed to prevent the defendant from living with his overprotective parents. (Bauer, at p. 944.) Nothing in the record suggested the defendant's home life contributed to the crimes of which he was convicted (false imprisonment and simple assault), or that living at home reasonably related to future criminality. (Ibid.) The court concluded the probation condition impinged on the defendant's right to travel and freedom of association, and was extremely broad since it gave the probation officer the power to forbid the defendant "from living with or near his parents—that is, the power to banish him." (Ibid.)
The present case is distinguishable. Unlike the condition in Bauer, the residence condition imposed here is not a wolf in sheep's clothing; it is not designed to banish defendant or to prevent her from living where she pleases. Moreover, unlike the defendant in Bauer, where defendant lives may directly affect her rehabilitation. The record shows that throughout the course of defendant's criminal activity, defendant relocated frequently and used her properties to hide the allegedly stolen vehicle. Moreover, the allegedly stolen vehicle's parts were found in defendant's residence. A probation officer supervising a person like defendant must reasonably know where she resides and with whom she is associating in deterring future criminality.
The residency condition is necessary under these circumstances to aid in defendant's rehabilitation, and not to banish defendant from any geographic region. The residency condition properly serves the state's interest in reformation and rehabilitation because where she lives will directly affect her rehabilitation. Contrary to defendant's claim, there is no evidence to suggest her residence could be disapproved for any reason, including inconvenience. The nature of defendant's crimes suggests a need for oversight.
Like the court in Bauer, we do not find that the condition itself is inappropriate in all circumstances (see Bauer, supra, 211 Cal.App.3d at p. 944 [finding residence approval condition not related to the defendant and his crimes in the case, but not invalidating the condition in every case]), but that such approval here was related to defendant's crimes and living situation. Because defendant's living situation has been shown to be reasonably related to future criminality and because there is a nexus between these circumstances and the instant offenses, we find the challenged approval requirement in the residency condition valid.
2. Treatment condition
Defendant also contends that the probation condition requiring that she complete "any counseling, rehabilitation/treatment program deemed appropriate by [the] probation officer" is vague and overbroad because it "does not specify what types of programs the probation officer can order [her] to participate in" and conveys "unfettered discretion" upon the probation officer.
Though a court cannot delegate its judicial authority to the probation department, probation officers do enjoy broad discretion in carrying out court orders. (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1372-1373.) The probation department is vested with the power to "set the time and place for administration" of court-ordered probation conditions. (People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240 (Kwizera ).) Our state high court has cited with approval a probation condition which required a probationer " ' "follow such course of conduct as the probation officer prescribes" ' as reasonable and necessary to enable the probation department to supervise compliance with specific conditions of probation." (Olguin, supra, 45 Cal.4th at p. 381, citing Kwizera, supra, 78 Cal.App.4th at p. 1240.)
However, conditions worded so that the probation officer has "unfettered" or " 'entirely open-ended' " discretion to interfere with a constitutionally protected liberty will usually be found overbroad. (People v. Leon (2010) 181 Cal.App.4th 943, 953-954; O'Neil, supra, 165 Cal.App.4th at pp. 1358-1359.) For example, a condition prohibiting a probationer from associating with anyone designated by his probation officer was found overbroad as the condition gave the probation officer unlimited discretion to decide with whom the probationer would be allowed to associate. (O'Neil, at pp. 1357-1358.) An implicit expectation that the probation officer would use his discretion reasonably did not save the condition from being unconstitutionally overbroad. "The court's order does not identify the class of persons with whom defendant may not associate nor does it provide any guideline as to those with whom the probation department may forbid association. Without a meaningful standard, the order is too broad and it is not saved by permitting the probation department to provide the necessary specificity." (Ibid.) "While the court may well have anticipated that the probation officer would specify individuals known to be using or dealing in illicit drugs . . . 'this factor should not be left to implication.' " (Id. at p. 1358; see Leon, at pp. 953-954.)
When it comes to participation in court-ordered programs, conditions leaving the selection and scheduling of programs within the discretion of the probation officer have been upheld. "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." (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 it overbroad. (Id. at p. 308 ["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 to the question of whether the probationer had constitutionally sufficient notice of what would be expected of him, the court in Penoli 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.)
Our colleagues in Division One previously found that a condition ordering a probationer to participate in polygraph examinations and answer questions posed to him truthfully as part of a sex offender treatment program was constitutionally permissible. (Brown v. Superior Court (2002) 101 Cal.App.4th 313, 320-321.) However, such a condition must limit the questions asked to those relevant to the probationer's rehabilitation and the crime of conviction. (Id. at p. 321.)
Defendant's challenged condition states that defendant "must participate and complete at [her] expense any counseling, rehabilitation[/]treatment program deemed appropriate by a probation officer, and authorize the release of information relative to progress." This condition does not specify what type of counseling or rehabilitation or treatment program the probation officer can order defendant to participate in and thus appears to convey upon the probation officer the kind of unfettered discretion that California courts have repeatedly found unconstitutionally vague and overbroad. (See Bauer, supra, 211 Cal.App.3d at pp. 943-945; O'Neil, supra, 165 Cal.App.4th at pp. 1357-1358.)
The People cite to Penoli in arguing the challenged condition is not unconstitutionally vague or overbroad, but such an argument is unavailing. Penoli did permit a fair amount of discretion to be exercised by the probation officer in selecting a program, but the contested condition in Penoli stated that the treatment was for drug abuse. (Penoli, supra, 46 Cal.App.4th at pp. 301-302.) Penoli does not stand for the proposition that a probation officer can be given the power to order participation in a program without any guidance as to what the program is for. Thus, this condition, in the absence of any language restricting the type of counseling or rehabilitation or treatment program related to defendant's rehabilitation or crimes of conviction, is unconstitutionally overbroad and/or vague.
Defendant requests that we modify or strike the contested counseling or treatment condition. Though we have found the condition unconstitutional, we will not strike the condition in its entirety because we find it relates to legitimate rehabilitative purposes and simply needs to be more narrowly tailored. For purposes of judicial economy, we will modify this condition.
There is no indication here that defendant suffered from drug abuse or alcohol abuse. Defendant reported to the probation officer that she drank a margarita twice a month and that she never used or experimented with drugs. However, defendant reported that she suffered from poor physical health; that she had depression and anxiety; and that she used prescription painkillers and prescription medication to help her sleep. Defendant also stated to the probation officer that she was under psychiatric care and that she was taking antianxiety and antidepression medication. Accordingly, it appears defendant is in need of counseling or treatment to address her mental health and use of prescription pills. We will thus modify this condition to state that defendant shall: "participate and complete at her expense any counseling, rehabilitation, or treatment program regarding mental health and substance abuse if directed by the probation officer, and authorize the release of information relative to progress."
III
DISPOSITION
Defendant's conviction on count 5 for filing a false vehicle theft report is reversed. In addition, we modify the counseling/treatment condition of defendant's probation to read as follows: "Defendant shall participate and complete at her expense any counseling, rehabilitation, or treatment program regarding mental health and substance abuse if directed by the probation officer, and authorize the release of information relative to progress." In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.