Opinion
A145947
01-30-2017
THE PEOPLE, Plaintiff and Respondent, v. DENISE DIANE BARTOLOMEI, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super Ct. No. SCUK CR CR 14-79985)
Denise Diane Bartolomei pled no contest to two counts of possessing a controlled substance, specifically methamphetamine, for sale, and admitted a special allegation that she was released on bail for the first of these offenses when she committed the second. She appeals two of the probation conditions imposed by the court on the ground they improperly delegated unfettered discretion to the probation officer and are unconstitutionally vague, and requests that they be stricken. The People agree the conditions cannot stand, but ask us to remand the matter to the trial court for modification of the conditions. Because we cannot tell what purpose the trial court intended the challenged conditions to serve, we shall remand the matter to that court to either strike or modify them.
BACKGROUND
Bartolomei was arrested in May 2014 for possession of methamphetamine with intent to sell in violation of Health & Safety Code section 11378 and possession of stolen property in violation of Penal Code section 496. She was charged on the drug possession for sale offense in a complaint that included a prior strike allegation. She posted bail. While released on bail for that offense she was arrested again in February 2015, again for possession of methamphetamine for sale. The People filed a first amended complaint charging both drug offenses, the prior strike and the special allegation under section 12022.1.
In June 2015 Bartolomei pled no contest and admitted both drug offense counts and the special allegation, and the court dismissed the strike allegation. Bartolomei waived custody credits from the date of her arrest until the date of the plea, and the court imposed a prison sentence of five years and eight months. It suspended execution of the sentence, placing Bartolomei on probation subject to numerous conditions, including that she serve 365 days in county jail.
The two conditions Bartolomei now challenges, which appear to be part of a form Order of Probation used by the Mendocino County Superior Court, require as follows:
"15 You shall cooperate fully with any form of rehabilitation as directed by your Probation Officer, and remain working constructively within that program for the length of time felt to be necessary by your Probation Officer. Also, you shall submit proof of enrollment, payment, and program completion to your Probation Officer."
"45 You shall cooperate fully with evidence based practices as directed by your Probation Officer, and remain working constructively within that program for the length of time deemed necessary by your Probation Officer."
Other probation conditions imposed required Bartolomei to abstain from possessing and consuming alcohol and drugs, test for drugs and alcohol when ordered by any peace officer, participate in and complete a substance abuse treatment, education and counseling program, attend Alcoholics/Narcotics Anonymous meetings as directed by her probation officer and successfully complete the Drug Court Program, if found suitable.
DISCUSSION
The parties are in agreement that conditions 15 and 45, requiring Bartolomei to cooperate with "any form of rehabilitation" and with "evidence based practices" as directed by her probation officer confer on the probation officer "the kind of unfettered discretion that California courts have repeatedly found unconstitutionally vague and overbroad." The People point out and Bartolomei acknowledges that a court has broad discretion under Penal Code section 1203.1, subdivision (j) to impose "reasonable conditions, as it may determine are fitting and proper" for, among other purposes, "the reformation and rehabilitation of the probationer" (People v. Nassetta (2016) 3 Cal.App.5th 699, 702-703 ["Penal Code section 1203.1 grants trial courts broad discretion"]) and the People further point out that for drug offenders in particular it is within the court's discretion to require participation in drug treatment programs, vocational training, family counseling, literacy training and community service. (See Pen. Code, § 1210.1, subd. (a).) The problem here, Bartolomei contends and the People concede, is that the conditions challenged do not even specify what type of "rehabilitation" or "evidence based practices" the court had in mind, thus giving the probation officer the kind of broad and unfettered discretion the courts have determined violates due process.
We agree. In People v. Moran (2016) 1 Cal.5th 398, our high court stated that the discretion a sentencing court is afforded to impose conditions to foster rehabilitation, while broad, "is not unlimited." (Id. at p. 403.) In particular, "the types of conditions a court may impose on a probationer are not unlimited. We first recognized the limits on probation conditions in the seminal case of People v. Lent (1975) 15 Cal.3d 481 (Lent). 'Generally, "[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 in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. . . .' [Citation.]" [Citation.] This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even 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,] 379-380, quoting Lent, supra, at p. 486.)" (Moran, at p. 403, fn. omitted.)
The problem with a condition that requires participation in programs the type, subject matter, and purposes of which are not identified by the sentencing court is not only that it gives the probation officer virtually unfettered discretion to require participation in whatever program or activities he or she may choose, but also that it impedes, indeed renders impossible, meaningful review under Lent. Further, the breadth of discretion left for the probation officer to exercise outside the formal sentencing proceeding means the probationer is unaware at the time of her plea what burdens she is assuming by entering the plea and accepting the terms of probation.
As our brethren in the Fifth District Court of Appeal observed in People v. Cervantes (1984) 154 Cal.App.3d 353, conferring such broad discretion on a probation officer exceeds the statutory authority provided by section 1203.1. Invalidating a probation condition requiring the defendant to " 'pay restitution in an amount and manner to be determined by the Probation Officer,' " the Fifth District explained: "Trial courts are granted broad discretion under Penal Code section 1203.1 to prescribe conditions of probation. [Citation.] However, this discretion is not boundless; the authority is wholly statutory, and the statute furnishes and limits the measure of authority which the court may exercise. [Citation.] Section 1203.1, as effective at the time appellant committed his crime and was sentenced, granted the discretion to determine the terms and conditions of probation to the court, not to the probation officer. The language of the statute is clear. Reference to related statutory provisions reinforces the clear import of section 1203.1. Section 1203, subdivision (b) provides that the probation officer shall investigate the circumstances surrounding the crime and the prior history of the defendant and shall report to the court his findings and recommendations regarding the conditions of probation. That section specifically defines the role of the probation officer with respect to restitution: 'The probation officer shall also include in his report for the court's consideration whether the court shall require, as a condition of probation, restitution to the victim or to the Indemnity Fund if assistance has been granted to the victim pursuant to Article 1 (commencing with Section 13959) of Chapter 5 of Part 4 of Division 3 of Title 2 of the Government Code, a recommendation thereof, and if so, the amount thereof, and the means and manner of payment.'
"Section 1203, subdivision (b) likewise clearly contemplates that the matter of the propriety of probation and the conditions thereof shall be determined at a hearing by the court: 'The report shall be made available to the court and the prosecuting and defense attorney at least nine days prior to the time fixed by the court for the hearing and determination of the report, and shall be filed with the clerk of the court as a record in the case at the time of the hearing . . . . At a time fixed by the court, the court shall hear and determine the application, if one has been made, or, in any case, the suitability of probation in the particular case. . . .' " (People v. Cervantes, supra, 154 Cal.App.3d 356-358, fns. omitted.)
The Cervantes court found "no statutory provision sanctioning a delegation of unlimited discretion to a probation officer to determine the propriety, amount, and manner of payment of restitution." (People v. Cervantes, supra, 154 Cal.App.3d at p. 358.) Likewise, we see no statutory provision authorizing a delegation to a probation officer of the authority to determine the nature and type of the programming a defendant may be required to complete as a condition of probation. Subdivision (j) of section 1203.1 requires the court, not the probation officer, to impose conditions that it determines "are fitting and proper" to serve specified goals: making amends to society and the victim for any injury done and reforming and rehabilitating the probationer.
We are aware of our own interpretation of this provision as not requiring the court itself to select the particular program the defendant must complete because as a practical matter trial courts may not keep apprised of currently available programs or have the time or expertise to determine whether a particular program is likely to have availability at the relevant time or to accept the defendant. (E.g., People v. Penoli (1996) 46 Cal.App.4th 298, 308.) But this does not mean trial courts are not equipped to consider the crime or crimes a probationer committed, his or her criminal history, and what kinds of programming would serve the statutory goals of restitution, reformation and rehabilitation. Indeed, the trial court did just that in this case when it compelled Bartolomei, a repeat drug offender, to undergo drug testing, participate in a substance abuse treatment, education and counseling program, and participate in an AA/NA program. (See also id. at pp. 301-302, 308-309 [upholding condition requiring defendant to enter and complete residential drug treatment program].) If there were other kinds of rehabilitation the court thought Bartolomei would benefit from, or programming that would aid in reforming her into a law abiding citizen, or otherwise serve some purpose related to her past and potential future crimes, it was incumbent on the court at the very least to identify the kind of program it had in mind and the goal the program should be designed to serve (e.g., vocational assessment, job training, community service, mental health counseling, etc.).
The trial court's delegation of its discretion to the probation officer and failure to exercise the discretion conferred by the Legislature on the court was an abuse of discretion. (See People v. Penoli, supra, 46 Cal.App.4th at pp. 302, 306.) We therefore agree with the parties that conditions 15 and 45 may not stand in their current form. However, we will remand the case to the trial court to address whether there is some rehabilitative or other penological goal not adequately addressed by the other, more specific, conditions of Bartolomei's probation and, if so, to modify conditions 15 and/or 45 to provide more guidance to the probation officer and Bartolomei as to the kind and purpose of the program or activities required. It is unclear from the record whether the trial court believed there was some particular issue, albeit one it did not specify, that should be addressed by participation in particular programming. (See Richards, Watson & Gershon v. King (1995) 39 Cal.App.4th 1176, 1181, citing Gardner v. Superior Court (1986) 182 Cal.App.3d 335, 341 for proposition that "remand to allow trial court to exercise discretion is proper after reversal for failing to exercise discretion"].)
DISPOSITION
We reverse and remand with instructions to the trial court to either strike or modify condition 15 and condition 45 in the Order of Probation consistent with this opinion.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.