Opinion
G057928
05-25-2021
THE PEOPLE, Plaintiff and Respondent, v. TERRELL DANIELS, Defendant and Appellant.
Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Joseph C. Anagnos, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CF2601) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael A. Leverson, Judge. Affirmed in part, reversed in part and remanded. Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Terrell Daniels appeals from his conviction for one count of attempted pandering, arguing the evidence was insufficient to support the judgment. Daniels asserts the evidence reflects he may have prepared to commit the crime of pandering, but he did not commit any direct act demonstrating his intent to commit the crime. We disagree.
The facts set forth in Daniels's brief demonstrate that he did substantially more than prepare to pander. He drove the would-be prostitute to a location known for prostitution activity, secured her agreement to give him the money she earned plying her trade, and then watched from his car as she tried to get a "date." There was nothing equivocal, or merely preparatory, about his actions.
Daniels also contends the court abused its discretion by admitting evidence concerning his text messages with other women and his 2015 arrest, pursuant to Evidence Code section 1101, subdivision (b), to prove his intent to engage in pandering in the instant case. According to Daniels, the text messages were insufficient to suggest an intent to pander, and the circumstances of his 2015 arrest were too dissimilar to support any inference of intent on his part to pander. Again, we disagree. But even if we agreed the court erred by admitting the evidence, it would not warrant a reversal of the judgment absent a showing of prejudice. The evidence in this case was strong, and Daniels's complaint about the challenged evidence is that it had little probative value. He has failed to explain how its admission prejudiced the outcome.
Daniels was sentenced to probation; he contends the court erred because two of the conditions of his probation—that he cooperate with his probation officer in "any plan for psychiatric, psychological, alcohol, or drug treatment," and that he refrain from associating with "persons disapproved of by the probation officer," are unconstitutionally overbroad and represent an improper delegation of judicial authority. We agree.
Finally, Daniels argues in a supplemental brief that he is entitled to have the term of his probation reduced from five years to two years due to the passage of Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (A.B. 1950), effective January 1, 2021, which applies retroactively to him. The Attorney General concedes the point, and we agree it is meritorious.
Thus, we affirm the conviction but reverse the judgment as indicated and remand this case to the trial court with directions to either strike the challenged probation conditions or tailor them to give more specific direction to the probation department with respect to those matters, and to reduce the probation term from five years to two years.
FACTS
On November 8, 2016, the Orange County District Attorney filed an information charging Daniels with three counts of procuring women, namely, Victoria B., Paris T., and Blesspea "Bless" N., for the purpose of prostitution (i.e., pandering) (counts 1-3; Pen. Code, § 266i, subd. (a)).
At trial, the prosecution introduced evidence that Daniels initially contacted Victoria through her profile account on the website "Plenty of Fish." She used the account to meet people for the purpose of setting up "dates," which she defined as "when you have sex for money." Daniels contacted her with a proposal that they "get rich together." Victoria did not believe Daniels was looking for a "date." Instead, Victoria thought he was interested in becoming her pimp.
Victoria responded to Daniels's proposal because she was "[a] little bit" interested in it. The two exchanged phone numbers and continued communicating via phone and text. Daniels told Victoria he wanted to open a strip club and that she could help him make money through "catching dates" to achieve that goal. Victoria told Daniels she was willing to help him make money to fund his strip club.
Victoria agreed to meet with Daniels, so he picked her up and they went to his house to discuss the plan. The following day, Daniels met again with Victoria, along with her niece Paris and her friend Bless. All three indicated they were willing to help Daniels fund his strip club plan.
On the way to Daniels's house, they talked about posting an advertisement on Backpage.com to promote their venture, and they stopped at a convenience store so Daniels could purchase a Visa gift card for that purpose. After arriving at Daniels's house, he attempted to post the ad, but Bless had to finish the process because he seemed uncertain how to do it. This caused Victoria to become concerned that Daniels did not know what he was doing.
Backpage.com is "a classified advertising Web site commonly used to advertise for prostitution activities." (People v. Campbell (2020) 51 Cal.App.5th 463, 469.)
The women remained at Daniels's house for some time, but they received no calls in response to the Backpage.com advertisement. Daniels then suggested they go to Figueroa in Los Angeles. The women instead suggested going to Harbor Boulevard in Orange County, which they knew was a place "where people catch dates." Daniels then drove the three women to Harbor Boulevard and parked at a Jack in the Box.
According to one of the police officers who testified at trial, Figueroa Street is "probably the biggest or busiest prostitution track in Southern California."
On the way, Daniels and the women discussed "how [they] were going to split [the money] once [the women] caught a date." Daniels told them they were "supposed to give him . . . all of [the] money"; they agreed to that. The understanding was that Daniels "was just going to . . . stay near" while the women were trying to catch dates. Victoria testified that when she was out with Bless, while they were walking, she saw Daniels driving by. He was always "right there." Daniels periodically texted Victoria and asked her how she was doing and where she was.
At one point, when "something [was] going on by the 7-Eleven [with] another, like, guy [who] was chasing people," Victoria told Daniels she wanted to sit in his car to avoid it, and he allowed her to do that. Victoria was unable to catch a date because the men she was meeting wanted to use a room, and she did not have one. When Bless caught a date, Victoria told her not to give the money to Daniels. According to Victoria, if she got a date she planned to give Daniels "some gas money."
Later that night, the police, who had been staking out the area as part of a human trafficking task force, detained Bless. Thereafter, Victoria and Paris got into Daniels's car. A police patrol unit pulled Daniels over. All three women's purses were inside. Daniels consented to the search of his cellphone; he was then arrested.
Daniels argued at trial that he had been tricked by experienced prostitutes into driving them to Harbor Boulevard, a location he did not understand was "the blade," i.e., a spot well known for prostitution. According to Daniels, he liked spending time with prostitutes, and when he agreed to drive Victoria, Paris, and Bless to Harbor Boulevard, it was not to facilitate their engaging in prostitution; it was just to "do whatever they wanted to do."
The jury found Daniels guilty of attempted pandering of Victoria (§§ 266i, subd. (a), 664, subd. (a)), a lesser included offense of count 1, and not guilty on the other two counts, which alleged the pandering of Paris and Bless.
DISCUSSION
1. Sufficiency of the Evidence
Daniels first contends that the evidence in this case was insufficient to support his conviction for attempted pandering of Victoria. "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal.3d 294, 314 (Jones).)
We do not reweigh the evidence because "it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends." (Jones, supra, 51 Cal.3d at p. 314.) As explained in People v. Bean (1988) 46 Cal.3d 919, "it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. '"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment."'" (Id. at p. 933.) Likewise, "if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." (Jones, at p. 314.)
Penal Code section 266i, subdivision (a)(2), defines pandering. It states in pertinent part that any person who "[b]y promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute" is guilty of pandering. Thus, the crime of pandering is not confined to situations where the defendant "caus[ed]" someone to become a prostitute; it includes situations where the prostitution is merely "encourag[ed]." (See People v. Hashimoto (1976) 54 Cal.App.3d. 862, 866 (Hashimoto) ["active encouragement [is] within the purview of section 266i of the Penal Code, and neither success nor consummation of the proposal was a necessary element of a violation of the pandering statute"].)
In enacting Penal Code section 266i, the Legislature sought to "prevent prostitution 'by discouraging persons other than the prostitute from augmenting and expanding a prostitute's operation, or increasing the supply of available prostitutes.'" (People v. Zambia (2011) 51 Cal.4th 965, 973 (Zambia).) Taken together, "[t]he plain intent and purpose behind all the provisions of section 266i . . . is to deter pimps or others from establishing new working relationships in the unlawful prostitution trade." (Id. at p. 978.)
"Our courts have repeatedly . . . concluded that the phrase 'to become a prostitute' includes both recruiting someone to enter the prostitution trade for the first time and encouraging an existing prostitute, or an undercover officer, to work for him or someone else under some type of new business relationship." (Zambia, supra, 51 Cal.4th at p. 973.) Hence, the fact that Victoria may have previously engaged in prostitution is irrelevant in assessing whether the evidence is sufficient to support the conclusion Daniels attempted to pander her.
An attempt to commit pandering is proved by evidence establishing (1) the defendant had "a specific intent" to pander, and (2) he or she committed "a direct, unequivocal act toward that end." (People v. Charles (1963) 218 Cal.App.2d 812, 819.) "'Attempted pandering is proved by evidence of the acts of the accused which have failed to accomplish the actor's purpose by reason of its frustration by extraneous circumstances rather than by virtue of a change of heart on the part of the one who made the attempt.'" (Ibid.)
Daniels argues the evidence in this case was insufficient because "at best [it] only demonstrates [his] preparation but not attempt to pander Victoria." We are not persuaded since the crime of pandering involves encouraging someone to engage in a new business relationship for the purpose of prostitution. There is no requirement that the person be receptive to the idea, and no agreement need be consummated.
Daniels's specific argument is that because he never proposed any concrete "plans or discussions on finances" in his conversations with Victoria, he had not actually attempted to engage in pandering. That assertion fails both factually and legally. As Daniels concedes, there was evidence that when he drove the women, including Victoria, to their chosen location on Harbor Boulevard to catch dates, he told them he expected them to give him "all the money." That is a financial plan. Victoria testified that the women responded to Daniels's financial proposal by agreeing to it. Our obligation under the substantial evidence test is to presume both of those facts are true. Thus, the evidence supports the conclusion that Daniels not only had a plan, he discussed it with Victoria and the other women, and they agreed to it.
Those facts are sufficient to support the jury's conclusion that Daniels attempted to pander Victoria. In Hashimoto, the defendant was convicted of pandering—not just an attempt—based on similar evidence. In that case, the defendant made a proposal to an undercover officer, who was posing as a model, that if she would engage in "'normal'" sex for a price of $50 (a reduction from what she claimed was her regular rate of $75), he would supply her with a clientele of Japanese tourists. (Hashimoto, supra, 54 Cal.App.3d at p. 865.) The conviction was affirmed on appeal.
Under the proposal in Hashimoto, the defendant would not make money directly from the prostitution, but considered it an extra benefit he could provide to the customers of his tourism business.
Daniels's argument also fails legally because he cites no authority to support his assertion that a more detailed financial plan was necessary to sustain his conviction for the crime of attempted pandering. In Zambia, for example, the defendant was convicted of pandering—not attempted pandering—based solely on his single conversation with an undercover officer in which he identified himself as a pimp, told the officer he would '"take care of"' her, and asked her how much money she had in her possession. When she responded that she had $400, he told her that if she gave it to him, he would "provide her with housing and clothing." (Zambia, supra, 51 Cal.4th at p. 970.) Nothing more specific was discussed, and the conviction was affirmed.
Daniels also asserts that "[i]n this matter, [his] providing transportation was at the direction of the women's desire to earn money and not [his] desire to prostitute them." While that argument may have been viable at trial, it cannot prevail on appeal under the substantial evidence test. Because we are required to construe the evidence in the manner most favorable to the judgment, we focus on the evidence related to the fact that Daniels had propositioned the women to engage in prostitution to help him raise money for his proposed strip club. On the way to Harbor Boulevard, they discussed how they would divide the money they earned, and everyone agreed that any money they received for their prostitution would be given to Daniels. That evidence was sufficient to support Daniels's conviction.
Ultimately, the evidence demonstrated Daniels recruited three women to engage in prostitution for the specific purpose of raising money for his strip club venture. He drove them to the location where they would try to "catch dates," secured their agreement to give him all the money they earned, and then stayed to watch over them while they plied their trade. This evidence was sufficient to support the jury's conclusion Daniels attempted to pander Victoria. We consequently reject his challenge to the sufficiency of the evidence.
2. Admission of Evidence
Daniels next contends the court erred by allowing the prosecutor to introduce evidence of his text messages with third parties and his 2015 arrest to demonstrate his intent to commit the crime of pandering.
Daniels acknowledges that such evidence can be admissible under Evidence Code section 1101, subdivision (b), which allows otherwise inadmissible character evidence to be introduced when it is "relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident." (Evid. Code, § 1101, subd. (b).)
Daniels nonetheless contends the court erred by construing the text messages as evidence of intent pursuant to this court's opinion in People v. Scally (2015) 243 Cal.App.4th 285 (Scally). In Scally, the defendant exchanged text messages with several third parties in which he was referred to as a "pimp" and he made explicit references to things like how much money his "bitch" made on a date. (Id. at p. 290.)
Daniels argues that, when compared to the messages in Scally, the text messages here were not nearly as indicative of an attempt to engage in pimping, and thus that the trial court abused its discretion by admitting them. We note that "[i]n determining the admissibility of evidence, the trial court has broad discretion." (People v. Williams (1997) 16 Cal.4th 153, 196.)
In one message, Daniels asked an unknown recipient if she was looking to have fun and gave her his Plenty of Fish username—"moneymakesmecum"—and password to use for "possible dates." The prosecution's expert witness explained the communication appeared to be an effort to "set up advertisement online and then work from those advertisements." In another message, Daniels asks an unknown recipient if she was "willing to knock tricks," which the expert testified was synonymous with asking if she was willing to engage in sex for money. And a third series of messages with a recipient identified as Mercedes, includes her telling Daniels that her best friend just asked her "to go to Vegas with her until Monday," and stating "I can make money out there." Daniels replies, "go ahead. Make sure you make some money. Don't go out there for nothing." The expert explained the exchange reads like a conversation between a pimp and prostitute because it includes references to "postings on Backpage, going to Vegas to make money, getting a room, dates, that type of conversation."
Daniels asserts that in contrast to the messages in Scally, the messages here contain no specific references to pimps, making money, or requesting women to hustle for money. But that is not quite accurate. While Daniels does not explicitly state that he intends to earn money, it is reasonable to infer from the messages that he is encouraging the recipients to engage in prostitution under some sort of arrangement involving him. Consequently, we conclude the statements were admissible as evidence of Daniels's intent to engage in pandering.
In any event, even if we agreed the challenged messages in this case were as inconsequential as Daniels contends, and thus that the court erred in admitting them as evidence of his intent, it would not warrant a reversal of the judgment. Error in admitting evidence is subject to the harmless error analysis under People v. Watson (1956) 46 Cal.2d 818 (Watson). (People v. Partida (2005) 37 Cal.4th 428, 439.) Under Watson, the defendant must demonstrate a reasonable probability that a result more favorable to the defendant would have been reached absent the error. (Watson, supra, 46 Cal.2d at p. 836.) Daniels fails to satisfy that requirement. He argues the evidence was substantially more prejudicial than probative—and thus that it should have been excluded under Evidence Code section 352—but the argument rests on Daniels's claim that the evidence proves nothing and is therefore irrelevant. He fails to explain how or why it is prejudicial.
Daniels also contends the court erred by admitting evidence concerning his 2015 arrest, arguing it was too dissimilar to the circumstances of the instant case to shed any light on his intent. The events leading up to that arrest began when Daniels contacted a police investigator who had set up a fictitious profile on Plenty of Fish, featuring a photograph of a scantily clad woman. Daniels messaged the profile, saying "you need a boss, niga." The two then talked about "making money as a team" and which "tracks [they] might be working." The two later conversed by text message, discussing Daniel's "choose-up fee," which referred to the up-front cost to work for him; how much to charge "tricks" for oral sex versus vaginal sex; and what percentage of the earnings would go to Daniels. He also told the undercover officer that "if [she] was careless with the money, . . . [she] would be broken."
Daniels then arranged to meet the woman at a specified motel room on Figueroa Street. When he arrived, he refused to go to the motel room door; he instead wanted the woman to come outside. He was then arrested in his car.
According to Daniels, this incident does not suggest an intent to pander because the key aspects of his conversation with the investigator were initiated by the investigator: i.e., she "brought up how much to charge for tricks," "brought up the choose up fee," and "brought up the initial fee to work with [Daniels]." He claims he just "followed along in the conversations, but never brought up the pimp-prostitute program languages." He also points out that when he arrived at the motel, he never got out of his car. We are not persuaded by those distinctions.
Even if Daniels did not initiate the discussion about specific financial terms, both the proposed terms and the subject matter were clear, and he signaled his willingness to enter into the relationship defined by them. And while it is true that Daniels did not get out of his car when he arrived at the motel to meet the person he believed was a prostitute, it was not because he had decided against the meeting. He wanted her to come outside to meet him.
In our view, there is substantial similarity between the circumstances of the 2015 arrest and Daniels's interaction with Victoria in this case. In both cases, Daniels initiated contact with a woman on the Plenty of Fish website, and after some initial conversation about the possibility of becoming the woman's pimp, he made a plan to meet her in person to discuss the idea further. The fact that the details of the conversations differed in some respects, and that Daniels planned to meet the women in different places, does not alter the analysis. For these reasons, we also reject his assertion that the court abused its discretion under Evidence Code section 352 by admitting the evidence.
Finally, Daniels asserts that the admission of this evidence violated his right to due process under the Fourteenth Amendment because "the introduction of propensity prior bad acts denied [him] the fair opportunity to defend against the charges because the case became more about who he was as a person, not whether he committed a particular offense on a particular occasion." We disagree. Daniels's argument is premised on the false contention that the evidence of attempted pandering in the incident charged was so weak that any error in allowing evidence pertaining to other issues must have prejudiced the outcome.
Specifically, Daniels argues "the question the jury grappled with was whether appellant took the direct steps demonstrating intent to pander Victoria." He claims the question must have been close because the jury acquitted him on the counts involving Paris and Bless and only found him guilty of an attempt involving Victoria. But as we have already explained, the evidence establishing "direct steps" in this case was anything but weak. We need not, and cannot, speculate as to why the jury declined to convict Daniels on the charge of actual pandering, or why it acquitted him on the counts involving Paris and Bless. The acquittals demonstrate the jury was not unfairly prejudiced by the evidence suggesting Daniels had previously engaged in efforts to pander. If it had been, it seems likely the jury would have convicted him on those charges as well.
3. Probation Conditions
After the jury found Daniels guilty of attempted pandering, the court suspended imposition of sentencing and placed him on five years' supervised probation with 180 days in county jail. Among the conditions of Daniels probation are two requirements that he challenges here: i.e., that he cooperate with his probation officer "in any plan for psychiatric, psychological, alcohol, or drug treatment," and that he refrain from associating with "persons disapproved of by the probation officer."
As the Attorney General notes, the minute order states this condition somewhat differently—i.e., "Do not associate with persons known to you to be parolees, on post-release community supervision, convicted felons, users or sellers of illegal drugs, or otherwise disapproved of by probation or mandatory supervision." However, it is the oral pronouncement which controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385, citing People v. Mitchell (2001) 26 Cal.4th 181, 185-186 ["Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls"].)
Daniels contends these conditions are unconstitutionally overbroad and represent an improper delegation of judicial authority. While he acknowledges he did not object to those conditions in the trial court, he argues he did not forfeit his claim because the facial validity of the probation conditions is a matter of law, which can be assessed without any need to analyze the facts in the record. We agree. (In re Sheena K. (2007) 40 Cal.4th 875, 888 (Sheena K.).)
In Sheena K., the appellant, a juvenile, challenged a probation condition phrased in nearly identical fashion to the two challenged here, which prohibited her from associating with "'anyone disapproved of by probation."' (Sheena K., supra, 40 Cal.4th at p. 889.) The Supreme Court determined that an attack on such a provision, based on a claim of facial vagueness and overbreadth, is not forfeited by the failure to assert it below. (Ibid.; see also, In re Bushman (1970) 1 Cal.3d. 767, 776, disapproved on another point in People v. Lent, 15 Cal.3d 481, 486, fn. 1 [If a probationer initially accepts a term of probation that may be constitutionally overbroad, he may later challenge that term on appeal or via habeas corpus].) We are bound by this precedent. Because Daniels has limited his challenges to arguing the facial invalidity of these probation conditions, we consider those challenges on their merits.
We begin with the proposition that probation is a privilege, not a right. (People v. Olguin (2008) 45 Cal.4th 375, 384 (Olguin).) And trial courts generally have broad discretion to create and impose terms of probation to promote public safety and the rehabilitation of the probationer. (Pen. Code, § 1203.1, subd. (j); People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Thus, "[i]f 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).)
However, a probation condition will be deemed "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.'" (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) Further, a term of probation "'"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, citing Sheena K., supra, 40 Cal.4th at p. 890.)
The broad discretion conferred on trial courts by Penal Code section 1203.1 to formulate terms and conditions of probation "is not boundless; the authority is wholly statutory, and the statute furnishes and limits the measure of authority which the court may exercise." (People v. Cervantes (1984) 154 Cal.App.3d 353, 356.) One such limitation is that "no statutory provision sanction[s] a delegation of unlimited discretion to a probation officer" to implement or interpret probationary terms. (Id. at p. 358.) Instead, "these determinations are essentially judicial functions." (Ibid.)
As explained in O'Neil, "[t]here are many understandable considerations of efficiency and practicality that make it reasonable to leave to the probation department the amplification and refinement of a [probation condition]. The court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court's order cannot be entirely open-ended. It is for the court to determine the nature of the prohibition placed on a defendant as a condition of probation." (O'Neil, supra, 165 Cal.App.4th at pp. 1358-1359.)
Daniels's argument focuses primarily on this latter concern, contending that both challenged probation conditions are overbroad because they delegate unlimited discretion to the probation officer. We agree.
In O'Neil, the defendant was ordered to stay away from '"any person, as designated by your probation officer."' (O'Neil, supra, 165 Cal.App.4th at p. 1354.) The court concluded the restriction was constitutionally infirm for two reasons—first, because it "is not limited to those [persons] defendant knows have been so designated." (Id. at p. 1357.) The challenged stay-away provision in this case is similarly flawed, and the Attorney General concedes it would have to be modified to include "an express knowledge requirement."
But the O'Neil court also found it flawed because of "a larger problem in the wording of the condition. As written, there are no limits on those persons whom the probation officer may prohibit defendant from associating with. . . . 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." (O'Neil, supra, 165 Cal.App.4th at pp. 1357-1358.)
The same problem exists here. The court's order prohibiting Daniels from associating with "persons disapproved of by the probation officer" provides no guidelines—none—about what concerns the court might have. It delegates the court's obligation to carefully tailor a provision affecting a core constitutional right of association entirely to the probation officer. That is impermissible.
The Attorney General relies on Olguin, supra, to justify the delegation. As construed by the Attorney General, Olguin excuses an overbroad delegation of authority to a probation officer because the officer would be prohibited from exercising that authority '"irrationally or capriciously."' (Olguin, supra, 45 Cal.4th at p. 383.) We do not so construe Olguin.
In Olguin, the defendant was challenging a probation term relating to pets, claiming it impermissibly infringed on his right to own a pet. But as the Supreme Court explained, the term merely required him to notify his probation officer if he had a pet in his residence. It did not actually restrict his right to have the pet: "On its face, the condition requires defendant only to inform his probation officer of the presence of any pets at his place of residence and to give timely notice 'prior to any changes' in that situation. It does not forbid defendant from owning pets, nor does it require defendant to obtain permission from his probation officer in order to obtain or keep any pet." (Olguin, supra, 45 Cal.4th at p. 383.)
In light of the term's narrow scope, the Supreme Court in Olguin determined that it did not "'authorize a probation officer to irrationally or capriciously exclude a pet,'" as the defendant in that case had suggested. (Olguin, supra, 45 Cal.4th at p. 383.) Because the Supreme Court concluded that the challenged term was narrowly drawn and did not prohibit pet ownership, it had no occasion to address the scope of a probation officer's authority to exercise discretion that properly belongs to the court.
It is the obligation of the trial court, not the probation officer, to determine whether, and to what extent, Daniels's right to associate with others should be restricted to serve the goals of his probation. Once the court has set forth the parameters, usually by identifying the categories of persons to be avoided, the probation officer may exercise some discretion in the specifics—i.e., identifying individuals who fall within the court's restricted categories. But the probation officer's discretion exists solely with regard to carrying out the court-ordered restrictions.
The second challenged condition, requiring that Daniels cooperate with his probation officer "in any plan for psychiatric, psychological, alcohol, or drug treatment," fares no better. On its face, this condition appears to give the probation officer unfettered discretion to decide not only what kind of therapy or counseling would benefit Daniels, and to order his participation in whatever that might be, but also to decide whether he needs therapy or counseling at all. The probation order improperly delegates the issue entirely to the discretion of the probation officer.
In arguing that a probation condition delegating authority over mental health treatment is appropriate, the Attorney General relies on In re David C. (2020) 47 Cal.App.5th 657 (David C.). The case is distinguishable.
In David C., the minor challenged conditions requiring that he "'submit to a psychological/psychiatric evaluation as directed by the probation officer,'" and that he "'submit to any and all programs of psychological assessment at the direction of treatment provider, including, but not limited to, ABEL Screening and post dispositional polygraph examinations.'" (David C., supra, 47 Cal.App.5th at p. 668.) The appellate court concluded the conditions were appropriate, noting that "determining the precise evaluations and assessments to which minor should submit in order to proceed with counseling is the type of detailed decision the trial court is 'poorly equipped to micromanage . . . .'" (Id. at p. 669)
We have no quibble with David C. But giving the probation officer authority to decide whether the probationer must undergo a psychological evaluation is different than delegating unfettered discretion to decide whether the probationer should undergo psychological treatment, and also to decide what that treatment should be. And the second challenged condition in David C. simply recognized that if a psychological assessment is to be done, the specifics of that assessment should be determined by the treatment provider—i.e., someone with appropriate expertise. That too seems appropriate. For the court to direct a treatment provider on the details of a professional assessment would smack of micromanagement. Given the much more tailored provisions in David C., we do not find it persuasive here.
Instead, we conclude that both of the challenged probation terms in this case are facially overbroad because they provide the probation officer with an impermissible degree of discretion to interpret and implement them. We therefore conclude it is appropriate to remand this matter to the trial court for further consideration of these issues. The trial court can either explicitly tailor each of the challenged terms to fit Daniels's particular circumstances and to provide direction to the probation officer, or instead strike the terms from its probation order.
4. Term of Probation
When Daniels was placed on probation in June 2019, Penal Code section 1203.1, subdivision (a), authorized the court to impose a probation term "for a period of time not exceeding the maximum possible term of the sentence." (Former Pen. Code, § 1203.1, subd. (a).) However, A.B. 1950, which became effective in January 2021, amended that statutory provision to state that the maximum probation term to be imposed was "a period of time not exceeding two years," except in certain circumstances not applicable to this case. (Pen. Code, § 1203.1, subd. (a); Stats. 2020, ch. 328, § 2.)
Relying on the retroactivity rule first established in In re Estrada (1965) 63 Cal.2d 740, Daniels asserts that A.B. 1950 is applicable retroactively to all cases where the judgment is not yet final—including this one. The Attorney General agrees with the assertion and concedes that Daniel's term of probation should be reduced from five years to two. We agree as well. (See People v. Sims (2021) 59 Cal.App.5th 943, 964; People v. Quinn (2021) 59 Cal.App.5th 874, 883.)
DISPOSITION
The conviction is affirmed. The judgment is nonetheless reversed in part, and the case is remanded to the trial court with directions to (1) reduce Daniels's term of probation from five years to two years, and (2) reconsider the two challenged probation conditions. As to the latter, the court is directed to either strike the probation conditions requiring that Daniels cooperate with his probation officer "in any plan for psychiatric, psychological, alcohol, or drug treatment," and that he refrain from associating with "persons disapproved of by the probation officer," or revise those conditions to provide the probation department with more particularized directions as to the requirements for Daniels's mental health treatment and residence.
GOETHALS, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.