Opinion
E072050
06-05-2020
THE PEOPLE, Plaintiff and Respondent, v. SEAN CHRISTOPHER DARDEN, Defendant and Appellant.
Robert L.S. Angres, 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, Arlene A. Sevidal and Randall D. Einhorn, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI18002678) OPINION APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, Judge. Affirmed as modified with directions. Robert L.S. Angres, 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, Arlene A. Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Sean Christopher Darden became upset at a McDonald's restaurant manager and threatened him. Following a jury trial, defendant was convicted of making a criminal threat (Pen. Code, § 422). The trial court thereafter suspended execution of a two-year sentence and placed defendant on three years' probation under various terms and conditions of probation, including serving 365 days in county jail with credit for time served. On appeal, defendant contends (1) two of his probation conditions are unconstitutionally vague and/or overbroad and must be stricken or modified; (2) the condition requiring his probation officer's permission before leaving California must be stricken from the court's minute order because the trial court specifically struck this condition when orally pronouncing judgment; and (3) the trial court should have calculated his presentence conduct credits and ensured its memorialization in the record.
All future statutory references are to the Penal Code unless otherwise stated.
The jury was unable to reach a verdict on count 2, an assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)) charge, and the trial court declared a mistrial as to that charge. The People later dismissed that count.
We agree the probation condition that defendant not possess or have under his control materials to make explosive devices must be modified. We also agree that the court's minute order should be amended to reflect the trial court's oral pronouncement of judgment and the conduct credits to which defendant is entitled. We reject defendant's remaining contentions and affirm the judgment.
II
FACTUAL BACKGROUND
On September 14, 2018, K.C. was the general manager at a McDonald's restaurant in Victorville, California when he saw a cart covered with a white blanket blocking access on a handicap ramp leading into the restaurant. In order to allow access to customers and to avoid a lawsuit, K.C. pushed the cart away from the handicap ramp.
A nearby woman, who was later determined to be defendant's wife, crossed the street and yelled, "Jim, Jim, he is taking your cart." The woman also cursed at K.C. and a fellow employee. Defendant and his wife ran across the street to the McDonald's. K.C. let go of the cart and stepped back. K.C. recognized defendant as defendant had frequently loitered at or slept inside the McDonald's in the past, and K.C. had previously asked defendant to leave.
Defendant called K.C. derogatory names and told him he would "f[ ] him up," "stomp [him] out," and kill him next time. He also told K.C. not to take his belongings. K.C. explained to defendant that he was not trying to touch defendant's belongings but that he was merely moving them off the handicap ramp. Defendant then picked up a fist-sized rock and threw it at K.C., striking K.C. in the abdomen. Defendant again threatened K.C., stating "not [to] f[ ] with him" and that K.C. better watch out because he knew what kind of car K.C. drove. Defendant then pulled out a glass candle from his cart and waived it at K.C. while continuing to threaten him. Defendant got within four feet of K.C. K.C. retreated into the restaurant. K.C. feared for his safety and also feared that his car might get vandalized. Defendant and his wife thereafter left the area.
The fellow employee called 911. Someone nearby had recorded defendant's interaction with K.C. on a cell phone and sent the video to the employee's phone. The employee subsequently provided the video to law enforcement.
San Bernardino County Sheriff's Deputy Tamayo responded to the scene and contacted K.C. K.C. had redness on his torso and near his ribs. Deputy Tamayo located defendant around the corner from the McDonald's and arrested him. In defendant's cart, Deputy Tamayo found the glass candle that K.C. had described.
III
DISCUSSION
A. Probation Conditions
As recommended by the probation officer, the trial court imposed probation condition No. 009, which states defendant "[n]either possess nor have under your control [any] dangerous or deadly weapons or explosive devices or materials to make explosive devices." As part of defendant's probation, the trial court also ordered defendant to "[c]arry at all times a valid California Department of Motor Vehicles driver's license or identification card containing your true name, age and current address; display such identification upon request by any peace officer and not use any other name for any purpose without first notifying the probation officer." Neither his trial counsel nor defendant objected to these probation conditions.
Defendant argues the portion of condition No. 009 forbidding him from possessing or having under his control materials to make explosive devices is unconstitutionally vague and should be stricken or modified. The People do not oppose modification of this condition.
Defendant also contends the condition requiring him to carry his identification at all times is unconstitutionally overbroad and infringes on his rights to travel and association. He thus believes this condition should be modified. The People assert that defendant's challenge to this condition is forfeited by his failure to object below because it does not present a pure question of law. The People also argue that even if not forfeited, defendant's constitutional claim nevertheless fails on the merits.
1. General Principles Relating to Probation Conditions
"When an offender chooses probation, thereby avoiding incarceration, state law authorizes the sentencing court to impose conditions on such release that 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 . . . for the reformation and rehabilitation of the probationer.'" (People v. Moran (2016) 1 Cal.5th 398, 402-403 (Moran), quoting § 1203.1, subd. (j).) Thus, "a sentencing court has 'broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.'" (Moran, at p. 403, quoting People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) "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), quoting People v. Lopez (1998) 66 Cal.App.4th 615, 624 (Lopez).)
Judicial discretion in selecting the conditions of a defendant's probation "is not unlimited." (O'Neil, supra, 165 Cal.App.4th at p. 1355.) A probation condition is unreasonable and will not be upheld if it (1) has no relationship to the crime of which the defendant was convicted, (2) relates to conduct that is not criminal, and (3) requires or forbids conduct that is not reasonably related to future criminality. (People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin); O'Neil, at p. 1355.) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (Olguin, at p. 379.) Thus, as a general rule, "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." (Id. at p. 380.)
However, "[j]udicial discretion to set conditions of probation is further circumscribed by constitutional considerations." (O'Neil, supra, 165 Cal.App.4th at p. 1356.) Under this second level of scrutiny, if an otherwise valid condition of probation impinges on constitutional rights, the condition must be carefully tailored so as to be reasonably related to the compelling state interest in the probationer's reformation and rehabilitation. (Ibid.; People v. Bauer (1989) 211 Cal.App.3d 937, 942; In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.); In re Victor L. (2010) 182 Cal.App.4th 902, 910.) "The essential question . . . 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 (E.O.).)
Trial courts must fashion precise supervision conditions so the probationer knows what is required. (Sheena K., supra, 40 Cal.4th at p. 890.) A condition is invalid if it is "'"'so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.'"'" (People v. Quiroz (2011) 199 Cal.App.4th 1123, 1128.) Nor may a court impose overbroad supervision conditions. Where a condition impinges on a constitutional right, it must be carefully tailored and reasonably related to the compelling state interest in reformation and rehabilitation. (Ibid.; Sheena K., at p. 890.) A "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." (O'Neil, supra, 165 Cal.App.4th at pp. 1358-1359 [probation condition forbidding defendant from associating with all persons designated by his probation officer was "overbroad and permit[ted] an unconstitutional infringement on defendant's right of association"].) "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."'" (Id. at p. 1355, quoting Lopez, supra, 66 Cal.App.4th at p. 624.)
Challenges to probation conditions ordinarily must be raised in the trial court or appellate review of those conditions will be deemed forfeited. (People v. Welch (1993) 5 Cal.4th 228, 234-235 [extending the forfeiture rule to a claim that probation conditions are unreasonable, when the probationer fails to object on that ground in the trial court].) However, the forfeiture rule does not apply, and a defendant who did not object to a probation condition at sentencing may do so on appeal if the appellate claim "amount[s] to a 'facial challenge'" that challenges the condition on the ground its "phrasing or language . . . is unconstitutionally vague or overbroad" and the determination whether the condition is constitutionally defective "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." (Sheena K., supra, 40 Cal.4th at pp. 885, 887.) Thus, a challenge to a probation condition on the ground it is unconstitutionally overbroad or vague "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" (id. at p. 887, italics omitted), and such a challenge is reviewable on appeal even if it was not raised in the trial court (id. at p. 889). To the extent defendant raises a facial challenge to the constitutional validity of the residence reporting condition, the claim is not forfeited by defendant's failure to raise it below. (Ibid.)
As noted, here defendant raised no objection in the trial court with respect to the above challenged conditions. To the extent defendant's challenges raise pure questions of law, we will reach the merits of defendant's claim. We focus solely 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.)
"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, citing Carbajal, supra, 10 Cal.4th at p. 1121.) However, we independently review constitutional challenges to a probation condition. (In re Shaun R., at p. 1143.) Based on the foregoing, we address the merits of defendant's arguments post.
2. Condition No. 009—Weapons Condition
Defendant contends the portion of condition No. 009 prohibiting him from possessing or having under his control "materials to make explosive devices" is unconstitutionally vague because he has "no way of knowing to what items the condition is referring to," such as "does the condition refer to the actual components of an explosive device or does it extend to the tools used to make such devices." He believes the condition should be modified. The People agree this condition should be modified, as do we.
We find condition No. 009 vague. This is because the portion of the condition that states "materials to make explosive devices" does not contain a commonly understood definition as to what it encompasses. We thus find this condition is not sufficiently precise for defendant to know what is required of him and is therefore unconstitutionally vague. (Compare People v. Moore (2012) 211 Cal.App.4th 1179, 1186.) Accordingly, we will modify condition No. 009, as agreed by the parties, to state: "Neither knowingly possess, nor knowingly have under your control, any dangerous or deadly weapons or explosive devices or materials to make explosive devices, where the materials are possessed with the intent to make explosive devices."
3. Identification Condition
Defendant also contends that the condition of probation requiring him to carry a valid identification card at all times and present such identification to a police officer upon demand is unconstitutionally overbroad and infringes on his rights of travel and association. We disagree.
The challenged probation condition is sufficiently tailored and reasonably related to the compelling state interest of facilitating supervision and rehabilitation of defendant. In fact, "[i]mposing a limitation on probationers' movements as a condition of probation is common, as probation officers' awareness of probationers' whereabouts facilitates supervision and rehabilitation and helps ensure probationers are complying with the terms of their conditional release." (Moran, supra, 1 Cal.5th at p. 406.) "Although criminal offenders placed on probation retain their constitutional right to travel, reasonable and incidental restrictions on their movement are permissible." (Ibid.)
Moreover, despite being frequently subjected to as-applied challenges regarding the proper scope, the imposition of travel restrictions subject to permission being granted by probation is regularly upheld. (See People v. Relkin (2016) 6 Cal.App.5th 1188, 1195-1196 [upholding against constitutional overbreadth challenge a probation condition requiring defendant to obtain written permission from probation officer prior to leaving state].) Thus, the imposition of a travel restriction is not a facial violation of a probationer's right to travel.
An overbroad condition is one that restricts a defendant's fundamental constitutional rights to a greater degree than necessary to achieve the condition's purpose. (Olguin, supra, 45 Cal.4th at p. 384.) With respect to claims of overbreadth, a constitutional right, such as the right to travel or freedom of association, may be limited to achieve an essential government purpose. (People v. Peck (1996) 52 Cal.App.4th 351, 363.) "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." (E.O., supra, 188 Cal.App.4th at p. 1153.)
Here, the burdens on defendant are comparatively minor. He is not subject to an outright travel ban. He is only required to carry a valid identification card bearing his true name, age, and address at all times, and display such identification upon request by a peace officer and not use any other name. Specifically, defendant is required to "[c]arry at all times a valid California Department of Motor Vehicles driver's license or identification card containing your true name, age and current address; display such identification upon request by any peace officer and not use any other name for any purpose without first notifying the probation officer." He is not prohibited from associating, traveling, or leaving the county or the state. Defendant has also not identified any anticipated difficulties with carrying a valid identification card containing his true name, age, and current address or with displaying such identification upon request by a peace officer. Nor does defendant argue the challenged condition could be modified in such a way as to reduce any infringement on his right to travel or association, while still serving the intended rehabilitative function. (In re White (1979) 97 Cal.App.3d 141, 151.) Under the circumstances of this case, the trial court could reasonably conclude any burden imposed by the challenged condition constituted a minor burden on defendant's constitutional rights which was reasonably necessary to carry out the rehabilitative purposes of probation.
Based on the foregoing, the challenged identification condition is not unconstitutionally overbroad or a violation of his rights to travel and association.
B. Correction of Minute Order
Defendant asserts the probation condition that he must obtain his probation officer's permission before leaving California (condition No. 007) must be stricken from the minute order because the trial court explicitly struck this condition when orally pronouncing judgment. The People agree, and so do we.
The probation officer included in the list of proposed conditions that defendant "[n]ot leave the State of California without first obtaining written permission of the Probation Officer." However, when orally pronouncing judgment, the trial court specifically struck this condition and crossed it out in the probation report. Nonetheless, the court clerk erroneously inserted this condition in the sentencing hearing minute order.
"Where there is a discrepancy between the oral pronouncement of judgment and the minute order or abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385; accord, People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) Corrections to the abstract of judgment or the court's minutes are clerical errors that may be corrected any time, and this court has the authority to order such corrections to reflect the oral pronouncement of judgment. (Mitchell, at pp. 185-187.) Here, the oral pronouncement controls over the inconsistent minute order which incorrectly reflects probation condition No. 007 was imposed on defendant as part of his probation. Accordingly, we direct the trial court to correct this clerical error and issue an amended minute order reflecting the court's oral pronouncement of judgment.
C. Conduct Credits
Defendant further contends the court's minute order should reflect that he is entitled to 132 days of conduct credit. The People agree. We concur and shall order the judgment to be modified accordingly.
Section 2900.5, subdivision (a), provides, in pertinent part, "In all felony . . . convictions, . . . when the defendant has been in custody, including, but not limited to, any time spent in a jail, . . . hospital [or] prison, . . . all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment . . . ." Section 2900.5, subdivision (d), provides, in pertinent part, "It is the duty of the court imposing the sentence to determine . . . the total number of days to be credited pursuant to this section."
Under section 4019, a person confined in county jail following arrest and prior to imposition of sentence for a felony conviction is entitled to conduct credits "unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff . . . ." (§ 4019, subds. (a)(4), (c).) "Although the sheriff is authorized to deduct conduct credits for inmates jailed under a misdemeanor sentence or as a condition of probation, his role with respect to presentence custody credit is to provide the sentencing court with information, records and recommendations. [Citations.] The sheriff or the People have the burden to show that a defendant is not entitled to Penal Code section 4019 credits." (People v. Duesler (1988) 203 Cal.App.3d 273, 276.)
A defendant earns conduct credit at a rate of two days for every two days in presentence custody. (§ 4019; People v. Chilelli (2014) 225 Cal.App.4th 581, 591.) "The failure to properly calculate custody and conduct credit is a jurisdictional error that can be corrected at any time." (People v. Chilelli, at p. 591.)
Here, defendant served 132 days in custody before he was placed on probation. The probation report notes that defendant is entitled to conduct credits. The trial court awarded conduct credits to defendant without specifying the number of days. The court's minute order of the sentencing hearing does not reflect the number of days of conduct credits, but merely states "PC 4019." The trial court should have specified the number of days of conduct credit awarded to defendant. Accordingly, we shall order the judgment modified to reflect that defendant is entitled to 132 days of conduct credit, in addition to the 132 days of actual credit, for a total of 264 days of presentence custody credit. (§ 4019.)
IV
DISPOSITION
Probation condition No. 009 is modified to read: "Neither knowingly possess, nor knowingly have under your control, any dangerous or deadly weapons or explosive devices or materials to make explosive devices, where the materials are possessed with the intent to make explosive devices."
The judgment is modified to reflect that defendant is entitled to 132 days of presentence conduct credit, in addition to the 132 days of actual credit, for a total of 264 days of presentence custody credits.
The clerk of the superior court is directed to amend the sentencing minute order by eliminating probation condition No. 007. The clerk of the superior court is also directed to amend the probation minute order by striking probation condition No. 007, modifying the language of probation condition No. 009 consistent with this opinion, and awarding defendant 132 days of presentence conduct credit, in addition to the 132 days of actual credit, for a total of 264 days of presentence custody credits. The clerk of the superior court is further directed to forward a certified copy of the amended probation minute order to the probation department. As modified, the judgment is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: SLOUGH
J. MENETREZ
J.