Opinion
A150330
02-26-2018
THE PEOPLE, Plaintiff and Respondent, v. MARY JANE GARROD, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-161045-0)
Mary Jane Garrod was convicted of poisoning her estranged husband and sentenced to probation. She challenges one of her probation conditions—requiring her to stay away from places where alcohol is the chief item of sale—as unconstitutionally vague and overbroad. We affirm.
I. BACKGROUND
Garrod was charged by information with felony poisoning (Pen. Code, § 347, subd. (a)) and felony first degree burglary (id., § 459). It was alleged that in committing these crimes she violated probation for a second degree burglary conviction. She was tried to a jury. During trial, the court granted a judgment of acquittal as to the burglary charge and the jury convicted her of poisoning.
According to the probation report prepared for sentencing, Garrod admitted she put gasoline in a bottle of vodka that her estranged husband later consumed. She reported having been addicted to crystal methamphetamine since she was seven (age 43 at time of report) and most frequently using crystal methamphetamine and alcohol. She requested probation on the ground she had made a new commitment to recovery from substance abuse. Although the prosecutor requested and the probation department recommended a prison sentence, the court granted probation on condition that Garrod serve one year in county jail and enroll in a residential drug treatment program for at least six months. Among her other conditions of probation, the court ruled: "She may not go to any establishment where she knows alcohol is the chief item of sale." On a local court form stating her conditions of probation, the judge checked off an order that she "[n]ot go to places where alcoholic beverages are the chief item of sale."
II. DISCUSSION
Garrod's sole argument on appeal is that the aforementioned probation condition is unconstitutionally vague and overbroad. Although Garrod did not object to the condition in the trial court, failure to object does not forfeit a constitutional challenge to a probation condition that is capable of correction without reference to the trial court sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 887.)
"Penal Code section 1203.1 et seq. gives trial courts broad discretion to determine whether to grant an eligible defendant probation, and if so, what terms of probation will promote rehabilitation and protect public safety. [Citation.] A probation condition is valid under the statutory scheme if it relates to the crime for which the defendant was convicted, relates to other criminal conduct, or requires or forbids conduct that is reasonably related to future criminality." (People v. Hall (2017) 2 Cal.5th 494, 498.) "To withstand a constitutional challenge on the ground of vagueness, a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition. [Citations.] In determining whether the condition is sufficiently definite, however, a court is not limited to the condition's text. [Citation.] . . . [A] probation condition should not be invalidated as unconstitutionally vague ' " 'if any reasonable and practical construction can be given to its language.' " ' " (Id. at pp. 500-501.) That "the probationer might need to look beyond the four corners of the probation order to ascertain what conduct is permitted, what is prohibited, and what state of mind must be shown to sustain a violation . . . does not render the condition unconstitutionally vague." (Id. at p. 502.)
Garrod argues she cannot reasonably anticipate whether alcohol is "the chief item of sale" at each particular business establishment and asks that the condition be modified to apply only to "bars, saloons, pubs, liquor stores and wine shops." We reject the proposed modification. The court expressly added a knowledge element to the condition when it orally imposed the condition from the bench. Although the written local court form does not include an express knowledge element, the more specific oral pronouncement controls in these circumstances. (See People v. Pirali (2013) 217 Cal.App.4th 1341, 1346; People v. Hall, supra, 2 Cal.5th at p. 499 [implying knowledge element is implicit in probation conditions that prohibit legal behavior].) Thus, Garrod may be punished for violating probation only if there is evidence she knew alcohol was the chief item for sale in any place she visits. Garrod's proposed modification does not encompass all places where she would know alcohol is the chief item of sale (e.g., a beer stand at a festival; a comedy club that serves only alcohol and has no cover charge) and would invite game playing (e.g., characterizing a "tavern" that serves mostly alcohol as a restaurant) to evade the reasonably-discernible purpose of the condition: to promote Garrod's recovery by requiring her to stay away from places that chiefly sell alcohol.
Garrod also argues the condition is unconstitutionally overbroad because it restricts her right to travel, as it "could very well restrict [her] from entering places not necessarily contemplated by the trial court." However, " '[n]either the United States Supreme Court nor this court has ever held . . . that the incidental impact on travel of a law having a purpose other than restriction of the right to travel . . . is constitutionally impermissible.' " (People v. Moran (2016) 1 Cal.5th 398, 406.) In Moran, our high court upheld a probation condition that required a defendant who was guilty of stealing from a Home Depot store to stay away from all California Home Depot stores and their adjacent parking lots. (Id. at p. 401.) As in Moran, the challenged probation condition here "simply does not implicate [Garrod's] constitutional travel right. Indeed, one struggles to perceive how the condition curtails [her] right to free movement in any meaningful way. . . . [Garrod] remains free to drive on any public freeway, street or road, use public transportation, work . . . , shop, visit the doctor's office, attend school, enjoy parks, libraries, museums, restaurants, . . . and movie theaters. . . . In short, the restriction on [her] movement imposed by the probation condition is too de minimis to implicate the constitutional travel right." (Id. at p. 407.)
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.