Opinion
C081620
10-24-2018
THE PEOPLE, Plaintiff and Respondent, v. DONALD EDWARD HEUER, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed herein on October 24, 2018, be modified as follows:
On page 6, in the first full paragraph, delete the last sentence reading, "We will remand the matter to the trial court to either strike it or narrowly tailor it to serve the purpose of the condition" and insert a new paragraph as follows:
For similar reasons, we also find overly broad the provisions in (1) general condition No. 9 requiring defendant to "authorize the release of any reports or records (written or oral) from any psychiatrist, physician, psychologist, or counselor to the Court, Probation Department, and/or District Attorney," and (2) special condition No. 40 requiring defendant to "authorize the release of any type or report or records (written or oral) from any psychiatrist, physician, psychologist, or counselor to the Court, Probation Department, and District Attorney." We will remand the matter to the trial court to either strike these requirements or narrowly tailor them to serve the purpose of the conditions.
There is no change in the judgment.
Appellant's petition for rehearing is denied. BY THE COURT:
/s/_________
Blease, Acting P. J.
/s/_________
Robie, J.
/s/_________
Renner, J. NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CM043239)
Defendant Donald Edward Heuer challenges the conditions of his mandatory supervision, contending a condition requiring him to waive confidentiality for all court ordered programs is unconstitutionally overbroad and violates his right to privacy and privilege against self-incrimination. In supplemental briefing, defendant also challenges a condition requiring him to take all prescribed medication unless otherwise ordered by probation and behavioral health, arguing it is unconstitutionally overbroad. We agree with defendant that the challenged conditions are constitutionally infirm. We will affirm the judgment but remand with directions to the trial court to modify the disputed conditions of mandatory supervision.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with manufacturing a controlled substance, namely, butane honey oil (Health & Saf. Code, § 11379.6, subd. (a); Pen. Code, § 1203.073, subd. (b)(3)—count 1), possessing marijuana for sale (Health & Saf. Code, § 11359—count 2), possessing MDMA (Ecstasy) for sale (Health & Saf. Code, § 11378—count 3), and elder abuse (§ 368, subd. (b)(1)—counts 4 & 5). All the charges were alleged to have occurred on June 19, 2015. On August 11, 2015, defendant pleaded no contest to count 1. The trial court dismissed the remaining allegations with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. On October 7, 2015, the trial court placed defendant on three years of probation.
Undesignated statutory references are to the Penal Code.
On January 6, 2016, defendant admitted he violated probation by possessing marijuana and concentrated cannabis on December 12, 2015.
On February 17, 2016, the trial court followed the recommendation of the probation report and sentenced defendant to the upper term of seven years in county jail, with 1,461 days to be served in custody. The remaining 1,094 days were ordered to be served on mandatory supervision pursuant to section 1170, subdivision (h)(5)(B), including the condition he participate in counseling with a waiver and release of medical records. The trial court reasoned defendant "needs extensive substance abuse and anger management treatment."
Defendant filed a timely appeal.
Additional facts are included in the discussion as relevant to the contentions on appeal.
DISCUSSION
I
Defendant's mandatory supervision will be subject to certain conditions. General condition No. 9 states: "[Defendant] must cooperate in any psychiatric or psychological testing or counseling which may be suggested by the probation officer and authorize the release of any reports or records (written or oral) from any psychiatrist, physician, psychologist, or counselor to the Court, Probation Department, and/or District Attorney."
Special condition No. 40 requires defendant to "report to the BEHAVIORAL HEALTH" within 72 hours of his release from jail, and "cooperate in any psychiatric or psychological treatment, testing, or counseling which may be suggested or recommended by BEHAVIORAL HEALTH. You must authorize the release of any type of reports or records (written or oral) from any psychiatrist, physician, psychologist, or counselor to the Court, Probation Department, and District Attorney."
Special condition No. 56 requires defendant to "[w]aive any confidentiality regarding your participation in ordered program(s) so that information regarding your performance and progress of any court ordered treatment or medical program(s) can be provided to the court, your attorney, the District Attorney, and any treatment or healthcare providers. Sign any documents necessary to waive confidentiality; it being understood, however, that by signing your name below, you are authorizing your treatment provider or program staff to release information as may be requested by the Court or the Probation Department."
A. General condition No. 9 and special condition Nos. 40 and 56 do not violate any privilege against self-incrimination
Defendant contends these conditions violate his Fifth and Fourteenth Amendment rights. According to defendant, any incriminating statement he makes during his court- ordered treatment can now be disclosed to the court, probation department, and district attorney, without any limits on use or derivative use of such statements. As a result, argues defendant, the court has ordered him to waive any privilege against self-incrimination.
Mandatory supervision is "akin to state prison commitment," and more similar to parole than to probation. (People v. Fandinola (2013) 221 Cal.App.4th 1415, 1422, 1423.) Accordingly, courts review the terms of supervised release "under standards 'parallel to those applied to terms of parole.' " (People v. Malago (2017) 8 Cal.App.5th 1301, 1306.)
"The fundamental goals of parole are ' "to help individuals reintegrate into society as constructive individuals" [citation], " 'to end criminal careers through the rehabilitation of those convicted of crime' " [citation] and to [help them] become self-supporting.' " (People v. Martinez (2014) 226 Cal.App.4th 759, 763.) To further these goals, "[t]he state may impose any condition reasonably related to parole supervision." (In re Stevens (2004) 119 Cal.App.4th 1228, 1233.) These conditions "must be reasonably related to the compelling state interest of fostering a law-abiding lifestyle in the parolee." (Id. at p. 1234.) Just as with parole conditions, we review mandatory supervision conditions for abuse of discretion. (People v. Malago, supra, 8 Cal.App.5th at p. 1306.)
Despite defendant's contentions, our Supreme Court rejected a similar argument in People v. Garcia (2017) 2 Cal.5th 792 (Garcia). Garcia considered section 1203.067, subdivision (b)'s mandated probation conditions requiring convicted sex offenders to (1) waive " 'any privilege against self-incrimination' " and to participate " 'in polygraph examinations, which shall be part of the sex offender management program' " and (2) waive the psychotherapist-patient privilege. (Garcia, at p. 798.) The court rejected defendant's argument that his Fifth Amendment rights were violated by the condition regarding polygraph examinations, reasoning that "[t]he condition is properly read . . . to require that probationers answer all questions posed by the containment team fully and truthfully, with the knowledge that these compelled responses could not be used against them in a subsequent criminal proceeding. Because there is no Fifth Amendment privilege against compelled disclosure of information that cannot be used to incriminate the probationer [citations], it follows that the condition, properly understood, does not violate the Fifth Amendment." (Id. at pp. 802-803.) Similarly, here, none of the conditions require defendant to waive his privilege against self-incrimination.
B. Special condition No. 56 is overbroad
Defendant further contends special condition No. 56's requirement that he waive "any confidentiality" regarding his participation in ordered programs violates his right to privacy and is unconstitutionally overbroad.
We assume without deciding that the federal Constitution can in some circumstances protect convicted drug abusers from governmentally compelled disclosure of privileged communications with their psychotherapists. (Garcia, supra, 2 Cal.5th at pp. 809-810.) In Garcia, the defendant argued his privacy rights were violated by a probation condition requiring him to waive the " 'psychotherapist-patient privilege to enable communication between the sex offender management professional and supervision probation officer.' " (Id. at p. 798.) The Garcia court upheld the condition, noting the state's "strong and legitimate interest" in allowing relevant parties such as a psychotherapist and the probation officer to "exchange relevant information about a probationer's reformation and rehabilitation, including information disclosed during the probationer's therapy." (Id. at p. 811.) The court reasoned the professionals involved in " ' "supervising, assessing, evaluating, treating, supporting, and monitoring sex offenders" ' " needed to be able to "communicate freely about the probationer's situation." (Ibid.) The "limited intrusion" did not violate the defendant's federal right to privacy. (Ibid.) In addition, the condition was not unconstitutionally overbroad because it "extend[ed] only so far as is reasonably necessary to enable the probation officer and polygraph examiner to understand the challenges defendant presents and to measure the effectiveness of the treatment and monitoring program." (Id. at pp. 811-812.)
Although defendant is not undergoing sexual offender treatment, the state retains a legitimate interest in allowing appropriate parties to exchange relevant information about defendant's rehabilitation and reformation during his mandatory supervision, especially in light of the elder abuse charges against defendant. However, the required waiver here is much broader than Garcia, including providing information to the court, defense attorney, the district attorney, and any treatment or healthcare provider. This goes well beyond the "limited intrusion" of providing information to a probation officer and a polygraph examiner that was upheld in Garcia. Because this requirement is overly broad in any case, the mandatory supervision condition as currently drafted cannot stand. We will remand the matter to the trial court to either strike it or narrowly tailor it to serve the purpose of the condition.
II
Special condition No. 40 also requires defendant to "[i]ngest all medications as prescribed by BEHAVIORAL HEALTH and not terminate the use of such medication, or your participation in counseling or treatment, unless approved by your Probation Officer and BEHAVIORAL HEALTH staff."
In supplemental briefing ordered by this court, defendant argues this condition is unconstitutionally overbroad. According to defendant, the language covers any form of medication, whether or not related to his mental health, substance abuse, anger management, or criminality. In addition, defendant asserts the condition improperly delegates unfettered discretion to the behavioral health staff to make important medical decisions on his behalf. Defendant further argues the condition is improper because the record contains no evidence defendant requires medication to treat a psychological condition. The People argue the condition is not overbroad because we must assume a probation officer will not act irrationally or capriciously when applying probation conditions. In the alternative, the People ask us to modify the condition to require defendant to " 'ingest all medications as prescribed by your physician that relate to your treatment for anger management or substance abuse.' "
In general, a defendant's failure to make a timely objection to a probation condition forfeits the claim of error on appeal. (People v. Welch (1993) 5 Cal.4th 228, 234.) However, a defendant may challenge for the first time on appeal whether a condition is facially overbroad, so long as the claim presents a pure question of law without reference to the particular sentencing record developed (or left undeveloped) in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 889; People v. Turner (2007) 155 Cal.App.4th 1432, 1435.) Although defendant argues the medication condition is not appropriate because there was no evidence in the record that he had mental health issues, defendant has not forfeited his challenge given that he also argues the condition here is never appropriate because it would force a defendant on mandatory supervision to continue every prescribed medication unless a court or doctor otherwise orders.
A parole or probation condition "that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (In re Sheena K., supra, 40 Cal.4th at p. 890.) Adults have a state constitutional privacy right and a fundamental due process freedom to refuse to take medications. (People v. Petty (2013) 213 Cal.App.4th 1410, 1417; see also Sell v. United States (2003) 539 U.S. 166, 178-179 [156 L.Ed.2d 197, 211] [individual has a liberty interest in rejecting medical treatment that only an " 'essential' " or " 'overriding' " state interest might overcome].)
We agree that special condition No. 40 is overbroad as a matter of law because it requires defendant to take all medications prescribed by any treating behavioral health staff, for any identified problem. (See People v. Petty, supra, 213 Cal.App.4th at pp. 1413, 1414, 1420 [probation condition requiring the defendant to " 'comply with all directions of his/her mental health worker, including taking medication as directed' " was "not narrowly drawn" and was "so broad that it could cover any form of medication"]; see also In re Luis F. (2009) 177 Cal.App.4th 176, 184 [agreeing with the defendant that if a similar condition "were intended to subject him to future incarceration for failing to treat his toenail fungus" it would be impermissibly overbroad but finding no evidence of such an intent].) In addition, the record does not clarify whether behavioral health staff is limited to physicians or other medical professionals. Because this requirement is overly broad in any case, the mandatory supervision condition as currently drafted cannot stand. We will remand the matter to the trial court to either strike the condition or narrowly tailor it to serve the purpose of the condition.
III
In our request for supplemental briefing, we asked the parties to identify the trial court's authority to require defendant to participate in substance abuse and anger management programs, given that defendant was only convicted of manufacturing butane honey oil. (Health & Saf. Code, § 11379.6, subd. (a).) We agree with the parties that the trial court had authority to require such programs, given that defendant executed a Harvey waiver when he pleaded no contest to count 1 and the record reflected such programs would help defendant foster a law-abiding lifestyle. (People v. Martinez, supra, 226 Cal.App.4th at p. 763.) The facts underlying the dismissed elder abuse charges supported requiring both programs, given that defendant yelled and broke items during an argument with one of the victims. Defendant acknowledged to probation that he was under the influence of alcohol and "out of control" during the argument. Defendant also told probation he grew marijuana and made butane honey oil for himself. In addition, defendant violated probation in the current case by possessing marijuana in December 2015. We find no error.
Special condition No. 20 requires defendant to "enter and complete a residential substance abuse treatment program as specifically approved by your probation officer. . . ." Special condition No. 10 requires defendant to, "[w]ithin seven (7) days of being granted mandatory supervision or released from custody, provide proof of enrollment in, payment of and thereafter, successful completion of a[n] ANGER MANAGEMENT program/class, and not terminate participation in said program/class without the permission of the Court or probation officer."
In his plea form, defendant agreed to typical Harvey waiver language: "I stipulate the sentencing judge may consider my prior criminal history and the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations or cases when granting probation, ordering restitution or imposing sentence." (See People v. Snow (2012) 205 Cal.App.4th 932, 937, fn. 5.)
DISPOSITION
The judgment is affirmed. We remand the matter to the trial court to modify the mandatory supervision conditions at issue to address the concerns expressed in this opinion.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Robie, J. /s/_________
Renner, J.