Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge, Super. Ct. No. 07NF4116
Sarah A. Stockwell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
FYBEL, J.
INTRODUCTION
A jury found defendant Alan Spencer Newman guilty of driving under the influence of alcohol and driving with a blood alcohol level of 0.08 percent or more in violation of Vehicle Code section 23152, subdivisions (a) and (b). The trial court placed defendant on probation for a five year term. We direct the trial court on remand to modify certain probation conditions and to strike a penalty the court imposed under Penal Code section 1463.14, subdivision (b); we otherwise affirm the judgment in full.
Before trial, the court found good cause supported each of the two motions defendant filed under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), conducted in camera hearings to determine whether the investigating officer’s personnel files contained discoverable information, and thereafter concluded the files contained no such information. Defendant seeks this court’s independent review of the sealed records of the in camera hearings. Following our independent review of those sealed records, we conclude the trial court did not err in denying defendant’s Pitchess motions.
Defendant contends the trial court erred by unconstitutionally conditioning his probation on his probation officer’s approval of defendant’s residence (the residence condition) and on his refraining from associating with any person disapproved of by his probation officer (the association condition). We agree both conditions are unconstitutionally overbroad and direct the trial court on remand to (1) modify the residence condition to require defendant to inform the probation officer of his place of residence and to give a 24 hour written notice to the probation officer before changing his residence, and (2) either strike the association condition or revise it to expressly identify the class of people with whom defendant is to have no association.
At the oral pronouncement of sentence, the trial court imposed fees required by law. The court’s minute order, however, stated the court imposed an alcohol and drug testing penalty (the penalty) under Penal Code section 1463.14, subdivision (b). Because the penalty is not mandatory and was not otherwise imposed in the oral pronouncement of sentence, we further direct the trial court to strike the penalty.
FACTS
At approximately 9:18 p.m. on July 21, 2006, Officer Chris Cooper of the La Habra Police Department was dispatched to a residential address to investigate a family disturbance call. As he was driving down a street, Cooper saw a sport utility vehicle (SUV) driving in front of him; he saw the SUV turn into the driveway of the same residence to which he had been dispatched.
After Cooper parked his car, he saw the brake lights of the SUV illuminate, the driver’s door open, and defendant get out of the vehicle. Cooper spoke with defendant and noticed he smelled of alcohol, his eyes were bloodshot and watery, and “his pupils were constricted.” Defendant was also very unstable on his feet. Cooper directed defendant to sit down on the curb for his own safety.
Defendant told Cooper that he lived at the residence. He also told Cooper he had been driving for 30 minutes; he stated he had driven to a Taco Bell and back. He admitted he had drunk two 24 ounce beers and two four ounce glasses of wine since 3:30 p.m. Defendant stipulated at trial that his blood alcohol level was between 0.252 and 0.256 percent.
BACKGROUND
Defendant was charged in an amended information with driving under the influence of alcohol in violation of Vehicle Code section 23152, subdivision (a), and driving with a blood alcohol level of 0.08 percent or more in violation of section 23152, subdivision (b). In support of each count, the amended information alleged, “pursuant to Vehicle Code section 23550.5[, subdivision ](a), the defendant, prior to and within ten (10) years of this offense, violated Section 23153 of the Vehicle Code, resulting in a felony conviction.”
Defendant filed a Pitchess motion seeking the disclosure of information contained in Cooper’s personnel file from the La Habra Police Department, bearing on Cooper’s credibility; whether Cooper had falsified police reports, or conducted illegal detentions, arrests, searches, or seizures; and whether he had engaged in prior acts involving moral turpitude. After examining the records in camera, the trial court denied defendant’s motion on the ground the court found no discoverable information.
Defendant filed a second Pitchess motion that sought similar information contained in Cooper’s personnel file from the Anaheim Police Department. After conducting an in camera hearing, the trial court denied the motion on the ground the court found no discoverable information.
The jury found defendant guilty of both counts as charged in the amended information. The trial court placed defendant on formal probation for a five year term. In addition to requiring defendant to serve 365 days in Orange County jail, the trial court’s minute order stated the terms and conditions of probation included that defendant (1) “maintain [a] residence as approved by [the] Probation Department”; (2) “not associate with anyone disapproved of by [his] Probation Officer”; and (3) pay a $37 “DUI [driving under the influence] Lab/Blood Alcohol FEE” under Penal Code section 1463.14, subdivision (b). Defendant appealed.
DISCUSSION
I.
PITCHESS REVIEW
Defendant and the Attorney General agree that this court should conduct an independent review of the sealed records of the in camera hearings to determine whether the trial court abused its discretion in denying defendant’s motions for disclosure of information contained in Cooper’s personnel records. (See People v. Prince (2007) 40 Cal.4th 1179, 1285 [reviewing courts “routinely independently examine[] the sealed records of... in camera hearings to determine whether the trial court abused its discretion in denying a defendant’s motion for disclosure of police personnel records”].)
We have reviewed the sealed transcripts of each in camera hearing. At each hearing, the trial court reviewed the items produced by the custodian of records and questioned the custodian of records about those records. (People v. Mooc (2001) 26 Cal.4th 1216, 1226 [the trial court is not required to place a photocopy of documents produced by the custodian of records in a confidential file, but may state for the record what documents it examined in camera].) The record shows the trial court confirmed Cooper’s personnel files from the La Habra Police Department and the Anaheim Police Department did not contain discoverable information. Consequently, the court did not err in denying defendant’s motions.
II.
THE RESIDENCE CONDITION AND THE ASSOCIATION CONDITION OF DEFENDANT’S PROBATION MUST BE MODIFIED.
Defendant argues the trial court violated his constitutional rights by imposing “unconstitutionally vague and overbroad” probation conditions requiring that he “maintain [a] residence as approved by [the] Probation Department” and refrain from associating “with anyone disapproved of by [his] Probation Officer.”
The reporter’s transcript shows the trial court orally described the conditions as follows: “Residence and associates must be approved by and may be disapproved of by the probation officer.”
Although defendant did not object to either of these probation conditions in the trial court, we conclude his challenges to the probation conditions are not forfeited. Defendant’s contentions of error that the probation conditions are facially vague and overbroad each present a “pure question of law, easily remediable on appeal by modification of the condition.” (In re Sheena K. (2007) 40 Cal.4th 875, 888 889.) Furthermore, in In re Sheena K., the Supreme Court stated, “[i]n general, forfeiture of a claim not raised in the trial court by a party has not precluded review of the claim by an appellate court in the exercise of that court’s discretion” although “appellate courts typically have engaged in discretionary review only when a forfeited claim involves an important issue of constitutional law or a substantial right.” (Id. at p. 887, fn. 7.) We therefore turn to the merits of defendant’s arguments.
Penal Code section 1203.1, subdivision (j) authorizes the trial court to impose reasonable probation conditions “as it may determine 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 generally and specifically for the reformation and rehabilitation of the probationer.” Although the court has discretion to impose probation conditions, its discretion is not unlimited. (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355.) “A probation condition is unreasonable if 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.] But ‘“a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.”’” (Ibid.)
Here, the residence condition is overly broad. In People v. Bauer (1989) 211 Cal.App.3d 937, 943 945, the appellate court struck a probation condition which required that the defendant’s residence “be subject to his probation officer’s approval.” The appellate court stated that nothing in the probation report or in any other part of the record suggested where the defendant resided was reasonably related to future criminality. (Id. at p. 944.) In addition, the appellate court found the condition “impinge[d] on constitutional entitlements-the right to travel and freedom of association. Rather than being narrowly tailored to interfere as little as possible with these important rights, the restriction is extremely broad. The condition gives the probation officer the discretionary power, for example, to forbid [the defendant] from living with or near his parents-that is, the power to banish him. It has frequently been held that a sentencing court does not have this power.” (Ibid.)
As conceded by the Attorney General in the respondent’s brief, the residence condition is similarly overbroad. The Attorney General recommends the residence condition be modified to read: “Defendant shall keep the probation officer informed of his place of residence and give written notice to the probation officer twenty four (24) hours prior to a change in residence.” In the reply brief, defendant “agree[d] to the proposed modification.” We agree that, as modified pursuant to the Attorney General’s proposal, the residence condition would constitute a reasonable and constitutional probation condition within the trial court’s discretion under Penal Code section 1203.1, subdivision (j).
The trial court also imposed the association condition which prohibited defendant from “associat[ing] with anyone disapproved of by [his] Probation Officer.” The association condition does not contain a scienter element. The California Supreme Court has held that such a condition is unconstitutionally vague “in the absence of an express requirement of knowledge” (In re Sheena K., supra, 40 Cal.4th at p. 891) because the probation condition must give the probationer “‘adequate notice’” as to what is permitted, and “‘for the court to determine whether the condition has been violated’” (id. at p. 890).
In People v. O’Neil, supra, 165 Cal.App.4th at page 1354, the defendant pleaded guilty to committing two drug related felonies. The appellate court concluded a probation condition forbidding the defendant from associating with persons designated by his probation officer was overbroad. The court explained, “[a]s 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.” (Id. at pp. 1357 1358.)
The appellate court further stated: “There are many understandable considerations of efficiency and practicality that make it reasonable to leave to the probation department the amplification and refinement of a stay-away order. 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, and the class of people with whom the defendant is directed to have no association. Since the condition in this case contains no such standard by which the probation department is to be guided, the condition is too broad and must either be stricken or rewritten to provide the necessary specificity.” (People v. O’Neil, supra, 165 Cal.App.4th at pp. 1358 1359.)
Here, the association condition is overly broad as it fails to provide any limits on the probation officer’s authority to limit defendant’s associations. The record does not support the broad association condition imposed in certain juvenile cases prohibiting a defendant from associating with anyone the defendant knows is disapproved of by his or her probation officer, and the Attorney General does not suggest otherwise. (See, e.g., In re Sheena K., supra, 40 Cal.4th at p. 889 [noting “‘a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court’”].)
In the respondent’s brief, the Attorney General states, “[a]s for the association condition, this Court can modify it to delineate a class of persons if the Court deems it overly broad, or delete it if defining a proper class of persons is not feasible”; he does not suggest what modification to the association condition would render it constitutional and appropriate for this case. Under the circumstances of this case, we find the appellate court’s disposition of that same issue in People v. O’Neil, supra, 165 Cal.App.4th at page 1359, to be most appropriate here, and thus conclude the association condition must be stricken or rewritten to provide the necessary specificity. We remand to the trial court with directions to make that determination.
III.
THE DUI LAB FEE MUST BE STRICKEN.
Defendant contends the trial court’s minute order erroneously states the court imposed the penalty because the court had not orally done so. At the sentencing hearing, the trial court stated defendant must “pay all fines and fees as required by law at the minimum.” (Italics added.) The court’s minute order, however, states defendant must “[p]ay $37.00 DUI Lab/Blood Alcohol FEE pursuant to Penal Code [section] 1463.14B7.”
A penalty under Penal Code section 1463.14, subdivision (b) is not required by law and it may be imposed only under the circumstance the defendant has the ability to pay it. Section 1463.14, subdivision (b) provides in relevant part: “The board of supervisors of a county may, by resolution, authorize an additional penalty upon each defendant convicted of a violation of Section 23152 or 23153 of the Vehicle Code, of an amount equal to the cost of testing for alcohol content, less the fifty dollars ($50) deposited as provided in subdivision (a). The additional penalty authorized by this subdivision shall be imposed only in those instances where the defendant has the ability to pay.” Section 1463.14, subdivision (b) further states: “For purposes of this subdivision, ‘ability to pay’ means the overall capability of the defendant to pay the additional penalty authorized by this subdivision, taking into consideration all of the following: [¶] (1) Present financial obligations, including family support obligations, and fines, penalties, and other obligations to the court. [¶] (2) Reasonably discernible future financial position over the next 12 months. [¶] (3) Any other factor or factors that may bear upon the defendant’s financial ability to pay the additional penalty.”
The trial court’s oral pronouncement of sentence provided for the imposition of mandatory fees only-those “required by law at the minimum.” The court’s oral pronouncement of sentence did not refer to any discretionary penalty, including the penalty, or any finding regarding defendant’s ability to pay.
In People v. Price (2004) 120 Cal.App.4th 224, 242, the appellate court stated: “Entering a judgment of the trial court in the minutes is a clerical function. Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error. Thus, the oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes.” (See also People v. Zackery (2007) 147 Cal.App.4th 380, 385 [“Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls”].)
In light of the absence of any reference to the penalty in the oral pronouncement of sentence, we conclude the addition of the penalty in the court’s minute order was invalid. The imposition of the penalty, therefore, must be stricken as inconsistent with the oral pronouncement of sentence.
DISPOSITION
We remand the matter with directions to the trial court to (1) modify the residence condition to require defendant to inform the probation officer of his place of residence and to give a 24 hour written notice to the probation officer before changing his residence, (2) either strike the association condition or revise it to expressly identify the class of people with whom defendant is to have no association; and (3) strike the penalty under Penal Code section 1463.14, subdivision (b). The judgment is otherwise affirmed in its entirety.
WE CONCUR: O’LEARY, ACTING P. J.MOORE, J.