Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM029775
BUTZ, J.Defendant Christopher Paul Quick pleaded no contest to unlawful sexual intercourse with a minor more than three years younger than defendant (Pen. Code, § 261.5, subd. (c)). The court suspended imposition of sentence and placed defendant on three years of formal probation.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends: (1) his $300 sex offender fine (§ 290.3) was unauthorized; (2) a $200 fine for the offense (§ 261.5, subd. (c)) exceeded the statutory limit; (3) requiring him to waive his Fourth Amendment rights was an unreasonable probation condition; (4) the ban forbidding the use of medical marijuana was an unreasonable probation condition; (5) prohibiting him from associating with those who use or sell controlled substances was overbroad; and (6) limits on associating with children were overbroad. We shall modify the fines and probation conditions and remand to the trial court with instructions.
FACTUAL BACKGROUND
In February 2008, defendant, age 20, began exchanging text messages with a 14-year-old girl whom he met through a mutual friend. In September 2008, defendant drove the girl to his apartment, where they engaged in consensual intercourse.
DISCUSSION
I. The Sex Offender Fine
The court imposed a $300 sex offender fine pursuant to section 290.3. The parties agree this fine was unauthorized. They are correct.
Section 290, subdivision (a) provides that any person convicted of an offense specified in section 290, subdivision (c) shall pay a $300 fine for the first conviction. Defendant was convicted of violating section 261.5, subdivision (c), which is not among the crimes listed in section 290, subdivision (c). The fine was unauthorized, and we shall vacate it.
II. The Section 261.5 Fine
The court imposed a $200 fine for the offense (§ 261.5, subd. (c) count 1). There are two problems with this fine.
First, the trial court did not specify the statutory basis for this fine. Since the unspecified fine was imposed on “count 1, ” and defendant was convicted of a single offense, the parties presume the court was referring to the statutory fine for unlawful sexual intercourse with a minor more than three years younger than defendant (§ 261.5, subd. (e)(3)). We agree, but the trial court should not leave others to guess at the basis for the fine. (See People v. High (2004) 119 Cal.App.4th 1192, 1201.)
Second, any person convicted under section 261.5 may be fined up to $70. (§ 261.5, subd. (e)(3).) The parties contend the fine must be modified to meet the statutory limit of $70. We agree.
We shall order the court to identify the statutory basis for the fine in the amended order of probation. Since the trial court did not list the various penalties and assessments imposed on defendant, we shall order it to identify those in the amended probation order. And, the fine shall be modified to the statutory limit of $70.
III. The Search and Drug Testing Conditions
Over defendant’s objection, the trial court imposed probation condition No. 3, that defendant submit to warrantless searches “at any time” without “reasonable or probable cause, ... for the purpose of determining compliance with conditions of probation to wit controlled substances, ” and condition No. 7, that defendant submit to drug testing.
Defendant’s crime did not involve drugs, and his only drug use is a single instance with marijuana in 2008. He argues the conditions were unreasonable as they were unrelated to his criminal conduct. We disagree.
We review conditions of probation for abuse of discretion. As we will explain, there was no such abuse in this case. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.)
“Generally, ‘[a] condition of probation will not be held invalid unless 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.]’ [Citation.] This test is conjunctive all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, 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.” (People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin).)
“[P]robation conditions authorizing searches ‘aid in deterring further offenses... and in monitoring compliance with the terms of probation. [Citations.] By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers.’ [Citation.] A condition of probation that enables a probation officer to supervise his or her charges effectively is, therefore, ‘reasonably related to future criminality.’” (Olguin, supra, 45 Cal.4th at pp. 380-381.)
The search and drug testing conditions allow the probation officer to determine whether defendant is using controlled substances. Such conduct is a violation of the law, and is often associated with other criminal behavior. Although defendant’s drug use has been minimal, probation conditions which help the probation officer detect whether defendant is using controlled substances are reasonable.
IV. Probation Condition No. 4
A. The Medical Marijuana Condition
Probation condition No. 4 prohibits defendant from using or possessing any controlled substance “unless with a current prescription from a licensed physician”; however, “No Prop. 215 marijuana recommendations allowed.” Defendant contends the medical marijuana prohibition is unreasonable because it contravenes the legislative policy set forth in Health and Safety Code section 11362.795. We disagree.
Defendant objected to probation condition No. 4 because “there is no indication that narcotics were involved in this case.” This preserves his claim on appeal, which is an attack on the reasonableness of the limitation on medical marijuana. (People v. Welch (1993) 5 Cal.4th 228, 237.)
Health and Safety Code section 11362.795, subdivision (a) states in pertinent part: “(1) Any criminal defendant who is eligible to use marijuana pursuant to Section 11362.5 may request that the court confirm that he or she is allowed to use medical marijuana while he or she is on probation or released on bail. [¶]... [¶] (3) During the period of probation or release on bail, if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation or bail to authorize the use of medical marijuana.”
On its face, Health and Safety Code section 11362.795 allows the trial court to prohibit a probationer from using medical marijuana. While medical marijuana is legal, probation conditions can prohibit legal activities, including the use of medical marijuana. (People v. Brooks (2010) 182 Cal.App.4th 1348, 1352.)
Citing People v. Penoli (1996) 46 Cal.App.4th 298, defendant claims the condition was an impermissible blanket prohibition on medical marijuana rather than a case-specific application required under Health and Safety Code section 11362.795. Penoli held that a trial court’s standard practice of imposing a waiver of custody credits for time spent in residential treatment “constituted an erroneous failure to exercise the discretion vested in the court by law.” (Penoli, supra, 46 Cal.App.4th at p. 303.) This decision is inapposite, as there is no indication the trial court imposed the condition as a standard practice without considering the specific facts of defendant’s case.
The condition is also reasonable. The Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5) relieves a defendant of criminal liability for possession or cultivation of marijuana if the patient or primary caregiver possesses or cultivates marijuana “for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” (Health & Saf. Code, § 11362.5, subd. (d).) Defendant was healthy and did not have a prescription for medical marijuana. The court could reasonably conclude that defendant, a healthy 20-year-old, was not likely to need medical marijuana, and any recommendation for the substance warranted extra scrutiny.
B. The Controlled Substances Condition
Probation condition No. 4 also states in pertinent part that defendant shall not “knowingly associate with anyone who has ever been convicted of any criminal offense involving these substances, nor anyone using or selling controlled substances, without permission of the Court or probation officer.” (Italics added.) Defendant contends the italicized portion is overbroad, as it prevents him from associating with people who legally use or possess controlled substances.
Because defendant’s claim involves a pure question of law, his contention is properly before us despite the lack of a specific objection in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.)
“‘Where a condition of probation requires a waiver of constitutional rights, the condition must be narrowly drawn. To the extent it is overbroad it is not reasonably related to a compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights.’” (People v. Hackler (1993) 13 Cal.App.4th 1049, 1058.)
There are many places where controlled substances are legally sold drug stores, supermarkets, club stores, and hospitals usually contain pharmacies. Many people have prescriptions for controlled substances, and are thus legally entitled to use them. The state has a compelling interest in preventing defendant from associating with the illegal use of controlled substances, but that interest is substantially diminished regarding the legal use or sale of controlled substances.
The Attorney General argues this provision passes constitutional muster because the court or probation officer can give defendant permission to associate with users or sellers of controlled substances. Defendant is entitled to a condition of probation leaving no doubt as to what is either required or prohibited and not to rely on a favorable interpretation from his probation officer or the court.
We shall modify probation condition No. 4 to limit it to the illegal use or sale of controlled substances.
V. Probation Condition No. 12 Limiting Association with Minors
Probation condition No. 12 states in pertinent part: “Do not associate/have any contact with any minor (child) under the age of eighteen (18) years, except in the immediate presence of a ‘responsible adult’ approved in advance by the probation officer.”
Defendant contends this condition is unconstitutionally vague and overbroad because it lacks a knowledge element.
For the reasons discussed in part IV.B., ante, defendant’s failure to object to this condition does not forfeit the claim on appeal.
“[T]he underpinning of the vagueness challenge is the due process concept of ‘“fair warning.”’ [Citation.] The vagueness doctrine ‘bars enforcement of “‘a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’”’” (People v. Turner (2007) 155 Cal.App.4th 1432, 1435 (Turner).)
In Turner, confronted with a probation condition “that [the] defendant ‘[n]ot associate with persons under the age of 18 unless accompanied by an unrelated responsible adult’” (Turner, supra, 155 Cal.App.4th at p. 1435), we held: “A person may reasonably not know whether he or she is associating with someone under the age of 18. Fair notice... is not possible unless the probation condition is modified to require that [the] defendant must either know or reasonably should know that persons are under 18 before he is prohibited from associating with them” (id. at p. 1436).
The probation condition here is indistinguishable from the one we modified in Turner. We shall modify probation condition No. 12 to include a knowledge requirement.
DISPOSITION
The judgment is modified as follows: The $300 sex offender fine (§ 290.3) is vacated. The $200 fine pursuant to section 261.5, subdivision (c) is modified to $70. The court is to set forth the statutory basis for all fines, fees, penalties, and assessments.
Probation condition No. 4 is modified (see italics added) to provide that defendant: “Totally refrain from the use, control, or possession of any controlled substance unless with a current prescription from a licensed physician. Do not possess any narcotic paraphernalia nor knowingly associate with anyone who has ever been convicted of any criminal offense involving these substances, nor anyone unlawfully using or selling controlled substances, without the permission of the Court or probation officer. No Prop. 215 marijuana recommendations allowed.”
Probation condition No. 12 is modified (see italics added) to read: “Do not associate/have any contact with any minor (child) defendant knows or has reason to know is under the age of eighteen (18) years, except in the immediate presence of a ‘responsible adult’ approved in advance by the probation officer. For the purposes of this order (to be determined by the Court or the Probation Officer) shall not be qualified to act as a ‘responsible adult.’ Exceptions: (to be determined by the Court or the Probation Officer).”
The case is remanded to the trial court, which is directed to prepare an amended probation order reflecting these changes and specifying the statutory bases for all fines, fees and penalties imposed upon defendant. The trial court shall also forward a certified copy of the amended probation order to the probation department.
We concur: HULL, Acting P. J., CANTIL-SAKAUYE, J.