Opinion
A149852
09-15-2017
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN STEPHEN ROSALES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1503690)
Defendant and appellant Jonathan Stephen Rosales challenges eight probation conditions imposed following his guilty plea to misdemeanor vehicular manslaughter. We affirm in part, reverse in part, and modify in part.
BACKGROUND
According to the testimony at the preliminary hearing, on the evening of June 28, 2014, appellant drove his pickup truck off the road (Highway 101) in Humboldt County. A passenger, Camille Rand, was ejected from the vehicle and died from significant head wounds. Another passenger appeared not to have serious injuries.
A police officer who spoke to appellant at the scene believed appellant smelled of alcohol and burnt marijuana. The officer asked appellant if he had been drinking and appellant responded in the affirmative and said, "Too much liquid." Another officer who interacted with appellant at the hospital testified that appellant still smelled of alcohol and burnt marijuana and that appellant again gave the "too much liquid" response to questioning about alcohol consumption. Numerous opened and unopened canisters of nitrous oxide were found in the truck and scattered about the accident scene. The police also found three bottles of hard cider; two were full and one was partially filled with liquid. Another officer testified there were also broken bottles at the scene. The police also found a marijuana joint and additional loose marijuana. Testing of appellant's blood the night of the accident was positive for marijuana but not for alcohol. Appellant's blood was not drawn quickly enough to be tested for the presence of nitrous oxide.
The measured THC level was low, although the criminalist testified the THC in the sample may have degraded in the year between the blood draw and the testing.
In September 2016, appellant pled guilty to misdemeanor vehicular manslaughter (Pen. Code, § 192, subd. (c)(2)) and in October the trial court suspended imposition of sentence and placed appellant on three years' probation subject to various terms and conditions.
All undesignated statutory references are to the Penal Code.
DISCUSSION
" 'Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. [Citations.] The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. [Citations.] The primary goal of probation is to ensure "[t]he safety of the public . . . through the enforcement of court-ordered conditions of probation." (Pen. Code, § 1202.7.)' [Citation.] Accordingly, the Legislature has empowered the court, in making a probation determination, to impose any 'reasonable 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 . . . .' (Pen. Code, § 1203.1, subd. (j).)" (People v. Olguin (2008) 45 Cal.4th 375, 379.) "We review conditions of probation for abuse of discretion. [Citations.] 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." (Id. at pp. 379-380.) Nevertheless, " '[a] 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.' " (Id. at p. 384.)
Appellant first challenges probation condition number 5, which provides, "Defendant shall not leave his county of residence without permission of the probation officer." Appellant argues the condition is an overbroad restriction on his constitutional right to travel. (See People v. Moran (2016) 1 Cal.5th 398, 405-406; People v. Smith (2007) 152 Cal.App.4th 1245, 1250.) We agree. We recognize that "probation officers' awareness of probationers' whereabouts facilitates supervision and rehabilitation and helps ensure probationers are complying with the terms of their conditional release." (Moran, at p. 406.) Moran cited cases approving conditions requiring probationers to obtain permission before leaving the state and requiring probationers to avoid certain persons and locations connected to their crimes. (Id. at pp. 406-407.) But the condition in the present case, requiring appellant to obtain permission to leave Humboldt County, is much more onerous, especially given that appellant is a building contractor who may need to travel out of the county for work. As the probation report noted, appellant "is a productive and employed member of our community, and he contributes to the financial support of his young children and their mother by paying the mortgage on the house in which they reside." The purpose of the condition can be served by requiring appellant to inform the probation department of travel out of the county and to obtain permission before out of state travel. (See People v. Soto (2016) 245 Cal.App.4th 1219, 1228 ["there is nothing to suggest that leaving Monterey County or the State of California would have an effect on defendant's rehabilitation"].) And respondent identifies nothing in appellant's criminal history that justifies the condition. Accordingly, the condition is not " 'closely tailor[ed]' " to its purpose (Olguin, supra, 45 Cal.4th at p. 384), and we will direct the trial court to modify the condition to require that appellant give the probation office notice of the dates and duration of any travel out of county, as well as to obtain permission for travel out of the state.
Appellant next challenges probation condition number 7, which provides, "Defendant may be placed on electronic monitoring at the discretion of the probation officer." The use of electronic monitoring is authorized by section 1210.7, which provides that "a county probation department may utilize continuous electronic monitoring to electronically monitor the whereabouts of persons on probation . . . ." (§ 1210.7, subd. (a).) The "primary objective [is] the enhancement of public safety through the reduction in the number of people being victimized by crimes committed by persons on probation." (§ 1210.7, subd. (c).) "The Legislature finds that continuous electronic monitoring has proven to be an effective risk management tool for supervising high-risk persons on probation who are likely to reoffend where prevention and knowledge of their whereabouts is a high priority for maintaining public safety." (§ 1210.7, subd. (e).) Appellant argues he does not meet the criteria for the use of electronic monitoring because the probation office's risk assessment determined his "current risk level is low." Because probation in general is reserved for persons who pose "minimal risk to public safety" (Olguin, supra, 45 Cal.4th at p. 384), we do not understand section 1210.7, subdivision (e) to mean that electronic monitoring is only approved for use on probationers who are "likely to reoffend." Given that appellant killed a passenger in the underlying offense and given that he has a prior conviction for alcohol-related reckless driving, the trial court did not abuse its discretion in authorizing electronic monitoring.
Appellant challenges probation condition number 9, which provides, "Defendant shall not own, possess, have in his vehicle or residence, any firearm, any ammunition that can be used in a firearm, or any other deadly weapon, whether owned by defendant or not." Relatedly, he also challenges conditions number 10 ("Defendant shall not own, possess, have in his vehicle or residence any instrument or device which a reasonable person would believe to be capable of being used as a firearm") and 11 ("Defendant shall not own, possess, or have in his vehicle any knife with a blade longer than 2 inches, except kitchen knives which must be kept in his residence and knives relating to his employment"). Appellant contends each is an overbroad infringement on his constitutional right to bear arms. (D.C. v. Heller (2008) 554 U.S. 570; cf. People v. Kim (2011) 193 Cal.App.4th 836, 847 ["a convicted felon has no constitutional right to bear arms"].) We agree. As appellant points out, his crime and criminal record do not involve weapons, nor intentional acts of violence, aside from a 2003 misdemeanor conviction for domestic assault. Respondent fails to identify any particularized concern relating to appellant that is addressed by the challenged weapon conditions. Appellant does acknowledge the probation office has a legitimate interest in being notified of his possession of any weapons (see Olguin, supra, 45 Cal.4th at p. 382 [notification regarding pets]), and we will direct the trial court to so modify the probation conditions.
Technically, condition number 10, relating to imitation firearms, does not appear to infringe upon appellant's right to bear arms, but there is no reasonable basis to impose the condition if the restriction on appellant's possession of real firearms is invalid.
Appellant's criminal record includes misdemeanor convictions for child endangerment (1999), domestic assault (2003), child endangerment and possession of drugs and paraphernalia (2005), reckless driving involving alcohol (2010), and vehicular manslaughter (2016).
As modified, the conditions would contain an implied requirement of knowing possession of the items subject to the notification obligation. (People v. Hall (2017) 2 Cal.5th 494, 503-504.)
Next, appellant challenges condition number 13, which provides, "Defendant shall totally abstain from the use of alcoholic beverages and shall not have in his possession or under his custody or control any alcoholic beverages." He contends the trial court abused its discretion in imposing the condition because he did not plead guilty to any charge involving alcohol and the blood test showed he did not have alcohol in his system at the time of the accident. We disagree. The trial court could properly conclude the condition was related to preventing future criminality. Although it appears appellant was not intoxicated by alcohol at the time of the accident, the testimony at the preliminary hearing would support a finding appellant had consumed some alcohol. And, more fundamentally, appellant's previous offense for reckless driving involving alcohol and the substantial quantity of alcohol and narcotics in appellant's truck at the time of the accident showed that appellant had trouble acting responsibly in the presence of alcohol. (See In re Kacy S. (1998) 68 Cal.App.4th 704, 710 [in juvenile context, referring to legislative finding "that 'alcohol and drug abuse' are 'precursors of serious criminality' "].)
Appellant also challenges condition number 21, which provides, "Defendant shall undergo an alcohol/drug assessment and shall comply with all recommendations contained in said assessment, as directed by the probation officer. Defendant shall enter and successfully complete all phases of the recommended treatment program. Said assessment and program will be at his own expense." Appellant argues the condition is invalid because he did not meet the criteria specified in section 1203.096 for imposition of substance abuse counseling. However, that section is inapplicable, as it specifies when such counseling is required in sentencing a defendant to prison. In light of appellant's prior alcohol-related conviction for reckless driving, the presence of alcohol and narcotics in his truck at the time of the accident, and the evidence he had consumed marijuana and some alcohol that night (and potentially nitrous oxide as well), the trial court did not abuse its discretion in imposing the substance abuse treatment condition.
Section 1203.096, subdivision (a) provides, "Upon conviction of any felony in which the defendant is sentenced to state prison and in which the court makes the findings set forth in subdivision (b), a court shall, in addition to any other terms of imprisonment, fine, and conditions, recommend in writing that the defendant participate in a counseling or education program having a substance abuse component while imprisoned." The subdivision (b) findings include, for example, that the defendant was under the influence of alcohol or a controlled substance at the time of commission of an offense. (§ 1203.096, subd. (b).)
Finally, appellant challenges probation condition number 20, which provides, "Defendant shall attend, actively participate in, and follow all the rules and directions of a counseling program or programs, at his own expense, as deemed necessary by the probation officer. Duration of such counseling to be determined by the probation officer." He complains the condition is "vague in the extreme" because "the type of counseling program that appellant is required to attend and complete is totally within the discretion of the probation officer." We agree. In People v. Penoli (1996) 46 Cal.App.4th 298, another division of this court held it was not an unlawful delegation of judicial authority for the trial court to leave the selection and scheduling of a program within the discretion of the probation officer. But there the program was specified to be a "residential drug rehabilitation program." (Id. at p. 307.) The court pointed out that "any attempt to specify a particular program at or prior to sentencing would pose serious practical difficulties. The trial court is poorly equipped to micromanage selection of a program, both because it lacks the ability to remain apprised of currently available programs and, more fundamentally, because entry into a particular program may depend on mercurial questions of timing and availability." (Id. at p. 308.) Those concerns do not arise from appellant's objection that the condition fails to specify what general type of counseling is contemplated. Substance abuse treatment is addressed in probation condition number 21, so condition number 20 must contemplate some other type of counseling. The absence of any specificity makes it impossible for this court to determine whether the condition is reasonably related to appellant's offense or the prevention of future criminality. Accordingly, the condition must be reversed.
Very recently the Fourth District Court of Appeal addressed an analogous claim. In People v. Brooks (Aug. 25, 2017, D070918)___ Cal.App.5th ___ , a challenged probation condition required the defendant to "participate in a counseling/educational program as directed by the probation officer." The court of appeal held the condition "is unconstitutionally vague and an improper delegation of judicial authority . . . because it grants the probation officer unlimited discretion to choose any counseling or educational program." The court of appeal modified the condition rather than reversing it because it was clear from the record that the lower court intended the defendant to participate in a drug and alcohol program. Because in the present case it is not clear what program the trial court contemplated in imposing condition number 20, we reverse the condition. --------
DISPOSITION
The trial court's probation condition number 5 is modified to state, "Defendant shall not leave the state without permission of the probation officer, and he shall give the probation officer notice of the dates and duration of any travel out of Humboldt County." Probation condition number 9 is modified to state, "Defendant shall inform the probation officer of any firearm, any ammunition that can be used in a firearm, or any other deadly weapon, whether owned by defendant or not, in his possession, vehicle, or residence." Probation condition number 10 is modified to state, "Defendant shall inform the probation officer of any instrument or device which a reasonable person would believe to be capable of being used as a firearm, whether owned by defendant or not, in his possession, vehicle, or residence." Probation condition number 11 is modified to state, "Defendant shall inform the probation officer of any knife with a blade longer than 2 inches, except kitchen knives, kept in his residence, and knives relating to his employment, whether owned by defendant or not, in his possession, vehicle, or residence." Probation condition number 20 is reversed. In all other respects, the judgment is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.