Opinion
F072674
02-20-2018
THE PEOPLE, Plaintiff and Respondent, v. ANDREW JAMES WASHINGTON-SILVA, Defendant and Appellant.
Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kenneth N. Sokoler and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1452568)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge. Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kenneth N. Sokoler and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Franson, J. and Meehan, J.
-ooOoo-
Defendant Andrew James Washington-Silva was convicted by no contest plea of vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (b)) with the special allegation that he personally inflicted great bodily injury (§ 1192.7, subd. (c)(8)). On appeal, he contends the probation condition that requires that he not be out of the county for more than 48 hours without his probation officer's permission is unconstitutionally overbroad. We affirm.
All statutory references are to the Penal Code.
BACKGROUND
On February 21, 2012, defendant was driving from Sacramento to Modesto with a passenger, Christopher M. Defendant stopped in Stockton where he and Christopher smoked marijuana. About an hour later, as defendant was driving, he drifted out of his lane, overcorrected, and struck the back of a parked semi-truck trailer. Christopher died at the scene. Defendant was taken to the hospital, where he admitted to police that he had smoked marijuana an hour before the collision and that he knew marijuana could affect his ability to drive safely. Defendant displayed physical signs consistent with being under the influence of marijuana.
On October 8, 2013, the Stanislaus County District Attorney charged defendant with vehicular manslaughter while intoxicated (§ 191.5, subd. (b)) and alleged that he personally inflicted great bodily injury (§ 1192.7, subd. (c)(8)).
On July 24, 2015, defendant pled no contest to the charge and admitted the allegation.
On September 8, 2015, the trial court imposed and stayed a 16-month prison term and granted 60 months' probation. The court imposed various probation conditions, including that defendant serve one year in jail, complete community service and a program on driving under the influence, and the following: "Do not leave Stanislaus County for more than 48 hours without the written consent of the Probation Officer ...." Defendant accepted the terms of his probation.
On October 30, 2015, defendant filed a notice of appeal.
DISCUSSION
I. Law
Probation is "the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer." (§ 1203, subd. (a).) Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety. (People v. Welch (1993) 5 Cal.4th 228, 233.) "Persons placed on probation by a court shall be under the supervision of the county probation officer who shall determine both the level and type of supervision consistent with the court-ordered conditions of probation." (§ 1202.8, subd. (a).) "[P]robation is an ' " 'act of clemency and grace,' " ' not a matter of right. [Citation.] '[T]he granting of probation is not a right but a privilege, and if the defendant feels that the terms of probation are harsher than the sentence for the substantive offense[,] he is free to refuse probation.' " (People v. Rubics (2006) 136 Cal.App.4th 452, 459-460, disapproved on another ground in People v. Martinez (2017) 2 Cal.5th 1093, 1099-1107 & fn. 3.)
"In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to ... section 1203.1. [Citations.] 'The court may impose and require ... [such] 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.' (... § 1203.1, subd. (j).) The trial court's discretion, although broad, nevertheless is not without limits ...." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.)
A condition will not be invalidated as unreasonable unless it satisfies each of the following criteria: (1) it has no relationship to the crime of which the offender was convicted; (2) it relates to conduct that is not itself criminal; and (3) it requires or forbids conduct that is not reasonably related to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent); accord, People v. Carbajal, supra, 10 Cal.4th at p. 1121.) The test is conjunctive; all three prongs must be satisfied before an appellate court will find the condition invalid. (Lent, at p. 486.) "[E]ven 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, 380 (Olguin).) A condition of probation that enables a probation officer to effectively supervise a probationer is reasonably related to future criminality. (People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240-1241.)
However, "[j]udicial discretion to set conditions of probation is further circumscribed by constitutional considerations." (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1356.) "A probation condition that imposes limitations on a person's constitutional rights[—such as the right to travel—]must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.); see In re White (1979) 97 Cal.App.3d 141, 148 [recognizing the right to travel as a basic constitutional right].) "The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
Appellate courts have modified or stricken conditions that restrict a probationer's constitutional rights when the conditions are not narrowly drawn to serve the goals of rehabilitation and protection of the public. (See, e.g., In re Bushman (1970) 1 Cal.3d 767, 776-777 [condition requiring petitioner to seek psychiatric treatment at his own expense was beyond the court's jurisdiction where there was no evidence he needed psychiatric care], disapproved on another ground in Lent, supra, 15 Cal.3d at p. 486, fn. 1; People v. Keller (1978) 76 Cal.App.3d 827, 839 [narcotics search condition not narrowly drawn where the defendant's conviction was for theft of a $0.49 ballpoint pen], disapproved on other grounds in People v. Welch, supra, 5 Cal.4th at p. 237.)
"Generally, we review the court's imposition of a probation condition for an abuse of discretion." (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) When the challenge is a constitutional one, however, we review it independently. (Ibid.)
A claim that a probation condition is unreasonable is forfeited by the failure to object to the probation condition in the trial court. But a claim that a probation condition is facially overbroad that does not rely on reference to the sentencing record may be treated as a pure question of law, which is not forfeited by failure to object in the trial court. (Sheena K., supra, 40 Cal.4th at p. 885 [appellate claim that the language of a probation condition is unconstitutionally vague or overbroad "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court"]; id. at p. 887 ["An obvious legal error at sentencing that is 'correctable without referring to factual findings in the record or remanding for further findings' is not subject to forfeiture."]; ibid. ["a challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law"].) II. Analysis
Defendant asserts that the 48-hour travel condition is overbroad and impermissibly infringes on his right to travel because it is not tailored to protect the public, to encourage his rehabilitation, or to meet any other legitimate purpose of probation. He argues that the condition could be modified to require notification rather than permission.
Here, we cannot say that the travel condition is facially overbroad based on its language and legal concepts, but we recognize it could be factually overbroad in certain circumstances, while entirely appropriate in others. Certain probationers simply require more supervision and monitoring, as the specific facts of each case demand. Defendant, however, cannot assert the condition is unreasonable or overbroad based on the specific facts of his case because he has forfeited this claim.
We note that the California Supreme Court has established that probation officers do not have unlimited discretion, but rather have an inherent obligation to act reasonably in the supervision of probationers and in the application of probation conditions; furthermore, we presume they will fulfill that obligation. (Olguin, supra, 45 Cal.4th at pp. 380-383 [on a facial challenge to a probation condition, we assume that a probation officer will not apply it in an arbitrary or capricious manner; "[w]hat action the officer may choose to take ... is beyond the scope of a facial attack on the ... condition itself"].) --------
Furthermore, even if we did address the merits, we would not conclude the condition is unconstitutionally overbroad. Defendant smoked marijuana before driving, and he caused the death of his passenger. The trial court imposed a lenient sentence, as it expressly acknowledged, but ordered that defendant participate in a controlled substance detection program as directed by the probation officer, participate in controlled substance counseling as directed by the probation officer, enroll in a program for driving under the influence, not use or possess any narcotics or controlled substances except with a valid prescription, and not drive with any measurable amount of alcohol or controlled substance in his blood.
The state has a legitimate interest in ensuring defendant participates in these ongoing treatments, and in ensuring the probation officer maintains continuous monitoring, supervision, and awareness of his status. The travel condition properly serves the state's interest in reformation and rehabilitation because where defendant travels and how long he is gone directly affect his access to treatment, supervision, and rehabilitation. Thus, the condition is sufficiently tailored to a legitimate state interest and is not unconstitutionally overbroad.
DISPOSITION
The judgment is affirmed.