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People v. Garcia

Court of Appeal of California, Fifth District
Oct 1, 1993
19 Cal.App.4th 97 (Cal. Ct. App. 1993)

Summary

In Garcia, supra, 19 Cal.App.4th 97, an appellate court determined that "[a] condition of probation that prohibit[ed] appellant from associating with persons who, unbeknownst to him, have criminal records or use narcotics" was unconstitutionally overbroad because it forbid "association with persons not known to him to be users and sellers of narcotics, felons or ex-felons."

Summary of this case from People v. Collins

Opinion

Docket No. F018987.

October 1, 1993. [Opinion certified for partial publication.]

Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts II and IV of the Discussion.

Appeal from Superior Court of Merced County, No. 16888, Dennis A. Cornell, Judge.

COUNSEL

Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Edmund D. McMurray and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.




OPINION


Pursuant to a plea agreement, appellant David Garcia pled no contest to one count of petty theft with a prior conviction (Pen. Code, §§ 666/488) and, in an unrelated municipal court case, single counts of driving with a suspended license (Veh. Code, § 14601.2) and alcohol-related reckless driving (Veh. Code, § 23103.5). The court placed appellant on probation for two years and imposed various conditions of probation. In the unpublished portion of this opinion, we will conclude that the court did not err in imposing a probation condition requiring narcotics testing. In the published portion, we will conclude that the probation condition that appellant not associate with any felons, ex-felons or users or sellers of narcotics was unconstitutionally overbroad. Accordingly, we will modify the judgment and otherwise affirm.

FACTS

Appellant pled no contest to the theft of a handgun. At the preliminary hearing, the victim testified that she and appellant lived together. She testified further that one morning appellant "came [into her bedroom] and walked over [her] on the bed, being . . . very intoxicated, grabbed the gun. . . . He . . . left . . . the house. And that's when it was taken."

According to the probation report, appellant's prior criminal record includes a 1983 conviction for possession of marijuana, a 1984 conviction for "Drunk Driving," and a 1985 conviction for "Riding a Bicycle While Under the Influence of Alcohol."

The court imposed numerous conditions of probation, including ordering appellant to "Submit to narcotic[s] testing as directed by the Probation Officer [and]. . . . [¶] Not associate with . . . any felons, ex-felons, users or sellers of narcotics."

DISCUSSION I General Principles

Appellant contends both of the above conditions "are unreasonable and overbroad, and . . . should be deemed invalid." We disagree.

(1) Respondent does not challenge appellant's right to contest conditions of probation on this appeal, even though appellant agreed to the conditions in the superior court. Prior to the Supreme Court's decision in People v. Welch (1993) 5 Cal.4th 228 [ 19 Cal.Rptr.2d 520, 851 P.2d 802], "[E]xisting law overwhelmingly said no such objection [to probation conditions on grounds such as those urged here] was required [in order to preserve such objections for appeal]." ( Id. at p. 238, fn. omitted.) In Welch, the court held "that failure to timely challenge a probation condition on . . . grounds [such as those urged here] in the trial court waives the claim on appeal." ( Id. at p. 237.) However, the court also stated, "[T]he objection and waiver rule announced herein shall not apply to defendant or any other litigant whose probation conditions were considered at a sentencing hearing held before the instant decision becomes final." ( Id. at p. 238.) Since appellant's case falls into that class of cases, there was no waiver here.

(2) Penal Code section 1203.1 authorizes the trial court to impose reasonable conditions of probation. However, a trial court's "discretion [to impose such conditions under Penal Code section 1203.1] is not boundless; the authority is wholly statutory, and the statute furnishes and limits the measure of authority which the court may exercise." ( People v. Cervantes (1984) 154 Cal.App.3d 353, 356 [ 201 Cal.Rptr. 187].)

The limits of the court's discretion are determined by a three-pronged test. "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.] Conversely, 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." ( People v. Lent (1975) 15 Cal.3d 481, 486 [ 124 Cal.Rptr. 905, 541 P.2d 545].) "As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or `"exceeds the bounds of reason, all of the circumstances being considered."'" ( People v. Welch, supra, 5 Cal.4th at p. 234.)

II Narcotics Testing Condition

See footnote 1, ante, page 97.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

III Condition That Appellant Not Associate With Any Felons, Ex-Felons or Sellers or Users of Narcotics

(3) "`The statutory authority of Penal Code section 1203.1 which furnishes and limits the power which the court may exercise is further circumscribed by constitutional considerations. [Citation.] 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 [ 16 Cal.Rptr.2d 681].)

(4) The condition requiring appellant to refrain from associating with users and sellers of narcotics, felons and ex-felons impinged on appellant's constitutional right of freedom of association. (U.S. Const., 1st Amend.; Cal. Const., art. I, § 1; cf. Robbins v. Superior Court (1985) 38 Cal.3d 199, 212-213 [ 211 Cal.Rptr. 398, 695 P.2d 695].) Thus, it "`must be narrowly drawn.'" ( People v. Hackler, supra, 13 Cal.App.4th at p. 1058.)

Appellant argues that the association condition is not sufficiently narrowly drawn because it limits appellant's association with persons not known to him to be users and sellers of narcotics, felons or ex-felons. We agree. In People v. Robinson (1988) 199 Cal.App.3d 816 [ 245 Cal.Rptr. 50], the court found no constitutional infirmity in a probation condition prohibiting the "defendant [from] associat[ing] with anyone of known criminal record." ( Id. at p. 817, italics added.) We know of no case, and respondent cites none, dealing with a probation condition prohibiting association with persons not known to be felons or ex-felons. A condition of probation that prohibits appellant from associating with persons who, unbeknownst to him, have criminal records or use narcotics, is "`overbroad [and therefore] 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, supra, 13 Cal.App.4th at p. 1058.)

Respondent argues, "Implied in the [association] condition of probation is that appellant should be aware that the person he should not associate with is a . . . drug seller or drug user." However, the rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights, lead us to the conclusion that this factor should not be left to implication.

IVfn_ Condition That Appellant Not Associate With Known Users or Sellers of Narcotics

. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

DISPOSITION

The condition of probation in the judgment is modified to provide that appellant is not to associate with persons he knows to be users or sellers of narcotics, felons or ex-felons. In all other respects, the judgment is affirmed.

Martin, Acting P.J., and Dibiaso, J., concurred.


Summaries of

People v. Garcia

Court of Appeal of California, Fifth District
Oct 1, 1993
19 Cal.App.4th 97 (Cal. Ct. App. 1993)

In Garcia, supra, 19 Cal.App.4th 97, an appellate court determined that "[a] condition of probation that prohibit[ed] appellant from associating with persons who, unbeknownst to him, have criminal records or use narcotics" was unconstitutionally overbroad because it forbid "association with persons not known to him to be users and sellers of narcotics, felons or ex-felons."

Summary of this case from People v. Collins

In Garcia, supra, 19 Cal.App.4th 97, an appellate court determined that "[a] condition of probation that prohibit[ed] appellant from associating with persons who, unbeknownst to him, have criminal records or use narcotics" was unconstitutionally overbroad because it forbid "association with persons not known to him to be users and sellers of narcotics, felons or ex-felons."

Summary of this case from People v. Collins

In Garcia, a probation condition prohibiting association with ' "any felons, ex-felons, users or sellers of narcotics" ' [citation] was found to impinge on the probationer's 'constitutional right of freedom of association' and accordingly had to be narrowly drawn [citation].

Summary of this case from People v. Alberto F. (In re Alberto F.)

modifying no-contact probation condition to prohibit knowing contacts

Summary of this case from People v. Dominguez

In People v. Garcia (1993) 19 Cal.App.4th 97, with respect to a condition of probation similar to the condition of MSR Rexroat challenges, this court stated: "The condition requiring [the] appellant to refrain from associating with users and sellers of narcotics, felons and ex-felons impinged on [the] appellant's constitutional right of freedom of association. [Citations.] Thus, it '"must be narrowly drawn.

Summary of this case from People v. Rexroat

In Garcia and Sheena K., it is easy to see that, absent a knowledge requirement, the probationer could easily violate the condition unknowingly, by associating with a person he or she did not know to be a narcotics user or seller (Garcia) or did not know was disapproved of by probation. (Sheena K.) The probationer in such a case would have no way of knowing before the fact that the particular association was prohibited.

Summary of this case from In re J.C.

In Garcia and Justin S., the appellate courts modified the conditions of probation to include the requisite knowledge requirement.

Summary of this case from People v. Jackson

In People v. Garcia, supra, 19 Cal.App.4th at page 102, the court determined that a condition of probation prohibiting the defendant from associating with felons, ex-felons, and users or sellers or narcotics was unconstitutionally overbroad because it did not require that the defendant know that the persons were felons, ex-felons, or users or sellers of narcotics. The court modified the condition to require that the defendant refrain from associating "with persons he knows to be users or sellers of narcotics, felons, or ex-felons."

Summary of this case from People v. Henderson

modifying probation condition to preclude association with persons known to be users or sellers of narcotics, felons or ex-felons and affirming as modified

Summary of this case from People v. Dupree

In Garcia, a probation condition prohibiting association with '"any felons, ex-felons, users or sellers of narcotics,"' [citation] was found to impinge on the probationer's 'constitutional right of freedom of association' and accordingly had to be narrowly drawn [citation].

Summary of this case from People v. Rocha

In People v. Garcia (1993) 19 Cal.App.4th 97 (Garcia), which was cited with approval in Sheena K., a condition barring association with " 'any felons, ex-felons, users or sellers of narcotics' " (id. at p. 100) was found to be an unconstitutionally overbroad infringement on freedom of association absent an explicit knowledge requirement.

Summary of this case from People v. Ramirez

In Garcia, a probation condition prohibiting association with '"any felons, ex-felons, users or sellers of narcotics,"' [citation] was found to impinge on the probationer's 'constitutional right of freedom of association' and accordingly had to be narrowly drawn [citation].

Summary of this case from People v. Desantiago

imposing a knowledge element on an overbroad condition requiring the defendant to refrain from associating with users and sellers of narcotics, felons and ex-felons

Summary of this case from People v. Gipson

modifying probation condition prohibiting association with felons, ex-felons, and users and sellers of narcotics to require probationer's knowledge of that status

Summary of this case from People v. Johnny C. (In re Johnny C.)

imposing a knowledge element on an overbroad condition requiring the defendant to refrain from associating with users and sellers of narcotics, felons and ex-felons

Summary of this case from People v. Gipson

In Garcia, a probation condition prohibiting association with '"any felons, ex-felons, users or sellers of narcotics,"' [citation] was found to impinge on the probationer's 'constitutional right of freedom of association' and accordingly had to be narrowly drawn [citation].

Summary of this case from People v. Lindbeck

knowing association with drug users and felons

Summary of this case from People v. Patel

In Garcia, supra, 19 Cal.App.4th 97, the Court of Appeal limited a probation condition that prohibited the defendant from associating with certain groups of persons (drug users and sellers and felons) because the condition did not require that the defendant have knowledge of the status of these persons.

Summary of this case from People v. Hagenbuch

In Garcia, a probation condition prohibiting association with "`any felons, ex-felons, users or sellers of narcotics' "(id. at p. 100) was found to impinge on the probationer's "constitutional right of freedom of association" and accordingly had to be narrowly drawn (id. at p. 102).

Summary of this case from People v. Kim

In People v. Garcia (1993) 19 Cal.App.4th 97, the court held that a condition prohibiting the probationer from associating with people who used or sold drugs was defective because it did not have a knowledge requirement concerning the persons he might associate with.

Summary of this case from People v. Hurlibirt

In Garcia, supra, 19 Cal.App.4th 97, the trial court imposed a probation condition that the defendant not associate with felons, ex-felons, users or sellers of narcotics, which implicated the constitutional right of freedom of association.

Summary of this case from People v. Freitas

In People v. Garcia (1993) 19 Cal.App.4th 97, 102, an appellate court determined that "[a] condition of probation that prohibit[ed] appellant from associating with persons who, unbeknownst to him, have criminal records or use narcotics" was unconstitutionally overbroad because it forbid "association with persons not known to him to be users and sellers of narcotics, felons or ex-felons."

Summary of this case from People v. Garcia

In People v. Garcia, supra, 19 Cal.App.4th 97, the Court of Appeal limited a probation condition that prohibited the defendant from associating with certain groups of persons (drug users and sellers and felons) because the condition did not require that the defendant have knowledge of the status of these persons.

Summary of this case from People v. Perez

In Garcia the defendant was granted probation on the condition that he not associate with any felons, ex-felons or users or sellers of narcotics. (Garcia, supra, 19 Cal.App.4th. at p. 100.)

Summary of this case from People v. Villalpando
Case details for

People v. Garcia

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DAVID RICARDO GARCIA, Defendant…

Court:Court of Appeal of California, Fifth District

Date published: Oct 1, 1993

Citations

19 Cal.App.4th 97 (Cal. Ct. App. 1993)
23 Cal. Rptr. 2d 340

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