P. v. Babino
Filed 8/31/09 P. v. Babino CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
Plaintiff and Respondent,
RONALD KEITH BABINO,
Defendant and Appellant.
(Super. Ct. No. 08F07890)
Defendant Ronald Keith Babino pled no contest to a felony -- welfare fraud -- as well as a misdemeanor -- making threatening or annoying phone calls. Four other charges were dismissed in the interest of justice.
On appeal defendant contends: (1) the imposition of two restitution fines, one for each count, violated Penal Code section 1202.4, which mandates one restitution fine per case; and (2) the probation condition limiting his future associations and locations is unconstitutional because it lacks a sufficient knowledge requirement and is therefore overly broad and vague. We agree on both points. Accordingly, we will modify the judgment (order granting probation) by striking the second restitution fine and by narrowing the probation condition and will affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
As relevant here, defendant was charged with welfare fraud and making threatening or annoying phone calls. He pled no contest to the two charges. On the welfare fraud charge, the court placed him on probation for four years. The court ordered him to pay a $200 restitution fine pursuant to section 1202.4 -- reduced from the $400 fine suggested by the probation report -- and in accordance with the probation report an additional $200 fine pursuant to section 1202.44 that was stayed pending revocation of probation. On the remaining charge, the court placed defendant on three years of informal probation -- more accurately, a conditional sentence (see 1203, subd. (a)) -- and ordered him to pay a restitution fine of $100.
As one of the conditions of his probation, the court ordered defendant not to associate with known or reputed users of marijuana, dangerous drugs or narcotics nor be in places where narcotics and/or dangerous drugs are present.
The Court Imposed An Unauthorized Sentence
When It Imposed Separate Restitution Fines
Defendant contends the trial court erred in imposing separate restitution fines on the misdemeanor and felony convictions, as they were both part of a single case. He contends that when there are multiple convictions in a single case, section 1204.4 mandates only one restitution fine per case. We agree; the trial court could not impose separate restitution fines for the felony and misdemeanor crimes in this case.
To understand this issue, it is necessary to first understand the three statutes governing restitution fines. Section 1202.4, subdivision (b), provides that [i]n every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine . . . . If a person is convicted of a crime and receives a conditional sentence or a sentence that includes a period of probation, section 1202.44 provides that the court shall [impose] [a] restitution fine pursuant to subdivision (b) of section 1202.4 [and] assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. Furthermore, [i]n every case where a person is convicted of a crime and whose sentence includes a period of parole, section 1202.45 provides that the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.
In People v. Holmes (2007) 153 Cal.App.4th 539, the trial court sentenced the defendant to prison for a felony conviction and he received probation for a misdemeanor conviction. The trial court imposed restitution fines for both the felony and misdemeanor convictions; $400 and $100 respectively. (Id. at p.Â 541.) Additionally, the defendant received a parole revocation restitution fine of $400 pursuant to section 1202.45 and a probation revocation restitution fine of $100 pursuant to section 1202.44. (Ibid.)
In Holmes, the People suggested that the court could not impose two different restitution fines per case. (People v. Holmes, supra, 153 Cal.App.4th at p. 541.) Although this court agreed with the People that generally a restitution fine is not imposed on each count but instead one fine is imposed taking into account all the offenses in the proceeding, this court held that the trial court could not impose a restitution fine .Â . . to cover both the felony and the misdemeanor because the parole or probation revocation restitution fine had to be in the same amount. (Id. at pp. 547-548.) Accordingly, this court concluded, the trial court did not err in imposing the restitution fines separately for the felony and misdemeanor. (Id. at p. 548.)
Like the defendant in Holmes, defendant here was convicted of one felony and one misdemeanor. That is where the similarities end, however. Defendant here received probation for his felony conviction and a conditional sentence for his misdemeanor conviction. Because he did not receive a prison sentence, his sentence did not include a period of parole, and thus section 1202.45 does not apply here as it did in Holmes. Thus, to resolve this case, we need not determine whether Holmes was correctly decided. The question here is whether, notwithstanding the fact that section 1202.4 generally dictates one restitution fine for every case, two fines were proper here, where defendant received probation on his felony conviction and a conditional sentence on his misdemeanor conviction.
The answer to that question is no. When a person is convicted of a crime, section 1202.4 generally mandates the imposition of one restitution fine per case. Additionally, section 1202.44 mandates the trial court to assess one additional probation revocation restitution fine where a defendant received probation or a conditional sentence as part of his sentence. Here, there was one case where the court convicted defendant of two crimes for which he received probation and a conditional sentence. Defendants conviction of two crimes in one case and receipt of both probation and a conditional sentence do not affect the section 1202.4 and the section 1202.44 mandates of one restitution fine and one probation revocation restitution fine, respectively. The court imposed an unauthorized sentence because the imposition of two restitution fines could not lawfully be imposed under any circumstance in th[is] particular case. (People v. Scott (1994) 9 Cal.4th 331, 354.) Thus, we will remedy this by striking the restitution fine of $100. The section 1202.4 fine of $200 and the section 1202.44 probation revocation restitution fine of $200 will remain.
The Probation Condition Is Unreasonable And Overly Broad
Defendant argues his rights to freedom of association have been violated by the overbroad, unreasonable, and excessively vague terms of his probation condition. The pertinent portion of his probation condition is as follows: Defendant shall not associate with known or reputed users of marijuana, dangerous drugs or narcotics nor be in places where narcotics and/or dangerous drugs are present. We agree that the probation condition is vague and overbroad and will narrow it to bring it in accordance with the Constitution. (See In re White (1979) 97 Cal.App.3d 141, 150-151.)
The Knowledge Requirement Must Be Narrowed
Defendant contends the prohibition on the association with known or reputed drug users is vague and therefore is unconstitutional. We agree. Although the probation condition has a knowledge requirement, it is vague because the condition does not state who must know the status of the associates. A question remains as to whether the associates status must be known to defendant, to the court, to the probation officer, or to the police.
[T]he underpinning of a vagueness challenge is the due process concept of fair warning. [Citation] The rule of fair warning consists of the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders [citation], protections that are embodied in the due process clauses of the federal and California Constitutions. (In re Sheena K. (2007) 40 Cal.4th 875, 890.) The language used in a probation condition must have sufficient specificity as to provide defendant with fair warning in order to withstand a challenge of vagueness. (Ibid.) Here, defendants probation condition does not indicate who must know the status of possible associates. The probation condition is not sufficiently tailored.
In In re Justin S. (2001) 93 Cal.App.4th 811, 816, the defendant received a probation condition that prohibited him from associating with gang members. The court noted that a probation condition that does not restrict the prohibition to known gang members is a classic case of vagueness. (Ibid.) Rather than modifying the prohibition to known gang members, the court narrowed the condition to prohibit the probationer from associating with persons known to the probationer to be associated with a gang. (Ibid.)
The court in People v. Lopez (1998) 66 Cal.App.4th 615, 624, footnote 5 modified a probation condition to prohibit the defendant from associating with any person known to defendant to be a gang member. Similarly, in People v. Garcia (1993) 19 Cal.App.4th 97, 102-103, the probation order originally provided that the defendant must not associate with users or sellers. The court modified it to provide that the defendant must not associate with persons he knows to be users or sellers of narcotics . . . . (Id. at p. 103.)
These cases suggest that a knowledge requirement is inadequate if it does not specify who must have the knowledge. The courts have consistently applied the knowledge requirement to the defendant and we will do the same.
The Probation Condition Must Be Narrowed To Prohibit
Defendant From Associating Only With Users Of
Illegal Controlled Substances And Being In The
Places Where Illegal Controlled Substances Are Present
Defendant argues that his probation condition prohibits him from being in any business where controlled substances are
present for legitimate purposes, and the People agree. We accept the People's concession that the condition should be modified. The probation condition is over broad and must be narrowed.
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 . . . . (People v. Lent (1975) 15 Cal.3d 481, 486.) This test is conjunctive -- all three prongs must be satisfied before a reviewing court will invalidate a probation term. (In re T.C. (2009) 173 Cal.App.4th 837, 845-846, citing People v. Olguin (2008) 45 Cal.4th 375, 379380.) To the extent this probation condition here relates to legal narcotics, it does not relate to either the crime of welfare fraud or making threatening phone calls, does not relate to conduct which is in itself criminal, and does not relate to defendants future criminality. Defendant should not be prohibited from visiting a hospital, pharmacy, or a sick relative who is taking legal narcotics for pain.
The judgment (order granting probation) is modified to provide as follows: Defendant shall not associate with people he knows to be illegal users of marijuana, dangerous drugs or narcotics nor be in places where he knows illegal narcotics and/or dangerous drugs are present. Also, the restitution fine of $100 imposed on the misdemeanor conviction is stricken. As modified, the judgment is affirmed.
ROBIE , J.
SCOTLAND , P. J.
BUTZ , J.
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 All further section references are to the Penal Code.
 We note that both the probation report and the order of probation acknowledge only the $200 restitution fine pursuant to section 1202.4 and the $200 probation revocation restitution fine pursuant to section 1202.44; there is no mention of a $100 restitution fine. The court imposed the $100 restitution fine ad hoc; we assume the fine was imposed pursuant to section 1202.4.
 For this reason, we reject the Peoples argument that defendant forfeited his right to appeal the imposition of the $100 restitution fine because he did not object to the fine at sentencing. Under Scott, if a sentence could not lawfully be imposed under any circumstance in the particular case, it is generally considered to be unauthorized, and the unlawfulness of the sentence can be raised for the first time on appeal. (People v. Scott, supra, 9 Cal.4th at p. 354.)