P. v. Castillo























Filed 7/10/13
P. v. Castillo CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



SIXTH
APPELLATE DISTRICT


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THE PEOPLE, Plaintiff and Respondent, v. JASON MICHAEL CASTILLO, Defendant and Appellant.

H039070 (Monterey County Super. Ct. No. SS121940)

Defendant
Jason Michael Castillo pleaded guilty to driving with a blood-alcohol level of
.08 or higher and admitted suffering three prior convictions for driving under
the influence of alcohol or drugs. The
trial court placed him on probation with conditions. On appeal, defendant challenges three
conditions. We modify two of the
conditions and affirm the probation order.

legal background

name="sp_999_1">Under Penal Code section
1203.1,href="#_ftn1" name="_ftnref1" title="">[1] a court
granting probation may impose “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 href="http://www.fearnotlaw.com/">reformation and rehabilitation of the
probationer.” (§ 1203.1, subd.
(j).) “The primary goal of probation is
to ensure ‘[t]he safety of the public . . . through the enforcement of
court-ordered conditions of probation.’ ”
(People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) “In granting probation, courts have broad
discretion to impose conditions to foster rehabilitation and to protect public
safety pursuant to Penal Code section 1203.1.”
(Ibid.)

“The trial court’s discretion, although broad,
nevertheless is not without limits: a
condition of probation must serve a purpose specified in the statute.” (Carbajal, supra, 10 Cal.4th at p. 1121.) The Supreme Court has “interpreted Penal Code
section 1203.1 to require that probation conditions which regulate conduct ‘not
itself criminal’ be ‘reasonably related to the crime of which the defendant was
convicted or to future criminality.’ ” (Ibid.) “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 . . . .” ’ ” (People
v. Olguin (2008) 45 Cal.4th 375, 379.)
Thus, “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 p. 380.)

“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.’ ” ’ ” (Carbajal, supra, 10 Cal.4th at p. 1121.) “We review conditions of probation for abuse
of discretion.” (People v. Olguin, supra, 45 Cal.4th at p.
379.)

name="SDU_2">name="citeas((Cite_as:_2012_WL_160091,_*2_(Cal">As to infringement of href="http://www.mcmillanlaw.com/">constitutional rights, “probation is
a privilege and not a right, and . . . adult probationers, in preference to
incarceration, validly may consent to limitations upon their constitutional
rights--as, for example, when they agree to warrantless search
conditions.” (People v. Olguin, supra, 45 Cal.4th at p.
384.) But the Supreme Court has
recognized that “[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.” (In re Sheena K. (2007) 40 Cal.4th
875, 890 (Sheena K.).) In
addition, “[a] probation condition ‘must be sufficiently precise for the
probationer to know what is required of him, and for the court to determine
whether the condition has been violated,’ if it is to withstand a challenge on
the ground of vagueness.” (Ibid.) Thus, a probation condition forbidding a
minor from associating with “ ‘anyone disapproved of by probation’ ” (id.
at p. 889) was unconstitutionally vague where the probation condition did not
inform the minor “in advance with whom she might not associate,” (id. at
p. 891) but it could be rendered constitutional by modifying the condition “to
impose an explicit knowledge requirement.”
(Id. at p. 892.)

While
a defendant forfeits any claim that a probation condition is unreasonable if he
fails to timely raise an objection in the trial court (People v. Welch (1993) 5 Cal.4th 228, 234-237), the
forfeiture rule does not apply to a facial challenge to a patently
unconstitutional probation condition that may be corrected on appeal without
reference to the particular sentencing record developed in the trial court and
without remanding to the trial court for further findings. (Sheena K., supra, 40 Cal.4th at pp. 885-889.) Other constitutional challenges cannot be
raised on appeal in the absence of objection in the trial court. (Id. at p. 889.)

factual background

The trial
court imposed the following probation condition No. 18: “Not remain in any vehicle either as a
passenger or driver which you know to be stolen or to contain any firearms or
illegal weapon.” Defendant had objected
to imposition of the condition on the ground that “it has nothing to do with
this case.” The trial court had
overruled the objection by explaining that “the aim of probation is to keep the
probationer from straying into territory that is risky” and “when you’re a
convicted felon, I mean, there’s a little bit of common sense that we can apply
here, I think, in structuring probation in a way that he can succeed.”

The trial
court also imposed conditions Nos. 7 and 8 to which defendant did not object.

Condition
No. 7 states: “Totally abstain from the
use of alcoholic beverages, not purchase or possess alcoholic beverages, and
stay out of places you know alcohol to be the main item of sale.”

Condition
No. 8 states: “Not use or possess
alcohol, intoxicants, narcotics, or other controlled substances without the
prescription of a physician; not traffic in, or associate with persons you
know, or have reason to know, to use or traffic in, narcotics or other
controlled substances.”

discussion

Defendant
contends that condition No. 18: (1) “is
not reasonably related to the offense for which he was placed on probation,”
because his offense was driving under the influence, not automobile theft; (2)
“relates to conduct that is not in itself criminal” because it is not criminal
to merely ride in a stolen car; and (3) “does not reasonably relate to
preventing future criminality” because he “was not accused of theft in the
present case.”

Defendant’s
analysis is erroneous. The third Olguin
factor need not relate to the same criminality for which defendant was placed
on probation. (Olguin, supra, 45 Cal.4th
at p. 379 [“ ‘ “requires or forbids conduct which is not reasonably related to
future criminality” ’ ”].) The question
is simply whether it is beyond reason for the trial court to have concluded
that keeping defendant away from stolen cars or cars containing firearms or
illegal weapons was reasonably related to future criminality. We think not.

Defendant also contends that
conditions Nos. 7 and 8 are unconstitutionally vague and overbroad. He argues that they do not
contain a knowledge requirement.

The obvious jurisprudential trend
is toward requiring that a term or condition of probation explicitly require
knowledge on the part of the probationer that he is in violation of the term in
order for it to withstand a challenge for unconstitutional vagueness. “[P]robation conditions that implicate
constitutional rights must be narrowly drawn” and the knowledge requirement in
these circumstances “should not be left to
implication.” (People v. Garcia (1993)
19 Cal.App.4th 97, 102.)

The People
do not object to modifying the conditions to more precisely provide a knowledge
requirement.

Defendant also complains that
condition No. 8 is additionally vague and overbroad because it does name="SR;1422">not adequately define the term “intoxicants.” According to defendant, he could be held in
violation of probation by href="http://www.fearnotlaw.com/">possessing legal substances such as glue or
gasoline.

name="citeas((Cite_as:_2013_WL_1611102,_*3_(Ca">Defendant’s apprehension
that he will be forced to violate probation from such innocent activities is
unwarranted. The language of a condition
must be read in context of the situation and is not vague or overbroad “ ‘if
any reasonable and practical construction can be given its language or if its
terms may be made reasonably certain by reference to other definable sources.’
” (People ex rel. Gallo v. Acuna
(1997) 14 Cal.4th 1090, 1117.) Here, the
condition places “intoxicants” together with “other
controlled substances.” The condition,
as reasonably and practically construed, limits the use
and possession of illegal intoxicants.

disposition

Probation
condition No. 7 is modified as follows:
“The defendant shall totally abstain from the name="SR;1570">use of alcoholic beverages;
shall not knowingly purchase or possess
alcoholic beverages; and shall stay out
of places the defendant knows alcohol to
be the main item of sale.”

Probation condition No. 8 is
modified as follows: “Defendant shall name="SR;1612">not knowingly use or possess name="SR;1617">alcohol, intoxicants, narcotics, or other controlled
substances without the prescription of a physician; defendant shall name="SR;1633">not traffic in or associate with persons he knows,
or has reason to know, use or traffic in narcotics or
other controlled substances.”





As so modified, the order for
probation is affirmed.











Premo,
J.











WE CONCUR:













Rushing, P.J.

















Elia, J.