P. v. Johnson













Filed 4/12/13 P. v. Johnson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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. JUSTIN DAVID JOHNSON, Defendant and Appellant.

H037677 (Santa Clara County Super. Ct. No. C1117932)

Defendant
Justin David Johnson pleaded no contest to vandalism (Pen. Code, § 594, subds. (a) & (b)) and href="http://www.fearnotlaw.com/">resisting, delaying, or obstructing an
officer (Pen. Code, § 148,
subd. (a)). The trial court suspended
imposition of sentence and placed defendant on probation for three years. Defendant contends: (1) trial counsel rendered ineffective
assistance by failing to object to the reasonableness of the medication
probation condition, and (2) the trial court violated his href="http://www.fearnotlaw.com/">due process rights by imposing a
probation condition that was unconstitutionally
vague and overbroad. We agree that
the probation condition is unconstitutionally overbroad and limit its
application to medication prescribed for treatment of any diagnosed mental
disorder. As modified, the order is
affirmed.





I. Statement of Facts

The facts
of the underlying offenses are not included in either the reporter’s
transcripts or the probation report.
However, comments made at the sentencing hearing indicate that defendant
vandalized a police vehicle during “an Occupy protest.” According to the trial court, “[h]e began
yelling and viciously started grinding his teeth against the hood of the patrol
vehicle by whipping his face repeatedly left and right, purposely trying to
damage the patrol vehicle.”



II. Discussion

Defendant
contends that trial counsel rendered ineffective assistance by failing to
object to the medication probation condition on the ground that it was not
reasonably related to the offense.

The
probation report stated in relevant part:
“Based on the defendant’s criminal history, depicting numerous arrests
for public intoxication and violent related behavior, including his behavior in
today’s matter, this officer recommends full substance abuse orders including search,
seizure, testing, and counseling as well as anger management counseling. Mental Health conditions are also recommended
based on the Department 64 supervision recommendation.” The probation report further noted that
defendant was scheduled to appear in approximately two weeks in the href="http://www.sandiegohealthdirectory.com/">mental health treatment
court.

Based on
the probation officer’s recommendation, the trial court imposed a probation
condition that required defendant to “take medication prescribed for any
diagnosed condition as directed by the mental health doctors.” Defendant did not object to this condition at
the sentencing hearing.

“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.]”
(People v. Lent (1975) 15
Cal.3d 481, 486, superseded on another ground as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290‑292.)

When a
defendant has failed to object to a probation condition on reasonableness
grounds, he or she has forfeited the issue on appeal. (People
v. Welch (1993) 5 Cal.4th 228, 234-235.)
“A timely objection allows the court to modify or delete an allegedly
unreasonable condition or to explain why it is necessary in the particular
case. The parties must, of course, be
given a reasonable opportunity to present any relevant argument and
evidence. A rule foreclosing appellate
review of claims not timely raised in this manner helps discourage the
imposition of invalid probation conditions and reduce the number of costly
appeals brought on that basis.” (>Id. at p. 235.)

“To prevail
on a claim of ineffective
assistance
of counsel, a defendant ‘ “must
establish not only deficient performance, i.e., representation below an
objective standard of reasonableness, but also resultant prejudice.” ’
[Citation.] A court must indulge
a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.
[Citation.] Tactical errors are
generally not deemed reversible, and counsel’s decisionmaking must be evaluated
in the context of the available facts.
[Citation.] To the extent the
record on appeal fails to disclose why counsel acted or failed to act in the
manner challenged, we will affirm the judgment unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no
satisfactory explanation.
[Citation.]” (>People v. Maury (2003) 30 Cal.4th 342,
389.)

In the
present case, the record does not establish that trial counsel lacked a
reasonable tactical basis for declining to object to the medication probation
condition. Given that defendant was
scheduled to appear in the mental health treatment court, defendant very likely
suffered from a mental illness. Trial
counsel may have also reasonably concluded that defendant’s conduct in
“grinding his teeth against the hood of the patrol vehicle by whipping his face
repeatedly left and right” was related to his mental illness and his failure to
take medication for this illness.
Moreover, defendant may have told trial counsel that he was willing to
take medication. Since there are
possible satisfactory explanations for trial counsel’s performance, defendant’s
claim fails.

Relying on >Washington v. Harper (1990) 494 U.S. 210
(Washington) and United States v. Williams (9th Cir. 2004) 356 F.3d 1045 (>Williams), defendant also contends that
trial counsel should have objected to the medication condition on federal due
process grounds. Washington considered the issue of whether a judicial hearing is
required “before the State may treat a mentally ill prisoner with antipsychotic
drugs against his will.” (>Washington, at p. 213.) Williams
stated that “a court-backed threat of renewed incarceration should [a
defendant] violate an order to take prescribed psychotropic medication does not
eliminate the coercive nature of the medication requirement or otherwise lessen
the impairment of the recognized liberty interest in being free of unwanted href="http://www.sandiegohealthdirectory.com/">antipsychotic medication.” (Williams,
at p. 1055.) Thus, Williams held that this type of probation condition requires
express findings based on a medically-informed record. (Williams,
at p. 1056.) The present circumstances,
however, differ from those in Washington
and Williams, because defendant did
not object to the condition. Based on
the record before us, trial counsel may have had reasonable tactical reasons
for failing to object to the imposition of the medication probation condition.

We next
consider defendant’s claim that the probation condition is vague and overbroad
on its face. In In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.), the
California Supreme Court held that a defendant’s challenge to a probation
condition as facially vague and overbroad in that case was not subject to the
forfeiture rule set forth in Welch.
(Sheena K., at pp. 888-889.)
In Sheena K., the probation condition prohibited association with
anyone “ ‘disapproved of by
probation.’ ” (Sheena K., at p. 878.) The court held that this condition was both
overbroad and vague, and could be easily modified to direct the defendant not
to associate with anyone known to be disapproved of by the probation officer or
other persons having authority over the probationer. (Sheena K., at p. 892.) The court cautioned, however, that its
holding “does not apply in every case in which a probation condition is
challenged on a constitutional ground.
As stated by the court . . . , we do not conclude that ‘all
constitutional defects in conditions of probation may be raised for the first
time on appeal, since there may be circumstances that do not present “pure
questions of law that can be resolved without reference to the particular
sentencing record developed in the trial court.” [Citation.]
In those circumstances, “[t]raditional objection and waiver principles
encourage development of the record and a proper exercise of discretion in the
trial court.” [Citation.]’ [Citation.]”
(Sheena K., at p. 889.)
Thus, to the extent that defendant’s contentions do not involve
reference to the record on appeal, they have not been waived.

“[T]he
underpinning of a vagueness challenge is the due process concept of ‘fair
warning.’ ” (Sheena K., supra, 40 Cal.4th at p. 890.)
In examining whether a probation condition is void for vagueness, courts
have considered whether the condition is “ ‘sufficiently
precise for the probationer to know what is required of him [or her], and for
the court to determine whether the condition has been violated’ . . . .” (Sheena
K., at p. 890, quoting People v.
Reinertson (1986) 178 Cal.App.3d 320, 324-325.) Generally, words should be understood to have
their ordinary and commonly understood meaning.
(See Civ. Code, § 13; see also
Code Civ. Proc., § 16.) The overbreadth doctrine focuses on other,
though related, concerns. Under this
doctrine, “ ‘ “a governmental
purpose to control or prevent activities constitutionally subject to state
regulation may not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms.”
’ [Citations.]” (In re
Englebrecht (1998) 67 Cal.App.4th 486, 497.) “ ‘A
law’s overbreadth represents the failure of draftsmen to focus narrowly on
tangible harms sought to be avoided, with the result that in some applications
the law burdens activity which does not raise a sufficiently high probability
of harm to governmental interests to justify the interference.’ [Citation.]”
(Id. at p. 497.)

Here, the
challenged condition requires defendant to “take medication prescribed for any
diagnosed condition as directed by the mental health doctors.” The language of this condition is readily
understandable and its ordinary meaning provides sufficient certainty to
satisfy due process notice requirements.
Defendant is required to take only those medications prescribed by his
mental health doctors.

Defendant
claims, however, that the condition is vague because it “would require him to
take any kind of medication for any kind of ailment under pain of
incarceration. . . . The
vagueness of the condition subjects [him] to incarceration for failing to take
allergy medication, pain medication, or any other type of medication which a
psychiatrist might prescribe while treating him.” This argument does not constitute a claim of
vagueness, but rather one of overbreadth.
The Attorney General does not offer, and we cannot conceive of, any
valid probationary purpose under the circumstances of the present case for the
probation condition insofar as it covers medications prescribed for general
physical health. Accordingly, the
probation condition is overbroad in that respect and must be modified.

Defendant
also argues that the probation condition is vague because he “would be at risk
of violating probation if he was given a prescription to take on an ‘as needed’
basis and chose not to take it believing it to be unnecessary, only to find
that the probation officer believes it was necessary and should have been
taken.”

When a
defendant makes a facial challenge to a probation condition, a reviewing court
assumes that a probation officer will not apply it in an irrational or
capricious manner. (People v. Olguin (2008) 45 Cal.4th 375, 383.) “What action the officer may choose to take .
. . is beyond the scope of a facial attack on the notification condition
itself.” (Ibid.) Since we will not
engage in speculation as to what dosage may be prescribed, defendant’s
compliance in following the recommended dosage, or the probation officer’s
response, defendant’s claim fails.

Defendant
next argues that the challenged condition is overbroad because “there is
nothing in the record to indicate that the trial court found that [he] suffers
from a particular medical disorder, illness or condition requiring
medication. The record contains no
professional medical evidence to support such a finding. . . . Nothing in the record indicates that a
medical disorder, illness or condition caused or substantially contributed to
the offense, or that [he] would not have committed it had he been taking
medication.” Since these overbreadth
arguments are actually claims that the probation condition is not reasonably
related to the current offenses or future criminality, defendant forfeited the
arguments by failing to raise them at the sentencing
hearing. (Sheena K., supra, 40
Cal.4th at pp. 887, 889.)

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>III.
Disposition

The
probation condition requiring that defendant “take medication prescribed for
any diagnosed condition as directed by the mental health doctors” is hereby
modified to require that defendant “take medication prescribed for treatment of
any diagnosed mental disorder as directed by the mental health doctors.” As modified, the order granting probation is
affirmed.

































_______________________________

Mihara,
J.







WE CONCUR:













______________________________

Elia,
Acting P. J.













______________________________

Márquez,
J.