P. v. Warren

Filed 2/18/10 P. v. Warren CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Affirmed as modified.

R. Randall Riccardo, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant and appellant Jimmy Eugene Warren guilty of driving a vehicle while under the influence of alcohol and drugs (Veh. Code, 23152, subd. (a)) (count 2); driving a vehicle while having a blood-alcohol content of 0.08 percent or more (Veh. Code, 23152, subd. (b)) (count 3); and willfully driving while his driving privileges had been suspended and revoked for driving under the influence of alcohol and drugs (Veh. Code, 14601.2, subd. (a)) (count 4).^[1] Defendant was thereafter placed on three years formal probation on various terms and conditions, including serving 365 days in county jail.

On appeal, defendant contends (1) the probation condition requiring him to obtain the permission of his probation officer before he changes his residence is unconstitutional; (2) the probation condition prohibiting him from associating with any unrelated person on probation or parole should be modified to include a knowledge requirement; and (3) the trial court erred in imposing various fines, fees, and costs as conditions of probation. We agree that these challenged probation conditions must be modified. In all other respects, we affirm the judgment.

I

FACTUAL BACKGROUND

On October 10, 2008, around 12:55 a.m., Riverside County Sheriffs Deputy Jonathan Bodnar was on routine patrol in his marked police vehicle when he saw defendants car abruptly brake at a traffic light and cross the limit line. Once the light turned green, defendant sped away at a high rate of speed, swerving in the process and driving erratically. The deputy activated his overhead lights and siren, and attempted to conduct a traffic stop. Defendant, however, failed to stop, ran several stop signs, and almost collided with another vehicle.

Defendant eventually stopped, and Deputy Bodnar yelled verbal commands at defendant and ordered him out of his vehicle with his hands up. Defendant stumbled out and complied with the deputys orders. Deputy Bodnar smelled a strong odor of alcohol emanating from defendants breath and person, and observed that he had red, bloodshot, and watery eyes. He also noticed in defendants car a cup containing a yellow liquid that smelled like beer.

Riverside County Sheriffs Deputy Eric Robinson arrived at the scene and also noticed that defendant displayed signs of being under the influence of alcohol. Deputy Robinson conducted field sobriety tests on defendant. Defendant was unable to successfully complete any of the field sobriety tests. A preliminary alcohol screening test revealed that defendants blood-alcohol content was 0.21 percent.

Defendant was transported to a police station and given a blood test to detect his blood-alcohol content, which revealed his blood-alcohol content was 0.26 percent.

II

DISCUSSION

A. Probation Condition No. 19

Defendant contends the probation condition that he [r]eside at a residence approved by the Probation Officer and not move without his/her prior approval should be stricken or modified because (1) it is not reasonably related to his crime or future criminality, and (2) it is an overbroad, unconstitutional infringement of his rights to travel and freedom of association. The People respond that defendant forfeited this issue on appeal by failing to object in the court below; and, in the alternative, argue that defendants contention lacks merit.

We agree with the People that by failing to object during the sentencing hearing, defendant failed to preserve his first objection to the challenged probation condition. People v. Welch (1993) 5 Cal.4th 228 (Welch) held that a criminal defendant who fails to object to a probation condition at the time of sentencing waives the right to argue on appeal that the condition regulating noncriminal conduct is invalid because it is not reasonably related to either the present offense or future criminality. (Id. at pp. 230, 233-235.) Since defendants first sentencing claim argues that the challenged condition involves conduct (which is not itself criminal), does not relate to his crimes, and is not reasonably related to future criminality, his failure to raise this objection at sentencing precludes him from doing so now.

Defendants second claim is that the condition violates his constitutional rights. Defendant also failed to object on this ground when the condition was imposed. Courts have held that the waiver rule announced in Welch applies even when a defendant contends a probation condition is constitutionally flawed. (People v. Gardineer (2000) 79 Cal.App.4th 148, 151; see also In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on another ground as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962 [Fourth Dist., Div. Two]; In re Justin S. (2001) 93 Cal.App.4th 811, 814.) But Welchs waiver doctrine is subject to an exception for sentences that are unauthorized or in excess of the trial courts jurisdiction. (Welch, supra, 5 Cal.4th at p. 235.) The exception involve[s] pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court. [Citations.] (Ibid.; see also In re Sheena K. (2007) 40 Cal.4th 875, 889.) In other words, an exception to the forfeiture rule may be found when the appeal presents an important issue of law and the error is easily remediable on appeal by modification of the probation condition. (In re S.B., at pp. 1293-1294.)

In People v. Smith (2001) 24 Cal.4th 849, the Supreme Court explained this exception as follows: Because these sentences could not lawfully be imposed under any circumstance in the particular case [citation], they are reviewable regardless of whether an objection or argument was raised in the trial and/or reviewing court. [Citation.] We deemed appellate intervention appropriate in these cases because the errors presented pure questions of law [citation], and were clear and correctable independent of any factual issues presented by the record at sentencing. [Citation.] In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable. (Id. at p. 852; see also In re Sheena K., supra, 40 Cal.4th 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].)

Here, contrary to the Peoples claim, we find defendants second claim of error cognizable on appeal, as it presents a pure question of law turning on undisputed facts. (Welch, supra, 5 Cal.4th at p. 235.) Defendants challenged probation condition can easily be remedied on appeal by modification of the condition. (See, e.g., In re Sheena K., supra, 40 Cal.4th at p. 888.) Therefore, his constitutional challenge to probation condition No. 19 has not been forfeited.

Probation conditions impinging on constitutional rights must be narrowly drawn so that they are reasonably related to the states interest in reformation and rehabilitation. (People v. Lopez (1998) 66 Cal.App.4th 615, 627; see also People v. Garcia (1993) 19 Cal.App.4th 97, 101-102.) In People v. Bauer (1989) 211 Cal.App.3d 937, cited by both the People and defendant, the reviewing court struck a nearly identical residence approval probation condition, stating: The condition is all the more disturbing because it impinges on constitutional entitlementsthe right to travel and freedom of association. Rather than being narrowly tailored to interfere as little as possible with these important rights, the restriction is extremely broad. The condition gives the probation officer the discretionary power, for example, to forbid appellant from living with or near his parentsthat is, the power to banish him. It has frequently been held that a sentencing court does not have this power. [Citations.] (Id. at pp. 944-945.)

In view of the foregoing, we conclude that the challenged condition should be modified. We do see the benefit of the probation officer being informed if defendants residence has changed. We have the power to modify a probation condition on appeal. (See In re Sheena K., supra,40 Cal.4th at p. 892; In re Justin S., supra, 93 Cal.App.4th at p. 816.) We believe that the condition should be modified to read as follows: Defendant shall keep the probation officer informed of his place of residence and give written notice to the probation officer twenty-four (24) hours prior to a change in residence.

B. Probation Condition No. 22

Defendant also challenges probation condition No. 22, prohibiting him from associating with any unrelated person on probation or parole. Defendant contends, and the People concede, that this condition is unconstitutionally vague. He asks that the condition be modified to include a knowledge qualifier. We agree.

[T]he void for vagueness doctrine applies to conditions of probation. (People v. Reinertson (1986) 178 Cal.App.3d 320, 324.) A vagueness challenge is based on the due process concept of fair warning. (In re Sheena K., supra, 40 Cal.4th at p. 890.) Therefore, 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. (Ibid.)

In In re Sheena K., supra, 40 Cal.4th 875, the California Supreme Court determined that a probation condition requiring that the juvenile defendant not associate with anyone disapproved of by probation was unconstitutionally vague and overbroad in the absence of an express requirement of knowledge . . . . (Id. at pp. 890-891.) This was because the condition itself did not notify the defendant in advance with whom she was prohibited from associating, nor did it require that the probation officer communicate such information to her. (Id. at pp. 891-892.) Thus, the probation condition gave the probation officer the power virtually to preclude the defendants association with anyone, which could theoretically include grocery clerks, mail carriers, and health care providers. The Supreme Court reasoned that the underpinning of a vagueness challenge is the due process concept of fair warning. (Id. at p. 890.) The vagueness doctrine bars enforcement of a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. [Citation.] [Citation.] (Ibid.) Modification of the probation condition to require that defendant have knowledge of who was disapproved of by her probation officer cured the infringement of the defendants constitutional rights. (Id. at p. 892.)

Consequently, the challenged condition here must also be modified. We conclude that the probation condition should read as follows: Not associate with any unrelated person whom defendant knows to be on probation or parole.

C. Various Fines, Fees, and Costs As Conditions of Probation

Defendant also claims that the trial court erred in imposing various fines, fees, and costs as conditions of probation. The People respond that defendant forfeited this issue on appeal for failing to object below; and, in the alternative, concede this court should modify the challenged probation conditions.

Specifically, the trial court ordered defendant, as a condition of his probation, to pay: a fine and assessment . . . [and] security fee (probation condition No. 3); program fees (probation condition No. 6); and cost of court ordered testing (probation condition No. 16).

Because such orders are unauthorized, we decline to find waiver to defendants claim of error that the court improperly ordered him to pay probation fees and costs as a condition of his probation. (See People v. Scott (1994) 9 Cal.4th 331, 351; see also People v. Talibdeen (2002) 27 Cal.4th 1151, 1153-1154.) A defendant who is granted probation may be ordered to pay the reasonable costs of probation, but the payment of such collateral costs cannot be made a condition of probation. (Pen. Code, 1203.1, subd. (b); People v. Hall (2002) 103 Cal.App.4th 889, 892; Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321.) An order that a probationer pay the collateral costs of probation is enforceable only as a separate money judgment in a civil action. (Brown v. Superior Court, at p. 322; People v. Hart (1998) 65 Cal.App.4th 902, 907.) Any order for payment of probation costs should be imposed as a separate order. (People v. OConnell (2003) 107 Cal.App.4th 1062, 1068.) Accordingly, the orders here were in error because probation fines, fees, and costs are collectible as civil judgments, but cannot be imposed as probation conditions. (People v. Flores (2003) 30 Cal.4th 1059, 1067, fn. 5; People v. Hart, supra, at pp. 906-907.)

The appropriate remedy, however, is not to strike the order to pay these fines, fees, and costs. Instead, the imposition of these fines, fees, and costs as a condition of probation may simply be modified to be treated as an order entered at judgment and to be enforced as permitted in the relevant statutes. (People v. Hart, supra, 65 Cal.App.4th at p. 907; see also People v. Hall, supra,103 Cal.App.4th at p. 892 [We simply deem the requirement [to pay probation costs] an order, not a condition [of probation], and proceed to consider other aspects of the courts order].) We will thus direct that the order to pay these fines, fees, and costs be construed as an order entered at judgment. In Hart, the error was corrected simply by directing that the order granting probation must be modified to delete the order to pay costs of probation from the conditions of probation, making it simply an order entered at judgment. As such, the order may be enforced as permitted in the relevant statutes. (People v. Hart, at p. 907.) We shall direct the same modification to the order of probation in this case.

III

DISPOSITION

Probation condition No. 19 of defendants probation is modified to read: Defendant shall keep the probation officer informed of his place of residence and give written notice to the probation officer twenty-four (24) hours prior to a change in residence.

Probation condition No. 22 of defendants probation is modified to read: Not associate with any unrelated person whom defendant knows to be on probation or parole.

Probation condition Nos. 3, 6, and 16 are also modified to delete the requirement that defendant pay the fines, fees, and costs. However, the order that defendant pay such fines, fees, and costs is affirmed as an order entered as a part of the judgment.

In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P. J.

McKINSTER

J.

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^[1] Defendant was found not guilty of eluding a peace officer (Veh. Code,  2800.2) as alleged in count 1.