P. v. Martin
Filed 4/18/13 P. v. Martin CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
TODD DAVID MARTIN,
Defendant and Appellant.
D061667/D060453
(Super. Ct.
No. SCD219320)
CONSOLIDATED
APPEALS from judgments of the Superior
Court of
County, Jeffrey F. Fraser, Esteban Hernandez, and George W.
Clarke, Judges. Affirmed.
INTRODUCTION
In these
two consolidated appeals—D060453 (Martin
I) and D061667 (Martin II)—Todd
David Martin claims that (1) certain terms of his probation that the court
found he had violated were improperly imposed because they were either
unreasonable or unconstitutionally vague and/or overbroad; (2) even if they
were properly imposed, the evidence presented at the two probation revocation
hearings was insufficient to support the court's findings he had violated terms
of his probation; and (3) after it
revoked Martin's probation the second time, the court abused its discretion
when it lifted the stay on the execution of the three-year prison sentence the
court imposed after it revoked probation the first time because (he claims) any
probation condition violations he committed were "de minimis and not
wilful [sic]." We affirm the judgments.
FACTUAL
AND PROCEDURAL BACKGROUND
A.
Terms of Probation
1.
On March 5, 2009, police officers went to
Martin's home for the purpose of investigating his possible participation in a
series of rapes and robberies in the Carmel
Valley area of San
Diego. Martin
was a registered sex offender and roughly fit a description given to police.
During the
encounter, police patted down Martin's outer garments and felt a baggie
consistent with the possession of marijuana and what appeared to be a pill
bottle. Police obtained Martin's permission to search his car.
The search
of Martin's car revealed a piece of burned "tinfoil," which appeared
to be consistent with foil that had been used to liquefy methamphetamine. Martin was arrested following the search of
his car.
Martin was
searched following his arrest. The search revealed 0.08 grams of
methamphetamine, which was described as a usable quantity.
2. Martin's
conviction and initial terms of his probation
In early
May 2010, a jury convicted Martin of possession of methamphetamine. (Health
& Saf. Code, § 11377, subd. (a).)
Following a bench trial, the
court found true an allegation that Martin had suffered a prison prior (Pen.
Code, §§ 667.5, subd. (b) & 668), but found not true an allegation he
had suffered two prior strikes (Pen. Code, §§ 667, subds. (b)-(i), 1170.12
& 668).
At
sentencing in January 2011, the trial court suspended imposition of sentence
and placed Martin on three years of formal probation, subject to numerous terms
and conditions. Pertinent here are the
following three original terms of Martin's probation:
(1) Term 6b:
"Follow such course of conduct as the P.O. [(probation officer)]
prescribes."
(2) Term 6h:
"Report to the P.O. as directed."
(3) Term 7c:
"Provide written authorization for the P.O. to receive progress
and/or compliance reports from any medical/mental health care provider, or
other treatment provider rendering treatment/services per court order under the
terms of this grant of probation."
In late
March 2011, Martin's probation officer, Gilbert Hernandez, reviewed the
probation conditions with Martin. Under
term 6b, Officer Hernandez orally directed Martin:
(1) Not to use force, threats, or violence against
anybody.
(2) Not to stay anywhere other than at the Destiny House
sober living facility without Officer Hernandez's permission.
(3) To abide by a 9:00
p.m. curfew.
B.
First Probation Revocation
Proceeding, Reinstatement of Probation, Imposition and Stay of Three-Year
Prison Term and Appeal (Martin I)
In
mid-April 2011, Martin was arrested for violating terms 6b and 6h of his
probation.
1.
Probation officer's reports and
allegations that Martin violated probation terms 6b, 6h, and 7c
A few days
later, on April 20, Officer Hernandez filed a report of defendant's rearrest in
which he alleged Martin violated term 6b by violating Officer Hernandez's March
23 oral directives that Martin (1) not threaten anyone in any manner, (2)
reside only at the Destiny House sober living facility unless given permission
to reside elsewhere, and (3) abide by a 9:00 p.m. curfew. Specifically, Officer Hernandez alleged that
Martin repeatedly threatened his roommates and the owner and manager of the
Destiny House facility where he had been living, he physically attacked the
manager of that facility, and he often went missing for one or more days. In his report, Officer Hernandez also alleged
Martin violated term 6h when, after Officer Hernandez left several messages for
Martin at the sober living facility, he failed to report to Officer Hernandez
as directed.
Thereafter,
on May 13, 2011, Officer
Hernandez filed a supplemental report alleging Martin also had violated term 7c
by refusing to provide written authorization allowing him to receive progress
and compliance reports from Martin's health care providers. Specifically, Officer Hernandez alleged that
during his interview for the supplemental report, Martin told him he had gone
to a county mental health facility because he felt suicidal. When Officer Hernandez asked Martin to sign a
release allowing him to receive the records of Martin's treatment, Martin
refused to sign the release.
2.
Officer Hernandez's
testimony
At the August 3, 2011 hearing on Martin's
alleged probation violations, Officer Hernandez testified that on March 23 of
that year he reviewed with Martin the conditions of his probation. Officer Hernandez indicated that during the
meeting he orally imposed a 9:00 p.m. curfew on Martin and instructed him that
he was not to reside anywhere other than at the Destiny House sober living
facility without Officer Hernandez's permission and that he was not to
threaten, intimidate, or "put his hands on" anyone in any
manner. Officer Hernandez testified that
during the March 23 meeting, Martin became upset and extremely angry and
claimed he had been wrongly accused and convicted.
With regard
to the directive that Martin not use force, threats, or violence against anyone,
Officer Hernandez testified that Martin's roommate at Destiny House told the
officer that he had had a physical altercation with Martin in April when Martin
was yelling loudly and the roommate told him to be quiet. The roommate told Officer Hernandez that
Martin grabbed him and, when Martin then grabbed what appeared to be a knife or
fork, the roommate pulled away from Martin and ran. He also told Officer Hernandez that Martin
had threatened other people, including Stephen Hansen, the owner and manager of
the sober living facility. Officer
Hernandez stated he also spoke with Hansen, who indicated he was aware of the
incident between Martin and his roommate and that Hansen himself had also been
verbally threatened by Martin.
With regard
to the curfew and residence directives, Officer Hernandez testified that Hansen
told him Martin was not abiding by house rules and had sometimes been away from
Destiny House for days. According to
Officer Hernandez, Martin admitted to him that he had not abided by the 9:00 p.m. curfew and that he had not stayed at
Destiny House for periods of time.
With
respect to the requirement that Martin meet with Officer Hernandez as directed,
Officer Hernandez testified that he called and left several messages at Destiny
House between March 23 and April 14,
2011, asking Martin to see Officer Hernandez at the probation
office. Martin admitted to Officer
Hernandez that he was getting Officer Hernandez's messages from Hansen.
Officer
Hernandez also testified that on May 13,
2011, when he interviewed Martin for the supplemental probation
officer's report, Martin refused to authorize in writing the release of his
medical information from the county mental health facility, and thus Officer
Hernandez was unable to find out whether that facility had tested Martin for
drugs.
During
cross-examination, Officer Hernandez testified that nothing in the probation
order itself required a curfew or required that Martin reside only at Destiny
House. Officer Hernandez stated that
although Martin had reported for drug testing twice in April 2011, Martin did
not meet with Officer Hernandez, which was a separate requirement of probation.
see Martin's county mental health records to determine whether Martin was
taking psychotropic medications as prescribed under term 7a of his probation.
that he threatened or put his hands on his roommate, Fannin.
On redirect
examination, Officer Hernandez testified again that Martin admitted not staying
at Destiny House for days at a time.
Officer Hernandez also stated that term 6i of Martin's probation
required him to report any change of address.
Roommate's
testimony
Martin's
roommate testified that he lived with Martin for about four months at Destiny
House and had considered Martin a friend.
He testified that on April 1, 2011, Martin, upset because his roommate
had asked him to quiet down, the roommate against the wall, "faked a
swing" at him, and grabbed something off the cutting board in the
kitchen. The roommate acknowledged that
in a statement he wrote about the incident, he said he was sure Martin had been
under the influence of methamphetamine.
a. Findings, order,
and sentence
At the
conclusion of the evidentiary hearing on the probation violation allegations,
the court
found Martin had willfully violated terms 6b, 6h, and 7c of his probation,
noting there were "several allegations, one involving violence, the
curfew, . . . his absence from Destiny House, called the
placement [sic], failure to report
and call back the [probation officer] and kind of a three-week
issue." The court formally revoked
Martin's probation.
Thereafter,
the court reinstated three years of probation subject to all of the original
terms and conditions, but with additional conditions, including the following
five requiring that Martin:
b. Use "[e]lectronic GPS 'if' directed by
P.O."
c. "Not use force, threats, or violence on
another."
d. "Obtain P.O. approval as to residence."
e. "Undergo periodic polygraph evaluation 'if'
directed by the P.O. with test results released to probation."
g. "Not possess pornographic material of any kind
or be in places where pornography is sold or viewed."
Defense
counsel objected to the conditions allowing GPS monitoring and polygraph
examinations and prohibiting possession of pornographic materials.
The court
then imposed a three-year prison term (consisting of the middle term of two
years for Martin's count 1 conviction, plus one additional year for his prison
prior); but stayed execution of that sentence, stating, "[T]hat's imposed
and stayed, with the idea that on the
first violation the stay will be lifted." (Italics added.)
b. Martin's first
appeal and contentions (Martin I)
Martin
appeals, contending (1) the evidence was insufficient to support the court's
findings that he violated terms 6b, 6h, and 7c of his probation; (2)
alternatively, the court erred in finding he violated the oral directives
Officer Hernandez imposed under term 6b because those directives could not be
imposed in the first instance as they were unconstitutionally vague and
overbroad; and (3) the five additional probation conditions added after the
court reinstated probation were unreasonable and unconstitutionally vague and
overbroad.
C.
Second Probation Revocation
Proceeding, Order Lifting Stay of Execution of Prison Term, and Second Appeal (
On October
31, 2011, Martin was arrested for violating the terms of his reinstated probation.
1.
Probation officer's report and
allegations that Martin violated probation terms 6f, 10n, and 11b
In November
2011, Martin's probation officer, Lester Brown, filed a report of rearrest and
a supplemental report, alleging Martin failed to comply with three terms of his
probation: (1) "Failed to report
(call the random drug testing line) as directed"; (2) "Failed not to
possess any pornographic material"; and (3) "Failed to comply with
[battery] charging requirements per GPS requirements."
Specifically,
Brown alleged that Martin violated term 6f on October 10, 2011, by failing to
report to testing, despite being told to call the testing line every day,
including holidays and weekends. Brown
reported that Martin told him he did not report on the day in question because
it was a holiday and he believed the probation office was closed.
Brown also
alleged that Martin violated term 10n prohibiting possession of pornographic
material on October 30 and 31, 2011, when he was found to be in possession of
three pornographic DVD's.
Regarding
term 11b, Brown alleged Martin allowed the battery on his GPS device to die on
eight specified dates between August 15 and October 30, 2011, "making
tracking [of] his whereabouts impossible."
Noting that
Martin was a registered sex offender who had scored a "7" on the
Static-99 indicating a "high risk to recidivate," Brown reported
"[i]t is clear that [Martin] is not willing to abide by the conditions of
probation" and recommended that the court formally revoke probation and
impose the three-year prison term the court had previously imposed but
stayed.
2.
Officer Brown's
testimony
At the
January 2012 evidentiary hearing on the new probation violation allegations,
Officer Brown testified that on October 30, 2011, he went to check on Martin at
his one-bedroom apartment at the Reiss Hotel during a routine field visit. Martin was not in his room and Brown was let
in by management. While conducting a
search, Brown noticed pornography playing on the television set. Brown found a DVD containing pornography in
the DVD player and another one in a drawer below the television set, both of
which were confiscated.
Brown
testified that Martin's room was searched again the next day by different
officers. This time Martin was present,
and pornography was playing on the television set. Another pornography DVD was confiscated from
the DVD player. When Brown later
interviewed Martin, he refused to give a reply when asked about the
pornography.
With regard
to the GPS monitoring, Brown testified that as a condition of probation Martin
was hooked up to a device which was battery-operated and monitored via
satellite. The battery life of the GPS
device is 24 hours and probationers are directed to charge the device for an
hour and a half in the morning and evening.
Brown indicated he is immediately alerted through his Blackberry phone
when a probationer's battery dies. Brown
testified to the eight specific occasions when Martin's battery was not
charged. Martin told Brown he had been
charging the battery, but would occasionally forget or fall asleep while
charging the battery and would wake up believing it was charged only to realize
it was not.
According
to Officer Brown, Martin was also required to call a random drug testing line
seven days a week and report for drug testing the following morning if his
assigned "car or color" came up.
Martin failed to report for testing on October 10, 2011. Martin told Brown he did not believe he
needed to call in because it was a federal holiday and he thought the office
would be closed.
Martin's defense
testimony
Martin
testified he failed to show up for testing on October 10, 2011, because he
believed probation would be closed after he visited the "SSI
building," which was closed that day.
Martin denied he was ever told probation would be open every day
including holidays. He stated he
reported and tested the next day. Martin
stated he never failed a urinalysis test while on probation.
With regard
to the GPS device, Martin stated he charged the battery every day, but
indicated he may not have charged it for the entire hour and a half. He stated the battery may not have charged
long enough because he would sometimes place the charger on his leg but it
would fall off while he slept. Martin
testified that on another occasion, he slept for 20 hours and the battery was
dead when he awoke.
When asked
by his counsel whether he possessed the pornography DVD's, Martin first stated
he was watching a football game. Martin
then told his attorney, "[B]esides that, that's hearsay and inadmissible
hearsay." Then Martin denied having
pornographic DVD's in his room or in his possession.
a. Findings, order,
and sentence
The court
found Martin violated the terms and conditions of probation by "failing to
report (call the random drug testing line) as directed," by
"fail[ing] to comply by keeping keep his GPS [device] charged," and
by possessing pornographic material. The
court formally revoked Martin's probation.
Thereafter,
the court
lifted the stay of execution of Martin's three-year prison sentence.
b. Martin's second
appeal and contentions (Martin II)
In his
second appeal, Martin contends (1) the evidence was insufficient to support the
court's findings that he violated his probation by failing to report for drug
testing and by failing to keep his GPS battery charged; and (2) the court erred
in finding he violated his probation by possessing pornographic material where
this condition could not be imposed in the first instance because this added
probation condition is unconstitutionally vague and is not reasonably related
to either the underlying drug possession offense or future criminality; and (3)
the court abused its discretion in revoking probation and imposing a prison
sentence because any alleged probation violation was de minimis and not
willful.
By order
dated July 9, 2012, this court ordered both appeals consolidated under case No.
D061667.
DISCUSSION
I. MARTIN
I
A.
Sufficiency of the Evidence (
Terms 6h & 7c of Martin's Original Probation)
In
evidence is insufficient to support the court's findings that he violated three
oral directives given by Officer Hernandez under term 6b, as well as terms 6h
and 7c, of Martin's original probation.
We reject this contention.
1.
Penal Code
section 1203.2, subdivision (a) authorizes a trial court to revoke the
supervision of a person released on probation "if the interests of justice
so require and the court, in its judgment, has reason to believe from the
report of the probation . . . officer or otherwise that the
person has violated any of the conditions of his or her
supervision . . . ."
A trial court is accorded "very broad discretion in determining
whether a probationer has violated probation." (People v. Rodriguez (1990) 51 Cal.3d 437, 443.)
A probation
violation need only be proven by a preponderance
of the evidence. (People v. Rodriguez, supra,
51 Cal.3d at p. 447; People v. Jackson
(2005) 134 Cal.App.4th 929, 935.)
When the
sufficiency of the evidence supporting a trial court's probation revocation
decision is challenged on appeal, we apply the substantial evidence standard of
review, under which "great deference is accorded the trial court's
decision, bearing in mind that '[p]robation is not a matter of right but an act
of clemency, the granting and revocation of which are entirely within the sound
discretion of the trial court.'" (People
v. Urke (2011) 197 Cal.App.4th
766, 773.) We view the evidence
in the light most favorable to the judgment, and we do not reweigh the
evidence, resolve conflicts in the evidence, or reevaluate the credibility of
witnesses. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51
Cal.3d 294, 314.) "Resolution of conflicts and inconsistencies in
the testimony is the exclusive province of the trier of fact." (People
v. Young (2005) 34 Cal.4th 1149, 1181.)
Only in a
very extreme case should a reviewing court interfere with a trial court's
discretion to revoke probation. (
2.
a. Officer
Hernandez's oral directives under term 6b
We first
conclude that substantial evidence supports the court's finding that Martin
willfully violated Officer Hernandez's oral directives under term 6b that
Martin (1) not use force, threats, or violence against anybody; (2) not stay
anywhere other than at the Destiny House sober living facility without Officer
Hernandez's permission; and (3) abide by a 9:00 p.m. curfew. Specifically, Officer Hernandez testified he
reviewed these directives with Martin.
Martin's roommate testified that when he asked Martin to quiet down,
Martin threw him against the wall, faked a swing at him, and then grabbed
something off of the cutting board in the kitchen. Officer Hernandez testified that Martin
admitted to him that he had not abided by the 9:00 p.m. curfew and that he had
not stayed at the Destiny House sober living facility for periods of time. The evidence shows that Hansen, the owner and
manager of that facility, reported to Officer Hernandez that Martin had
sometimes been away from Destiny House for days at a time. Officer Hernandez also testified that Martin
admitted he did not stay at Destiny House for days at a time. The foregoing substantial evidence is
sufficient to support the court's findings as to term 6b.
b. Term 6h
We next
conclude substantial evidence supports the court's finding that Martin
willfully violated term 6h, which required that he "[r]eport to the P.O.
as directed." Officer Hernandez
testified that he called and left several messages for Martin at Destiny House
between March 23 and April 14, 2011, asking Martin to see Officer Hernandez at
the probation office, but Martin failed to report as directed and Officer
Hernandez "[c]ouldn't find him, didn't know where he was." Officer Hernandez also testified that Martin
admitted to him that he was getting Officer Hernandez's messages from
Hansen. This substantial evidence is
sufficient to support the court's finding as to term 6h.
c. Term 7c
Substantial
evidence also supports the court's finding that Martin willfully violated term
7c, which required that he "[p]rovide written authorization for the P.O.
to receive progress and/or compliance reports from any medical/mental health
care provider, or other treatment provider rendering treatment/services per
court order under the terms of this grant of probation." Officer Hernandez testified he needed to see
Martin's mental health records to determine whether Martin was taking
psychotropic medications as prescribed under term 7a of his probation.
13, 2011, when he interviewed Martin for the supplemental probation officer's
report, Martin refused to authorize in writing the release of his medical
information, and thus Officer Hernandez was unable to find out whether that
facility had tested Martin for drugs.
This substantial evidence is sufficient to support the court's finding
as to term 7c.
B.
Constitutionality of Probation
Officer Hernandez's Oral Directives Under Term 6b Regarding Threats and Place
of Residence
Martin
alternatively claims the court erred in finding he violated Officer Hernandez's
oral directives (which Martin also refers to as oral conditions) concerning
threats and Martin's place of residence because those directives should not
have been imposed in the first instance as they were unconstitutionally vague
and overbroad. These claims are
unavailing.
1.
Although
challenges to the constitutionality of probation conditions on the grounds of
vagueness and overbreadth are frequently made together, the concepts are
distinct. "[T]he underpinning of a
vagueness challenge is the due process concept of 'fair warning.'" (In
re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.); see U.S. Const, Amends. 5, 14; Cal. Const.,
art. I, § 7.) A probation condition is
unconstitutionally vague if it is not " '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.) "In deciding the adequacy of any notice
afforded those bound by a legal restriction, we are guided by the principles
that 'abstract legal commands must be applied in a specific context,'
and that, although not admitting of 'mathematical certainty,' the language used
must have '"reasonable specificity."'" (Ibid.,
quoting People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090,
1116-1117.)
In
contrast, a probation condition is unconstitutionally overbroad if it imposes
limitations on the probationer's constitutional rights, and it is not closely
or narrowly tailored and reasonably related to the compelling state interest in
reformation and rehabilitation. (Sheena K., supra, 40
Cal.4th at p. 890; In re Victor L (2010) 182 Cal.App.4th 902, 910.) "The essential question in an overbreadth
challenge is the closeness of the fit between the legitimate purpose of the
restriction and the burden it imposes on the defendant's constitutional
rights—bearing in mind, of course, that perfection in such matters is
impossible, and that practical necessity will justify some
infringement." (In re E.O.
(2010) 188 Cal.App.4th 1149, 1153.)
In an
appropriate case, a probation condition that is not " 'sufficiently
narrowly drawn' " may be modified and affirmed as modified. (People v. Lopez (1998) 66 Cal.App.4th
615, 629; see also In re E.O., supra,
188 Cal.App.4th at p. 1158.)
2.
a.
Martin
contends that Officer Hernandez's oral directive under term 6b that Martin not
use force, threats, or violence against anybody─which became a formal
condition of probation designated term c after the court's first revocation and
reinstatement of Martin's probation
name="_ftnref9" title="">[9]─was
unconstitutionally vague because it "was not sufficiently precise for
[him] to know what was required of him."
We reject this contention.
As already
discussed, the testimony of Martin's former roommate shows that when he asked
Martin to quiet down, Martin threw him against the wall, faked a swing at him,
and then grabbed something off the cutting board in the kitchen. The record of the first probation revocation
hearing is devoid of any evidence that might suggest Martin was acting in
self-defense, and on appeal he does not claim he was acting in self-defense. We conclude Officer Hernandez's oral
directive was "sufficiently precise" to put Martin on clear notice
that pushing his roommate against the wall, faking a swing of his fist at him,
and then grabbing something off a kitchen cutting board would be a violation of
the oral directive that he not use force, threats, or violence against anybody.
Martin also
contends this same oral directive was unconstitutionally overbroad, and thus
should "not [have been] imposed in the first instance" because
"it failed to provide for Martin's right to exercise his freedom of
expression protected by the First Amendment to the federal Constitution as well
as his statutory and constitutional right to engage in self-defense." He asserts this condition of probation should
be stricken because it "does not pass constitutional muster" or,
"[a]lternatively, [it] should be modified to allow for the use of lawful
force, threats or violence."
The
Attorney General responds that this condition of probation was not
unconstitutionally overbroad "since there is no reasonable likelihood a probation
officer would recommend that [Martin] be found in violation of probation
because he had used 'angry words' in an exercise of his right to free speech or
[had acted] in some type of self-defense."
The Attorney General, however, has no objection to a modification of
this condition─in the event this court concludes it is unconstitutionally
overbroad and we reverse Martin's prison commitment and reinstate
probation─to provide that Martin "not use force, threats, or
violence on another person except in
lawful self-defense or in the exercise of a constitutional right." (Italics added.)
We agree this condition of probation should
have provided that Martin not use force, threats, or violence against another
person "except in lawful self-defense or in the exercise of a
constitutional right," as the Attorney General acknowledges, in order to
protect Martin's right to engage in lawful self-defense and his right to
lawfully express what he refers to as "angry words" to someone. However, we reject Martin's claim that the
failure of the challenged condition to so provide requires that his prison
commitment be reversed and his probation be reinstated. This claim is based in part on Martin's
assertion that "the evidence adduced at the [first probation revocation]
hearing indicated [he] shared 'angry words'" with his roommate and others,
which he maintains "indicated [he] did not intend his conduct to be truly
threatening or intimidating."
However, the evidentiary record of that proceeding shows that Martin was
not acting in lawful self-defense or
merely "shar[ing] 'angry words'" with his roommate. Accordingly, we conclude the court did not
err in finding that Martin willfully violated term 6b of his probation by
engaging in such physical and threatening conduct. As we shall affirm (for reasons we shall
explain) the court's decision to revoke Martin's probation a second time and
lift the stay of execution of the prison sentence it imposed, we also conclude
the issue of whether the probation condition at issue here should be modified
is moot because we reject Martin's claim that his probation must be reinstated
again.
3.
Relying on
937 (Bauer), Martin also contends
that Officer Hernandez's oral directive that Martin not stay anywhere other
than at the Destiny House sober living facility without Officer Hernandez's
permission─a directive that became a formal condition of probation
designated term d after the court's first revocation and reinstatement of
Martin's probation
name="_ftnref10" title="">[10]─was
unconstitutionally overbroad because "the probation officer's oral
directive forbade Martin from living anywhere except Destiny House" and
"impermissibly infringed on his constitutional right of association and
his right to travel." Martin
further contends this condition of probation should not have been imposed in
the first instance, and thus his prison commitment should be reversed and his
probation should be reinstated. We
reject these contentions.
This
condition of probation did not, as Martin appears to claim, categorically
forbid him from living anywhere except the Destiny House. It allowed Martin to live elsewhere with
prior approval of his probation officer in the interest of furthering the state
interest in Martin's reformation and rehabilitation.
Martin's
reliance on Bauer is unavailing
because that case is factually distinguishable.
In Bauer, the trial court
required, as a condition of probation the probation department did not propose,
that the defendant obtain his probation officer's approval of his
residence. (Bauer, supra, 211
Cal.App.3d at pp. 940, 943.) The
probation report showed the defendant was living at his parents' home where he
had always lived, he had had close family relations all of his life, he had no
plans to leave his parents' home, and his parents were getting older and would
benefit from his helping them with work around the house. (Id.
at p. 944.) The Court of Appeal ordered
the residency approval condition stricken, concluding it was unconstitutionally
overbroad because it impinged on the defendant's constitutional right to travel
and freedom of association without being "narrowly tailored to interfere
as little as possible with these important rights," and it gave the
probation officer "the power to banish him" from living with or near
his parents. (Ibid.)
Unlike the
residency approval condition in Bauer,
the residency approval condition at issue here does not give the probation
officer a similar unconstitutional power of banishment from a living situation
that, like the supportive family situation at issue in Bauer, would promote reformation and rehabilitation. On the facts of this case, we conclude the
residency approval condition is not unconstitutionally overbroad.
C.
Additional Probation Conditions
Martin also
contends the revocation of his probation must be reversed because all five
additional probation conditions that the court added after it reinstated his
probation following the first revocation of probation are unreasonable and
unconstitutionally vague and overbroad.
We reject this contention.
1.
Under Penal
Code section 1203.1, 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, . . . and
generally and specifically for the reformation
and rehabilitation of the probationer . . . ." (Pen. Code,
§ 1203.1, subd. (j),
italics added.)
A trial
court's discretion in imposing conditions of probation, "although broad,
nevertheless is not without limits: a
condition of probation must serve a purpose specified in the
statute." (People v. Carbajal (1995) 10 Cal.4th 1114,
1121.) In addition, the California 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 (Olguin),
italics added, quoting 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." (Olguin,
at p. 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.)
"We
review conditions of probation for abuse of discretion." (Olguin, supra, 45 Cal.4th at p. 379.)
A sentencing court abuses its discretion "when its determination is
arbitrary or capricious or '"'exceeds the bounds of reason, all of the
circumstances being considered.'"'"
(People v. Carbajal, supra, 10 Cal.4th at p. 1121.)
2.
Term b (
Martin
contends that term b, which required him to use "[e]lectronic GPS 'if'
directed by P.O.," was unreasonable, it impermissibly infringed on his
constitutional right to freedom of association and his right to travel, and it
was unconstitutionally overbroad as it "was not narrowly tailored to the
individual probationer." We reject
this contention. As the court noted, it
imposed the GPS requirement on Martin in light of his criminal record to
"help the probation officer keep track of him" and let Martin
"know that he has to be where he says he's going to be." This condition of probation was necessary to
allow the probation officer to monitor Martin's compliance with other
conditions of his probation, such as the 9:00 p.m. curfew. This condition was reasonable, narrowly
tailored, and not unconstitutionally overbroad.
Term c (
Martin next
contends that term c, which required him to "[n]ot use force, threats, or
violence on another," was unconstitutionally vague and overbroad. We have already addressed Martin's challenge
to this condition of his probation, which is virtually identical to one of
Officer Hernandez's oral directives under term 6b.
Term d (
Relying
again on Bauer, supra, 211 Cal.App.3d 937, which we have concluded is factually
distinguishable, Martin contends that term d, which required him to
"[o]btain P.O. approval as to residence," is unconstitutionally
overbroad. We have already discussed and
rejected Martin's challenge to this condition of his probation.
Term e (
Martin next
contends that term e, which required him to "[u]ndergo periodic polygraph
evaluation 'if' directed by the P.O. with test results released to
probation," was unreasonable and unconstitutionally overbroad. We reject this contention.
In imposing
this condition, the court stated, "[W]ith the polygraph, just knowing the
[probation officer] can polygraph him if he wants, my hope is that it helps him
[stay] on the straight-and-narrow."
In light of Martin's criminal record and his demonstrated unwillingness
to abide by the conditions of his probation, this condition, like the GPS
monitoring condition, could assist the probation officer in monitoring Martin's
compliance with the other conditions of his probation. (See People
v. Miller (1989) 203 Cal.App.3d 1311, 1315, fn. 1 ["[C]onvicted
criminals conditionally released to society, such as
probationers, . . . may be subjected to polygraph testing
to help ensure obedience to valid probation conditions."].) We conclude the court did not act in an
arbitrary and capricious manner in imposing this condition of probation because
it is reasonably related to Martin's future criminality. (See Olguin, supra, 45 Cal.4th at p. 380.)
This condition was reasonable and not unconstitutionally overbroad.
Term g (
Last,
Martin contends that term g, which required that he "[n]ot possess
pornographic material of any kind or be in places where pornography is sold or
viewed," was unreasonable and unconstitutionally vague. This contention is unavailing. As Martin acknowledges, he suffered a prior
conviction for committing sexual battery.
In light of Martin's criminal history, a condition of probation
requiring him to refrain from possessing sexually stimulating pornographic
material, such as the material twice found in his apartment, is reasonably
related to future criminality. Regarding
the second part of this term of probation, which required that he "[not]
be in places where pornography is sold or viewed," the Attorney General
has no objection to a modification of this condition that would include a
knowledge requirement─providing that Martin "[n]ot possess pornographic
material of any kind or be in places where defendant
knows pornography is sold or viewed"─in the event this court
concludes the term was unconstitutionally vague and we reverse Martin's prison
commitment and reinstate probation.
However, in light of the court's properly supported findings that Martin
willfully violated other lawful terms of probation, we reject his claim that
the failure of term g to include a knowledge requirement requires that his
prison commitment be reversed and his probation be reinstated. As we shall affirm the court's decisions to
revoke Martin's probation and lift the stay of execution of the imposed prison
sentence, we conclude the issue of whether term g should be modified is moot.
II. MARTIN
II
A.
Sufficiency of the Evidence (
GPS Battery Charged)
In
evidence was insufficient to support the court's findings that he willfully
violated the terms of his probation by failing to report for drug testing and
failing to keep his GPS battery charged.
We reject these contentions.
1.
Following
the presentation of evidence at the second probation revocation hearing, the
court revoked Martin's probation, finding (among other things) that Martin
violated term 6f of his probation by "failing to report (call the random
drug testing line) as directed," and also violated term 11b by
"fail[ing] to comply by keeping keep his GPS [device] charged." The court thereafter lifted the stay of execution
of Martin's three-year prison sentence.
2.
a. Failure to
report for drug testing
In support
of his contention that the evidence is insufficient to sustain the court's
finding that he willfully violated term 6f by failing to call the random drug
test line and report for drug testing on October 10, 2011, as alleged in the
probation officer's re-arrest and supplemental reports, Martin claims his
failure to do so was not willful because "he believed the probation office
was closed for a federal holiday."
This contention is unavailing.
The record shows Officer Brown told Martin to call the testing line
every day, including weekends and holidays.
Brown's testimony shows Martin was required to report for such testing
on October 10, 2011, but he failed to do so.
Although Martin testified to his belief the probation office was closed
that day and indicated he was not told the office would be open every day
including holidays, we resolve evidentiary conflicts in favor of the court's
decision (People v. Young, supra,
34 Cal.4th at p. 1181) and conclude substantial evidence supports the court's
finding that Martin willfully violated term 6f.
3.
Martin next
contends the evidence was insufficient to support the court's finding that he
willfully violated term 11b of his probation by failing to keep his GPS battery
charged, as alleged in Brown's rearrest and supplemental reports. This contention is also unavailing.
Martin does
not dispute that he failed to keep his GPS battery charged as ordered. The evidence shows he let the battery die on
eight occasions between mid-August and late October 2011 but instead of
altering his behavior after the first or second occasion, he continued to only
partially charge the battery and let it die.
We conclude substantial evidence supports the court's finding.
B.
Constitutionality and
Reasonableness of Term Prohibiting Possession of Pornography
Next,
Martin again contends the court erred in finding he violated his probation by
possessing pornographic material, because (he maintains) this condition could
not be imposed in the first instance as this added probation condition was
unconstitutionally vague and not reasonably related to either the underlying
drug possession offense or future criminality.
We have already addressed Martin's challenge to this condition of his
probation.
C.
the Prison Sentence
Last,
Martin contends the court abused its discretion in terminating probation and
imposing the prison sentence because any alleged probation violation was de
minimis and not willful. We reject this
contention. As already discussed, the
court properly found that Martin had willfully violated three terms of his
reinstated probation by (1) failing to report to the probation office for drug
testing, (2) failing to keep his GPS battery charged, and (3) possessing
pornographic material. The fact that
Martin willfully violated these terms shortly after the court revoked and then reinstated
his probation in early August 2011 at the conclusion of the first probation
revocation hearing, indicates his violations of probation are not "minor
and unintentional," as he asserts.
At that hearing, after imposing but staying execution of the prison
sentence Martin now challenges, the court admonished Martin that the stay would
be lifted "on the first [new] violation." Execution of the prison sentence is fully
warranted by Martin's willful, recalcitrant, and repeated refusal to comply
with the terms of his probation. For all
of the foregoing reasons, we affirm the court's decision to lift the stay of
execution of the prison sentence.
DISPOSITION
The judgments are affirmed.
NARES,
J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
facts underlying Martin's conviction is taken primarily from this court's
nonpublished opinion in People v. Martin
(Jan. 18, 2012, D059078). In that case,
counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436
and Anders v. California
(1967) 386 U.S. 738, raising possible but not arguable issues and asking this
court to review the record for error. We
affirmed the judgment.
name="_ftn2" title="">[2] See term 6h, discussed, ante,
which required Martin to "[r]eport to the P[robation] O[fficer] as
directed . . . ."
