Filed 8/25/17
                     CERTIFIED FOR PARTIAL PUBLICATION*

                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA



THE PEOPLE,                                        D070918


        Plaintiff and Respondent,


        v.                                         (Super. Ct. No. JCF36056)


MICHAEL BROOKS,


        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Imperial County,

Christopher J. Plourd, Judge. Affirmed as modified.

        Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant

and Appellant.

        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, Steve Oetting, Supervising



*      Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of part 1, 2, and 3.
Deputy Attorney General, and Warren J. Williams, Deputy Attorney General for Plaintiff

and Respondent.

       The Imperial County District Attorney filed an information charging Michael

Brooks with unlawful possession of ammunition (Pen. Code1, § 30305, subd. (a)(1))

(count 1); possession of controlled substance paraphernalia (Health & Saf. Code,

§ 11364, subd. (a)) (count 2); and possession of a controlled substance (Health & Saf.

Code, § 11377, subd. (a) (count 3). As to count one, the information alleged that Brooks

was prohibited from possessing a firearm as a result of a number of prior convictions.

       After a preliminary hearing, Brooks entered into a plea agreement in which he

pled no contest to count 1 and admitted one prison prior. The remaining counts and

allegations were dismissed. Brooks agreed to a sentence of three years for the conviction

plus one year for the prison prior, with the sentence to be suspended and Brooks to be

placed on formal probation for three years. The terms of probation included serving one

year in local custody and a "Fourth Amendment waiver."

       The court's sentencing order set forth 29 terms of probation that were

recommended in the probation officer's report. Brooks challenges three of those

probation terms on appeal. He contends (1) the term requiring him to "participate in a

counseling/educational program as directed by the probation officer" improperly

delegates judicial decision-making power to the probation officer and is

unconstitutionally vague, (2) the term requiring him to "follow all standard terms of


1      All statutory references are to the Penal Code unless otherwise specified.

                                             2
probation" fails to provide the notice required by due process and is unconstitutionally

vague, and (3) the court erred in imposing the term requiring him to pay a drug testing fee

under a county ordinance and Section 1203.1ab because Section 1203.1ab does not apply

to his conviction of unlawful possession of ammunition. We agree with Brooks's

contentions.

                  FACTUAL AND PROCEDURAL BACKGROUND2

       On February 17, 2016, while Brooks was on Post-Release Community

Supervision, an Imperial County deputy sheriff conducted a probation check on Brooks's

mobile home. The deputy found white powder in the bedroom on a nightstand and in a

closet. The powder field-tested presumptively positive for methamphetamine. A

backpack found in the closet contained three unspent .9 millimeter rounds of ammunition.

       The deputy searched a closet in the hallway of the mobile home and found two

safes. Inside one of the safes were six hypodermic needles containing a clear liquid that

tested positive for methamphetamine. There was a B.B. gun and more methamphetamine

inside the other safe. The deputy also found a type of glass pipe commonly used for

smoking methamphetamine in a drawer in the bedroom.

       Brooks' written plea agreement included the following language: "(Appeal

rights) I give up my right to appeal . . . any sentence stipulated herein." Brooks's

stipulated sentence under the agreement provided for formal probation for three years.



2     Brooks stipulated to the preliminary hearing transcript as the factual basis for his
no contest plea.

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The agreement also included the following "Harvey waiver":3 "The sentencing judge

may consider my prior criminal history and the entire factual background of the case,

including any unfiled, dismissed or stricken charges or allegations or cases when granting

probation, ordering restitution or imposing sentence." Brooks filed his notice of appeal

without obtaining a certificate of probable cause under Section 1237.5.4

                                      DISCUSSION

1. Express Waiver and Failure to Obtain a Certificate of Probable Cause


       The People contend we should not reach the merits of Brooks's appeal because he

did not obtain a certificate of probable cause under Section 1237.5 after entering his no

contest plea and he waived the right to appeal his sentence as part of his plea agreement.

We disagree.

       An exception to the requirement of a certificate of probable cause to appeal from a

judgment of conviction entered on a plea of guilty or no contest applies to appellate



3      A Harvey waiver is a defendant's agreement, as part of a plea bargain, to allow the
sentencing court to consider facts supporting dismissed counts. (See generally People v.
Harvey (1979) 25 Cal.3d 754, 758.) Harvey prohibits the court from considering
dismissed counts absent the defendant's consent. (People v. Munoz (2007) 155
Cal.App.4th 160, 166-167.)

4      Section 1273.5 provides in relevant part that "[n]o appeal shall be taken by the
defendant from a judgment of conviction upon a plea of guilty or nolo
contendere . . . except where both of the following are met: [¶] (a) The defendant has
filed with the trial court a written statement, executed under oath or penalty of perjury
showing reasonable constitutional, jurisdictional, or other grounds going to the legality of
the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable
cause for such appeal with the clerk of the court."

                                             4
claims arising after the plea, including sentencing issues. (People v. Cuevas (2008)

44 Cal.4th 374, 379.) This exception is set forth in California Rules of Court, rule

8.304(b)(4)(B), which provides that a defendant need not obtain a certificate of probable

cause under Section 1237.5 "(1) if the notice of appeal states that the appeal is based on:

[¶] [¶] (B) Grounds that arose after entry of the plea and do not affect the plea's

validity."5 The exception applies to Brooks's appeal because Brooks is challenging only

probation conditions the court imposed after he entered his no contest plea; he is not

challenging the validity of his plea.

       Similarly, Brooks's express waiver of the "right to appeal . . . any sentence

stipulated herein" does not preclude his appeal because he is not challenging his agreed

sentence consisting of three years for the conviction plus one year for the prison prior,

with the sentence to be suspended, and three years of formal probation. Rather he is

challenging specific terms and conditions of his probation that the court imposed after he

agreed to the sentence specified in the plea agreement.

       As this court has observed, "[a] defendant may waive the right to appeal as part of

a plea bargain where the waiver is knowing, intelligent and voluntary. [Citation.] A

broad or general waiver of appeal rights ordinarily includes error occurring before but not

after the waiver because the defendant could not knowingly and intelligently waive the

right to appeal any unforeseen or unknown future error. [Citation.] Thus, a waiver of


5       On Brooks's Judicial Council form notice of appeal, the box is checked that
contains the statement: "This appeal is based on the sentence or other matters occurring
after the plea that do not affect the validity of the plea."

                                              5
appeal rights does not apply to ' "possible future error" [that] is outside the defendant's

contemplation and knowledge at the time the waiver is made.' " (People v. Mumm (2002)

98 Cal.App.4th 812, 815 (Mumm), quoting People v. Panizzon (1996) 13 Cal .4th 68, 85;

accord, In re Uriah R. (1999) 70 Cal.App.4th 1152, 1160 [a general waiver does not

preclude attacks on subsequent errors that are unforeseen or unforeseeable at the time the

waiver was made].)

       The defendant in Mumm "agreed to waive his right to appeal based on 'issues

regarding prior allegations.' At the time [the defendant] made that waiver, the [trial]

court had not yet determined whether his prior Arizona conviction was a strike within the

meaning of the three strikes law. Because the issue of the Arizona conviction was

unresolved at the time [defendant] entered his guilty plea, it fell 'outside of [his]

contemplation and knowledge when the waiver was made.' " (Mumm, supra, 98

Cal.App.4th at p. 815, quoting People v. Panizzon, supra, 13 Cal.4th at p. 86.)

Consequently, the court rejected the People's request to dismiss the appeal on the ground

the defendant had expressly waived his right to appeal any issues regarding his prior

conviction allegations.

       In the present case although Brooks expressly waived his right to appeal his

"stipulated sentence," we construe that language to apply to the terms of the stipulated

sentence specified in his plea agreement. Brooks could not have knowingly waived the

right to challenge unforeseen probation conditions that had not yet been imposed at the

time of the plea agreement. Accordingly, we will address the merits of Brooks's appeal.



                                               6
2. The Requirement to Participate in A Counseling/Education Program "As Directed"

       As noted, the court's sentencing order lists 29 terms and conditions of probation.

Term No. 3 states: "Defendant shall participate in a counseling/educational program as

directed by the probation officer and not terminate said participation without the mutual

consent of the probation officer and the program director." Brooks contends this term is

unconstitutionally vague and violates the separation of powers doctrine by improperly

delegating judicial decision-making power to the probation officer.

       "[S]ection 1203.1, subdivision (j) gives a trial court the authority to impose

reasonable conditions of probation '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 reformation and rehabilitation of the probationer.' 'Trial courts have

broad discretion to set conditions of probation in order to "foster rehabilitation and to

protect public safety pursuant to . . . section 1203.1." ' " (People v. O'Neil (2008) 165

Cal.App.4th 1351, 1355) However, probation conditions may be challenged on the

grounds of unconstitutional vagueness and overbreadth. (People v. Lopez (1998) 66

Cal.App.4th 615, 630 (Lopez ).)

       " 'The underlying concern of the vagueness doctrine is the core due process

requirement of adequate notice.' " (Lopez, supra, 66 Cal.App.4th at p. 630, italics

omitted.) A probation condition violates due process when it forbids or requires the

doing of an act in terms so vague that a person of common intelligence must necessarily

guess at its meaning. (Ibid.) A probate condition or law that is void for vagueness also

                                              7
" ' "impermissibly delegates basic policy matters to [governmental agents] for resolution

on an ad hoc and subjective basis, with the attendant dangers of arbitrary and

discriminatory application." ' " (Ibid.; see People v. Cervantes (1984) 154 Cal.App.3d

353, 361 [Section 1203.1 does not permit a court to place restitution within the sole

discretion of the probation officer].) To avoid a successful vagueness challenge, a

probation condition " ' "must be sufficiently precise for the probationer to know what is

required of him." ' " (Lopez, at p. 630.) We review constitutional challenges to a

probation condition de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) We

have the power to modify an unconstitutional probation condition "to render the

condition constitutional." (In re Sheena K. (2007) 40 Cal.4th 875, 892.)

       We agree with Brooks that the order requiring him to "participate in a

counseling/educational program as directed by the probation officer" on its face is

unconstitutionally vague and an improper delegation of judicial authority to the probation

officer because it grants the probation officer unlimited discretion to choose any

counseling or educational program, and thus was not sufficiently precise to provide

notice to Brooks of the type of program he would be required to complete.

       The People argue that the probation term in question was not unconstitutionally

vague and did not improperly delegate judicial authority because the parties and the court

were aware that the officer in his probation report recommended Brooks participate in a

"drug and alcohol course." Thus, Brooks knew from the probation report that he would

be enrolled in drug and alcohol program of the probation officer's choosing.



                                             8
       The record supports the People's view that the parties and the court understood

Probation Term No. 3 contemplated a drug and alcohol program. The probation report

noted that Brooks began smoking marijuana at the age of 12 and began drinking alcohol

at age 17. At the time of sentencing he smoked marijuana on a monthly basis and drank

alcohol daily. Brooks told his previous probation officer in July 2016 that he had

voluntarily entered a detoxification program because he had relapsed. The probation

report stated that Brooks's "top three criminogenic needs were in the areas of: Drug/Use

and Alcohol, Attitude/Behaviors and Residential." Thus, the probation officer ranked

substance abuse as Brooks's number one criminogenic need. The report continued: "This

officer will be recommending drug and alcohol terms. It is recommended the defendant

enroll, partake and complete a drug and alcohol course. This officer will also be

recommending the defendant be randomly drug tested to determine his sobriety."

       At the sentencing hearing, Brooks's counsel objected to probation term No. 3,

stating it was "vague and overbroad, specifically the unspecified counseling or education

programs. I don't think that puts Mr. Brooks on notice about what is and is not required

for potential counseling from probation." Counsel then challenged the imposition of a

separate probation condition that would require Brooks to totally abstain from the use of

alcohol, arguing it was unrelated to being in possession of ammunition. The prosecutor

argued that the alcohol abstention condition was reasonable given Brooks's history of

substance abuse.

       The court commented that although the offense of unlawful possession of

ammunition was not related to alcohol, "that's not the total [probation] analysis. The

                                             9
analysis is look at the background and circumstances of the probationer. You want to

fashion specific terms applicable to him to successfully complete probation. I think

based upon his backgroundnot the offensethe alcohol issue, substance abuse issues

are significant for his successful completion of probation."

       Thus, it is clear the court intended to impose probation terms and conditions that

would address Brooks's longstanding problem with substance abuse. Probation term

No. 3 is the only probation term that required Brooks's participation in a counseling or

educational program, and the two terms immediately following it required him to abstain

from possession and use of "any drugs, narcotics, or other illicit substances" (No. 4) and

to abstain from alcohol use (No. 5). No type of program other than a drug and alcohol

program was mentioned in the probation report or at the sentencing hearing. Because the

record reflects that the court intended to require participation in a drug and alcohol

program in ordering probation term No. 3, we will modify the term to clarify that intent.

3. The Requirement to Follow "All Standard Terms" of Probation

       Probation term No. 9 states: "Defendant shall follow all standard terms of

probation and reasonable orders of the probation officer." Brooks claims the first clause

imposing "standard terms of probation" is unconstitutionally vague and fails to provide

the notice required by due process.

       We agree the language Brooks challenges is vague as to whether there are

undisclosed "standard terms of probation" that the court did not articulate but that Brooks




                                             10
is expected to follow.6 We note that the court is empowered to impose "reasonable

conditions, as it may determine are fitting and proper to the end that justice may be

done . . . and generally and specifically for the reformation and rehabilitation of the

probationer." (§ 1203.1, subd. (j).) Thus, any "standard terms of probation" imposed on

Brooks are necessarily limited to those the court has determined to be "fitting and proper"

in this case. The court's directive to "follow all standard terms of probation" (italics

added) cannot be deemed to impose additional, unexpressed conditions. As noted, the

probation officer recommended a comprehensive list of 28 terms of probation (excluding

the general directive to "follow all standard terms") and the court imposed all 28,

implicitly and necessarily finding them to be fitting and proper in Brooks's present case.

The court's additional directive to follow "all standard terms of probation" was

superfluous in light of the court's imposition of a thorough and exhaustive set of specific

"standard terms" that the court determined to be appropriate. Accordingly, we will strike

that condition from the sentencing order.




6      At the sentencing hearing, Brooks's counsel stated that his only objection to this
probation term was that "I don't know what it means." The court responded, "I always
wondered about that, what does that mean[?] How does somebody violate that? I'll ask
probation to print out the list of what the standard terms and conditions are, reasonable
orders are. I take your point."

                                             11
4. Drug Testing Fee

       Probation term No. 27 requires Brooks "to pay drug-testing fee in the amount of

$7.00 per test" under a county ordinance and Section 1203.1ab.7 Section 1203.1ab

provides: "Upon conviction of any offense involving the unlawful possession, use, sale,

or other furnishing of any controlled substance, as defined in Chapter 2 (commencing

with Section 11053) of Division 10 of the Health and Safety Code, in addition to any or

all of the terms of imprisonment, fine, and other reasonable conditions specified in or

permitted by Section 1203.1, unless it makes a finding that this condition would not serve

the interests of justice, the court, when recommended by the probation officer, shall

require as a condition of probation that the defendant shall not use or be under the

influence of any controlled substance and shall submit to drug and substance abuse

testing as directed by the probation officer. If the defendant is required to submit to

testing and has the financial ability to pay all or part of the costs associated with that

testing, the court shall order the defendant to pay a reasonable fee, which shall not exceed

the actual cost of the testing."

       Brooks contends the court erred in imposing this term because unlawful

possession of ammunition is not one of the offenses specified in Section 1203.1ab for

which a drug testing fee may be imposed. The People argue that because



7      The sentencing order erroneously identified Section 1203.1ab as "1203.1b(a)PC."
Both parties represent that the county ordinance referenced in term No. 27 provides:
"Pursuant to [Section] 1203.1ab, the county of Imperial establishes a drug testing fee of
seven dollars ($7.00) per test. However, pursuant to statute, this amount may be adjusted
by the probation department based on ability to pay."
                                              12
methamphetamine was found in Brooks's home where the ammunition was located, his

conviction of the ammunition offense "involved" a controlled substance within the

meaning of Section 1203.1ab and the drug testing fee was therefore a proper probation

term. The People additionally argue that Brooks's Harvey waiver allowed the court to

consider the underlying facts of the dismissed drug possession charges, noting that

Brooks expressly agreed "[t]he sentencing judge may consider my prior criminal history

and the entire factual background of the case, including any unfiled, dismissed or stricken

charges or allegations or cases when granting probation, ordering restitution or imposing

sentence."

       "In construing a statute, a court's objective is to ascertain and effectuate legislative

intent. [Citation.] To determine legislative intent, a court begins with the words of the

statute, because they generally provide the most reliable indicator of legislative intent."

(Hsu v. Abbara (1995) 9 Cal.4th 863, 871.) "If the statutory language is clear and

unambiguous our inquiry ends. 'If there is no ambiguity in the language, we presume the

Legislature meant what it said and the plain meaning of the statute governs.' [Citations.]

In reading statutes, we are mindful that words are to be given their plain and

commonsense meaning. [Citation.] . . . Only when the statute's language is ambiguous or

susceptible of more than one reasonable interpretation, may the court turn to extrinsic

aids to assist in interpretation." (Murphy v. Kenneth Cole Productions, Inc. (2007) 40

Cal.4th 1094, 1103.)

       We conclude that the plain meaning of Section 1203.1ab authorizes imposition of

a drug testing fee only when the probationer has been convicted of a drug-related offense.

                                              13
The statute authorizes imposition of the fee "[u]pon conviction of any offense involving

the unlawful possession, use, sale, or other furnishing of any controlled substance."

Given Brooks's Harvey waiver, the court could consider the dismissed drug offenses in

ordering probation terms, and properly did so. For example, the court ordered Brooks to

abstain from drug and alcohol use, to submit to drug and alcohol testing, and to not

associate with known users or sellers of narcotics. However, under Section 1203.1ab, the

court was authorized to impose the drug testing fee only for a conviction involving a

controlled substance. Although the scope of Brooks's overall case and probation

involved both unlawful possession of controlled substances and unlawful possession of

ammunition, his sole conviction was for possession of ammunition, and that offense does

not have any substantial nexus to the controlled substances.8 Because Brooks was not

convicted of any offense involving a controlled substance, the court was not authorized to

impose the drug testing fee under Section 1203.1ab and the probation term ordering

payment of that fee must be stricken.

                                        DISPOSITION

       The judgment is modified as follows: Probation term No. 9 and probation term

No. 27 are stricken from sentencing order dated August 17, 2016. Probation term No. 3

in the sentencing order is modified to state: "Defendant shall participate in a drug and

alcohol counseling/educational program as directed by the probation officer and not



8      Thus, this is not like a case where a defendant commits a theft or robbery and
drugs are the object of the crime.

                                            14
terminate said participation without the mutual consent of the probation officer and the

program director." The judgment is affirmed as modified.




                                                                                 DATO, J.

WE CONCUR:



HUFFMAN, Acting P. J.



HALLER, J.




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