Filed 8/18/16 P. v. Espinoza CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068874

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. JCF35089)

ARTHUR ESPINOZA,

         Defendant and Appellant.


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

Jr., Judge. Affirmed as modified and remanded with directions.

         Boyce & Schaefer and Benjamin Kington, under appointment by the Court of

Appeal, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Warren

Williams, Deputy Attorneys General, for Plaintiff and Respondent.

         In this appeal Arthur Espinoza challenges one of the conditions of his

probation─condition No. 2, which requires him to "participate in a
counseling/educational program as directed by the probation officer"─claiming it is

unconstitutionally overbroad and an improper delegation of judicial authority to his

probation officer.

       The relevant proceedings in this case commenced when the Imperial County

District Attorney filed a two-count information charging Espinoza with the felony

offense of making a criminal threat (count 1: Pen. Code,1 § 422, subd. (a)) and the

misdemeanor offense of disobeying a domestic relations court order (count 2: § 273.6,

subd. (a)). The information was amended to add a felony charge of false imprisonment

(count 3: § 236).

       Pursuant to a plea agreement, Espinoza pleaded no contest to the false

imprisonment charge, and the court dismissed counts 1 and 2, as well as three other cases

not at issue in this appeal. The parties agreed that in exchange for his plea, Espinoza

would be placed on three years' formal probation with credit for time served.

       At the probation and sentencing hearing in mid-September 2015, pursuant to the

plea agreement, the court suspended imposition of sentence and placed Espinoza on three

years' formal probation. The probation officer's report, which Espinoza had reviewed

with his counsel, indicated that the probation officer was recommending imposition of

several "drug/alcohol terms," including a "drug/alcohol course," that were listed in the

"RECOMMENDATION" section of the probation report.




1      All further statutory references are to the Penal Code.

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       The court followed the probation officer's recommendations and ordered that

Espinoza's grant of probation was subject to numerous specified terms and conditions.

Although the court did not explicitly order Espinoza to participate in a "drug/alcohol

course," as the probation report recommended, it imposed as condition No. 2 the

requirement that Espinoza "[p]articipate in a counseling/educational program as directed

by the probation officer."2

       On appeal Espinoza challenges the court's imposition of condition No. 2, asserting

it "improperly delegates judicial power to the probation officer" and it is

"unconstitutionally overbroad." He also asserts this condition "must be stricken, or the

case remanded with instructions to limit the type of program to specific categories related

to [his] rehabilitation or crime of conviction."

       We reject these contentions. However, because the record clearly shows the court

intended the term "counseling/educational program" in condition No. 2 to be a

"drug/alcohol course," as the probation report recommended, we modify condition No. 2

to reflect the court's intent, affirm the judgment in all other respects, and remand the case

to the superior court with directions.




2      Condition No. 2 of Espinoza's probation states in full: "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." (Italics added.)
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                               FACTUAL BACKGROUND3

       At around 9:00 a.m. on June 6, 2015, Brawley Police Department Officer Jeremy

Schaffer responded to a call about a violation of a court order at an apartment complex.

When Officer Schaffer arrived at the complex, he saw Espinoza attempting to hide

behind a parked van. The reporting party, Arlene Garcia, who was scared and visibly

shaken, told Officer Schaffer that Espinoza had called her approximately 10 times and

eventually showed up at her apartment to gather his belongings. Garcia had previously

obtained a no-contact restraining order against Espinoza for her protection. Garcia told

Officer Schaffer that after Espinoza entered her apartment, he approached her, raised his

right hand in a fist, and told her, "I'm going to kick your ass."

                                       DISCUSSION

       Espinoza contends condition No. 2 "improperly delegates judicial power to the

probation officer" and it is "unconstitutionally overbroad." We reject these contentions.

       A. Background

       In the probation report, the probation officer recommended that Espinoza be

placed in both an anger management course and a "drug/alcohol course." (CT 39.)

Specifically, the probation report stated:

          "This officer will be recommending drug/alcohol terms. The
          defendant drinks on a weekly basis and a drug/alcohol course can
          assist him [in] abstain[ing] from alcohol use. The undersigned will
          recommend he partake and complete a drug/alcohol course and that
          he be randomly drug tested to determine his sobriety. Furthermore,


3      At the change of plea hearing, the parties stipulated that the preliminary hearing
transcript would serve as the factual basis for Espinoza's plea of no contest to count 3.
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          domestic violence terms, which include an anger management
          [course], will also be recommended to help modify the defendant's
          behavior issues." (Italics added.)

      The probation report recommended, as conditions of probation, that Espinoza

"[p]articipate 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." (Italics added.) The probation report also recommended that

Espinoza "[p]articipate in a 52 week certified anger management 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."

      At the probation and sentencing hearing, Espinoza's trial counsel indicated he

received a copy of the probation report and reviewed it with Espinoza. Although defense

counsel objected to the proposed conditions of probation that Espinoza totally abstain

from the use and possession of alcoholic beverages, even in his own home, neither he nor

Espinoza objected to the probation officer's recommendation that Espinoza be ordered to

enroll in a drug and alcohol treatment program.

      The court followed the probation officer's recommendation but ordered Espinoza

in condition No. 2 to participate in a "counseling/educational program"─not a

"drug/alcohol course"─as directed by the probation officer.

      B. Applicable Legal Principles

      A trial court has broad discretion under section 1203.1 in selecting the conditions

of a defendant's probation. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).)

"[T]he Legislature has empowered the court, in making a probation determination, to

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impose any 'reasonable conditions, as it may determine are fitting and proper to the end

that justice may be done, that amends may be made to society for the breach of the law,

for any injury done to any person resulting from that breach, and generally and

specifically for the reformation and rehabilitation of the probationer.'" (Ibid., quoting

§ 1203.1, subd. (j).)

       However, this statutory discretion "is not boundless." (People v. Cervantes (1984)

154 Cal.App.3d 353, 356 (Cervantes).) Section 1203.1 "grant[s] the discretion to

determine the terms and conditions of probation to the court, not to the probation officer."

(Cervantes, at p. 357.) Thus, a sentencing court may not delegate its statutory authority

to the probation officer. (Ibid.; see People v. Penoli (1996) 46 Cal.App.4th 298, 307

(Penoli) [citing cases finding excessive delegations of authority to probation officers].)

       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, 5th

& 14th Amends.; 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.) "A probation condition should be given 'the meaning that would appear to

a reasonable, objective reader.'" (Olguin, supra, 45 Cal.4th at p. 382.) Also, the

probation condition should be evaluated in its context, and only reasonable specificity is

required. (People v. Lopez (1998) 66 Cal.App.4th 615, 630 (Lopez).)

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       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. (Lopez, supra, 66 Cal.App.4th at p.

629; see In re E.O., supra, 188 Cal.App.4th at p. 1158.)

       On appeal we independently review constitutional challenges to a probation

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

       C. Analysis

       Espinoza contends condition No. 2 is "invalid" because it "leaves the probation

officer unfettered discretion to compel [his] participation in any type of

'counseling/educational' program whatsoever, effectively delegating the authority to

determine probation conditions to the probation officer." Espinoza also contends

condition No. 2 is "unconstitutionally overbroad" because it gives the probation officer

"unlimited authority" to require him to participate in "any type of program, [including]



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programs unrelated to [his] crime of conviction or future criminality, and [programs]

which may infringe on [his] constitutional rights."

       The Attorney General responds that "there was no improper delegation of

authority permitting the probation officer to enroll [Espinoza] in a treatment program"

because "[t]he parties and the trial court were aware that the probation officer

recommended that [Espinoza] be placed in a 'drug/alcohol course' in the probation

officer's report," and Espinoza "reviewed the report with his attorney" but he "did not

object to that recommendation."

       The Attorney General also claims condition No. 2 is not unconstitutionally

overbroad or vague, asserting that because the probation report "stated that [Espinoza]

drinks on a weekly basis and it also noted that he drank on the date of his arrest," the

probation officer's "recommendation that [Espinoza] be enrolled in a 'drug/alcohol course'

was carefully tailored to correct his alcohol problem, which likely contributed to his

criminal conduct."

       However, the Attorney General also asserts that, if this court determines condition

No. 2 is vague because it "[does] not explicitly incorporate the probation officer's

recommendation that the 'counseling/educational program' . . . constitute[s] a

'drug/alcohol course'" . . . , she "does not oppose the amendment of the probation

condition to reflect that [Espinoza] is required to enroll in a drug or alcohol course that

the probation officer determines is appropriate."

       We reject Espinoza's contentions that condition No. 2 improperly delegates

judicial power to the probation officer and that it is unconstitutionally overbroad. The

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record clearly shows the court intended the "counseling/educational program" specified

in condition No. 2 to be a "drug/alcohol course," as the probation officer recommended.

As noted, the probation report stated the probation officer was "recommending

drug/alcohol terms" and noted that Espinoza "drinks on a weekly basis and a

drug/alcohol course can assist him [in] abstain[ing] from alcohol use." (Italics added.)

The report also informed the court that the probation officer was "recommend[ing

Espinoza] partake and complete a drug/alcohol course." (Italics added.) At the

probation and sentencing hearing, Espinoza's trial counsel indicated he had reviewed the

probation report with Espinoza, And neither he nor Espinoza objected to the probation

officer's recommendation that Espinoza be ordered to enroll in a drug and alcohol

treatment program. The court indicated that the victim in this case had referred to

Espinoza's drinking problem when she spoke to the probation officer. The portion of the

probation report to which the court referred states that the victim told the probation

officer that Espinoza "needs counseling for his alcoholism."

       The court followed the other "drug/alcohol terms" recommended by the probation

officer by ordering Espinoza to (1) "abstain from the possession or use of any drugs,

narcotics, or other illicit substances not specifically, prescribed for him by a licensed

physician"; (2) "totally abstain from the use of alcoholic beverages"; (3) "submit to

alcohol/drug testing upon the request of the probation officer or any law enforcement

officer; and (4) "totally abstain from the use or possession of alcoholic beverages, even in

his own home." Espinoza does not challenge these conditions of his probation.



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       The foregoing record clearly shows the court intended that the

"counseling/educational program" specified in condition No. 2 be a "drug/alcohol course"

as the probation officer recommended. However, the language used by the court in

condition No. 2─"counseling/educational program"─does not reflect the court's intent.

       Given the court's clear intent that the "counseling/educational program" specified

in condition No. 2 be a "drug/alcohol course," we modify condition No. 2 to reflect that

intent. (See Lopez, supra, 66 Cal.App.4th at p. 629.) Accordingly, condition No. 2 is

modified to read: "Defendant shall participate in a drug/alcohol course as directed by the

probation officer, and he shall not terminate his participation without the mutual consent

of the probation officer and the program director." In all other respects the judgment is

affirmed.

                                      DISPOSITION

       Condition No. 2 of Espinoza's probation, as set forth in the trial court's minutes

dated September 15, 2015, is modified to read: "Defendant shall participate in a

drug/alcohol course as directed by the probation officer, and he shall not terminate his

participation without the mutual consent of the probation officer and the program

director."




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       In all other respects the judgment is affirmed. We remand the matter to the trial

court with directions to correct the probation order to reflect this modification and to

forward a corrected abstract of judgment to local custody officials and the Department of

Corrections and Rehabilitation, as necessary.




                                                                                  NARES, J.

WE CONCUR:



         HUFFMAN, Acting P. J.



                      HALLER, J.




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