                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                          June 9, 2020
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON                                               No. 52646-8-II
                                                          (consolidated with No. 52653-1-II)
                               Respondent,

        v.

 DAVID MICHAEL GARDNER,                                      UNPUBLISHED OPINION

     AKA
       DAVID M. GARDNER
       DAVID MICHAEL GARDNER
       DAVID M GARDNER
       DAVID MICHAEL MILLER
       DAVID MICHAEL GARDNER

                               Appellant.

       CRUSER, J. — David M. Gardner appeals his sentences for taking a motor vehicle without

permission and possession of a controlled substance, heroin. Gardner argues that the trial court

improperly imposed (1) community custody as a part of his sentence for taking a motor vehicle,

(2) a drug evaluation and drug treatment as a condition of his sentence for taking a motor vehicle,

and (3) an unconstitutionally vague community custody condition as a condition of his sentence

for possession of a controlled substance.

       We hold that (1) the trial court lacked authority to order community custody as a part of

Gardner’s sentence for taking a motor vehicle, (2) the trial court lacked authority to order a drug

evaluation and drug treatment as a condition of Gardner’s sentence for taking a motor vehicle, and

(3) the trial court did not impose an unconstitutionally vague community custody condition as a
Consolidated Nos. 52646-8-II / 52653-1-II




condition to Gardner’s sentence for possession of a controlled substance. Accordingly, we affirm

in part, reverse in part, and remand.

                                             FACTS

       On April 13, 2018, Gardner was charged with possession of a controlled substance, heroin.

On July 25, 2018, Gardner was charged with second degree taking a motor vehicle without

permission.

       Gardner pleaded guilty to both charges. The trial court sentenced Gardner to 20 days for

the motor vehicle offense and 33 days for the controlled substance offense and ordered the

sentences to run concurrently. The court also imposed 12 months community custody as part of

his sentence for each offense. As a condition of community custody for each offense, the court

ordered Gardner to “[r]efrain from associating with drug users or drug sellers” as well as to

participate in a chemical dependency evaluation and in chemical dependency treatment. Clerk’s

Papers (CP) at 26, 28, 57, 61.

       Gardner appealed his sentences to this court. While his appeal was pending, the State

moved to correct Gardner’s judgment and sentence for the motor vehicle offense. The State moved

to strike the term of community custody and the conditions associated with the term of community

custody imposed as part of Gardner’s sentence. Specifically, the State moved to strike section 4.6

and section 4.8 from Gardner’s judgment and sentence. Section 4.6 ordered Gardner to 12 months

of community custody and imposed the condition that Gardner remain in a prescribed geographic

area, notify the community corrections officer (CCO) of any changes in his address or

employment, and comply with any conditions “per CCO[.]” CP at 24. Gardner’s judgment and

sentence does not, however, contain a section 4.8.


                                                2
Consolidated Nos. 52646-8-II / 52653-1-II




       In response to the State’s motion, the court ordered that section 4.8 be stricken from

Gardner’s judgment and sentence for the motor vehicle offense and that all other terms and

conditions of his sentence remain in full effect. The court’s order made no mention of section 4.6.

                                          DISCUSSION

                               I. TERM OF COMMUNITY CUSTODY

       Gardner argues that the trial court improperly imposed community custody as a part of his

sentence for the motor vehicle offense. The State contends that Gardner’s assignment of error is

moot because the trial court already addressed this error by removing the term of community

custody from Gardner’s judgment and sentence, therefore this court should not address Gardner’s

argument. We agree with Gardner.

       An assignment of error is rendered moot if there is no remedy that a court can provide.

State v. Calhoun, 163 Wn. App. 153, 168, 257 P.3d 693 (2011). The State contends that Gardner’s

argument is moot because the trial court removed the term of community custody from Gardner’s

judgment and sentence when his appeal was pending. However, the record on appeal does not

reflect that the trial court removed the term of community custody from Gardner’s judgment and

sentence. Although it appears that the trial court intended to remove the term of community

custody, the trial court’s order did not strike the section that imposed community custody from his

judgment and sentence, section 4.6. Instead, the court ordered section 4.8 to be stricken and

ordered all other terms and conditions of Gardner’s judgment and sentence to remain in full effect.

As noted above, the judgment and sentence does not contain a section 4.8.

       Therefore, the term of community custody remains as a part of Gardner’s sentence, and

Gardner’s assignment of error is not moot.


                                                3
Consolidated Nos. 52646-8-II / 52653-1-II




       RCW 9.94A.702(1) limits the trial court’s authority to impose community custody. Under

this statute, a court may impose a term of community custody for offenders sentenced to

confinement of one year or less if the offender is convicted of a sex offense, a violence offense, a

crime against a person under RCW 9.94A.411, a felony violation of chapters 69.50 or 69.52 RCW,

or a felony violation of RCW 9A.44.132(1). RCW 9.94A.702(1).

       Here, Gardner was sentenced to 20 days confinement for taking a motor vehicle without

permission pursuant to RCW 9A.56.075(1). Because Gardner’s sentence was for less than one

year and the offense of taking a motor vehicle without permission is not one of the offenses

specified under RCW 9.94A.702(1), the trial court did not have authority to impose a term of

community custody for this offense.

       Accordingly, we hold that the trial court improperly imposed a term of community custody

as a condition to Gardner’s sentence for the motor vehicle offense.

                                   II. CHEMICAL DEPENDENCY

       Gardner argues that the trial court improperly ordered Gardner to participate in a chemical

dependency evaluation and in chemical dependency treatment as a condition of his sentence for

the motor vehicle offense because it is unauthorized by RCW 9.94A.607. The State concedes this

error. We accept the State’s concession.

       As a condition to an offender’s sentence, the trial court has authority to order an offender

to obtain a chemical dependency evaluation and to comply with recommended treatment. RCW

9.94A.607(1); State v. Warnock, 174 Wn. App. 608, 612, 299 P.3d 1173 (2013). However, RCW

9.94A.607(2) limits the court’s authority to order these conditions as a part of a sentence. Under

subsection 2, a court cannot impose these conditions on offenders who are not subject to a term of


                                                 4
Consolidated Nos. 52646-8-II / 52653-1-II




community custody. RCW 9.94A.607(2); In re Postsentence Review of Childers, 135 Wn. App.

37, 41, 143 P.3d 831 (2006).

       Here, because Gardner is no longer subject to a term of community custody as a part of his

sentence for the motor vehicle offense, the trial court did not have authority to order Gardner to

obtain a chemical dependency evaluation and to comply with recommended treatment pursuant to

RCW 9.94A.607(2). Therefore, we agree with the parties that the trial court erred by imposing

these conditions.

                               III. COMMUNITY CUSTODY CONDITIONS

       Gardner argues that the condition that he “[r]efrain from associating with drug users or

drug sellers” (CP at 61) imposed as a part of his sentence for possession of a controlled substance

is unconstitutionally vague because the condition (1) is not limited to “known” drug users or sellers

and (2) conflicts with the court-ordered condition that Gardner participate in chemical dependency

treatment. Br. of Appellant at 5, 8. We disagree.

       The trial court does not have authority to impose a community custody condition unless it

is authorized by statute. State v. Houck, 9 Wn. App. 2d 636, 646, 446 P.3d 646 (2019), review

denied, 194 Wn.2d 1024 (2020). When authorized by statute, we review the court’s decision to

impose the condition for an abuse of discretion. State v. Armendariz, 160 Wn.2d 106, 110, 156

P.3d 201 (2007). An abuse of discretion occurs when the trial court’s imposition of a condition is

manifestly unreasonable. State v. Hai Minh Nguyen, 191 Wn.2d 671, 678, 425 P.3d 847 (2018).

The “imposition of an unconstitutional condition is manifestly unreasonable.” Id.

       The due process vagueness doctrine requires fair warning of proscribed conduct. U.S.

CONST. amend. XIV, § 1; WASH. CONST. art. I, § 3; State v. Bahl, 164 Wn.2d 739, 752, 193 P.3d


                                                 5
Consolidated Nos. 52646-8-II / 52653-1-II




678 (2008).      A community custody condition that does not provide fair warning is

unconstitutionally vague. Bahl, 164 Wn.2d at 752-53. A community custody condition does not

provide fair warning “if (1) it does not sufficiently define the proscribed conduct so an ordinary

person can understand the prohibition or (2) it does not provide sufficiently ascertainable standards

to protect against arbitrary enforcement.” State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d 712

(2018). We do not presume a community custody condition is constitutional. State v. Sanchez

Valencia, 169 Wn.2d 782, 793, 239 P.3d 1059 (2010).

       A condition is not vague merely because a person cannot predict with complete certainty

the exact point at which an action would be classified as prohibited conduct. Id. All that is required

is that a person of ordinary intelligence understand what behavior the condition forbids given the

context in which the terms are used. In re Pers. Restraint of Brettell, 6 Wn. App. 2d 161, 168, 430

P.3d 677 (2018).

A. KNOWN USERS OR SELLERS

       Gardner argues that the condition that he “[r]efrain from associating with drug users or

drug sellers” (CP at 61) is subject to arbitrary enforcement because it is not limited to “known”

drug users or sellers. Br. of Appellant at 5, 8. We disagree.

       We have recently rejected vagueness challenges to community custody conditions that

prohibit association with a known group of individuals. Houck, 9 Wn. App. 2d at 645 (condition

prohibiting association with known drug users and sellers); Brettell, 6 Wn. App. 2d at 169

(condition prohibiting association with “‘known users or sellers of illegal drugs’”).

       Both Houck and Brettell relied on United States v. Vega, 545 F.3d 743, 749 (9th Cir. 2008),

where the Ninth Circuit rejected a vagueness challenge to a condition that prohibited an offender


                                                  6
Consolidated Nos. 52646-8-II / 52653-1-II




from associating “‘with any member of any criminal street gang.’” Houck, 9 Wn. App. 2d at 644;

Brettell, 6 Wn. App. 2d at 170. The condition in Vega was not limited to known members. Vega

argued that he might face penalties for unknowingly violating the condition by associating with

someone whom he did not know to be a street gang member. Vega, 545 F.3d at 750. The Vega

court applied the presumption that prohibited criminal acts require a mens rea element. Id. Thus,

the court read the condition to prohibit knowing association with members of a criminal street gang

and held that the condition was not impermissibly vague. Id.

       Vega is supported by State v. Llamas-Villa, 67 Wn. App. 448, 455-56, 836 P.2d 239 (1992),

where this court held that the condition that an offender not associate with persons using,

possessing, or dealing with controlled substances was not unconstitutionally vague. Llamas-Villa

argued that the provision was vague because it did not limit his liability only to situations involving

people he knew were engaging in the prohibited activities. Id. at 455. This court disagreed,

reasoning that if Llamas-Villa was “arrested for violating the condition, he will have an

opportunity to assert that he was not aware that the individuals with whom he had associated were

using, possessing, or dealing drugs.” Id. at 455-56.

       We agree with the rationale set forth in Vega and Llamas-Villa. Although the condition

could be improved by expressly prohibiting knowing association, we construe the condition to be

“consistent with well-established jurisprudence under which we presume prohibited criminal acts

require an element of mens rea.” Vega, 545 F.3d at 750. When applying the presumption and

reading the language of the condition in context, an ordinary person can understand what is

prohibited. Further, any imprecision is not likely to expose Gardner to arrest, but if it does, he can




                                                  7
Consolidated Nos. 52646-8-II / 52653-1-II




explain that his association was unknowing. RCW 9.94A.737; WAC 137-104-050; Llamas-Villa,

67 Wn. App. at 456.

       Applying this presumption, we hold that the condition imposed is not subject to arbitrary

enforcement and is therefore not unconstitutionally vague.

B. CONFLICTING CONDITIONS

       Gardner concludes the argument section of his brief by stating that the condition that he

“[r]efrain from associating with drug users or drug sellers” conflicts with the court-ordered

condition that he participate in chemical dependency treatment as a part of his sentence for the

controlled substance offense. Br. of Appellant at 8; CP at 61. Gardner does not provide any

argument, namely whether the alleged conflict makes the condition unconstitutionally vague. We

disagree.

       Community custody conditions “may seek to prevent reversion into a former crime-

inducing lifestyle by barring contact with old haunts and associates, even though the activities may

be legal.” United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991). A condition that prohibits

association with drug users or sellers does not include incidental or inadvertent contacts with drug

users or sellers. Vega, 545 F.3d at 749.

       We disagree that the condition forbidding Gardner’s association with drugs users and

sellers is incompatible with the condition that Gardner participate in chemical dependency

treatment. Gardner’s participation in treatment alone would not constitute association with drug

users and sellers. Participants of court-ordered chemical dependency treatment as a condition to a

criminal sentence are presumably past drug users, not current drug users. Because the plain

meaning of condition prohibits association with “drug users” in the present tense, Gardner would


                                                 8
Consolidated Nos. 52646-8-II / 52653-1-II




not be in violation of the condition by engaging in treatment related activities with other past drug

users. CP at 61. Further, any inadvertent contact Gardner may have with a current drug user that

is participating in drug treatment would not constitute association with that person. Vega, 545

F.3d at 749.

       The condition that Gardner “[r]efrain from associating with drug users or drug sellers” and

participate in drug treatment are not incompatible because Gardner can simultaneously comply

with both conditions. Accordingly, we hold that the trial court properly imposed the conditions.

                                          CONCLUSION

       We hold that the trial court improperly imposed a term of community custody as a part of

Gardner’s sentence for taking a motor vehicle without permission and therefore abused its

discretion when it ordered Gardner to obtain a chemical dependency evaluation and to comply

with recommended treatment as part of his sentence for the motor vehicle offense. We also hold

that the court did not abuse its discretion when it ordered Gardner to “[r]efrain from associating

with drug users” as a community custody condition imposed as a part of Gardner’s sentence for




                                                 9
Consolidated Nos. 52646-8-II / 52653-1-II




possession of a controlled substance. Thus, we affirm in part, reverse in part, and remand for

further proceedings consistent with this opinion.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                     CRUSER, J.
 We concur:



 MAXA, P.J.




 GLASGOW, J.




                                                10
