P. v. Brown

Filed 7/27/06 P. v. Brown CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Pursuant to a negotiated disposition, appellant pleaded no contest to one count of inflicting corporal injury on a cohabitant. (Pen. Code, § 273.5, subd. (a).) The trial court suspended execution of a four-year prison term and placed appellant on probation for four years with terms and conditions that included a one-year county jail sentence. Appellant contends that the trial court erroneously imposed the upper term of his suspended prison sentence and improperly imposed probation conditions. We modify the probation conditions and affirm the judgment.

Background

In return for the dismissal of three related felony counts and two misdemeanors and the striking of prior conviction allegations, and with the understanding that he would be granted probation, appellant pleaded no contest to one count of inflicting corporal injury on a cohabitant. The charges arose from an altercation between appellant and his then girlfriend during which he kicked in the door to her apartment and punched her in the mouth. At the time of his plea, appellant was advised that the maximum penalty for the offense to which he was pleading no contest was four years in state prison. The court told appellant, "That means if you violate the felony probation you'll be sent to state prison for four years." Appellant acknowledged that he understood this.

The probation officer who prepared the report for the trial court recommended a state prison sentence largely because of appellant's criminal history. In a well-expressed and insightful written statement to the court, appellant requested probation. The trial court said, "it's a stretch to find you eligible for felony probation." Nevertheless, the court imposed and then suspended execution of the upper term four-year state prison sentence, finding various factors in aggravation to be true. The trial court placed appellant on probation for four years with terms and conditions that included a one-year county jail sentence and that, "You're not to use or possess alcohol, narcotics or drugs or other controlled substances without the prescription of a physician, not traffic in or associate with persons who use or traffic in narcotics or other controlled substances" and "You're not to associate with any individuals known to be on probation or parole."

Imposition of the Upper Term

Appellant contends, "the trial court erroneously imposed the upper term in violation of Blakely v. Washington (2004) 542 U.S. 296." He argues that the sentence here was imposed in violation of Blakely and his state and federal constitutional rights to have his sentence based only on facts found by a jury. For reasons set forth in People v. Black (2005) 35 Cal.4th 1238, the California Supreme Court has held that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence under California law does not violate a defendant's right to a jury trial under the principles set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 and Blakely. (Id. at pp. 1244, 1254.) We recognize that the United States Supreme Court has granted certiorari in Cunningham v. California (05-6651; cert. granted February 21, 2006), a case which raises the question of the applicability of Blakely to the California sentencing scheme. However, we must follow the holding in Black, which is binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we reject appellant's claim of sentencing error based on Blakely.

The Probation Condition

Appellant challenges the probation conditions that he "not traffic in or associate with persons who use or traffic in narcotics or other controlled substances" and not "associate with any individuals known to be on probation or parole." Appellant contends, "The court improperly imposed conditions of probation that prohibited contact with disapproved persons regardless of whether appellant was aware that such persons were disapproved." He asserts, "these restrictions violated appellant's rights to freedom of association and due process and must be stricken. (U.S. Const., Amends. I, XIV; Roberts v. United States Jaycees (1984) 468 U.S. 609, 622; Lanzetta v. New Jersey (1939) 306 U.S. 451, 458.)" He argues that these conditions are overbroad because they prohibit him from associating with drug traffickers or probationers or parolees whether or not appellant is aware of the person's status as such.

Respondent counters that appellant waived this claim by failing to object when the trial court imposed the probation conditions. In People v. Welch (1993) 5 Cal.4th 228, 237, our Supreme Court held that failure to object to the reasonableness of a probation condition in the trial court waives the claim on appeal. (See In re Bushman (1970) 1 Cal.3d 767, 777, disapproved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1.) Here, appellant is not challenging the conditions on reasonableness grounds, but on constitutional grounds. There is a split of authority regarding whether the Welch waiver rule applies to claims that a probation condition is unconstitutionally vague, and the matter is now before the Supreme Court in the context of a juvenile probation condition. (In re Sheena K. (2004) 116 Cal.App.4th 436, review granted June 9, 2004, S123980.) We will consider the merits of appellant's challenge.

In People v. Garcia (1993) 19 Cal.App.4th 97, the Court of Appeal limited a probation condition that prohibited the defendant from associating with certain groups of persons (drug users and sellers and felons) because the condition did not require that the defendant have knowledge of the status of these persons. The court modified the condition to prohibit knowing association with those persons. (Id. at pp. 102-103.) This modification was made because the condition was not "sufficiently narrowly drawn." (Id. at p. 102.)

Similarly, People v. Lopez (1998) 66 Cal.App.4th 615, the Court of Appeal, relying on Garcia, concluded that a condition which prohibited the defendant from "associating with persons not known to him to be gang members" was overbroad and modified the condition to prohibit association with known gang members. (Id. at pp. 628-629.) For the same reason, the court modified a condition which would have prohibited the defendant from "displaying indicia not known to him to be gang related," so that it applied only to those indicia that the defendant knew to be gang related. (Id. at p. 629.)

We agree with Garcia and Lopez that, in the absence of a knowledge requirement, probation conditions of the type imposed here are not narrowly tailored. The associational prohibition with regard to people who traffic in narcotics or who are on probation or parole requires that appellant be aware of the status or narcotics activities of the associate. Such probation conditions are necessary to tailor the conditions to serve appellant's reformation and rehabilitation. If he does not know whom to avoid, he will not be able to choose to comply with the conditions but will be in danger of unknowingly violating the conditions. This would not assist in his reformation.

Respondent contends that knowledge is implicit in the probation conditions. Without an explicit knowledge requirement, the challenged probation conditions are unconstitutional in rendering appellant vulnerable to punishment for associating with people not known to him to be drug traffickers, probationers or parolees. (See Lopez, supra, 66 Cal.App.4th at pp. 628-629; Garcia, supra, 19 Cal.App.4th at pp. 102-103.) Given "the rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights," we agree with appellant that the knowledge requirement "should not be left to implication." (Garcia, supra, 19 Cal.App.4th at p. 102.) The unconstitutional defect is easily remedied by modifying the condition to expressly require knowledge.

Disposition

The judgment is modified so that the conditions discussed above now read as follows: "You are not to traffic in or associate with persons who are known to you to traffic in or use controlled substances" and "You are not to associate with any individuals who are known to you to be on probation or parole." (Modification italicized.) As so modified, the judgment is affirmed.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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