Filed 9/19/18 P. v. Gutierrez CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Raul Gutierrez challenges a probation condition requiring him to “maintain full-time employment and/or education or vocational training as directed.” He contends the condition is unconstitutionally vague. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted Gutierrez of bringing a controlled substance into a correctional facility (Pen. Code, § 4573, subd. (a)). The trial court suspended imposition of sentence, placed Gutierrez on probation, and imposed various probation conditions. At the sentencing hearing, the court ordered Gutierrez to “maintain full-time employment and/or educational or vocational training as directed.”[1] Gutierrez did not object.

DISCUSSION

Gutierrez argues the probation condition is vague and overbroad. His claim presents a vagueness challenge, rather than one of overbreadth. (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) We consider his facial constitutional challenge notwithstanding his failure to object to the condition at the sentencing hearing. (In re Sheena K. (2007) 40 Cal.4th 875, 885.) “A restriction is unconstitutionally vague if it is not ‘ “sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated.” ’ ” (E.O., at p. 1153.) “A probation condition should be given ‘the meaning that would appear to a reasonable, objective reader.’ ” (People v. Olguin (2008) 45 Cal.4th 375, 382.) “[T]he probation condition should be evaluated in its context, and only reasonable specificity is required.” (People v. Forrest (2015) 237 Cal.App.4th 1074, 1080.) “Merely because a condition could have been drafted with more precision does not make it unconstitutional.” (People v. Holzmann (2018) 18 Cal.App.5th 1241, 1246.)

Gutierrez claims the probation condition is vague because “it fails to account for lack of opportunity.” According to Gutierrez, if he “tries to find a job or matriculates in an educational or vocational program, but no opportunities exist, then his probation is violated regardless of his efforts.” He requests the condition be modified to require him to seek and maintain gainful employment or training “as available.” The Attorney General contends it is unnecessary to modify the condition because a reasonable and practical interpretation of the condition is that Gutierrez must use his best efforts to obtain employment or training.

We agree. The probation condition requires Gutierrez to seek and maintain full-time employment or training “as directed.” In this context, the condition refers to direction by the court or probation officer. The condition is reasonably interpreted to include good faith attempts to become employed, or to obtain training. Gutierrez will not be found in violation of probation if he makes reasonable attempts at obtaining employment or training. (People v. Hall (2017) 2 Cal.5th 494, 500 [“violation of a probation condition must be willful”].) The challenged probation condition is not vague. (People v. Olguin, supra, 45 Cal.4th at p. 386; People v. Lewis (1978) 77 Cal.App.3d 455, 464 [probation condition requiring defendant to maintain employment approved by probation officer was not unconstitutionally vague].) We decline Gutierrez’s invitation to modify the condition. (See Hall, at p. 503.)

DISPOSITION

The judgment is affirmed.

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Jones, P. J.

We concur:

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Simons, J.

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Bruiniers, J.

A151958