Filed 10/18/17 P. v. Harvey CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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After he was convicted of theft from an elder or dependent adult, defendant Phillip Alan Harvey appeals a number of the mandatory supervision conditions imposed on him.

Specifically, he contends: (1) the conditions requiring him to maintain a residence as approved by the probation officer (condition 4), to obtain written permission from his probation officer before leaving the state (condition 6), and prohibiting him from living in any residence with anyone over the age of 50 years old (condition 66) are unconstitutionally overbroad and vague, and infringe on his constitutional rights to travel and association; (2) the condition prohibiting him from associating with anyone known to be on mandatory supervision, parole or probation, except with the probation officer’s permission (condition 5), is overbroad in that it may include his wife or family members; and (3) the condition compelling him to take prescribed medication is unconstitutionally overbroad (condition 40). The People agree conditions 4, 40, and 66 are overbroad, but argue the conditions are otherwise constitutional. We find conditions 4, 40, and 66 are unconstitutionally overbroad and remand to the trial court to either strike or narrowly tailor the conditions.

FACTUAL AND PROCEDURAL BACKGROUND

Among other counts, defendant was charged with theft from an elder or dependent adult and three counts of procuring and offering a false or forged instrument. Defendant pled no contest to theft from an elder adult and one count of offering a false instrument, and the remaining counts were dismissed.[1] As part of the plea, defendant agreed to be sentenced to the upper term, with a Harvey[2] waiver.

After the plea, but prior to sentencing, the trial court granted defendant’s request to represent himself. While representing himself, defendant filed various motions, including a motion to withdraw his plea and motions to strike charges against him. During the course of the hearings on these motions, the trial court declared a doubt as to defendant’s competency and referred him for evaluation. After the evaluation, the trial court found defendant competent and reinstated the criminal proceedings. The trial court denied defendant’s various motions.

Prior to sentencing, the trial court granted the People’s motion to dismiss the charge of offering a false instrument in the interests of justice. The trial court asked the parties to argue on the issue of whether the sentence should be a mandatory supervision sentence. The People argued defendant had a significant criminal history, dating back to 1990, which included convictions for larceny, conspiracy to commit forgery, and forgery among other offenses. The People also said, “the nature of the offenses in this case, . . . an elderly gentleman was taken advantage of. Probably lacked capacity to enter into legal agreements. A power of attorney was authored in his name and attempted in his name. Attempted to be filed with the Butte County Court. A restraining order was attempted to be obtained by [defendant] and his wife.” The victim was 90 years old at the time of the offense.

The trial court imposed the upper term of four years as a split sentence. The trial court noted defendant’s behavior in court had been so outrageous, the trial court had “honestly believed [defendant] might have a mental illness that prevented him from going forward.” The trial court imposed various terms and conditions for mandatory supervision, including, as relevant to the claims made here on appeal:

“4. You must maintain your residence as approved by the probation officer and not change your residence without the prior written approval of the probation officer.”

“5. Do not associate with anyone known to you to be on mandatory supervision, probation or parole, except with the permission of the probation officer.”

“6. You must not leave the State of California without having first received written permission from the probation officer. . . .”

“40. ngest all medications as prescribed by Behavioral Health and not terminate the use of such medication, or your participation in counseling or treatment, unless approved by your Probation Officer and staff.”

Defendant contends the trial court erred in imposing mandatory supervision conditions 4, 5, 6, 40, and 66. Although defendant did not object to these conditions, he claims the issues are cognizable on appeal because the conditions are unconstitutionally vague and overbroad on their face. As such, he contends his appeal presents a pure question of law and is not forfeited for failure to object. We agree that defendant’s claims as to the facial constitutionality of the conditions are appealable; however, to the extent he raises claims that go to the reasonableness of the conditions or analysis of the [i]Lent[3] factors, those claims are challenges to the conditions as applied to him and have been forfeited by the failure to object. Thus we will not address them.

“In general, the failure to make a timely objection to a probation condition forfeits the claim of error on appeal.” (People v. Relkin (2016) 6 Cal.App.5th 1188, 1194 (Relkin).) As an exception to this general rule, a challenge to a probation condition may be raised for the first time on appeal if it raises a constitutional claim that presents “a pure question of law turning on undisputed facts.” (Id. at p. 1195.)

When a defendant is given a split sentence and ordered to mandatory supervision, the defendant “shall be supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation.” (Pen. Code, § 1170, subd. (h)(5)(B).) Although a split sentence is not a grant of probation or a conditional sentence (People v. Fandinola (2013) 221 Cal.App.4th 1415, 1422), we analyze the validity of the terms of supervised release under the same standards as those developed for parole and probation conditions (Relkin, supra, 6 Cal.App.5th at pp. 1193-1194). We review constitutional challenges to probation conditions de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)

“A probation condition ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,’ if it is to withstand a challenge on the ground of vagueness.” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) “A probation condition is constitutionally overbroad when it substantially limits a person’s rights and those limitations are not closely tailored to the purpose of the condition. [Citation.] It is not enough to show the government’s ends are compelling; the means must be carefully tailored to achieve those ends. A state may restrict a constitutional right, but only when the restriction is narrowly drawn to serve a compelling state interest.” (People v. Harrisson (2005) 134 Cal.App.4th 637, 641.) “ ‘If a probation condition serves to rehabilitate and protect public safety, the condition may “impinge upon a constitutional right otherwise enjoyed by the probationer, who is ‘not entitled to the same degree of constitutional protection as other citizens.’ ” ’ ” (People v. Stapleton (2017) 9 Cal.App.5th 989, 993.)

General Condition 4

This condition requires defendant to “maintain your residence as approved by the probation officer and not change your residence without the prior written approval of the probation officer.” Defendant contends this condition impermissibly impinges on his “federal and state Constitutional rights to travel and free association.” Based on the decision in People v. Bauer (1989) 211 Cal.App.3d 937, the People agree.

Bauer involved a challenge to a condition virtually identical to the one imposed here, requiring the defendant to obtain the probation officer’s approval of his place of residence. (People v. Bauer, supra, 211 Cal.App.3d at pp. 943-945.) The Bauer court struck the condition, finding that requiring the defendant to “obtain his probation officer’s approval of his residence” was an “extremely broad” restriction instead of being one that was “narrowly tailored to interfere as little as possible” with the constitutional right of travel and to freedom of association. (Id. at pp. 940, 944). The condition gave the probation officer free reign to prohibit the defendant from living with or near whomever the probation officer chose -- “that is, the power to banish him.” (Id. at p. 944.)

We believe Bauer is sound and dispositive on the constitutionality of condition 4. The residence approval requirement imposed on defendant gives unbridled authority to his probation officer to restrict where he may live and, consequently, with whom he may associate. Accordingly, we accept the People’s concession. Because “the condition is too broad [it] must either be stricken or rewritten to provide the necessary specificity.” (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1359.)

General Condition 5

Condition 5 prohibits defendant from associating “with anyone known to you to be on mandatory supervision, probation or parole, except with the permission of the probation officer.”

Defendant makes no argument that this condition is facially unconstitutional. Rather, he contends the condition should be modified to include an exception for him to associate with his wife and any other close family members. This claim relates to the reasonableness of the condition as applied to defendant, a matter forfeited by failure to object below.

“[R]estriction of the right of association is part of the nature of the criminal process. Courts in other jurisdictions have upheld the constitutionality of similar conditions on grants of probation or parole. (United States v. Furukawa (9th Cir. 1979) 596 F.2d 921, 922-923 [probationer allowed to associate only with law-abiding persons]; Birzon v. King (2d Cir. 1972) 469 F.2d 1241, 1242-1243 [parole condition prohibiting contact with persons having criminal records permissible].)” (People v. Robinson (1988) 199 Cal.App.3d 816, 818.) Here, the language of the condition is not constitutionally vague or overbroad on its face. It contains both a knowledge requirement and a provision for obtaining permission to associate with a person under mandatory supervision, probation or parole. (See id. at pp. 817-818.) Because we find the condition constitutional on its face, we will not modify the condition.

General Condition 6

Condition 6 prohibits defendant from leaving the state without prior written permission from the probation office. We recently upheld a similar condition in Relkin. We noted, “[w]hile all citizens enjoy a federal constitutional right to travel from state to state (Shapiro v. Thompson (1969) 394 U.S. 618, 629 [22 L.Ed.2d 600, 612 . . .]), that right is not absolute and may be reasonably restricted in the public interest. (In re White (1979) 97 Cal.App.3d 141, 149-150 . . . .)” (Relkin, supra, 6 Cal.App.5th at p. 1195.)

Such a condition is in the public interest, as it assists the probation department in determining “defendant meets the standards of the Uniform Act for Out-of-State Probationer and Parolee Supervisions before he is allowed to go to another state (Pen. Code, § 1203.) Also it minimizes extradition problems.” (People v. Thrash (1978) 80 Cal.App.3d 898, 902.) “[T]he condition’s limitation on interstate travel is closely tailored to the purpose of monitoring defendant’s travel to and from California not by barring his ability to travel altogether but by requiring that he first obtain written permission before doing so.” (Relkin, supra, 6 Cal.App.5th at p. 1195.) Moreover, the condition is “ ‘ “sufficiently precise for [defendant] to know what is required of him, and for the court to determine whether the condition has been violated.” ’ (In re Sheena K., supra, 40 Cal.4th at p. 890.)” (Relkin, at p. 1196.) Accordingly, this condition is not unconstitutionally overbroad or vague.

Special Condition 40

Condition 40 requires defendant: “Within 72 hours of being granted probation or your release from jail . . . report to the Behavioral Health and cooperate in any psychiatric or psychological treatment, testing, or counseling which may be suggested or recommend [sic] by Behavioral Health. You must authorize the release of any type of reports or records (written or oral) from any psychiatrist, physician, psychologist, or counselor to the Court, Probation Department, and District Attorney. Ingest all medications as prescribed by Behavioral Health and not terminate the use of such medication, or your participation in counseling or treatment, unless approved by your Probation Officer and staff.” Defendant contends this condition is unconstitutionally overbroad and impinges on his rights to due process and privacy. The People agree “[t]o the extent that this condition requires [defendant] to ingest all prescribed medications,” the condition is overbroad.

As in People v. Petty (2013) 213 Cal.App.4th 1410, the condition here is overbroad. “Indeed, the court’s probation order is so broad that it could cover any form of medication, whether or not related to defendant’s mental health or his criminality. [Citation.] Even if we could assume [Behavioral Health] would insist only on his taking mental health medications, we remain concerned that the decision whether defendant must take a particular drug has been delegated to [Behavioral Health] whose exact relationship with defendant is not clear from the record and whose qualification to make medical decisions on defendant’s behalf is not established. (Cf. People v. Leon (2010) 181 Cal.App.4th 943, 953-954 . . . [probation officer may not be given ‘unfettered discretion’ to dictate terms of probation]; U.S. v. Mike (10th Cir. 2011) 632 F.3d 686, 699 [improper to delegate to probation officer decision whether defendant must take psychotropic medications as a condition of supervised release].)” (Petty, at p. 1420.) Again, because the condition is overbroad, we will remand the matter to the trial court to either strike the condition or narrowly tailor it to serve the purpose of the condition.

Special Condition 66

Condition 66 prohibits defendant from residing “in any residence where the owner is over the age of 50.” Defendant contends this condition is unconstitutionally overbroad and vague. He argues the condition is overbroad as he “was 45 years old at the time of sentencing; his total sentence is four years. [Citation.] This condition prohibits appellant from residing with people close to his own age, as well as potentially his close family members such as his siblings or parents.” He states the condition is vague and “overly burdensome . . . , as it requires [defendant] to determine the identity of the owner of the residence and whether that person is over 50; and it prevents him from renting housing from any individual over the age of 50--even if [defendant] has no communication with the owner.”

The condition is not vague. It specifically prohibits defendant from residing in a place where the owner is over the age of 50. That condition is sufficiently precise for defendant to know what is required of him and for the court to determine whether the condition has been violated. (In re Sheena K., supra, 40 Cal.4th at p. 890.) As the People correctly contend, defendant’s arguments as to overbreadth are claims as to the reasonableness of the condition as applied to defendant, not its constitutionality. As above, those claims are forfeited.

However, the People properly concede the condition is overbroad on its face, because it is not narrowly tailored to the purpose of the condition. Defendant was convicted of financial elder abuse. The court’s statements at sentencing indicate it imposed this condition to prevent defendant from having proximity and access to elderly people by virtue of where he lived. However, by statute, an “elder” is any person 65 years or older. (Pen. Code, § 368, subd. (g).) Accordingly, the prohibition on residing in a home where the owner is over the age of 50 does not appear narrowly tailored to serve the purpose of the condition. Accordingly, we will remand the matter to the trial court to either strike the condition or narrowly tailor it to serve the purpose of the condition.

DISPOSITION

The matter is remanded to the trial court with directions either to strike conditions 4, 40, and 66 from the conditions of defendant’s mandatory supervision or to revise the conditions in conformity with this opinion. In all other respects, the judgment is affirmed.

/s/

Robie, Acting P. J.

We concur:

/s/

Butz, J.

/s/

Duarte, J.