Filed 11/16/18 P. v. Mora-Villalobos CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions.

Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Jose Eddie Mora-Villalobos pleaded guilty to possessing methamphetamine for sale (Health & Saf. Code, § 11378), and selling or transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a).) He also admitted the weight of the drugs exceeded 10 kilograms (Health & Saf. Code, § 11370.4, subd. (b)(3)) and he was personally armed with a firearm when he the committed the offenses (Pen. Code, § 12022, subd. (c)). He contends three conditions of his postrelease supervision that require his probation officer to approve his residence, employment, and associates are unconstitutionally overbroad, and the trial court erred by imposing a penalty assessment on his laboratory analysis fee. For the reasons expressed below, we direct the trial court to strike a portion of one condition and otherwise affirm the judgment.

I

Factual and Procedural Background

In October 2016, following a preliminary hearing, the Orange County District Attorney filed an information alleging Mora-Villalobos committed the crimes noted above. On April 3, 2017, Mora-Villalobos pleaded guilty and admitted the allegations. He provided a factual basis for his plea by admitting that on October 15, 2015, he possessed and transported methamphetamine for sale, the amount of methamphetamine exceeded 10 kilograms by weight, and he was personally armed with a firearm when he committed his crimes. After Mora-Villalobos waived a probation report, the trial court struck the quantity enhancement and imposed a split sentence of three years in local custody and five years of postrelease community supervision (PRCS) on various terms and conditions.

II

Discussion

A. Residency Approval Condition

After Mora-Villalobos pleaded guilty, he expressly agreed to accept various terms and conditions of mandatory supervision. One of these terms required him to “[s]eek training, schooling, or employment, and maintain residence as approved by your probation or mandatory supervision officer.” Mora-Villalobos contends the probation term requiring him to obtain probation’s approval of his residence is unconstitutionally overbroad because it infringes on his federal constitutional rights to travel and freedom of association, and serves no compelling government interest. (People v. Bauer (1989) 211 Cal.App.3d 937, 942, (Bauer).)

The Attorney General contends Mora-Villalobos forfeited the right to challenge his probation conditions because he failed to object when the trial court sentenced him. The forfeiture doctrine applies if the defendant’s failure to object involves the trial court’s discretionary sentencing choice or imposition of an unreasonable probation condition “premised upon the facts and circumstances of the individual case.” (In re Sheena K. (2007) 40 Cal.4th 875, 885 (Sheena K.).) But Mora-Villalobos does not rely on the specific facts and circumstances of his case in challenging certain probation conditions. Rather, his overbreadth claim is a “‘facial challenge’” to the scope of his probation terms, which “does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts – a task that is well suited to the role of an appellate court. (Ibid.)” We therefore consider the merits of Mora-Villalobos’s claim.

“A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” (Sheena K., supra, 40 Cal.4th at p. 890.) In analyzing a facial overbreadth challenge, we must examine “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.)

Here, the trial court imposed a burden on Mora-Villalobos’s constitutional right of association and travel when it required a probation officer to approve Mora-Villalobos’s residence. (See Bauer, supra, 211 Cal.App.3d at p. 944.) A court, however, may restrict these constitutional rights if the probation condition relates to the probationer’s reformation and rehabilitation. In deciding this issue, we evaluate the probation term in the abstract “‘“without reference to the particular sentencing record developed in the trial court.”’” (Sheena K., supra, 40 Cal.4th at p. 889.) “Our inquiry does not take into account the individual facts pertaining to this particular probationer – as would an ‘as applied’ challenge – but it must take into account the nature of the case and the goals and needs of probation in general.” (People v. Stapleton (2017) 9 Cal.App.5th 989, 993.)

With these principles in mind, we conclude the residence-approval condition is not constitutionally overbroad when viewed in the abstract. It is beyond dispute certain probationers require more intensive supervision to reform their behavior. For example, the reformation and rehabilitation of a convicted drug offender would be thwarted if the probation officer could not prohibit the defendant from residing with other drug users. Mora-Villalobos’s overbreadth challenge therefore fails.

We acknowledge a residence-approval condition could be overbroad as applied in certain cases. Trial courts should evaluate the circumstances of each case in fashioning appropriate restrictions to ensure they are tailored to promote the defendant’s rehabilitation. As-applied challenges are fact-driven inquiries which examine whether the manner or circumstances in which the condition has been applied was constitutional. An as-applied challenge is simply better suited to resolve constitutional claims like the one here. The United States Supreme Court has emphasized that consideration of as-applied challenges, as opposed to broad facial challenges, “‘is the preferred course of adjudication since it enables courts to avoid making unnecessary broad constitutional judgments.’” (Brockett v. Spokane Arcades (1985) 472 U.S. 491, 501-502.) Because Mora-Villalobos failed to raise an as-applied challenge in the trial court, we must resolve his claim without reference to the sentencing record.

Mora-Villalobos contends we cannot properly evaluate his overbreadth claim without taking into account his individual circumstances. He asserts a reviewing court must account for individualized factors under the overbreadth doctrine to determine whether the sentencing court carefully tailored its probation conditions limiting the probationer’s constitutional rights to the purpose of the condition. (Sheena K., supra, 40 Cal.4th at p. 890 [“limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad”].] Accepting Mora-Villalobos’s invitation would convert his facial challenge to a claim the residency-approval condition is unconstitutional as applied to him. (See Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 [“A facial challenge . . . considers only the text of the measure itself, not its application to the particular circumstances of the individual”].) Taking into account Mora-Villalobos’s individual factors would no longer present us with “pure questions of law,” but necessarily would require evaluation of “the particular sentencing record developed in the trial court,” an undertaking at odds with Mora-Villalobos’s claim the residency-approval condition is unconstitutionally overbroad on its face.

Mora-Villalobos would fare no better even if we considered his particular circumstances. The condition requiring approval of Mora-Villalobos’s residence reasonably serves the compelling state interest in his reformation and rehabilitation, and reasonably serves to protect public safety by preventing future criminality. The transcripts from the preliminary hearing and motion to suppress hearing reflect Mora-Villalobos and codefendant Alberto Angel Robles were stopped in a car containing over 40 pounds of methamphetamine in 18 sealed packages, a loaded handgun, and three cell phones. Another vehicle accompanying theirs contained $12,000 in cash. The record also reflects Mora-Villalobos associated with a codefendant to possess and transport a large quantity of methamphetamine while armed. It necessarily follows that where and with whom Mora-Villalobos lives may directly affect his rehabilitation. Without a residency limitation, Mora-Villalobos could live with or near others who engage in the drug trade. Based on the nature of Mora-Villalobos’s crimes, a probation officer must know where he resides and with whom he is associating to deter future criminality, and the court may assign to the probation officer the authority to approve or disapprove Mora-Villalobos’s residence based on his rehabilitation.

A “condition of probation that enables a probation officer to supervise his or her charges effectively is . . . ‘reasonably related to future criminality.’” (People v. Olguin 45 Cal.4th 375, 380-381 (Olguin) [condition requiring the defendant to notify his probation officer of the presence of any pets at his residence reasonably related to future criminality because it serves to inform and protect a probation officer charged with supervising probationer’s compliance].) The scope of a “condition should be given ‘the meaning that would appear to a reasonable, objective reader.’” (Id. at p. 382.) A probation officer may not issue directives that are unreasonable in light of the authority granted to the officer by the court, thus it is “presume[d] a probation officer will not withhold approval for irrational or capricious reasons.” (People v. Arevalo (2018) 19 Cal.App.5th 652, 658 (Arevalo).) In other words, a probation officer will not have “unbridled authority to determine where” Mora-Villalobos can live, and cannot use the residence condition to arbitrarily disapprove his place of residence. (People v. Stapleton (2017) 9 Cal.App.5th 989, 996 (Stapleton) [approving a residence approval condition].) Nothing suggests the officer will disapprove a residence for capricious reasons, or that it will be impractical for Mora-Villalobos to find a place to live with the approval requirement.

Bauer, cited by Mora-Villalobos, is distinguishable. There, the reviewing court struck a residence condition apparently designed to prevent the defendant from living with his overprotective parents. The appellate court found nothing in the record to suggest the defendant’s home life contributed to his crimes of false imprisonment and simple assault or that living at home reasonably related to future criminality. The court therefore held the probation condition was unconstitutionally overbroad because it impinged on the defendant’s right to travel and freedom of association and gave the probation officer the power to forbid the defendant “from living with or near his parents – that is, the power to banish him.” (Bauer, supra, 211 Cal.App.3d at p. 944.)[1] Here, there is no indication the residence condition is intended to banish Mora-Villalobos or to prevent him from generally living where he pleases. We conclude the trial court did not abuse its discretion in imposing the condition that defendant reside at a residence approved by the probation officer. (Stapleton, supra, 9 Cal.App.5th at p. 997; see In re G.B. (2018) 24 Cal.App.5th 464, 469-471; see also Arevalo, supra, 19 Cal.App.5th at pp. 657-658.)

B. Associating with Persons Disapproved by Probation Officer

The trial court also imposed a condition prohibiting Mora-Villalobos from associating with “persons known to [him] to be parolees, on post-release community supervision, convicted felons, users or sellers of illegal drugs, or otherwise disapproved of by probation or mandatory supervision.” (Italics added.) Mora-Villalobos contends the italicized language violates his constitutional right of association because it gives the mandatory supervision officer unlimited control over him. We agree.

As explained in People v. O’Neil (2008) 165 Cal.App.4th 1351, “There are many understandable considerations of efficiency and practicality that make it reasonable to leave to the probation department the amplification and refinement of a stay-away order. The court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court’s order cannot be entirely open-ended. It is for the court to determine the nature of the prohibition placed on a defendant as a condition of probation, and the class of people with whom the defendant is directed to have no association.” (Id. at pp. 1358-1359, italics added.)

Like the condition at issue here, the condition in O’Neil prohibited the defendant from associating with any person disapproved of by his probation officer. In particular, the condition required O’Neil not to “‘associate socially, nor be present at any time, at any place, public or private, with any person, as designated by [his] probation officer.’” (O’Neil, supra, 165 Cal.App.4th at p. 1354.) Because the condition contained no standard to guide the officer in its implementation, the court struck down the condition as overbroad, concluding it “permit[ted] an unconstitutional infringement on defendant’s right of association.” (Id. at p. 1358.)

The condition requiring Mora-Villalobos to stay away from anyone disapproved of by his probation officer also fails to provide any standard to guide the officer in its implementation. (See In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1372 [courts may not delegate the exercise of their discretion to probation officers; probation officer may not independently impose an altogether new, nonderivative probation term which does not flow logically from a general term].) The condition does not suggest a connection between the enumerated persons and persons disapproved by the probation officer. Instead, the condition creates two separate categories of prohibited persons, those expressly enumerated and those “otherwise disapproved of” by probation.[2]

The Attorney General argues a condition granting probation officer discretionary authority does not authorize the officer to act irrationally or capriciously, and a supervision condition “should be given ‘the meaning that would appear to a reasonable, objective reader.’ [Citation.]” (Olguin, supra, 45 Cal.4th at pp. 382-383.) He asserts we should view the association approval condition here in light of Olguin and presume Mora-Villalobos’ mandatory supervision officer will act reasonably in enforcing the condition. (See Olguin, supra, 45 Cal.4th at p. 383; see also Stapleton, supra, 9 Cal.App.5th at p. 996 [“A probation officer cannot issue directives that are not reasonable in light of the authority granted to the officer by the court”].) Given the open-ended nature of this condition, we decline the invitation. (Cf. People v. Robinson (1988) 199 Cal.App.3d 816, 818 [prohibition on “associating with persons having a known criminal record” imposed “a control over defendant which would assist her in successfully completing probation” and was not unconstitutionally overbroad]; People v. Wardlow (1991) 227 Cal.App.3d 360, 367 [prohibiting contact with family members known to have committed the same crime was not unconstitutionally overbroad].) We will direct the trial court to strike the phrase “or otherwise disapproved of by probation or mandatory supervision.”

C. The Employment Approval Condition

As noted above, Mora-Villalobos expressly agreed to “[s]eek training, schooling, or employment, and maintain residence as approved by [his] probation or mandatory supervision officer.” Mora-Villalobos contends this condition requires him to obtain approval not just for his residence, but also for any employment. He asserts for “similar reasons as the residency requirement . . . this aspect of the condition is unconstitutionally overbroad and must be either stricken or modified accordingly.”

It is not clear that the condition requires the probation officer to approve Mora-Villalobos’s employment. But assuming it does, we do not find the condition overbroad. Mora-Villalobos relies on People v. Burden (1988) 205 Cal.App.3d 1277, where the trial court imposed a probation condition prohibiting the defendant from “‘working in a position of outside or commissioned sales.’” (Id. at p. 1279.) The court found there was no evidence the defendant committed the crimes in connection with his business and therefore there was no rational connection to the employment restriction, either based on the current offense or any risk of reoffending in the future. (Id. at pp. 1280-1281.)

Unlike the situation in Burden, the probation condition in this case does not preclude Mora-Villalobos from holding any particular type of work. Nothing in the record suggests the condition will preclude him from working in current or past employment capacities or positions or of “banishing” him from working where he does or desires to work. As noted above, we should interpret a condition in the manner a reasonable and objective reader would interpret it. A probation officer may not rely on unreasonable interpretations, and it is presumed a probation officer will not withhold approval for irrational or capricious reasons. Nothing suggests a probation officer will capriciously and unreasonably interpret this condition to deny Mora-Villalobos employment opportunities.

D. Penalty Assessment

Mora-Villalobos contends the trial court erred in applying a penalty assessment to the $50 laboratory analysis fee because penalty assessments are not applicable to fees, only fines.[3] Recently, the California Supreme Court in People v. Ruiz (2018) 4 Cal.5th 1100 concluded “the Legislature understood and intended ‘the criminal laboratory analysis fee’ to be a ‘fine’ and a ‘penalty.’” (Id. at p. 1109.) Ruiz disapproved the cases relied on by Mora-Villalobos, which held the crime lab fee was not a “fine, penalty, or forfeiture” subject to penalty assessments, to the extent they were inconsistent with its analysis and conclusion. (Id. at pp. 1120, 1122, fn. 8; People v. Webb (2017) 13 Cal.App.5th 486; People v. Watts (2016) 2 Cal.App.5th 223; People v. Vega (2005) 130 Cal.App.4th 183.) Because the laboratory analysis fee is a fine or penalty, it is subject to penalty assessments. (See Pen. Code, § 1464, subd. (a)(1); Gov. Code, § 76000, subd. (a)(1).)

III

Disposition

The trial court is directed to strike “or otherwise disapproved of by probation or mandatory supervision” from supervision condition number 18 and to notify the appropriate supervising authorities of the modification. In all other respects, the judgment is affirmed.

ARONSON, ACTING P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.