Filed 10/11/17 P. v. Williams CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Don Penner, Judge.

Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Donald Williams, Jr. appeals his sentence following his entry of a no contest plea to second degree burglary. He contends three conditions of his mandatory supervision are, facially, unconstitutionally overbroad or vague. We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND[1]

On September 28, 2016, around 5:00 p.m., defendant took two weed-eater tools and a microwave from a shed next to a residence. A law enforcement officer saw defendant on the property and detained him. A search of defendant uncovered a methamphetamine-smoking pipe. A baggie containing 0.690 grams of methamphetamine was also found on the ground near a portable toilet the officer had seen defendant briefly disappear behind after the officer initially called out to get defendant’s attention.

On September 30, 2016, a complaint charged defendant with second degree burglary (Pen. Code,[2] §§ 459, 460, subd. (b); count 1) and three misdemeanors, including petty theft (§ 484, subd. (a); count 2), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 3), and possession of a device for smoking a controlled substance (Health & Saf. Code, § 11364; count 4). The complaint further alleged defendant had suffered one prior prison term (§ 667.5, subd. (b)).

On October 7, 2016, defendant entered a negotiated plea of no contest to the burglary count and admitted the prior prison term allegation in exchange for a three-year sentencing lid and dismissal of the remaining counts in this case and in two unrelated misdemeanor cases (“M15921441 and M15924621”).

On November 8, 2016, the trial court sentenced defendant to a total prison term of three years by imposing the middle term of two years for the burglary plus one year for the prior prison term. The court ordered defendant to serve 18 months of his sentence in the county jail and the remaining 18 months on mandatory supervision (§ 1170, subd. (h)(5)(B)), subject to terms and conditions set forth in the probation report, and ordered defendant to pay various fines and fees.

DISCUSSION

On appeal, defendant challenges three conditions of his mandatory supervision, claiming each, on its face, is unconstitutionally overbroad or vague. Specifically, he challenges the conditions requiring him to (1) seek and maintain gainful employment during the mandatory supervision period, (2) not leave the state without the consent of the probation officer or trial court, (3) not possess any tampering device, which would alter or affect the administration or results of the court-ordered drug testing. Assuming defendant did not forfeit his claims by failing to object below, we conclude they fail on the merits.

Applicable Legal Principles

In reviewing the validity of conditions of mandatory supervision, which are analogous to conditions of parole, courts have applied standards developed to analyze the validity of conditions of probation. (People v. Relkin (2016) 6 Cal.App.5th 1188, 1194.)

Whether a term of probation is unconstitutionally overbroad or vague presents a question of law, which we review de novo. (In re J.H. (2007) 158 Cal.App.4th 174, 183.)

“A restriction is unconstitutionally overbroad ... if it (1) ‘impinge[s] on constitutional rights,’ and (2) is not ‘tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.’ [Citations.] The essential question in an overbreadth challenge is 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 (E.O.).)

On the other hand, “[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.” ’ [Citations.] A restriction failing this test does not give adequate notice—‘fair warning’—of the conduct proscribed.” (E.O., supra, 188 Cal.App.4th at p. 1153.)

Employment Condition

The first condition defendant challenges requires him to seek and maintain gainful employment during the period of mandatory supervision. Defendant contends the condition is “facially over broad and vague … because it fails to account for lack of opportunity.” Defendant argues that the way the condition is written, if he tries to find a job and fails for lack of opportunity, he will be found in violation of his mandatory supervision. He therefore requests the condition be modified to require him to seek and maintain gainful employment as available.

Like probation conditions, mandatory supervision conditions must be given a reasonable and practical interpretation. (See People v. Lopez (1998) 66 Cal.App.4th 615, 630.) Here, the condition that defendant seek and maintain gainful employment is reasonably interpreted to include honest attempts to become employed. Defendant will likely not be found in violation of probation if he is making reasonable attempts to seek employment under circumstances in which employment opportunities are limited. Moreover, the condition is sufficiently clear for defendant to know what is required of him. (See E.O., supra, 188 Cal.App.4th at p. 1153.)

Travel Limitation

Next, defendant challenges the condition prohibiting him from leaving the state without first obtaining the consent of his probation officer or the trial court. He argues the condition is “unconstitutionally overbroad on its face and should be stricken” because it impinges on his right to travel without being “narrowly tailored to any legitimate purpose concerning [defendant], his crime of conviction, or his rehabilitation.”

Contrary to defendant’s argument, the condition requiring him to obtain prior approval to leave the state is closely related to the legitimate goal of his rehabilitation.

“Imposing a limitation on probationers’ movements as a condition of probation is common, as probation officers’ awareness of probationers’ whereabouts facilitates supervision and rehabilitation and helps ensure probationers are complying with the terms of their conditional release.” (People v. Moran (2016) 1 Cal.5th 398, 406.)

This limitation clearly facilitates defendant’s rehabilitation as it helps the probation officer to ensure defendant complies with the mandatory supervision conditions that target defendant’s addiction to controlled substances and require his physical presence in the state so he can complete them. Such conditions include those requiring defendant to submit to drug testing and to enroll in and successfully complete a drug treatment and aftercare program as directed by his probation officer.

Prohibition Against Possession of Tampering Device

Lastly, defendant challenges the mandatory supervision condition prohibiting his possession of a tampering device which would alter or affect the administration or results of his drug tests. Defendant contends the condition is unconstitutionally vague because it neither contains a definitive list of qualifying devices or a knowledge (or scienter) requirement that would otherwise save the condition from his vagueness challenge.

To evaluate properly the validity of the challenged condition, it is necessary to recognize that it is not a stand-alone condition of defendant’s mandatory supervision but one of a number of provisions contained in a single condition relating to defendant’s possession and use of controlled substances. As set forth in the probation report, the condition states:

“You shall not use, possess or have under your custody or control any narcotics, controlled substances, or narcotic paraphernalia without a valid prescription. You must abstain from the use of marijuana. Do not knowingly associate with those who use or possess any narcotics or controlled substances. Submit to drug testing. Do not possess any tampering device, which would alter or [a]ffect the administration or results of the drug test.” (Italics added.)

When viewed in context of the condition as a whole, and in light of the qualifying term “tampering,” which indicates purposeful action, the challenged provision is reasonably interpreted to prohibit defendant from possessing any device he knows has been designed to interfere improperly with (i.e., tamper with) the administration or results of any of his court-ordered drug tests. The provision is sufficiently precise to give defendant fair warning of the prohibited conduct and does not require an explicit knowledge requirement to render it constitutionally valid.

For all the reasons discussed above, none of the challenged conditions of defendant’s mandatory supervision is unconstitutionally overbroad or vague under the applicable legal principles set forth above. We find defendant’s contrary arguments unpersuasive and the authorities on which he relies non-dispositive.

DISPOSITION

The judgment is affirmed.