Filed 4/18/17 P. v. Case CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

SHAUN MICHAEL CASE,

Defendant and Appellant.
H043020
(Monterey County
Super. Ct. Nos. SS130570A,
SS150065A)

I. INTRODUCTION
In 2013, in case No. SS130570A, defendant Shaun Michael Case pleaded no contest to transportation of heroin (Health & Saf. Code, § 11352, subd. (a)) and possession for sale of a controlled substance (§ 11351). He also admitted that he had suffered one prior felony drug conviction (§ 11370.2, subd. (a)). In 2014, the trial court sentenced defendant nine years, with the first three years to be served in jail and the remaining six years to be served under mandatory supervision. (See Pen. Code, § 1170, subd. (h)(5)(B).)
In 2015, in case No. SS150065A, defendant pleaded no contest to possession for sale of heroin (§ 11351) and admitted that he had suffered one prior felony drug conviction (§ 11370.2, subd. (a)). Based on defendant’s plea in this case, he was found in violation of mandatory supervision in the earlier case (No. SS130570A).
In the earlier case (No. SS130570A), the trial court revoked mandatory supervision and ordered defendant to serve his remaining term in jail. In the later case (No. SS150065A), the court sentenced defendant to six years, with the first four years to be served in jail and the remaining two years to be served under mandatory supervision. (See Pen. Code, § 1170, subd. (h)(5)(B).) The sentence was to run concurrent to the sentence in the earlier case.
On appeal, defendant does not raise any issues in the earlier case (No. SS130570A). In the later case (No. SS150065A), defendant contends that one of the conditions of mandatory supervision prohibiting him from associating with people “known to you to use or traffic in controlled substances” is unconstitutionally overbroad.
For reasons that we will explain, we will modify the judgment regarding the ordered condition of mandatory supervision, and we will affirm the judgment as modified.
II. FACTUAL AND PROCEDURAL BACKGROUND REGARDING
CASE NO. SS150065A
In September 2014, law enforcement officers were traveling to defendant’s residence to conduct a probation search when they observed defendant walking. Officers contacted defendant, who permitted a search of his person. Defendant had 22.5 gross grams of black tar heroin in one pocket and two hypodermic needles in another pocket. A search of defendant’s residence revealed three boxes of lidocaine patches, which was only available by prescription. According to one officer, it appeared the patches were prescribed to defendant’s aunt, who also resided at the home. Text messages indicative of drug sales were discovered on defendant’s phone. After being advised of his Miranda rights, defendant admitted that he had been selling heroin for about two months and that he was also a heroin user.
In April 2015, defendant was charged by information with possession for sale of heroin (§ 11351). The information further alleged that defendant had suffered two prior felony drug convictions (§ 11370.2, subd. (a)).
In May 2015, defendant pleaded no contest to possession for sale and admitted that he had suffered one prior felony drug conviction. Defendant entered his plea and admission with the understanding that he would receive a maximum sentence of seven years. The remaining prior conviction allegation was submitted for dismissal at the time of sentencing.
In November 2015, the trial court sentenced defendant to six years, with the first four years to be served in jail and the remaining two years to be served under mandatory supervision. (See Pen. Code, § 1170, subd. (h)(5)(B).) The sentence consists of a three-year term for the substantive offense and a consecutive three-year term for the prior conviction allegation. The court dismissed the remaining prior conviction allegation pursuant to Penal Code section 1385. Relevant to this appeal, one of the conditions of mandatory supervision states: “Not knowingly use or possess alcohol, intoxicants, or other controlled substances without the prescription of a physician; not traffic in, or associate with persons known to you to use or traffic in controlled substances.”
III. DISCUSSION
Defendant contends that the condition of mandatory supervision prohibiting him from associating with people who use controlled substances is unconstitutionally overbroad, because it prohibits him from associating with a person who is using a controlled substance with a doctor’s prescription.
When a defendant is on mandatory supervision, the defendant must “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 mandatory supervision has been characterized as “akin to probation” (People v. Griffis (2013) 212 Cal.App.4th 956, 963, fn. 2), courts have also observed that mandatory supervision is in some respects “more similar to parole than probation” (People v. Fandinola (2013) 221 Cal.App.4th 1415, 1423; accord, People v. Martinez (2014) 226 Cal.App.4th 759, 763 (Martinez)). For that reason, mandatory supervision conditions have been analyzed “under standards analogous to the conditions or parallel to those applied to terms of parole.” (Martinez, supra, at p. 763.) Nonetheless, the standard for analyzing the validity and reasonableness of parole conditions is “the same standard as that developed for probation conditions.” (Id. at p. 764.) Moreover, it has been stated that “[t]he criteria for assessing the constitutionality of conditions of probation also applies to conditions of parole. [Citations.]” (In re Stevens (2004) 119 Cal.App.4th 1228, 1233.)
“The fundamental goals of parole are ‘ “to help individuals reintegrate into society as constructive individuals” [citation], “ ‘to end criminal careers through the rehabilitation of those convicted of crime’ ” [citation] and to [help them] become self-supporting.’ [Citation.]” (Martinez, supra, 226 Cal.App.4th at p. 763.) Generally, the goals of probation are rehabilitation of the defendant and protection of public safety. (People v. Olguin (2008) 45 Cal.4th 375, 380; People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.)
In the context of probation conditions, the California Supreme Court has stated that a 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. [Citation.]” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) Moreover, a defendant may, for the first time on appeal, attack a condition on the limited ground that the condition is unconstitutionally overbroad on its face. (Id. at pp. 887-889.)
In this case, the mandatory supervision condition at issue states: “Not knowingly use or possess alcohol, intoxicants, or other controlled substances without the prescription of a physician; not traffic in, or associate with persons known to you to use or traffic in controlled substances.”
Defendant contends that portion of the condition prohibiting him from associating with “persons known . . . to use or traffic in controlled substances” is unconstitutionally overbroad because it does not distinguish between lawful and unlawful use. (Italics added.) He argues that it precludes him from “meeting someone who took a prescription drug, lawfully under a doctor’s prescription, the night before.” Defendant contends that “[t]he State cannot have any legitimate purpose in preventing [him] from associating with any and all persons in any and all circumstances who lawfully use a controlled substance under a doctor’s prescription.” Defendant contends that the condition should be modified to prohibit him from associating with people who he knows to be “unlawfully” using or trafficking in controlled substances.
The Attorney General implicitly concedes that the mandatory supervision condition is intended to only prohibit defendant from associating with people who use controlled substances without a physician’s prescription. The Attorney General contends, however, that no modification of the condition is warranted because the condition, “[w]hen reasonably and practically construed,” already implies the prescription limitation. Specifically, the latter part of the clause at issue prohibiting defendant from associating with users of “controlled substances” must be understood to include the limiting phrase “without the prescription of a physician,” because that limiting phrase is attached to “controlled substances” in the initial clause, which prohibits defendant from using controlled substances without a prescription. Further, the latter part of the clause includes the word “traffic,” which according to the Attorney General “has a distinctly illegal connotation.”
In reply, defendant contends that, because the initial clause, but not the latter clause, refers to the prescription limitation, a reasonable interpretation is that the latter clause does not include the prescription limitation. Defendant requests that the mandatory supervision be modified to preclude association with persons who “use controlled substances without a doctor’s prescription.”
We observe that another condition of defendant’s mandatory supervision states that he shall “[n]ot associate with any individuals you know, have reason to know, or are told by the probation officer are . . . illegal drug users . . . .” In another words, defendant is prohibited by this other condition from associating with “illegal drug users.” In contrast, the condition at issue, which prohibits defendant from associating with people who “use . . . controlled substances,” could be construed to prohibit his association with individuals who lawfully use controlled substances. We will order the condition modified to expressly prohibit his association with people who unlawfully use controlled substances.
IV. DISPOSITION
In case No. SS150065A, the judgment is ordered modified as follows. The condition of mandatory supervision stating, “Not knowingly use or possess alcohol, intoxicants, or other controlled substances without the prescription of a physician; not traffic in, or associate with persons known to you to use or traffic in controlled substances,” is modified to state as follows: “Not knowingly use or possess alcohol, intoxicants, or other controlled substances without the prescription of a physician; not traffic in, or associate with persons known to you to unlawfully use or traffic in controlled substances.” As so modified, the judgment is affirmed.



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BAMATTRE-MANOUKIAN, J.





WE CONCUR:




__________________________
ELIA, ACTING P.J.







__________________________
MIHARA, J.














People v. Case
H043020