Filed 6/20/17 P. v. White CA5


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RONNIE LEE WHITE,

Defendant and Appellant.

F072566

(Super. Ct. No. F13902185)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. F. Brian Alvarez, Judge.
Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-



Appellant Ronnie Lee White pled no contest to receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)) and was placed on probation. After he violated his probation, the court sentenced him to a three-year local term that included one year on mandatory supervised release with certain terms and conditions. On appeal, White contends the condition of his mandatory release requiring him to obey the lawful directives of his probation officer is unconstitutionally vague and overbroad. We affirm.
FACTS
On December 13, 2012, a woman agreed to give White a ride in her car. After White got in the car, the woman left the keys in the ignition and went inside a house. When she returned, White was driving away in her car. Fresno police officers stopped White a short time later as he drove the woman’s car and arrested him. During a search of the car, officers found a pink pill. They found another pink pill in the shirt White was wearing. A subsequent analysis of the pills disclosed that both of them contained a total of .87 grams of methamphetamine.
On October 17, 2013, White pled no contest to receiving a stolen vehicle in exchange for a three-year lid and the dismissal of two other counts, two prior prison term enhancements and two unrelated cases.
On November 15, 2013, the court sentenced White to a three-year local term. It then suspended execution of sentence and placed him on probation for five years.
On April 21, 2014, and again on June 30, 2014, White failed to appear in court.
On September 15, 2015, White admitted that he violated his probation by failing to appear in court on the dates noted above. The court then terminated White’s probation, lifted the stay of execution on the three-year local term it had previously imposed, and ordered him to serve two years of the sentence in custody and one year on mandatory supervised release with certain terms and conditions. One condition of his mandatory supervised release required White to “obey all … lawful directives of his [probation officer].”
DISCUSSION
The Condition Requiring Obedience of the Probation Officer’s
Lawful Directives is Not Unconstitutionally Vague
White contends the condition requiring him to follow all lawful directives of his probation officer is vague because the word “lawful” has been interpreted in court cases to have multiple meanings and fails to provide adequate notice of what directives he is required to follow. According to White, the word “lawful” has been interpreted by California courts to mean “authorized” (see, e.g., People v. Johnwell (2004) 121 Cal.App.4th 1267, 1284); “reasonable” (see, e.g., People v. Ritter (1980) 115 Cal.App.3d Supp. 1, 5); and noncriminal (see, e.g., Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 380); and it has been treated as surplusage (see, e.g., Shrewbridge v. Police Com. of San Francisco (1944) 64 Cal.App.2d 787, 791) and as encompassing any act performed under color of authority (see, e.g., People v. Nicholson (2004) 123 Cal.App.4th 823, 832). There is no merit to White’s vagueness claim.
Preliminarily, we agree with the parties that the conditions of supervised release are analogous to conditions of probation or parole and that the validity and reasonableness of conditions of mandatory supervised release are evaluated under the same standards.
“[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders’ [citation], protections that are ‘embodied in the due process clauses of the federal and California Constitutions. [Citations.].’ [Citation.] The vagueness doctrine bars enforcement of ‘ “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” [Citation.]’ [Citation.] A vague law ‘not only fails to provide adequate notice to those who must observe its strictures, but also “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” [Citation.]’ [Citation.] In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that ‘abstract legal commands must be applied in a specific context,’ and that, although not admitting of ‘mathematical certainty,’ the language used must have ‘ “reasonable specificity.” ’ [Citation.]
“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. [Citation.] 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.” (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
“When interpreting a probation condition, we rely on ‘context and common sense’ [citation] and give the condition ‘ “the meaning that would appear to a reasonable, objective reader.” ’ ” (In re I.S. (2016) 6 Cal.App.5th 517, 525.) Indeed, White’s citation to different cases in which courts have interpreted the word “lawful” to have different meanings demonstrates that context is important in interpreting the meaning of a word.
Many words, including “lawful,” have multiple meanings whose actual meaning in a particular instance depends on the context of their use. Merriam-Webster’s online dictionary defines lawful as “being in harmony with the law” and “constituted, authorized, or established by the law.” (Merriam-Webster Online Dict., <https://www.merriam-webster.com/dictionary/lawful> [as of May 4, 2017].)
Here, the word “lawful” was used in a condition of supervised release to describe the directives by the probation officer White was required to follow. In this context, the “reasonable” and “common sense” interpretation of “lawful” is that it was intended to mean “authorized” by or “in harmony with the law.” Thus, in conjunction with the word directives, it is clear that the “lawful directives” White is required to follow are those directives that are “authorized by” or “in harmony with the law,” i.e., that are not unlawful.
On September 15, 2015, when the court sentenced him to a three-year local term and told White that he was to obey the “lawful directives” of his probation officer, White did not express any confusion regarding the meaning of “lawful directives.” Accordingly, we conclude that the term “lawful,” as used in the condition at issue, is not unconstitutionally vague.
The Condition Requiring Obedience of the Probation Officer’s
Lawful Directives is Not Unconstitutionally Overbroad
White contends the condition requiring him to follow the lawful directives of the probation officer is unconstitutionally overbroad because it is an open-ended grant of authority that provides the probation officer with unfettered discretion to create new conditions of supervision for him. We disagree.
“[T]he court has the power and responsibility to impose conditions such as drug testing or reporting to the probation department.” (People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240.) Although a probation officer may not create conditions not expressly authorized by the court (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358), “[i]n order to supervise compliance with [probation] conditions, [a probation officer] must have authority to set the time and place for administration of … drug test[s,] [e.g.,] … or when the defendant is to report to the department.… Since the court does not have the power to impose unreasonable probation conditions, it [can]not give that authority to the probation officer through [any of its conditions of supervised release].” (People v. Kwizera, supra, 78 Cal.App.4th at p. 1240.)
Moreover, a condition of supervised release must be considered in the context in which it is found and with regard for its purpose. (Cf. People v. Lopez (1998) 66 Cal.App.4th 615, 631-632.) The condition requiring White to obey the lawful directives of his probation officer was one of numerous conditions White had to obey upon his release on mandatory supervised release. Further, it is obvious that the purpose of this condition was to allow the probation officer to monitor White’s compliance with these conditions. Considering these circumstances, we construe this condition to require White to obey the directives of the probation officer that are related to the probation officer’s supervision of White’s compliance with the conditions of his supervised release. Construed in this manner, the condition requiring White to obey his probation officer’s lawful directives is not unconstitutionally overbroad.
DISPOSITION
The judgment is affirmed.