Filed 9/13/18 P. v. Maddox CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed.

Shawn E. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew S. Mestman and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.

I.

INTRODUCTION

A jury found Jada Christai Maddox guilty of one count of assault with a deadly weapon and found true the corresponding allegation that she personally used a dangerous and deadly weapon in the commission of the offense. The trial court placed Maddox on formal probation for a period of three years.

On appeal, Maddox challenges 10 of the conditions of probation as being unconstitutionally vague and overbroad because they impermissibly delegate to the probation officer unfettered discretion to impose the conditions. Maddox also argues that even if we conclude that the trial court did not impermissibly delegate its judicial authority to the probation officer, those same 10 probation conditions are unconstitutionally vague because they fail to provide her with fair notice of what conduct is prohibited. Finally, she asserts that three of the 10 conditions are unconstitutionally overbroad because they infringe on her constitutional rights and are not narrowly tailored to achieve a compelling state interest. We conclude that Maddox has forfeited a number of these contentions, and that to the extent some of her arguments may nevertheless be considered on appeal, they are without merit.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background[1]

Maddox, who was a resident at a women's transitional crisis center, became upset with another woman who was residing at the crisis center when that woman began cooking meat at a time when Maddox believed the woman should not be cooking. Maddox hit the woman on the head with a hot three to five pound solid metal frying pan, causing the victim to suffer burns and hematoma on her head.

B. Procedural background

The San Diego County District Attorney's Office filed a felony complaint, charging Maddox with one count of assault with a deadly weapon (Pen. Code,[2] § 245, subd. (a)(1); count 1), with the allegation that she personally used a dangerous and deadly weapon—a frying pan (§ 1192.7, subd. (c)(23)).

A jury found Maddox guilty on count 1 and found true the allegation that she personally used a dangerous and deadly weapon. The trial court suspended the imposition of sentence and placed Maddox on formal probation for a period of three years, with a number of terms and conditions.

Maddox filed a notice of appeal on October 4, 2017.

III.

DISCUSSION

Maddox challenges 10 of the probation conditions imposed on her by the trial court in its formal probation order. Specifically, Maddox challenges the following conditions:

(1) Condition 6.b.: "Follow such course of conduct that the P.O. communicates to defendant";

(2) Condition 6.e.: "Comply with a curfew if so directed by the P.O.";

(3) Condition 6.r.: "Participate and comply with any assessment program if directed by the P.O.";

(4) Condition 7.d.: "Attend and successfully complete individual, group, substance abuse, . . . [and] CBT [cognitive behavioral therapy] counseling program approved by the P.O., if directed by the P.O.";

(5) Condition 8.b.: "Do not knowingly use or possess alcohol if directed by the P.O.";

(6) Condition 8.c.: "Attend 'self-help' meetings if directed by the P.O.";

(7) Condition 8.f.: "Submit to any chemical test of blood, breath, or urine to determine blood alcohol content and authorize release of results to P.O. or the court whenever requested by the P.O., a law enforcement officer, or the court ordered treatment program";

(8) Condition 8.j.:"Participate in, comply with, and bear all costs associated with a continuous alcohol monitoring device if directed by the P.O.";

(9) Condition 9.a.: "Complete a program of residential treatment and aftercare if directed by the [P.O.]"; and

(10) Condition 10.g.: "Obtain P.O. approval as to residence [and] employment."[3]

A. General legal standards

A trial court has broad discretion to impose probation conditions to foster rehabilitation and reformation of the defendant and protect the public. (§ 1203.1, subd. (j); Brown v. Superior Court (2002) 101 Cal.App.4th 313, 319.) Because probation conditions foster rehabilitation and protect public safety, they may infringe the constitutional rights of the defendant, who is "not entitled to the same degree of constitutional protection as other citizens." (People v. Peck (1996) 52 Cal.App.4th 351, 362.)

B. Maddox's contention regarding impermissible delegation to a probation officer

According to Maddox, "[e]ach of these P.O. Discretion Conditions involves impermissible delegation of the judicial function of deciding the actual conditions of probation to an employee of the executive." She asserts that the delegation to a probation officer of certain decision-making, as well as the "limitless nature of the conditions," renders the conditions unconstitutionally vague and overbroad.

Maddox concedes that she accepted all of the conditions at issue, without objection, at sentencing.[4] Quoting In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.), Maddox contends that she may nevertheless challenge the constitutionality of such conditions to the extent that her contentions raise " ' "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." ' "

Challenges to probation conditions are typically forfeited if not raised when they are imposed (People v. Welch (1993) 5 Cal.4th 228, 234–235), with a narrow exception that a court may exercise its discretion to consider such challenges if they are constitutional challenges presenting pure questions of law. (Sheena K., supra, 40 Cal.4th at p. 885.) However, merely couching a challenge as a constitutional challenge is not a "talisman to ward off forfeiture." (In re R.S. (2017) 11 Cal.App.5th 239, 244.) Not " ' "all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present 'pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court.' [Citation.] In those circumstances, 'traditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court.' [Citation.]" [Citation.] . . . [T]he probationer should object to a perceived facial constitutional flaw at the time a probation condition initially is imposed in order to permit the trial court to consider, and if appropriate in the exercise of its informed judgment, to effect a correction.' " (Ibid.)

We agree that Sheena K. stands for the proposition that a probationer may, under some circumstances, obtain review of a facial constitutional challenge to a probation condition, even absent an objection to the imposition of the condition. However, with respect to the conditions that Maddox challenges—specifically, the questions of delegation to a probation officer to make some determinations as to the implementation of Maddox's probation—the failure to raise an objection and thus allow the trial court to address the probationer's concerns in the first instance, constitutes a forfeiture of these complaints.

To the extent that Maddox had concerns about the court delegating to the probation officer the authority to direct her to comply with any of these conditions and to set the administrative requirements of such conditions, Maddox could have, and should have, objected and asked the trial court to address those concerns at the time the conditions were imposed. Instead, she accepted these conditions, without objection, to avoid imprisonment.[5] In accepting the terms of probation without raising any objection that would have allowed the trial court to address these concerns, Maddox prevented the trial court from being able to set additional terms, or to more narrowly draw the contours of the conditions. Indeed, the court could have had legitimate reasons for leaving some of the conditions open-ended in Maddox's case, and could have stated those reasons on the record if Maddox had raised an objection at the time the conditions were imposed. Specifically, the court could have related its discretionary choices to Maddox's particular needs as a probationer. The purpose of the forfeiture rule is to avoid precisely the situation that we have here, where an objection would have permitted the trial court to address these concerns and/or make a better record to support the court's decisions; the forfeiture rule exists to encourage parties to bring errors to the attention of the trial court so that they may be immediately corrected. (Sheena K., supra, 40 Cal.4th at p. 881.) We conclude that Maddox has forfeited her contentions regarding unconstitutional delegation to the probation officer, and we see no reason to exercise our inherent discretion to consider her claims despite the forfeiture.

C. Maddox's contention regarding unconstitutional vagueness

Maddox argues, in the alternative, that even if this court determines that the court did not impermissibly delegate its judicial authority to the probation officer, all of the challenged probation conditions are unconstitutionally vague because they do not provide her with fair notice of what she must do or refrain from doing, fail to provide standards to determine whether a condition has been violated, and have the " 'potential for arbitrary and discriminatory enforcement . . . .' " She contends that she has no knowledge about "whether she will be subject to any or all of the probation conditions on a given day, or to what extent and under what parameters she will be so subjected."

"[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. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).' [Citation.]" (Sheena K., supra, 40 Cal.4th at p. 890.) "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." (Ibid.) Probation conditions are given " ' "the meaning that would appear to a reasonable, objective reader." ' " (In re I.V. (2017) 11 Cal.App.5th 249, 261 (In re I.V.).)

The record does not demonstrate that Maddox is currently subject to any of the conditions that she challenges, with the exception of condition 10.g., which requires that Maddox obtain her probation officer's approval with respect to her residence and employment and does not include the phrase "if directed by [the probation officer]." We reject Maddox's "vagueness" challenge to the other nine conditions.[6] Because Maddox is not currently subject to these conditions, her vagueness challenge is premature. If, in the future, Maddox is directed by a probation officer to comply with any of the "if directed" conditions in a manner that does not provide her with sufficient information as to the terms of performance or parameters of the condition—in other words, if Maddox is unable to discern what conduct is required of her—she may challenge the manner in which the condition has been implemented by the probation officer by seeking modification of the condition. (See §§ 1203.2, subd. (b)(1), 1203.3, subd. (a); see People v. Keele (1986) 178 Cal.App.3d 701, 708 [trial court retains jurisdiction to review probation officer's actions].)

With respect to condition 10.g., which requires that Maddox obtain her probation officer's approval of her residence and employment, we cannot conclude that the condition is unconstitutionally vague on the ground that it does not provide Maddox with sufficient notice of what is required of her. This condition does not leave Maddox to speculate as to its requirements. Rather, the condition clearly informs Maddox that if she plans to move to a new residence or plans to change her employment, she must obtain her probation officer's approval.

D. Maddox's contentions regarding unconstitutional overbreadth

Maddox contends that three of the challenged conditions—condition 6.b., which requires Maddox to "[f]ollow such course of conduct that the P.O. communicates to defendant"; condition 6.e., which states that Maddox must "[c]omply with a curfew if so directed by the P.O."; and condition 10.g., which requires Maddox to "[o]btain P.O. approval as to residence [and] employment"—are constitutionally overbroad because, she asserts, they "infringe on constitutional rights and are not narrowly tailored to achieve a compelling state interest."[7] (Capitalization omitted.)

Again, Maddox registered no objection to these conditions in the trial court. As a result, she has forfeited for purposes of appeal any constitutional challenge to these conditions as applied to her. We therefore will not consider the challenge to the extent that Maddox attempts to rely on the record of conviction to assert that these conditions are overbroad as applied. Instead, we will address Maddox's constitutional overbreadth challenges to these three conditions only to the extent that they " 'present "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." ' " (Sheena K., supra, 40 Cal.4th at p. 889; People v. Quiroz (2011) 199 Cal.App.4th 1123, 1127 [forfeiture rule does not apply to defendant's contention that as a matter of law probation condition, on its face, is unconstitutionally vague and overbroad]; People v. Pirali (2013) 217 Cal.App.4th 1341, 1347 (Pirali) ["[a]lthough a probation condition may be overbroad when considered in light of all the facts, only those constitutional challenges presenting a pure question of law may be raised for the first time on appeal"].)

"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. O'Neil (2008) 165 Cal.App.4th 1351, 1355.) A constitutionally overbroad condition is one that restricts a defendant's fundamental constitutional rights to a greater degree than necessary to achieve the condition's purpose. (Olguin, supra, 45 Cal.4th at p. 384.) The overbreadth doctrine requires that probation conditions be tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation. (In re Victor L. (2010) 182 Cal.App.4th 902, 910.) A " 'facial challenge' " on overbreadth grounds, "does not require scrutiny of individual facts and circumstances [related to the defendant] but instead requires the review of abstract and generalized legal concepts" as would apply to any probationer. (Sheena K., supra, 40 Cal.4th at p. 885.) In other words, a facial overbreadth challenge asserts that a particular condition is overbroad, without relation to a defendant's specific rehabilitative needs as evidenced in the record of conviction, and is thus "invalid as a matter of law." (Ibid.)

1. Condition 10.g., requiring Maddox to obtain probation officer approval as to residence and employment[8]

A restriction requiring that a probation officer approve a defendant's residence imposes a burden on that defendant's constitutional rights to associate and his right to intrastate and interstate travel. (People v. Bauer (1989) 211 Cal.App.3d 937, 944 (Bauer).) However, a probation condition may restrict these rights as long as it reasonably relates to reformation and rehabilitation. (In re White (1979) 97 Cal.App.3d 141, 146.)

Maddox relies on Bauer to argue that a probation condition that grants a probation officer unfettered discretion to approve or disapprove of a probationer's residence is facially unconstitutional. Bauer involved a probationer's challenge to a condition nearly identical to the one here, which requires that Maddox obtain her probation officer's approval of her place of residence. (Bauer, supra, 211 Cal.App.3d at pp. 943–945.) The Bauer court struck the condition, concluding that any requirement that the defendant obtain his probation officer's approval of his residence was an "extremely broad" restriction, and was not "narrowly tailored to interfere as little as possible" with the constitutional right of travel and to freedom of association. (Id. at p. 944.) Such a condition gave the probation officer the discretionary power to prohibit the defendant from living with or near whomever the probation officer chose—i.e., it gave the probation officer "the power to banish him." (Ibid.)

To the extent that we may interpret Maddox's argument to be a facial challenge to the residency-approval element of condition 10.g. on overbreadth grounds, we reject this contention, and we question Maddox's reliance on Bauer for this purpose.[9] The Bauer court did not explain whether it was considering a facial or an as-applied challenge to the residency-approval condition at issue, and there is no mention in that case whether the defendant had raised an objection to the condition in the trial court. Although the Bauer court utilized broad language, including language often used in the context of facial overbreadth analysis, to conclude that the residency-approval condition was unconstitutional in that case, it appears from the court's analysis that it made this determination only after a particularized assessment of the application of this condition to the specific circumstances of that defendant. In fact, the Bauer court's conclusory constitutional analysis followed discussion of the fact that there was "nothing in the probation report or otherwise a part of the record in this case suggesting in any way that appellant's home life (which is exemplary compared to that of most convicted felons) contributed to the crime of which he was convicted." (Bauer, supra, 211 Cal.App.3d at p. 944.) We are unconvinced that the Bauer court was truly considering whether this probation condition was unconstitutional in every potential application, as opposed to determining that it was unconstitutional in its application to the particular defendant in that case. For this reason, we read Bauer to hold, narrowly, that a residency-approval condition may not be constitutionally applied to a defendant where the record demonstrates that the defendant's rehabilitation would not be served by placing restrictions on his residency, given the specific nature of the offender and the nature of his offense.

Because we conclude that Bauer is not persuasive with respect to determining whether the challenged probation condition is facially overbroad, we next consider whether review of the residency approval condition in the abstract reveals that it is not sufficiently narrowly tailored to the state's legitimate purpose in imposing it. (See Sheena K., supra, 40 Cal.4th at p. 885 [appellate claim that the language of a probation condition is unconstitutionally vague or overbroad "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts"].) We conclude that the residency and employment approval condition is not facially overbroad. It is readily apparent that this condition could be constitutionally overbroad in certain circumstances, but it is equally apparent that the condition might be entirely appropriate, and constitutional, in other circumstances. There can be no dispute that certain probationers may require more intensive supervision and monitoring, as the specific facts of each case demand. For example, where a defendant's substance abuse contributed to his or her criminal conduct, preventing that defendant from living in a home where drugs are present and used would be a significant step toward ensuring that that defendant may successfully complete probation. Again, because Maddox did not object to this condition, she has forfeited any argument that such a condition may not be constitutionally applied to her under the particular circumstances of her situation.

2. Condition 6.e.—requiring Maddox to comply with a curfew if directed by her probation officer

Condition 6.e. requires that Maddox "[c]omply with a curfew if so directed by the P.O." Maddox complains not only that condition 6.e. impermissibly delegates judicial authority to the probation officer and that it is unconstitutionally vague, as discussed above, but also that it is unconstitutionally overbroad because it constitutes an impermissible restriction on her constitutional right to travel. As we have already stated, Maddox did not object to this condition in the trial court; she has therefore forfeited any as-applied contentions with respect to the condition. Further, we reject Maddox's overbreadth challenge on the same ground that we rejected her vagueness challenge to this condition—the record does not demonstrate that Maddox is currently subject to any curfew. Her overbreadth challenge to this condition—complaining that such a restriction constitutes an unconstitutional restriction on a probationer's right to travel—is therefore premature; we have no way of assessing her contention, since there is no curfew that has been implemented. Again, we presume that the probation officer will not interpret or implement this condition in an irrational or arbitrary manner. If, in the future, Maddox is directed to comply with a curfew in a manner that is irrational or arbitrary, she may challenge the condition by filing a petition for modification. (See ante, pt. III.C.)

3. Condition 6.b.—requiring Maddox to "[f]ollow such course of conduct as required by the P.O."

Maddox complains that condition 6.b., requiring her to " '[f]ollow such course of conduct as required' " by her probation officer, is unconstitutionally overbroad because "it allows the probation officer to impose any course of conduct at any time for any reason (or no reason at all)." Maddox acknowledges, however, that this court upheld this very probation condition as reasonable under People v. Lent (1975) 15 Cal.3d 481, 486 (Lent) in People v. Kwizera (2000) 78 Cal.App.4th 1238, pages 1240–1241.

In Kwizera, a panel of this court determined that a condition requiring the probationer to " 'follow such course of conduct as the probation officer may prescribe' " was "reasonable and necessary to enable the department to supervise compliance with the specific conditions of probation," under the test set forth in Lent. (Kwizera, supra, 78 Cal.App.4th at p. 1240.) In reaching this conclusion, the Kwizera court made clear that this condition "does no more" than enable such compliance with the specific conditions of probation. (Ibid.) For example, where the court has imposed conditions regarding drug testing or reporting to the probation department, the probation department "must have authority to set the time and place for administration of the drug test or when the defendant is to report to the department." (Ibid.) Further, as the Kwizera court observed, because a court "does not have the power to impose unreasonable probation conditions," the court could not possibly give a probation officer the authority to require an unreasonable course of conduct through condition 6.b. (Ibid.)

Thus, under the Kwizera court's interpretation of this probation condition, a probation officer may direct a probationer to follow only a course of conduct that is both "reasonable" and that enables compliance with the other specific conditions of probation. Given this interpretation of the condition, we cannot agree with Maddox that the condition is facially unconstitutionally overbroad.[10] Rather, as interpreted, the condition is necessarily narrowly tailored to allow the probation officer to make only those requests of the probationer as will enable the probation officer to supervise the probationer with respect to the probation conditions imposed by the court. The condition does not, as Maddox contends, "allow[ ] the probation officer to impose any course of conduct at any time for any reason (or no reason at all)." We therefore reject Maddox's facial overbreadth challenge to probation condition 6.b.

IV.

DISPOSITION

The judgment is affirmed.

AARON, Acting P. J.

WE CONCUR:

DATO, J.

GUERRERO, J.