Filed 4/12/21 P. v. Green CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellant Kenneth Donald Green was tried before a jury and convicted of assault by means of force likely to cause great bodily injury and simple assault. (Pen. Code, § 245, subd. (a)(4), 240.)[1] Imposition of sentence was suspended, and he was placed on felony probation for three years. He contends that a recent amendment to the law setting the probationary period at two years for most felonies must be applied to his case. He also contends a probation condition requiring him to participate in treatment if required to do so by the probation department improperly delegated judicial authority to the probation officer and was unconstitutionally vague. We conclude the case must be remanded.

1. BACKGROUND

Given the nature of the issues raised on appeal, a detailed rendition of the underlying facts is unnecessary. Suffice it to say that appellant, who has a history of homelessness and substance use, was receiving treatment at a hospital in 2018 when he tried to bite and kick an attending nurse and succeeded in kicking a doctor in the face. He was charged with two counts of assault by means of force likely to cause great bodily injury and two counts of battery upon a doctor or nurse. (§§ 245, subd. (a)(4), 243, subd. (b).)

Criminal proceedings were suspended for a time after appellant was found mentally incompetent (§ 1368), but appellant was restored to competency and criminal proceedings were reinstated. The case proceeded to a jury trial and the court dismissed the battery counts on the People’s motion. The jury convicted appellant of one count of assault by means of force likely to cause great bodily injury and one count of simple assault as a lesser included offense of assault by means of force likely to cause great bodily injury.

The court suspended the imposition of sentence and placed appellant on three years of felony probation. The court orally imposed the following as a condition of probation: “[Y]ou would be required to follow any directives of probation with regard to treatment plan or programming.” This was memorialized in the written probation order as condition 7, which stated “Participate/complete programs of assistance & counseling as directed by Prob. Officer [A] not to leave without prior written consent.” Appellant did not object to any of the probation conditions imposed by the trial court.

2. DISCUSSION

A. Length of Probationary Term

As authorized by the law that existed at the time of his sentencing hearing on March 25, 2020, appellant was placed on probation for a term of three years. (Former § 1203.1, subd. (a) [“where the maximum possible term of the sentence is five years or less, then the period of suspension of imposition or execution of sentence may, in the discretion of the court, continue for not over five years.”].) On January 1, 2021, while this appeal was pending, AB 1950 took effect reducing the maximum probationary term for most felony offenses to two years. (Stats. 2020, ch. 328, § 2; § 1203.1, subds. (a) & (m).) Appellant argues that because his case is not yet final, he is entitled to have this statute applied retroactively and to have his probationary term reduced to two years.

The People do not contest the retroactive application of AB 1950 to appellant’s case. (In re Estrada (1965) 63 Cal.2d 740, 744–748.) We accept the concession, and agree the maximum term of appellant’s probation is now two years. (People v. Sims (2021) 59 Cal.App.5th 943, 963 (Sims); People v. Quinn (2021) 59 Cal.App.5th 874, 885 [giving retroactive effect to AB 1950].)

The People argue that we should remand the case rather than simply order that the probationary term be reduced from three to two years. Although appellant argues it would be a waste of judicial resources to remand the case for a hearing when the Legislature has clearly expressed an intent to limit probation to two years, and while there may be some cases in which it is appropriate to simply modify the length of the probationary term, this case must be remanded in any event so the court can modify the treatment condition (discussed below).[2] (Sims, supra, 59 Cal.App.5th at p. 947 [remanding case].)

2. Treatment at Direction of Probation Officer

Appellant challenges the treatment condition (condition 7) on the ground that it violates the constitutional separation of powers doctrine by improperly delegating judicial authority to the probation department. He also argues the condition is unconstitutionally vague because it does not provide notice of what type of counseling is required. The claim is cognizable on appeal despite appellant’s failure to object in the trial court because he raises a facial constitutional challenge that does not depend on the facts developed below. (In re Sheena K. (2007) 40 Cal.4th 875, 884–886.)

“It is well settled that courts may not delegate the exercise of their discretion to probation officers.” (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1372.) Under the separation of powers doctrine, executive or administrative officers cannot exercise or interfere with judicial powers. (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1235.) While it may be appropriate for a court to leave the details of selecting a specific treatment program to the probation officer once treatment has been ordered (People v. Penoli (1996) 46 Cal.App.4th 298, 307–310 (Penoli)), conditions that give “unfettered” or “ ‘entirely open-ended’ ” discretion to interfere with a constitutionally protected liberty will usually be found overbroad. (People v. Leon (2010) 181 Cal.App.4th 943, 953–954; People v. O'Neil (2008) 165 Cal.App.4th 1351,

1358–1359 (O’Neil).)

In this case, the court did not purport to order a type of treatment and then leave it to the probation officer to find a program. Rather, the court ordered that appellant participate in any treatment or counseling “as directed by [the] Prob. Officer.” On its face, this gives the probation officer the power to determine whether treatment or counseling shall be required and not simply the ability to control the details of that treatment once ordered.

Additionally, condition 7 does not specify the type of counseling or treatment that may be required by the probation officer—e.g., anger management, substance abuse, treatment for mental illness. While it is both legally permissible and often practically necessary for a trial court to delegate program selection to the probation department, such as in Penoli, supra, 46 Cal.App.4th at pages 307–310, the condition at issue here is so open-ended as to render it unconstitutionally vague. While a trial court need not notify defendants of which specific programs they will be required to complete, it must, at the very least, provide notice as to what category of treatment must be completed. (See O’Neil, supra, 165 Cal.App.3d at pp. 1357–1358 [probation condition forbidding defendant from being in presence of persons forbidden by probation department was overbroad].) Condition 7 of the probation conditions, regarding treatment programs, must therefore be modified, and we remand the case for this purpose.

3. DISPOSITION

The judgment, to the extent it imposes a three-year term of probation, is reversed, and the court is ordered on remand to impose a probationary term of no more than two years. The court shall modify condition 7 of probation, regarding treatment, in a manner consistent with the views expressed in this opinion. Should either the People or appellant wish to make further motions regarding the length or conditions of probation, each may file the appropriate motion(s) with the trial court. The judgment of conviction is affirmed.

NEEDHAM, Acting P.J.

We concur.

BURNS, J.

RODRIGUEZ, J. *

People v. Green / A160104

[1] Further statutory references are to the Penal Code.

[2] We also note that the amended version of section 1203.1, subdivision (a) provides for a period of probation “for a period of time not exceeding two years” rather than a period of two years. (Italics added.) We do not know whether the trial court, which originally imposed a probationary term of only three years when it could have imposed a term of five years under the former statute, would elect to place appellant on probation for the full two years.

* Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.