People v. Alvarado CA1/5 ( 2021 )

Filed 12/27/21 P. v. Alvarado 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v. A161097
RICHARD ANTHONY ALVARADO,
Defendant and Appellant.
(Del Norte County
Super. Ct. No. CRF-209175)
Richard Anthony Alvarado pled guilty to brandishing a
firearm in the presence of a peace officer (Pen. Code, § 417, subd.
(c)).1 The trial court suspended imposition of sentence and placed
him on probation for three years. Alvarado appeals, contending
that several of his probation conditions are facially
unconstitutional, that a clerical error should be corrected, and
that recent changes in the law require us to vacate an imposed
fee and modify the term of his probation. We agree in part and
remand for modification.
BACKGROUND
A.
Law enforcement responded to reports of gun shots fired in
the residential neighborhood where Alvarado lived. It was
1 Undesignated statutory references are to the Penal Code.
1
determined that the shots were coming from Alvarado’s house.
Alvarado opened his front door, told the responding officers to
leave, returned inside, and refused to come out. During a
standoff that lasted several hours, responding officers in
Alvarado’s yard observed him, inside his home, holding a gun and
pointing it in the direction of the windows and the officers.
B.
Alvarado pled guilty to brandishing a firearm in the
presence of an officer and agreed to undergo a mental health
evaluation and cooperate in any treatment plan in exchange for a
guaranteed grant of probation, a stipulation that he would serve
no more than 180 days in jail as a probation condition, and
dismissal of the other charged count—discharging a firearm with
gross negligence (§ 246.3, subd. (a)).
C.
Alvarado later sought to withdraw his plea. The trial court
denied his motion, placed him on formal probation for a period of
three years, and dismissed the remaining count. Among other
conditions of his probation, the trial court required Alvarado to:
(1) “report any law enforcement contact” to his probation officer
within 24 hours (the Police Contact Reporting Condition); (2)
“cooperate with the probation officer in a plan for psychological,
psychiatric, or substance abuse treatment or any other
rehabilitation and follow all directions of the probation officer”
(the Treatment Condition); (3) “maintain a residence and
employment as approved by the probation officer” (the Residency
Approval Condition); (4) “refrain from associating with persons
known to him to be engaged in criminal activities or persons
designated to him by the probation officer” (the No-Contact
Condition); and (5) not possess or control any firearm or
ammunition.
2
The trial court stated it was waiving the presentence report
preparation fee based on Alvarado’s inability to pay. However,
the trial court imposed other fines and fees—including a $21
monthly probation supervision fee.
DISCUSSION
A.
Alvarado argues, and the People concede, that the Police
Contact Reporting Condition is unconstitutionally vague and
overbroad. We agree.
1.
Trial courts have broad discretion to determine suitable
probation conditions that foster rehabilitation and protect public
safety. (§ 1203.1, subd. (j); People v. Moran (2016) 1 Cal.5th 398,
403; People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) This
discretion is limited by a reasonableness requirement and
probation conditions are typically reviewed for abuse of
discretion. (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355
(O’Neil).)
Probation conditions are also subject to constitutional
scrutiny. Probation conditions may impinge on a probationer’s
constitutional rights because a probationer does not enjoy the
same level of constitutional protection as other citizens. (People
v. Stapleton (2017) 9 Cal.App.5th 989, 993 (Stapleton).) To
survive an overbreadth challenge, a probation condition that
limits a probationer’s constitutional rights “must closely tailor
those limitations to the purpose of the condition.” (In re Sheena
K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) “The essential
question . . . 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
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necessity will justify some infringement.” (In re E.O. (2010) 188
Cal.App.4th 1149, 1153.)
To survive a vagueness challenge, 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.’ ” (Sheena K., supra, 40 Cal.4th at p.
890.) “A restriction failing this test does not give adequate
notice—‘fair warning’—of the conduct proscribed.” (In re E.O.,
supra, 188 Cal.App.4th at p. 1153.) “Whether a term of probation
is unconstitutionally vague or overbroad presents a question of
law, which we review de novo.” (Stapleton, supra, 9 Cal.App.5th
at p. 993.)
2.
The Police Contact Reporting Condition requires Alvarado
to “report any law enforcement contact” to his probation officer
within 24 hours. (Italics added.)
Alvarado failed to object to any of the challenged
conditions below. Although the failure to make a timely objection
in the trial court ordinarily forfeits a claim of error on appeal
(Sheena K., supra, 40 Cal.4th at p. 880), we may nonetheless
address his facial constitutional challenges for the first time
because they raise pure questions of law that we can resolve
without reference to the sentencing record. (Id. at pp. 885, 887-
889.)
3.
Alvarado argues that the Police Contact Reporting
Condition is unconstitutionally vague and overbroad because
there is no definition of what type of law enforcement contact he
must report. In other words, the phrase “any law enforcement
contact” is unconstitutionally vague because it leaves him
guessing at whether he must report innocent and trivial
encounters with a law enforcement officer, such as at a social
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event. To the extent it requires him to report social or political
contacts with law enforcement officers, Alvarado contends the
condition is overbroad.
We agree with Alvarado (and the People) that the Police
Contact Reporting Condition must be modified because it fails to
distinguish between casual contact with law enforcement officers
that involves no suspicion of criminal activity and the types of
contact that would merit further investigation by Alvarado’s
probation officer. (See People v. Relkin (2016) 6 Cal.App.5th
1188, 1196-1197 [probation condition requiring defendant to
“ ‘report . . . any . . . contacts with . . . any peace officer’ ” was
unconstitutionally vague and overbroad]; In re I.M. (2020) 53
Cal.App.5th 929, 936 (I.M.) [relying on Relkin to conclude
probation condition requiring minor “ ‘report any police
contacts’ ” was unconstitutionally vague and overbroad].)
Alvarado can only guess at which contacts he is required to
report and, accordingly, the condition must be modified. (I.M.,
supra, 53 Cal.App.5th at pp. 936-937 [remanding to juvenile
court for determination whether to modify or strike condition];
People v. Relkin, supra, 6 Cal.App.5th at p. 1198 [remanding for
trial court’s modification].) The trial court should closely tailor
the condition to its purpose “and use language that is sufficiently
precise so that [Alvarado] will know what types of police contacts
[he] is required to report.” (I.M., supra, at p. 937.)
B.
Alvarado also challenges the Treatment Condition as
unconstitutionally vague, overbroad, and an impermissible
delegation of judicial authority. We disagree.
1.
The Treatment Condition requires Alvarado to “cooperate
with the probation officer in a plan for psychological, psychiatric,
or substance abuse treatment or any other rehabilitation and
5
follow all directions of the probation officer.” Alvarado concedes
that he failed to object to this condition in the trial court.
If Alvarado had concerns about the court’s delegation to the
probation officer or believed certain treatment was insufficiently
tailored to his rehabilitative needs, he could have objected and
asked the trial court to clarify the condition when it was imposed.
He did not. The purpose of the forfeiture rule is to encourage
parties to bring errors to the attention of the trial court so they
may be immediately corrected. (Sheena K., supra, 40 Cal.4th at
pp. 880-881.)
The People may be correct that Alvarado’s challenge to the
Treatment Condition is an “as-applied” challenge rather than a
facial challenge involving a pure question of law. To the extent it
is, he has forfeited the issue on appeal by failing to object below.
(See Sheena K., supra, 40 Cal.4th at p. 889; People v. Patton
(2019) 41 Cal.App.5th 934, 946.) However, we need not
conclusively resolve that issue because, upon closer examination,
his concerns are misplaced.
2.
Alvarado acknowledges that the trial court had the
authority to order him to participate in and complete a
rehabilitative program it specified. However, he insists the
Treatment Condition violates the separation of powers by
impermissibly delegating, to his probation officer, judicial
authority to specify that rehabilitative program. He also
maintains that the purportedly open-ended nature of the
probation officer’s discretion renders the Treatment Condition
unconstitutionally vague and overbroad. We disagree.
“It is well settled that courts may not delegate the exercise
of their [judicial] discretion to probation officers.” (In re Pedro Q.
(1989) 209 Cal.App.3d 1368, 1372.) However, “a ‘court may leave
to the discretion of the probation officer the specification of the
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many details that invariably are necessary to implement the
terms of probation.’ ” (In re David C. (2020) 47 Cal.App.5th 657,
669 (David C.); accord, People v. Penoli (1996) 46 Cal.App.4th
298, 307-309 (Penoli).) “The trial court is poorly equipped to
micromanage selection of a program, both because it lacks the
ability to remain apprised of currently available programs and,
more fundamentally, because entry into a particular program
may depend on mercurial questions of timing and availability.”
(Id. at p. 308.)
In construing a probation condition, we use “ ‘ “context and
common sense” ’ ” to understand terms as would a “ ‘ “reasonable,
objective reader.” ’ ” (People v. Rhinehart (2018) 20 Cal.App.5th
1123, 1129.) A probation condition should not be invalidated as
unconstitutionally vague if its terms may be made reasonably
certain by reference to other sources. (Ibid.)
Although we see Alvarado’s point, the Treatment Condition
is not vague when viewed in the proper context. Nor does it
grant the probation officer unfettered discretion to decide what
type of treatment he will be required to undergo. When he
entered his plea, Alvarado explicitly agreed, as part of the
negotiated disposition, to undergo a mental health evaluation and
to cooperate with any treatment plan thereafter recommended.
He had a dialogue with the judge clarifying that he will “go to a
mental health professional who will make an assessment” about
further treatment, and Alvarado said he understood. After
denying Alvarado’s motion to withdraw his plea, the trial court
again made clear that Alvarado was ordered to obtain a mental
health assessment. The probation order does not require drug
testing or include any other conditions related to substance
abuse. On this record, the Treatment Condition’s reference to
“substance abuse treatment or any other rehabilitation” must be
disregarded as surplusage. Alvarado understood the trial court
7
was requiring him to engage in a mental health assessment and
treatment, if deemed appropriate.
Viewed in context, the trial court ordered Alvarado to
engage in mental health treatment and left the probation officer
to implement the details. This is not improper. (See David C.,
supra, 47 Cal.App.5th at pp. 668-669 [rejecting vagueness and
impermissible delegation challenges to condition requiring minor
to “ ‘submit to a psychological/psychiatric evaluation as directed
by the probation officer’ ” and to participate in any “ ‘programs of
psychological assessment at the direction of treatment
provider’ ”]; Penoli, supra, 46 Cal.App.4th at pp. 307-310
[upholding condition allowing probation officer to decide most
suitable drug treatment program].) Alvarado will not be left
guessing at what is expected of him “given that he will be
directed by his treatment provider or probation officer regarding
the required evaluations and assessments.” (David C., supra, at
p. 669.)
We presume that the probation officer will not make
irrational demands that Alvarado complete programs that are
unrelated to his mental health assessment and treatment.
(People v. Olguin (2008) 45 Cal.4th 375, 383.) And if Alvarado is
concerned with any specific program identified by the probation
officer, he “can seek judicial intervention--by moving to modify
the probation order, if nothing else--if and when the probation
officer seeks to exercise the delegated authority.” (Penoli, supra,
46 Cal.App.4th at p. 308.)
The Treatment Condition does not impermissibly delegate
judicial authority and is not unconstitutionally vague or
overbroad.
C.
Alvarado also challenges the Residency Approval
Condition, which requires him to “maintain a residence . . . as
8
approved by the probation officer.” Specifically, Alvarado insists
this condition is unconstitutionally overbroad because it infringes
upon his constitutional freedom of association and right to travel
even though “[his] offense was not obviously related to his . . .
residence[.]” We disagree.
Again, we agree with the People that any as-applied
challenge was forfeited when Alvarado failed to object below.
(See In re G.B. (2018) 24 Cal.App.5th 464, 469 (G.B.) [whether
condition is sufficiently tailored to meet minor’s needs is an
inquiry requiring “review [of] his particular circumstances and
the underlying factual record”].) But, even if we consider the
merits of a facial challenge, we conclude that the condition is not
overbroad. Similar residency approval conditions have survived
constitutional challenge. (G.B., supra, 24 Cal.App.5th at pp. 469-
470; People v. Arevalo (2018) 19 Cal.App.5th 652, 657-658;
Stapleton, supra, 9 Cal.App.5th at pp. 995-996.)
In the abstract, it cannot be disputed that conditions like
the Residency Approval Condition can further rehabilitation.
(See, e.g., Stapleton, supra, 9 Cal.App.5th at p. 995 [“where
defendant lives may directly affect his rehabilitation, considering
his history with issues related to his mental health and
substance abuse”].) Even if we consider Alvarado’s circumstances
more specifically, the Residency Approval Condition appears to
further Alvarado’s rehabilitation by deterring him from living in
a home where firearms are present. We “presume a probation
officer will not withhold approval for irrational or capricious
reasons.” (Id. at p. 996; accord, G.B., supra, 24 Cal.App.5th at p.
471.)
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The Residency Approval Condition is not unconstitutionally
overbroad on its face.2
D.
Finally, Alvarado argues the No-Contact Condition is
unconstitutionally vague and overbroad because he is prohibited
from “associating with persons known to him to be engaged in
criminal activities or persons designated to him by the probation
officer.” (Italics added.) We disagree.
Alvarado contends the italicized portion of the No-Contact
Condition is indistinguishable from the probation condition
successfully challenged in O’Neil, supra, 165 Cal.App.4th 1351.
In that case, our colleagues in Division Three considered a
broader condition—one that prohibited the defendant from
associating or being present with “ ‘any person, as designated by
[his] probation officer.’ ” (Id. at p. 1354.) The condition was
deemed vague and overbroad because it provided “no limits on
those persons whom the probation officer may prohibit defendant
from associating with.” (Id. at p. 1357.) It “would allow the
probation officer to banish defendant by forbidding contact with
his family and close friends, even though such a prohibition may
have no relationship to the state’s interest in reforming and
rehabilitating defendant.” (Id. at p. 1358.)
O’Neil is distinguishable. The O’Neil condition did not
“provide any guideline as to those with whom the probation
department may forbid association.” (O’Neil, supra, 165
Cal.App.4th at pp. 1357-1358, italics added.) Here, the portion of
the condition that prohibits Alvarado from “associating with
persons known to him to be engaged in criminal activities”
provides guidance to us and to the probation officer. (See People
2 Alvarado misplaces his reliance on People v. Bauer (1989)
211 Cal.App.3d 937, which addressed an as-applied challenge.
(Id. at pp. 944-945.)
10
v. Brand (2021) 59 Cal.App.5th 861, 870-871 [construing
probation condition in context]; People v. Rhinehart, supra, 20
Cal.App.5th at pp. 1128-1129 [same].) That context informs “ ‘a
reasonable, objective reader’ ” (People v. Olguin, supra, 45
Cal.4th at p. 382) that the court aims to deter Alvarado from
associating with others “engaged in criminal activities.” The
probation officer has no discretion to restrict Alvarado’s
association with persons who are not so engaged.
As we have construed it, the No-Contact Condition is not
unconstitutionally vague or overbroad. Nor has the trial court
impermissibly delegated its authority to impose probation
conditions.
E.
Alvarado argues, and the People concede, that the written
probation order must be modified to reflect that the trial court
did not order Alvarado to reimburse the cost of preparing the
presentence report. We agree that the written order must be
corrected.
In its oral pronouncement, the trial court explicitly found
that Alvarado lacked the ability to reimburse the county for costs
associated with preparing the presentence report. The written
order is in conflict. In this situation, the trial court’s oral
pronouncement controls. (See People v. Mesa (1975) 14 Cal.3d
466, 471 [“a discrepancy between the judgment as orally
pronounced and as entered in the minutes is presumably the
result of clerical error”]; People v. Zackery (2007) 147 Cal.App.4th
380, 385.)
We will order the written order corrected.
F.
Next, Alvarado argues, and the People concede, that
pursuant to the recent enactment of Assembly Bill No. 1869
11
(2019-2020 Reg. Sess.) we must strike the $21 monthly probation
supervision fee. We concur.
Shortly after Alvarado’s sentencing hearing, Assembly Bill
No. 1869 repealed the statute, effective July 1, 2021, that had
authorized collection of the probation supervision fee (former §
1203.1b, subd. (a), as amended by Stats. 2014, ch. 468, § 1).
(Stats. 2020, ch. 92, § 47; People v. Clark (2021) 67 Cal.App.5th
248, 252.) The Legislature also enacted section 1465.9, which
provides that, as of July 1, 2021, the balance of any costs imposed
by a court “pursuant to Section . . . 1203.1b . . . as [that] section[]
read on June 30, 2021, shall be unenforceable and uncollectible
and any portion of a judgment imposing those costs shall be
vacated.” (§ 1465.9, subd. (a), as amended by Stats. 2020, ch. 92,
§ 62, italics added.) Accordingly, we are required to strike the
monthly probation supervision fee. (Ibid.; People v. Lopez-Vinck
(2021) 68 Cal.App.5th 945, 953-954, & fn. 8; Clark, supra, at pp.
259-260.)
G.
Finally, the term of Alvarado’s probation must be reduced
to two years.
At the time the trial court placed Alvarado on probation,
the governing statute authorized imposition of felony probation
“for a period of time not exceeding the maximum possible term of
the sentence” or, where the maximum possible term was five
years or less, for a maximum of five years. (Former § 1203.1,
subd. (a), as amended by Stats. 2010, ch. 178, § 75; People v.
Stewart (2021) 62 Cal.App.5th 1065, 1070, review granted June
30, 2021, S268787.) While Alvarado’s appeal was pending, the
Legislature enacted Assembly Bill No. 1950 (2019–2020 Reg.
Sess.), which limits felony probation to a maximum term of two
years for most felony offenses, with exceptions that do not apply
here. (§ 1203.1, subds. (a), (m); Stats. 2020, ch. 328, § 2, eff. Jan.
1, 2021.)
12
The People concede that the ameliorative amendment
applies retroactively to judgments, like Alvarado’s, that are not
yet final. (People v. Stewart, supra, 62 Cal.App.5th at p. 1074;
People v. Sims (2021) 59 Cal.App.5th 943, 964; People v. Quinn
(2021) 59 Cal.App.5th 874, 881, 883.) We agree.
However, the People ask us to remand the case so that the
trial court may modify Alvarado’s term of probation. (See People
v. Lord (2021) 64 Cal.App.5th 241, 246 [remanding for
resentencing]; People v. Sims, supra, 59 Cal.App.5th at pp. 947,
964 [same].) The People fail to explain why this is necessary and
would not waste scarce judicial resources. Nothing stated in this
opinion precludes a party from seeking expungement or
modification of Alvarado’s probation terms in the trial court. (See
People v. Quinn, supra, 59 Cal.App.5th at p. 885, fn. 6.)
DISPOSITION
The judgment is modified to strike the probation
supervision fee and to reduce the term of probation to two years.
We remand the matter to the trial court with directions to modify
the Police Contact Reporting Condition to clarify the types of
police contacts that Alvarado must report. The trial court is also
directed to prepare an amended written order of probation that
reflects the above modifications and that deletes any reference to
Alvarado being required to reimburse the cost of preparing the
presentence report. The trial court shall notify the appropriate
supervising authorities of these changes. In all other respects,
the judgment is affirmed.
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_______________________
BURNS, J.
We concur:
____________________________
SIMONS, ACTING P.J.
____________________________
NEEDHAM, J.
A161097
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