People v. Ekoniak CA3 ( 2022 )

Filed 12/27/22 P. v. Ekoniak CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C094971
Plaintiff and Respondent, (Super. Ct. No. CRF2021029)
v.
SCOTT BRIAN EKONIAK,
Defendant and Appellant.
The trial court granted defendant Scott Brian Ekoniak probation after he pled
guilty to hit-and-run causing death and driving under the influence. He contends two
conditions of his probation are unconstitutionally vague and overbroad and that the court
erred by failing to identify the statutory bases for his fines, fees, and assessments.
Finding merit in his contentions, we will modify the conditions and remand with
additional instructions.
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BACKGROUND
Our statement of facts is taken from the preliminary hearing, which served as the
factual basis for defendant’s plea. According to an investigating officer, defendant stated
he went to the victim’s apartment with a 30-pack of beer in the late morning to watch
football with the victim. Defendant, who claimed he could “drink an 18-pack no
problem,” had at least nine beers. Around 7:30 p.m., he bought a couple of 24-ounce
beers; he remembered drinking one. A little while later, as defendant drove out of the
parking lot of the apartment complex, defendant hit the victim with his truck. He stopped
briefly, claiming he thought the victim “was going to be okay,” and then drove off. A
witness who saw defendant after he got out of the truck to check on the victim stated
defendant smelled like alcohol.
In exchange for the dismissal of other charges, defendant pled no contest to felony
hit-and-run causing death (Veh. Code, § 20001, subds. (a), (b)(2)) and misdemeanor
driving under the influence (Veh. Code, § 23152, subd. (a)). Defendant’s plea included
the condition that he would be prohibited from drinking alcohol while on probation and
that he would be required to wear an alcohol monitoring device for up to a year of
probation.
The probation report noted that, from 1994 to 2018, defendant’s prior offenses
included five drunk-in-public violations (Pen. Code, § 647, subd. (f)), one of which
resulted in a detention pursuant to section 5170 of the Welfare and Institutions Code “for
the 72-hour treatment and evaluation of inebriates” (Pen. Code, § 647, subd. (g)).
The trial court granted two years of formal probation for the felony and five years
of informal probation for the misdemeanor. Rejecting defense counsel’s request for a
shorter term, the court stated that defendant “killed somebody and he has a long history
with alcohol violations of the law, not just problems with alcohol, but alcohol violations,
and he is going to be under the supervision of the probation office this entire time so that
he has all of the support he can get.”
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Defendant’s probation order was recorded on a standard form with specific
conditions selected, including that he “[a]bstain from the use or possession of alcohol and
not be in or about places where it is the main item of sale or use” (condition No. 19) and
“[s]ubmit to testing, (urinalysis, breath, blood, saliva) for _____ whenever requested by
the Probation Officer or any peace officer” (condition No. 22). Left unselected was a
condition that would have required defendant to abstain from using or possessing illegal
drugs or narcotics. The order also included the condition that defendant “participate in
substance abuse treatment at the direction of the probation officer,” as well as certain
“DUI terms,” including that defendant was to immediately report to an alcohol education
program.
Numerous financial conditions were included. Relevant here, condition No. 51,
under the header of “DUI terms,” required that defendant “[p]ay $700 as a fine,” which
included citations to specified fees and funds adding up to $184. Condition No. 51 also
required that defendant pay a “$2,220 penalty assessment.” The final page of the order
included an unnumbered term captioned “Fine and Penalty Assessment,” requiring that
defendant “[p]ay $500 as a fine plus $1,550 penalty assessment; plus, a processing fee of
$35.”
DISCUSSION
I
Probation Conditions
Defendant contends condition Nos. 19 and 22 are facially unconstitutional because
they are vague and overbroad.
A. Threshold Matters
We agree that to the extent defendant’s contentions present pure questions of law,
they are cognizable on appeal despite the failure to raise them below. (People v. Brand
(2021) 59 Cal.App.5th 861, 867, citing In re Sheena K. (2007) 40 Cal.4th 875, 887-889.)
Furthermore, although defendant’s assertion that condition No. 22 “should be limited to
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his alcohol consumption” is, in effect, an as-applied challenge, we elect to reach the
merits because the record permits review of the issue.1
B. Legal Principles
Probation conditions may be challenged as unconstitutionally vague or overbroad.
(In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) “Although the two objections are often
mentioned in the same breath, they are conceptually quite distinct. A restriction is
unconstitutionally vague if it is not ‘ “sufficiently precise for the probationer to know
what is required of him, and for the court to determine whether the condition has been
violated.” ’ ” (Ibid.) “A restriction is unconstitutionally overbroad, on the other hand, if
it (1) ‘impinge[s] on constitutional rights,’ and (2) is not ‘tailored carefully and
reasonably related to the compelling state interest in reformation and rehabilitation.’ ”
(Ibid.) Our review is de novo. (See In re David C. (2020) 47 Cal.App.5th 657, 668-669
& fn. 7.)
C. Condition Barring Defendant from Being “In or About Places” Where
Alcohol “Is the Main Item of Sale or Use”
Defendant asserts that condition No. 19 unduly restricts his rights to travel and
freely associate and must be reformed to include both a scienter requirement and a
specific distance from prohibited establishments into which he may not encroach. We
disagree with the first contention but agree with the second.
As the People point out, our state Supreme Court has held that it is generally
unnecessary to modify probation conditions to impose a scienter requirement because
such a requirement is already implied. (People v. Hall (2017) 2 Cal.5th 494, 500-503.)
This “reasoning applies with equal force to conditions prohibiting a probationer from
entering certain spaces” including those prohibiting a defendant “from entering a
1 As such, we need not reach defendant’s contention that defense counsel was ineffective
for failing to object to the probation conditions as constitutionally defective.
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business which primarily sells alcohol.” (People v. Rhinehart (2018) 20 Cal.App.5th
1123, 1128; People v. Kelley (2022) 76 Cal.App.5th 993, 1001.) Thus, an express
scienter requirement is not necessary for the condition to pass constitutional muster.
However, we agree with defendant that the condition’s prohibition on him being
“in or about” such establishments is not sufficiently clear. Appellate courts have
modified similar language prohibiting a defendant from being “adjacent to any school
campus” to instead prohibit the defendant from coming within 50 feet of school
campuses. (People v. Barajas (2011) 198 Cal.App.4th 748, 760-762; People v.
Rhinehart, supra, 20 Cal.App.5th at p. 1130.) The implied knowledge requirement under
Hall does not resolve the uncertainty inhering in such spatial abstractions. (Rhinehart, at
p. 1131.) Thus, the condition’s use of “about” “is not ‘ “sufficiently precise for the
probationer to know what is required of him.” ’ ” (In re E.O., supra, 188 Cal.App.4th at
p. 1153.)
Accordingly, we will strike “or about” from condition No. 19 and remand for the
trial court to consider what, if any, specific distance is appropriate for defendant to
maintain from places where alcohol is the main item of sale or use.
D. Condition Requiring Defendant to Submit to Testing for Unspecified
Substances
We agree with defendant that condition No. 22, a boilerplate chemical-testing
condition in which the substance defendant may be tested for was left blank, also
necessitates more precision.
Other than alcohol, there is no mention in the record of a substance, illicit or
otherwise, that contributed to defendant’s offense or that may lead him to reoffend.
Defendant had a history of alcohol-related violations, was drunk when he killed the
victim, and was granted probation subject to conditions expressly aimed at ensuring his
abstention from alcohol. That condition No. 22 was left blank more likely reflects
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inadvertence rather than intent, nowhere reflected in the record, to subject defendant to
open-ended chemical testing untailored to his reformation and rehabilitation.
Accordingly, we will modify the condition to allow testing for alcohol only.
II
Fines, Fees, and Assessments
Defendant argues the court failed to itemize the statutory bases for the fines, fees,
and penalty assessments. We agree.
Trial courts must include in their judgments the statutory basis for every fine or
fee imposed. “Although we recognize that a detailed recitation of all the fees, fines and
penalties on the record may be tedious, California law does not authorize shortcuts. All
fines and fees must be set forth in the abstract of judgment.” (People v. High (2004) 119
Cal.App.4th 1192, 1200.) An order of probation is subject to the same requirements.
(People v. Eddards (2008) 162 Cal.App.4th 712, 718.) As such, a trial court errs when it
does not include, in an order of probation, the statutory basis for every fine, fee, and
penalty imposed.
Here, multiple fines and penalties connected with defendant’s drunk driving
conviction, including the $700 and $500 fines and $2,200 and $1,550 penalty
assessments, were improperly imposed in lump sums with no breakdown as to their
components or statutory bases. Likewise, no statutory basis was identified for certain
fees, such as the $35 processing fee. The probation order thus necessitates correction by
itemizing the specific statutory bases for each of defendant’s fines, fees, and assessments.
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DISPOSITION
The phrase “or about” is stricken from condition No. 19. On remand, the trial
court shall consider what, if any, specific distance defendant must maintain from places
where alcohol is the main item of sale or use. Condition No. 22 is modified to allow
testing for alcohol only. The trial court shall correct the probation order by itemizing the
specific statutory bases for each of defendant’s fines, fees, and assessments. In all other
respects, the judgment is affirmed.
/s/
BOULWARE EURIE, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
KRAUSE, J.
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