People v. Hernandez CA3

Filed 1/9/23 P. v. Hernandez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Tehama)
----
THE PEOPLE, C096216
Plaintiff and Respondent, (Super. Ct. No. 22CR000736)
v.
ALBERT M. HERNANDEZ,
Defendant and Appellant.
Defendant Albert M. Hernandez pled guilty to inflicting corporal injury on a
spouse. Defendant challenges the probation condition requiring him to “obey all rules,
regulations and directives set out by the probation officer to govern the conduct of the
defendant” as an improper delegation of judicial authority and unconstitutionally vague.
We shall modify the probation condition and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
When sheriff deputies discovered defendant’s wife at a gas station near her house,
she told them she fled her home to escape defendant, who had been drinking and accused
her of infidelity. During the physical confrontation following defendant’s accusations,
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defendant grabbed the victim by her neck, punched her in the mouth, and hurt her hand.
The victim presented injuries consistent with her statements.
Defendant was charged with inflicting corporal injury on a spouse. (Pen. Code,
§ 273.5, subd. (a).)
Defendant pled guilty in exchange for a promise the trial court would grant him
probation for three years. In accordance with the plea agreement, the trial court granted
defendant probation for three years on various conditions, including that he obey all laws,
attend a batterer’s treatment program, refrain from using or possessing alcohol, any
unlawful substance or controlled drug, submit to drug and/or alcohol detection tests, and
seek and maintain employment.
At sentencing, defendant objected to the further condition requiring him to “obey
all rules, regulations and directives set out by the probation officer to govern [his]
conduct.” He argued this condition was unconstitutionally overbroad and vague because
it left discretion to the probation department to impose any regulation it saw fit. The trial
court overruled defendant’s objection stating: “[T]he Court believes that the request to
abide by the rules of probation at this point is not inappropriate. In other words, the
defendant is agreeing to probation, the rehabilitative terms. And as far as rules, there are
going to be some along the way, what time to show up, all kinds of things. They won’t
necessarily be written down. And, for that reason, I don’t find it is inappropriate and [do]
find it is just a standard term of probation to follow Probation’s rules.”
Defendant timely appealed.
DISCUSSION
Defendant argues the probation condition that he “obey all rules, regulations and
directives set out by the probation officer to govern [his] conduct” is an improper
delegation of judicial authority to the probation officer and is unconstitutionally vague.
We agree the condition is vague and will modify it. In his opening brief, defendant also
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included a reference this provision was overbroad, but acknowledged this was an error
and withdrew the overbreadth argument. Thus, this argument is not properly before us.
We turn to defendant’s challenge the condition is an improper delegation of
judicial authority or impermissibly vague. “A sentencing court has broad discretion to
fashion appropriate conditions of probation that facilitate rehabilitation and foster public
safety.” (People v. Cruz Cruz (2020) 54 Cal.App.5th 707, 711.) “We review the
conditions imposed for abuse of discretion.” (Ibid.) “A condition of probation will not
be held invalid unless it ‘(1) has no relationship to the crime of which the offender was
convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids
conduct which is not reasonably related to future criminality . . . .’ [Citation.]
Conversely, a condition of probation which requires or forbids conduct which is not itself
criminal is valid if that conduct is reasonably related to the crime of which the defendant
was convicted or to future criminality.” (People v. Lent (1975) 15 Cal.3d 481, 486, fn.
omitted.)
In People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240-1241, the appellate court
concluded the probation condition the defendant “ ‘[f]ollow such course of conduct as the
probation officer may prescribe’ ” was valid. The appellate court noted under Penal
Code sections 1202.8 and 1203, “the court sets conditions of probation and the probation
officer supervises compliance with the conditions.” (Kwizera, at p. 1240.) Thus, a trial
court has the power and responsibility to impose conditions (such as drug testing,
requiring treatment programs, or maintaining employment), and in order to supervise
compliance with those conditions, the probation department has authority to set the
requirements that allow the probation department to enforce these conditions. (Ibid.) In
Kwizera, the appellate court held the challenged condition was “reasonable and necessary
to enable the department to supervise compliance with the specific conditions of
probation. It does no more.” (Ibid.) Further, because the trial court lacks power to
impose unreasonable probation conditions, it could not authorize a probation officer to do
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so through the challenged condition. (Ibid.) Indeed, we presume the probation officer
will not act arbitrarily and capriciously in executing the conditions imposed by the trial
court. (People v. Stapleton (2017) 9 Cal.App.5th 989, 996.)
We start by analyzing the challenged condition defendant shall “obey all . . .
directives set out by the probation officer.”1 We find the reasoning in Kwizera
persuasive. Here, in addition to the challenged probation condition, the trial court
ordered defendant to attend a batterer’s treatment program, refrain from using alcohol or
illegal drugs, and submit to tests to verify compliance with these conditions. The
challenged condition only empowers the probation department to set the requirements
that will allow them to enforce the conditions of probation actually imposed by the trial
court—and nothing more. As we read this condition, it does not and cannot serve as the
basis for the probation officer to add new or different conditions or modify the existing
conditions.
Defendant’s reliance on People v. Cervantes (1984) 154 Cal.App.3d 353 is
misplaced. There, the trial court improperly imposed a condition the defendant “ ‘pay
restitution in an amount and manner to be determined by the Probation Officer.’ ” (Id. at
p. 356.) The appellate court agreed the trial court impermissibly delegated away its
authority to set restitution to the probation department. (Id. at pp. 356-357, 358.) But
here, the challenged condition did not delegate any court authority. It simply empowered
probation to supervise and enforce the substantive conditions imposed by the trial court.
Defendant’s citation to In re Pedro Q. (1989) 209 Cal.App.3d 1368 also does not
support his argument. There, the probation officer unilaterally added a new term to the
probation conditions imposed by the trial court and restricted defendant’s ability to travel.
(Id. at p. 1371.) The appellate court concluded defendant’s violation of this new
1 We recognize the condition also requires defendant to follow “rules” and “regulations”
set out by the probation department. We will address this part of the condition, post.
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condition did not support a probation violation because it was unilaterally imposed by the
probation department in excess of its powers and not by the trial court. (Id. at pp. 1371-
1372.) Here, the trial court’s requirement that defendant obey the probation department’s
directives cannot implicitly or explicitly add a new term or condition to the probation
order. (People v. Kwizera, supra, 78 Cal.App.4th at pp. 1240-1241.)
Next, we turn to defendant’s contention this condition is unconstitutionally vague.
As our Supreme Court has explained, “the 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.)’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) “A
probation condition ‘must be sufficiently precise for the probationer to know what is
required . . . 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.) We give probation
conditions “ ‘the meaning that would appear to a reasonable, objective reader.’ ” (People
v. Olguin (2008) 45 Cal.4th 375, 382.)
While we do not believe this condition authorizes the probation department to
create new terms and conditions of probation, we have reservations about the court’s use
of the words “rules” and “regulations” to the extent those terms suggest the probation
department could impose compliance with unrelated rules or regulations, or allow the
department to create its own set of rules or regulations for probationers. From this
vantage, we are persuaded this part of the condition is vague.
As noted ante, the challenged condition can only direct defendant to follow the
probation officer’s directives to enable the probation officer to supervise compliance with
the specific conditions imposed by the trial court.
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In People v. Pirali (2013) 217 Cal.App.4th 1341, 1352, the appellate court
concluded a probation condition did not sufficiently provide the defendant with advance
knowledge of what was required of him. As a result, the appellate court modified the
condition to provide clear notice to defendant. (Id. at p. 1353.) Similarly in People v.
Freitas (2009) 179 Cal.App.4th 747, 752, the appellate court modified the probation
conditions to require that the defendant “not knowingly” possess prohibited items.
Here, in light of our concern and defendant’s request we strike or modify this
condition, we shall modify this condition to make clear the probation officer may only
issue instructions or directives concerning the existing conditions of probation. This
condition is therefore modified to state, defendant “shall obey all instructions and
directives set out by the probation officer to govern the conduct of the defendant as to the
express conditions of probation imposed by the court.”
DISPOSITION
The probation condition is modified to read: “The defendant is placed under the
supervision of the probation officer and shall obey all instructions and directives set out
by the probation officer to govern the conduct of the defendant as to the express
conditions of probation imposed by the court.” As modified, the judgment is affirmed.
/s/
BOULWARE EURIE, J.
We concur:
/s/
DUARTE, Acting P. J.
/s/
RENNER, J.
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