People v. Relkin

Filed 12/22/16
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C078628
Plaintiff and Respondent, (Super. Ct. Nos. CM040863,
CM041966)
v.
SCOTT LAWRENCE RELKIN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Butte County, Michael R.
Deems, Judge. Affirmed as modified and with directions.
Peter Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A.
Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of part I of the Discussion.
1
Defendant Scott Lawrence Relkin appeals his sentence following entry of pleas in
case Nos. CM040863 and CM041966. He contends the sentence exceeds the maximum
to which he specifically agreed. He further contends the trial court erred by imposing
certain conditions of mandatory supervision that are vague, overbroad, unconstitutional,
and unrelated to rehabilitation. We will remand the matter to the trial court to modify
probation condition No. 13. We will also modify the judgment to correct an unauthorized
sentence on count 2 in case No. CM041966, and affirm the judgment as modified.
FACTUAL SUMMARY
A detailed recitation of the facts underlying defendant‘s convictions is not
necessary for the resolution of this appeal. Thus, the facts are briefly summarized as
follows.
Case No. CM040863
On January 30, 2014, narcotics task force agents executed a search warrant at
defendant‘s apartment and discovered approximately 15 grams of methamphetamine, a
digital scale, and drug paraphernalia, as well as messages on defendant‘s cell phone
consistent with sales of narcotics.
Case No. CM041966
On November 2, 2014, narcotics task force agents conducted a traffic stop of a
vehicle in which defendant was a passenger. At the time, defendant had been released
from custody on his own recognizance and subject to search in yet another, a third
pending case (case No. CM041821). A search of defendant‘s person revealed 11.6 grams
of methamphetamine, 15 Hydromorphone pills, and a wallet containing $455. A baggie
containing a small amount of methamphetamine was also found during a search of the
vehicle.
2
PROCEDURAL BACKGROUND
Case No. CM040863
Defendant was charged by complaint, deemed the information, with possession for
sale of a controlled substance (Health & Saf. Code, § 11378). The information alleged
two prior convictions for possession of methamphetamine for sale (Health & Saf. Code,
§ 11370.2) and two prior prison terms (Pen. Code, § 667.5, subd. (b)).1
On June 12, 2014, defendant entered a negotiated plea of no contest to possession
of methamphetamine for sale as charged and admitted a prior conviction for possession
of methamphetamine for sale in exchange for dismissal of all remaining enhancements
and special allegations and the prosecution‘s agreement not to file a pending unfiled
felony case. Defendant waived time for sentencing.
On August 28, 2014, defendant was released on his own recognizance subject to
warrantless search for items including controlled substances and drug paraphernalia.
Case No. CM041966
On October 6, 2014, defendant was charged by criminal complaint with
possession of Hydromorphone (Health & Saf. Code, § 11350, subd. (a)—count 1),2
possession of methamphetamine for sale (Health & Saf. Code, § 11378—count 2), and
sale, offer to sell, or transportation of a controlled substance (Health & Saf. Code,
§ 11379, subd. (a)—count 3). The complaint alleged defendant had three prior
convictions for possession for sale of methamphetamine (Health & Saf. Code, § 11370.2)
and served two prior prison terms (§ 667.5, subd. (b)). The complaint further alleged
that, as to all three counts, defendant was released on bail or his own recognizance in case
1 Undesignated statutory references are to the Penal Code.
2 This count was later reduced to a misdemeanor pursuant to section 1170.18.
3
No. CM040863 (§ 12022.1). Defendant was again released on bail or his own
recognizance.
On January 15, 2015, defendant entered a negotiated plea of no contest to all three
counts, admitted three prior convictions for possession of methamphetamine for sale, two
prior prison terms, and that he committed an offense while released on bail or his own
recognizance in exchange for dismissal of his third case, No. CM041821, and a stipulated
judgment for forfeiture of assets. The written plea agreement reflects a maximum
possible sentence of 17 years in county prison.
Sentencing in Case Nos. CM040863 and CM041966
On February 19, 2015, the trial court sentenced defendant to an aggregate term of
17 years eight months in county prison as follows:
In case No. CM041966, the court sentenced defendant to the upper term of four
years on count 3, plus a consecutive term of eight months (one-third the middle term) on
count 2 stayed pursuant to section 654, a concurrent term of one year on count 1, nine
years for the three prior convictions, two years for the prior prison terms, and two years
for committing the offense while released on bail or his own recognizance.
In case No. CM040863, the court sentenced defendant to a consecutive term of
eight months (one-third the middle term) and stayed the remaining enhancement pursuant
to section 654.
The court ordered defendant to serve the first 3,650 days of his sentence in the
county jail and the remaining 2,798 days on mandatory supervision (§ 1170, subd.
(h)(5)(B)) subject to general and special conditions as set forth on pages 19 through 21 of
the probation report. Defendant made no objection. The court also imposed fees and
fines and awarded defendant presentence custody credit.
Defendant filed a timely notice of appeal. The trial court denied his request for a
certificate of probable cause.
4
DISCUSSION
I
Enforcement of Plea Agreement
Defendant contends the trial court‘s sentence of 17 years eight months denied him
the right to specific enforcement of his plea bargain for a sentence of 17 years. He claims
the judgment should be reversed and remanded with directions that the trial court amend
the abstract of judgment to reflect a sentence of 17 years. He further contends the claim
is neither waived nor forfeited because the court failed to admonish him pursuant to
section 1192.5.3 Assuming defendant‘s claim has not been forfeited, it fails on the
merits.
―A negotiated plea agreement is a form of contract, and it is interpreted according
to general contract principles. [Citations.] ‗The fundamental goal of contractual
interpretation is to give effect to the mutual intention of the parties. [Citation.] If
contractual language is clear and explicit, it governs. [Citation.]‘ ‖ (People v. Shelton
(2006) 37 Cal. 4th 759, 767.) ―[C]ourts should look first to the specific language of the
agreement to ascertain the expressed intent of the parties. [Citations.] Beyond that, the
courts should seek to carry out the parties‘ reasonable expectations. [Citations.]‖
(People v. Nguyen (1993) 13 Cal. App. 4th 114, 120, fn. omitted.)
―The Supreme Court has . . . recognized that due process applies not only to the
procedure of accepting the plea [citation], but that the requirements of due process attach
also to implementation of the bargain itself. It necessarily follows that violation of the
3 Section 1192.5 provides, in relevant part, that ―[i]f the court approves of the plea,
it shall inform the defendant prior to the making of the plea that (1) its approval is not
binding, (2) it may, at the time set for the hearing on the application for probation or
pronouncement of judgment, withdraw its approval in the light of further consideration of
the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her
plea if he or she desires to do so.‖
5
[plea] bargain by an officer of the state raises a constitutional right to some remedy.
[Citations.]‖ (People v. Mancheno (1982) 32 Cal. 3d 855, 860, citing Santobello v. New
York (1971) 404 U.S. 257, 262 [30 L. Ed. 2d 427, 433].)
Defendant‘s claim is based on the flawed premise that the plea agreement reached
on January 15, 2015, and, specifically, the agreed-upon sentencing lid of 17 years,
applied to both case No. CM040863 and case No. CM041966. The record reveals
otherwise.
Defendant entered a negotiated plea agreement in case No. CM040863 on June 12,
2014, whereby he pleaded no contest to a charge of possession of methamphetamine for
sale and admitted a prior conviction in exchange for dismissal of all remaining
enhancements and special allegations, a sentence of no more than three years, and the
prosecution‘s agreement not to file a pending unfiled felony case. The written plea
agreement consistently specifies a maximum possible sentence.
Thereafter, on January 15, 2015, defendant entered a separate negotiated plea
agreement in case No. CM041966, whereby he pleaded no contest to three new charges
and admitted three prior convictions, two prior prison terms, and an allegation that he
committed an offense while released on bail or his own recognizance. The written plea
agreement, which reflects only case No. CM041966, indicates a maximum possible
sentence of 17 years in county prison. The agreement makes no mention of case No.
CM040863 except in paragraph 3(a) in reference to defendant‘s admission of his prior
conviction in that case.
Defendant claims he had a reasonable understanding that he would not receive a
consecutive sentence in case No. CM040863. Again, the record belies the claim. At the
January 15, 2015, plea hearing, defense counsel informed the trial court that defendant ―is
going to be pleading, basically, as charged in CM041966‖ in exchange for dismissal of
this third case, No. CM041821, and a stipulated asset forfeiture. When the court asked
defendant whether any promises had been made ―other than what‘s been talked about
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here in court to get you to enter a plea,‖ defendant replied, ―No, sir.‖ After defendant
entered his plea and waived time for sentencing in case No. CM041966, the court stated
to Anna Kuhn, the probation officer present at the plea hearing, ―Also, I believe, Ms.
Kuhn, on the other matters, CM040863, that was already on for sentencing, and I believe
we already had a probation report on that matter, I think we should refer that one back to
Probation as well to consider that case in preparing a probation report on both matters
together.‖ Moreover, the probation report recommended a term of 17 years in case No.
CM041966 and a consecutive eight-month term in case No. CM040863, for an aggregate
term of 17 years eight months. At the sentencing hearing on February 19, 2015, the court
stated its intention to ―follow the recommendation of Probation,‖ and asked to hear from
the parties. Defense counsel stated, ―We agree with the split sentence. No further
comments.‖ Thereafter, the court noted each of the pleas entered by defendant in case
Nos. CM041966 and CM040863, found a factual basis ―for the pleas,‖ and imposed a
sentence in case No. CM040863 to run consecutive to the sentence imposed in case No.
CM041966 for an aggregate term of 17 years eight months in county prison. Again,
defendant neither objected to nor took issue with the sentence imposed.
Finally, in concluding defendant‘s claim that the People and the court promised
him a maximum aggregate sentence of 17 years lacks merit, we reject his claim that the
People are estopped from arguing any greater term.
The record makes plain that defendant bargained for and agreed to a sentencing lid
of 17 years in case No. CM041966 and a sentencing lid of three years in case No.
CM040863, and that he understood and agreed to the aggregate sentence of 17 years
eight months that he received. Because defendant received the benefit of his bargained-
for plea, we conclude there was no violation of defendant‘s plea agreements.
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II
Conditions of Mandatory Supervision
Defendant contends the trial court erred in imposing mandatory supervision
condition Nos. 6 and 13 because those conditions are not related to rehabilitation, and are
vague and overbroad, and unconstitutional. He contends his claim raises issues of
constitutionality and presents a pure question of law turning on undisputed facts and was
therefore not forfeited for failure to object.
Section 1170, subdivision (h)(5)(B)(i), provides that a defendant ordered to
mandatory supervision ― ‗shall be supervised by the county probation officer in
accordance with the terms, conditions, and procedures generally applicable to persons
placed on probation.‘ ‖ (People v. Fandinola (2013) 221 Cal. App. 4th 1415, 1422.)
―[T]he Legislature has decided a county jail commitment followed by mandatory
supervision imposed under section 1170, subdivision (h), is akin to a state prison
commitment; it is not a grant of probation or a conditional sentence.‖ (Ibid.) We
―analyze the validity of the terms of supervised release under standards analogous to the
conditions or parallel to those applied to terms of parole.‖ (People v. Martinez (2014)
226 Cal. App. 4th 759, 763 (Martinez).)
―The validity and reasonableness of parole conditions is analyzed under the same
standard as that developed for probation conditions. [Citations.] ‗A condition of [parole]
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 [parole] 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, superseded on another ground by Prop. 8 as stated in People v. Wheeler
8
(1992) 4 Cal. 4th 284, 290–292; see People v. Olguin (2008) 45 Cal. 4th 375, 379–380.)‖
(Martinez, supra, 226 Cal.App.4th at p. 764.)
―In general, the courts are given broad discretion in fashioning terms of supervised
release, in order to foster the reformation and rehabilitation of the offender, while
protecting public safety. [Citations.] Thus, the imposition of a particular condition of
probation is subject to review for abuse of that discretion. ‗As with any exercise of
discretion, the court violates this standard when it imposes a condition of probation that is
arbitrary, capricious or exceeds the bounds of reason under the circumstances.
[Citation.]‘ [Citation.]‖ (Martinez, supra, 226 Cal.App.4th at p. 764.)
―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. [Citation.] A
probation condition that imposes limitations on a person‘s constitutional rights must
closely tailor those limitations to the purpose of the condition to avoid being invalidated
as unconstitutionally overbroad. [Citation.]‖ (In re Sheena K. (2007) 40 Cal. 4th 875,
890 (Sheena K.).)
In general, the failure to make a timely objection to a probation condition forfeits
the claim of error on appeal. (People v. Welch (1993) 5 Cal. 4th 228, 234; People v.
Hodges (1999) 70 Cal. App. 4th 1348, 1357; Sheena K., supra, 40 Cal.4th at p. 882.) ―A
timely objection allows the court to modify or delete an allegedly unreasonable condition
or to explain why it is necessary in the particular case. The parties must, of course, be
given a reasonable opportunity to present any relevant argument and evidence.‖ (People
v. Welch, supra, 5 Cal.4th at p. 235.) An objection may be raised for the first time on
appeal only where it concerns an unauthorized sentence involving pure questions of law.
(People v. Scott (1994) 9 Cal. 4th 331, 354; Sheena K., supra, 40 Cal.4th at pp. 888-889.)
Defendant argues his failure to object to the imposition of either of the challenged
conditions does not forfeit his claim because both conditions present a pure question of
9
law turning on undisputed facts. We consider each condition and, as we shall explain,
conclude that the first (condition No. 6) is valid and the second (condition No. 13) is
valid in part.
Condition No. 6
General condition No. 6 requires defendant to obtain ―written permission from the
probation officer‖ before leaving the State of California. While all citizens enjoy a
federal constitutional right to travel from state to state (Shapiro v. Thompson (1969)
394 U.S. 618, 629 [22 L. Ed. 2d 600, 612]), that right is not absolute and may be
reasonably restricted in the public interest. (In re White (1979) 97 Cal. App. 3d 141, 149-
150 (White).) Defendant was convicted of crimes involving the sale and transportation of
controlled substances. There is a direct relationship between the sale and transport of
drugs and the exercise of the right to travel. Thus, under Lent, the condition is reasonably
related to preventing future criminality by placing a reasonable limitation on defendant‘s
unfettered ability to travel from California to another state.
Analogizing to the facts in White, defendant claims condition No. 6 violated his
state and federal constitutional right to travel and thus his right to work. White is
factually distinguishable. There, the reviewing court struck down a probation condition
prohibiting the defendant from entering certain areas in Fresno known for having a high
concentration of prostitution arrests. (White, supra, 97 Cal.App.3d at pp. 143-144, 148.)
But here, unlike White, the condition‘s limitation on interstate travel is closely tailored to
the purpose of monitoring defendant‘s travel to and from California not by barring his
ability to travel altogether but by requiring that he first obtain written permission before
doing so. Indeed, the court in White concluded that the condition in question there could
be modified by, for example, ―establish[ing] reasonable hours during the day or night
when the [defendant] may under certain specified circumstances and for a particularly
enumerated purposes [sic]‖ enter into the prohibited areas. (Id. at pp. 151-152.) In other
words, the condition would pass constitutional muster if it were modified to specify
10
certain times and reasons the defendant would be permitted to enter while continuing to
prohibit other times and reasons. Such is the case here.
Defendant argues conditioning the right to leave the state on obtaining prior
written approval does not render the condition legal. As support, he relies on People v.
Bauer (1989) 211 Cal. App. 3d 937. There, the Court of Appeal rejected a probation
condition requiring the defendant to obtain his probation officer‘s approval of his
residence, finding the condition was not reasonably related to future criminality and did
not relate to conduct that was in itself criminal. The court also noted, without further
explanation, that the condition was ―extremely broad‖ and not narrowly tailored to
minimize interference with defendant‘s constitutional right to travel and freedom of
association. (Id. at p. 944.) In particular, the court noted the defendant lived with and
had an ―exemplary‖ relationship with his parents, and the condition ―gives the probation
officer the discretionary power . . . to forbid [him] from living with or near his parents --
that is, the power to banish him.‖ (Ibid.)
The condition in the Bauer case differs significantly from the condition challenged
here. In Bauer, the condition, which had nothing to do with the assault and false
imprisonment crimes of which the defendant was convicted, required the defendant to
obtain approval of his residence. By its very broad nature, the condition thus gave the
probation officer the unfettered power and discretion to determine where and with whom
the defendant would live and, as the Bauer court noted, had the potential to greatly
restrict and control the defendant‘s ability to travel and freely associate with others of his
choosing. Here, on the other hand, the travel condition is narrowly tailored to require
only that defendant obtain written permission to leave the state. It does not prohibit
travel within the state nor does it prohibit him from travel altogether. As such, it is
― ‗sufficiently precise for [defendant] 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
11
p. 890.) The condition is also reasonably related to future criminality in light of
defendant‘s conviction for sale and transportation of drugs. Thus, it passes the Lent test.
Condition No. 13
General condition No. 13 requires defendant to ―report to the probation officer, no
later than the next working day, any arrests or any contacts with or incidents involving
any peace officer.‖ Defendant claims the terms ―contacts with‖ and ―incidents
involving‖ peace officers are uncertain because one cannot determine whether those
terms include occasional conversation with a police officer who lives down the street,
answering an officer‘s questions as a witness to a crime, or participation in a
demonstration where officers are present. He further claims the condition is vague
because it is subject to the ― ‗whim of any police or probation officer,‘ ‖ and
unconstitutionally infringes on his rights under the First Amendment of the United States
Constitution. We agree the condition is vague, in part.
―[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. [Citation.]‘ [Citation.] The vagueness doctrine
bars enforcement of ‗ ―a statute which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must necessarily guess at its meaning
and differ as to its application.‖ [Citation.]‘ [Citation.]‖ (Sheena K., supra, 40 Cal.4th at
p. 890.)
On the one hand, a probationer can hardly argue with a straight face that reporting
―any arrests‖ requires one to guess at its meaning. Similarly, the phrase ―incidents
involving any peace officer‖ implies the happening of some difficulty or problem, either
directly or indirectly related to defendant, that has resulted in police involvement. This,
too, is sufficient to put defendant on notice as to what is required of him.
12
On the other hand, the portion of the condition requiring that defendant report
―any contacts with . . . any peace officer‖ is vague and overbroad and does indeed leave
one to guess what sorts of events and interactions qualify as reportable. We disagree with
the People‘s argument that the condition is clearly not triggered when defendant says
―hello‖ to a police officer or attends an event at which police officers are present, but
would be triggered if defendant were interviewed as a witness to a crime or if his
―lifestyle were such that he is present when criminal activity occurs.‖ The language does
not delineate between such occurrences and thus casts an excessively broad net over what
would otherwise be activity not worthy of reporting. Accordingly, we remand the matter
to the trial court with directions to modify condition No. 13 to address the concerns
expressed in this opinion.‖
Finally, although not raised by the parties, we note that a portion of the sentence
imposed in case No. CM041966—the consecutive term of eight months (one-third the
middle term) on count 2 stayed pursuant to section 654—is unauthorized. ―The one-
third-the-midterm rule of section 1170.1, subdivision (a), only applies to a consecutive
sentence, not to a sentence stayed under section 654.‖ (People v. Cantrell (2009) 175
Cal. App. 4th 1161, 1164.) To effectuate section 654, the trial court must impose a full
term and stay execution of that term. (People v. Alford (2010) 180 Cal. App. 4th 1463,
1469-1472.) We exercise our inherent authority to correct an unauthorized sentence
(People v. Smith (2001) 24 Cal. 4th 849, 852; People v. Turner (2002) 96 Cal. App. 4th
1409, 1413-1415) by modifying the judgment to impose a sentence on count 2 in case
No. CM041966 of a consecutive two-year term (the middle term) stayed pursuant to
section 654. We direct the trial court to amend the abstract of judgment accordingly.
DISPOSITION
Defendant‘s convictions are affirmed. We remand the matter to the trial court to
modify probation condition No. 13 to address the concerns expressed in this opinion. We
also modify the judgment to impose a sentence on count 2 in case No. CM041966 of a
13
consecutive two-year term (the middle term) stayed pursuant to section 654. The trial
court is directed to prepare an amended abstract of judgment to reflect the corrected
sentence, and send a copy of the amended abstract to the Department of Corrections and
Rehabilitation. As modified, the judgment is affirmed.
NICHOLSON , Acting P. J.
We concur:
MAURO , J.
MURRAY , J.
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