People v. Gomez CA4/1 ( 2021 )

Filed 5/4/21 P. v. Gomez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077707
Plaintiff and Respondent,
v. (Super. Ct. No. JCF003344)
IVAN GOMEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County,
Christopher J. Plourd, Judge. Affirmed in part; reversed in part. Remanded
with instructions.
Matthew A. Lopas, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A.
Swenson, and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant Ivan Gomez pled no contest to one count of threatening a
victim or witness (Pen. Code,1 § 140, subd. (a)). He had three prior
misdemeanor convictions for drug-related offenses, including one for which he
was on probation at the time of the underlying offense. At sentencing, the
court imposed a series of drug-related probation conditions over Gomez’s
objection: (1) requiring Gomez to submit to chemical testing for detection of
controlled substances; (2) requiring Gomez to provide the probation officer
written notice of filling a medical prescription for a controlled substance or
marijuana within a reasonable time not to exceed 15 days; (3) prohibiting
him from associating with individuals he knows to be drug users or dealers;
(4) limiting marijuana usage to prescription usage only; and (5) requiring
Gomez to participate in SMART Recovery, a nonresidential drug treatment
program. Gomez objected on the basis that these conditions violate the third
prong of People v. Lent (1975) 15 Cal.3d 481 (Lent) because there was no
nexus between the conditions and the present crime or to his future
criminality. Gomez also contends the chemical testing and prescription
reporting conditions are unconstitutionally overbroad. Additionally, Gomez
challenges as unconstitutionally vague and overbroad a condition that
requires him to report any arrests and/or police contacts within 48 hours.
We conclude that the court did not abuse its discretion in imposing the
first four conditions because they meet the requirements of Lent. We further
conclude the chemical testing and prescription reporting requirements are
not unconstitutionally overbroad. However, we conclude that the court
abused its discretion in imposing a condition that requires Gomez to
participate in a nonresidential drug treatment program (SMART Recovery).
Accordingly, we will remand the matter with instructions to strike that
1 Statutory references are to the Penal Code unless otherwise specified.
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condition. We further conclude that the condition requiring Gomez to report
any police contacts within 48 hours is unconstitutionally vague as drafted,
and we will remand the matter for modification consistent with this opinion.
BACKGROUND AND PROCEDURAL FACTS
We take the facts from the probation report, which summarized the
information contained from the Brawley Police Department’s report:
“On May 5, 2020, Brawley Police Department’s Officer R. Valdez was
on patrol in the city of Brawley, when at approximately 0412 hours, he was
dispatched . . . in reference to a bedroom window being broken. Upon
arriving at the scene, Officer Valdez made contact with Maria F[ ]. [Maria F.]
stated she had just gotten out of the shower when she heard a knock on her
window. She advised she went to the window and advised the window was
unlocked and opened approximately one inch. She stated when she pulled
back the curtain, Ivan Gomez opened the window completely and climbed
inside the residence. She further stated Gomez was not invited to the
residence nor did she allow him to enter the residence. [Maria F.] stated she
told Gomez to get out; however, he refused. She stated Gomez was upset due
to law enforcement being called to her residence from a prior incident.
According to [Maria F.], Gomez accused her of calling officers and attempted
to get her to tell him what statement she provided to law enforcement. He
further stated[,] ‘I’m going to get someone to fuck you up.’ [Maria F.] stated
[s]he proceeded to tell Gomez to get out; however, he became irate and
punched her in the right bicep area. Officer Valdez noted a visible red mark
in the area where [Maria F.] was punched. She stated after Gomez punched
her, he ran his right arm along a counter top knocking multiple items onto
the ground[, along with] a glass cup which broke upon hitting the floor. She
stated her mother then proceeded to contact law enforcement and Gomez
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proceeded to climb out the window and [leave] the area. Subsequently, on
May 19, 2020, the defendant was arrested and booked into the Imperial
County Jail.”
Gomez pled no contest to a violation of section 140, subdivision (a),
threatening a victim or witness.
According to the probation report, Gomez had four prior misdemeanors:
reckless highway driving in 2010 (Veh. Code, § 23103, subd. (a)); use of a
controlled substance in 2013 (Health & Saf. Code, § 11550, subd. (a));
possession of a controlled substance in 2014 (Health & Saf. Code, § 11377,
subd. (a)); and possible injection or ingestion device (possession of drug
paraphernalia) in 2018 (Health & Saf. Code, § 11364, subd. (a)). The court
sentenced Gomez to three years of formal probation and imposed drug
conditions “[b]ased [on] the defendant’s drug history, as evidenced by the
probation [report].” The drug conditions require Gomez to (1) submit to
chemical testing for the detection of controlled substances (condition 19);
(2) provide written notice to the probation officer within 15 days of filling a
medical prescription for a controlled substance or marijuana (condition 20);
(3) refrain from associating with known drug users or dealers beyond
participation in drug treatment as required (condition 21); (4) refrain from
the use or possession of controlled substances and paraphernalia without a
prescription, including marijuana (condition 20); and (5) participate and
complete the SMART Recovery nonresidential drug treatment program
(conditions 22 and 23).2 Gomez objected to these conditions, contending they
2 The court directed participation in a nonresidential drug treatment
program, which it later specified would be the SMART Recovery program
based on the probation department’s recommendation. This is reflected in
the minute order as two separate conditions, conditions 22 and 23, though it
is the same requirement.
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were not expressly negotiated as part of his plea and had no nexus to the
charged offense.
The court also included a condition that Gomez “report any arrests
and/or police contacts within 48 hours to the probation officer” (condition 4).
Gomez objected to this condition on the grounds that it is overly broad and
vague.
Gomez timely appealed.
DISCUSSION
A. Drug Conditions
1. Legal Principles
A court has wide discretion to impose conditions on a probationer that
further the goals of rehabilitation and public safety. (People v. Moran (2016)
1 Cal.5th 398, 402-403 (Moran).) However, the court’s discretion is not
limitless; “a condition of probation must serve a purpose specified in the
statute,” and the conditions that regulate noncriminal activity must
reasonably relate to the crime for which the defendant was convicted, or they
must prevent future criminality. (People v. Carbajal (1995) 10 Cal.4th 1114,
1121.) A probation condition is invalid if 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 . . . .’ ” (Lent, supra, 15 Cal.3d at p. 486.) The
test is conjunctive, which means “all three prongs must be satisfied before a
reviewing court will invalidate a probation term.” (People v. Olguin (2008) 45
Cal.4th 375, 379 (Olguin).) The relationship between probation conditions
and future criminality “contemplates a degree of proportionality between the
burden imposed by a probation condition and the legitimate interests served
by the condition.” (In re Ricardo P. (2019) 7 Cal.5th 1113, 1122 (Ricardo P.).)
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Additionally, “courts may properly base probation conditions upon
information in the probation report that raises concerns about future
criminality unrelated to a prior offense. [Citation.]” (Ricardo P., supra,
7 Cal.5th at p. 1122.) However, this requires “more than just an abstract or
hypothetical relationship between the probation condition and preventing
future criminality.” (Id. at p. 1121.)
On appeal, we “ ‘review conditions of probation for abuse of
discretion.’ ” (Moran, supra, 1 Cal.5th at p. 403.) Specifically, we review a
probation condition “for an indication that the condition is ‘arbitrary or
capricious’ or otherwise exceeds the bounds of reason under the
circumstances.” (Olguin, supra, 45 Cal.4th at p. 384.)
2. Chemical Testing, Prescription Notification, and Association
with Known Drug Users
Gomez contends the drug conditions violate Lent because the plea
offense is not related to drug or drug paraphernalia use or possession and
there was no evidence of recent drug use. He further contends the conditions
bear no nexus to future criminality. The Attorney General contends that
because Gomez was previously convicted of drug-related offenses and was
still on probation for his 2018 misdemeanor drug conviction at the time he
committed the offense here, “to the extent that the conditions prohibit illegal
drug use, they are permissibly related to unlawful activity,” and to the extent
that the conditions prohibit legal activity, like possession of marijuana
without a prescription, the conditions are reasonably related to future
criminality.
The court expressed concern about Gomez’s drug history based on
Gomez’s three prior drug-related misdemeanor convictions and the fact that
Gomez was still on probation for the most recent one when he committed the
underlying act here. The court’s imposition of conditions aimed to ensure
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Gomez’s ongoing compliance with laws prohibiting unlawful drug possession
are relevant to his future criminality. These conditions do not generically
support supervision because they regard activity related to specific unlawful
behavior for which Gomez has a criminal history. The chemical testing
provision helps ensure Gomez does not use narcotics or marijuana, which
either relates to conduct which is criminal or is reasonably related to
rehabilitation. The prescription reporting condition, likewise, is related to
Gomez’s future criminality by supporting the monitoring for illegal drug use.
It alerts the probation department about Gomez’s lawful use of a controlled
substance so that the probation officer can modify its supervision to reflect
that information. Finally, although Gomez argues the chemical testing and
prescription conditions are disproportionately burdensome, he does not
explain why this is so.3 The reporting condition leaves Gomez ample time to
report filling a prescription for controlled substances or marijuana, and this
type of information seems no more time-consuming or difficult to share than
informing the probation officer of a change in address or work conditions.
(See, e.g., Olguin, supra, 45 Cal.4th at p. 382 [explaining the requirement to
report the presence of a pet “imposes no undue hardship or burden”].) As
they relate to controlled substances, these conditions simply require Gomez
to refrain from unlawful activity and to inform the probation officer with
activity that would otherwise be unlawful when it becomes legal temporarily.
Condition 21, which requires Gomez to refrain from associating with
known drug users, is also reasonably related to future criminality. The right
to freely associate may be restricted as part of the criminal process when the
limitation is designed to meet the goals of rehabilitation and protection of the
3 We address Gomez’s challenge that these conditions violate his privacy
rights post.
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public, and the restriction relates reasonably to those goals. (People v. Lopez
(1998) 66 Cal.App.4th 615, 627-628 (Lopez).) This condition helps ensure
Gomez does not fall into habits that led to the misdemeanor convictions
during the duration of the probation. (See People v. Peck (1996) 52
Cal.App.4th 351, 363 [“Where a defendant is convicted of drug possession and
admits drug use, a condition of probation that the defendant not associate
with other admitted and suspected users is valid”].) The court’s decision to
apply these drug conditions was not based on an abstract or hypothetical
relationship with future criminality because of Gomez’s recent criminal
history. (See Lent, supra, 15 Cal.3d at p. 486; Ricardo P., supra, 7 Cal.5th at
p. 1121.) Thus, these conditions comply with Lent.
3. Requirement for Marijuana Prescription for Use
Gomez also challenges the prohibition of marijuana use without a
prescription. The Attorney General argues this condition is appropriate
because it reasonably relates to future criminality, citing People v. Cota
(2020) 45 Cal.App.5th 786 (Cota). There, the defendant was convicted of
possessing methamphetamine, and the court imposed a condition that
restricted alcohol use. (Id. at pp. 791-793.) The appellate court recognized
that alcohol consumption was not illegal and did not relate to the instant
offense; however, it concluded that alcohol use could lead to future
criminality because the defendant had a history of substance abuse. (Id. at
p. 792.)
In Cota, the defendant disclosed to the probation department that he
was an habitual drug user of methamphetamine and that he used marijuana
daily. (Cota, supra, 45 Cal.App.5th at p. 792.) Although Gomez did not
disclose any habitual substance use or abuse, the repeated drug-related
misdemeanors offer a basis for the trial court’s concern about marijuana use
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as well. Just as the court in Cota imposed alcohol restrictions because of the
defendant’s history and the desire to prevent future criminality, here the
court’s imposition of the marijuana limitation was directly related to its
concern regarding the number of drug offenses on Gomez’s record and his
future criminality. We note, too, that the court more narrowly drew this
condition by prohibiting marijuana use absent a prescription but otherwise
permitting it. This is further indication that the court’s focus was on
potential drug abuse, reflecting concerns regarding future criminality.
4. Participation in Nonresidential Drug Treatment Program
The court ordered Gomez to participate in the SMART Recovery
program, a nonresidential drug treatment program, as prescribed by the
probation officer. There was no indication here that Gomez’s crime of
threatening a witness was conducted while he was under the influence or was
in any other way related to substance abuse or addiction. (See Lent, supra,
15 Cal.3d at p. 486.) While we recognize that this condition bears some
limited connection to future criminality in light of Gomez’s prior
misdemeanors, this requirement is disproportionately burdensome, requiring
the participation in a 12-step program for which there is no evidence of need.
Given the burdensome nature of participation in a drug treatment program
and the lack of evidence that such participation relates to the underlying
crime or any concerns about Gomez’s rehabilitative needs, we conclude that
the court abused its discretion in imposing this requirement. (See Ricardo P.,
supra, 7 Cal.5th at p. 1122.)
B. Constitutional Challenge to Drug Conditions
Gomez separately challenges the chemical testing and prescription
reporting conditions as unconstitutionally overbroad and a violation of his
fourth amendment rights. The Attorney General argues that Gomez forfeited
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any as-applied challenges to these conditions by failing to object to the
conditions on constitutional grounds at the time of sentencing, instead
challenging them only as having “no nexus” between the crime charged and
the drug conditions. Gomez did not argue below that the conditions were
constitutionally overbroad.
The general rules require challenges of this sort to be raised in the trial
court (People v. Welch (1993) 5 Cal.4th 228, 234-235) so that it can create a
record from which an appellate court can discern the court’s reasons for the
conditions (see In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.)). The
failure to timely raise the objection can serve as the basis for applying the
forfeiture doctrine to attempts to raise objections for the first time on appeal.
(In re I.V. (2017) 11 Cal.App.5th 249, 260-261 (I.V.).) However, when the
challenge is to the language of a condition based on vagueness or overbreadth
and the challenge can be decided without reference to the facts of the record,
the failure to timely object does not require forfeiture. (Sheena K., at p. 887.)
Gomez objected to the trial court to some probation conditions as
violative of his constitutional rights. He objected to the police contact
reporting requirement as vague and overbroad, and he objected to
participating in the SMART Recovery program as violating his first
amendment rights. In contrast, he focused his objections to these drug-
related conditions on whether there was a nexus between them and
criminality, rather than challenge them as violating a constitutional right.
Thus, he forfeited any as-applied challenge. Accordingly, we limit our review
of these probation conditions to a facial evaluation, which we review de novo.
(See Sheena K., supra, 40 Cal.4th at pp. 887, 888-889.)
“If a probation condition serves to rehabilitate and protect public
safety, the condition may ‘impinge upon a constitutional right otherwise
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enjoyed by the probationer, who is “not entitled to the same degree of
constitutional protection as other citizens.” ’ ” (People v. O’Neil (2008)
165 Cal.App.4th 1351, 1355, quoting Lopez, supra, 66 Cal.App.4th at p. 624.)
A constitutionally overbroad condition is one that restricts a fundamental
constitutional right to a greater degree than necessary to achieve the
condition’s purpose. (Olguin, supra, 45 Cal.4th at p. 384.) In an overbreadth
challenge, we consider the closeness of the fit between the purpose of the
restriction, here reformation and rehabilitation, and the burden it imposes on
a defendant’s constitutional rights, recognizing that perfection is not possible,
and “ ‘practical necessity will justify some infringement.’ ” (People v. Pirali
(2013) 217 Cal.App.4th 1341, 1346 (Pirali).)
As we explained ante, chemical testing verifies a probationer’s
compliance with the laws prohibiting consumption of illegal narcotics; the
requirement is focused on testing to ensure compliance with the law and to
provide incentive for rehabilitation. Prescription reporting likewise aids the
probation department in monitoring a defendant, in recognition that
consumption of controlled substances can be legal. Thus, there is a
reasonable connection between the condition and the goals it supports.
Nonetheless, Gomez maintains that these requirements restrict his
right to privacy to a greater degree than necessary to achieve the goals. He
compares his situation to the defendant’s situation in People v. Appleton
(2016) 245 Cal.App.4th 717, 719-720, a case in which the court imposed an
electronic and social media search condition on the defendant. There, the
court of appeal explained that such expansive access to electronic information
would expose vast amounts of personal information unrelated to the potential
for future criminality and noted that whether the defendant used social
media to contact a minor for unlawful purposes could be addressed through
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narrower means. (Id. at p. 727.) Gomez contends that the medical
information provided by a chemical drug test is more intimate and more
personal than a general electronic and social media search condition, so it has
even stronger privacy implications. (See Board of Medical Quality Assurance
v. Gherardini (1979) 93 Cal.App.3d 669, 678 [discussing medical profile as
intimate and personal].)
We recognize that medical information can be personal and sensitive,
but the probation conditions here do not require the probationer to disclose
large swaths of personal medical information. Unlike the expansive
electronic and social media search condition in Appleton, both the chemical
testing and the prescription reporting conditions are limited in scope. The
chemical testing discloses only a narrow piece of personal information,
whether or not a probationer has ingested a prohibited controlled substance
or marijuana. Thus, it is narrowly tailored to address the reformation and
rehabilitation purposes for which it was imposed. (See Pirali, supra, 217
Cal.App.4th at p. 1346.)
Similarly, condition 20, when read in its entirety, makes clear that it
requires disclosure of limited information. Condition 20 states in full:
“Defendant shall refrain from the use or possession of controlled substances
and narcotics paraphernalia without a medical prescription, to include
marijuana, and the defendant shall provide written notice to the Probation
Officer within a reasonable time, not to exceed 15 days from the date
defendant fills the prescription.” “The prescription” that a probationer must
report to the probation department is the one permitting the use of the
aforementioned “controlled substances and narcotics paraphernalia . . . , to
include marijuana,” not just any and every prescription medication. This
condition is sufficiently narrowly tailored to fit the goals of reformation and
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rehabilitation, particularly when read in connection with the chemical testing
condition. (See Pirali, supra, 217 Cal.App.4th at p. 1346.)
C. Constitutional Challenge to Police Contact Condition
Gomez contends probation condition 4, which requires him to “report
any arrests and/or police contacts within 48 hours to the probation officer” is
unconstitutionally vague.
“[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. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).’ ”
(Sheena K., supra, 40 Cal.4th at p. 890.) “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.” (Ibid.) Probation
conditions are given “ ‘ “the meaning that would appear to a reasonable,
objective reader.” ’ ” (I.V., supra, 11 Cal.App.5th at p. 261.) Thus, the mere
fact that there “ ‘ “ ‘may be difficulty in determining whether some marginal
or hypothetical act is covered by [a condition’s] language’ ” ’ ” does not render
the condition “impermissibly vague.” (Ibid.)
Gomez relies on People v. Relkin (2016) 6 Cal.App.5th 1188 (Relkin) to
support his argument that the portion of the condition requiring him to
“report any arrests and/or police contacts within 48 hours to the probation
officer” is unconstitutionally vague. In Relkin, the court considered a
probation condition that required the defendant “to ‘report to the probation
officer, no later than the next working day, any arrests or any contacts with
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or incidents involving any peace officer.’ ” (Id. at p. 1196.) The court
concluded that “the portion of the condition requiring that defendant report
‘any contacts with . . . any peace officer’ ” was vague because it left him to
guess what events or interactions would qualify as reportable. (Id. at
p. 1197.) According to the court, it was not certain that the condition would
not be 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.’ ” (Ibid.) “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.” (Ibid.)
The Attorney General argues the probation condition here is more
appropriately compared to one evaluated in People v. Brand (2021) 59
Cal.App.5th 861 (Brand), a case in which a panel of our court concluded a
report-contact condition was not unconstitutionally broad. The report-contact
condition in Brand consisted of three sentences. It required the defendant to
provide his name, address, and date of birth if contacted by law enforcement.
In the same condition, it required the defendant to report a contact or arrest
to the probation officer within seven days, including the date of the contact or
arrest, any charges, and the name of the law enforcement agency. (Id. at
pp. 870-871.) Our court explained that a reasonably objective person would
take the sentences together and conclude a defendant “is required to report
only those contacts in which a law enforcement officer requests identifying
information from Brand. . . . When read together, these . . . sentences make
clear to a reasonable reader that the law enforcement contact that [the
defendant] must report is any contact in which [the defendant] is required to
provide his name, address, and date of birth to law enforcement.” (Ibid.)
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Further, because the condition required the defendant to report the name of
the law enforcement agency involved, “a reasonable person would understand
that [the defendant] does not have to report contact with a law enforcement
officer that is not meaningful enough for the officer to provide [the defendant]
with information about the relevant law enforcement agency.” (Id. at p. 871.)
Thus, the report-contact condition indicated to a reasonable person that a
defendant was “not required to report casual, random interactions with law
enforcement officers.” (Ibid.)
The Attorney General contends that the condition at issue here is the
same as the one in Brand because probation condition 4 requires Gomez to
“report any arrests and/or police contacts within 48 hours to the probation
officer,” and a different condition, probation condition 11, requires Gomez to
“identify [himself] to any peace officer, and . . . advise the officer that [he] is
on probation and subject to warrantless search.” The Attorney General
argues that “read together, these two sentences contemplate reporting
contacts in which appellant is required to provide his identifying information,
and are reasonably read to refer to those contacts where it has been
determined that he is either a witness to a crime or a potential suspect in the
commission of a crime.” But the Attorney General does not explain why
these two conditions should be read together. Unlike the condition in Brand,
the conditions here are not contained in a single report-contact probation
condition; they are separated by several other probation conditions unrelated
to contact with peace officers, like maintaining employment, participating in
a non-residential cognitive counseling program, notification requirements for
changes in residence, and warrantless searches, none of which were
challenged by Gomez.
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The condition here is more like the one challenged in Relkin. Both
require the probationers to report any arrests or police contacts. And neither
provides any context for the types of contacts that are reportable. We
recognize that there are some differences in the wording of the condition
imposed on Gomez and the one in Relkin: In Relkin, the defendant had to
report the contact within 24 hours, while the one here provides for 48 hours.
The condition in Relkin required the defendant to report “any incidents” that
involved a police officer, while that specific requirement was not included in
the condition here. However, these differences are minor and do not clarify
the vague language that makes the condition problematic. Because it is
unclear what contacts require reporting, we conclude the condition is
unconstitutionally vague and overbroad, and we will remand the matter for
the trial court to make appropriate modifications.
DISPOSITION
We remand the matter to the trial court with instructions to strike the
condition that Gomez participate in the nonresidential SMART Recovery
drug treatment program.4 We further direct the court to modify probation
condition 4, which requires Gomez to report any arrests and/or police contacts
4 This requirement is found in probation conditions 22 and 23.
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within 48 hours to the probation officer, to address the concerns expressed in
this opinion.5 In all other respects, the judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
GUERRERO, J.
5 We alert the trial court to Assembly Bill No. 1950, which amended
section 1203.1 and became effective January 1, 2021. (Stats. 2020, ch. 328,
§ 2.) The amended section may impose limitations on the term of probation.
We offer no opinion regarding how the trial court should address the
amended statute.
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