People v. Macovichuk CA4/1 ( 2023 )

Filed 2/16/23 P. v. Macovichuk CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079774
Plaintiff and Respondent,
v. (Super. Ct. No. SCN411078)
MICHAEL ELLIOTT MACOVICHUK,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Brad A. Weinreb and James E. Simmons, Jr., Judges. Sentence vacated in
part and remanded for further proceedings; in all other respects affirmed.
Kenneth J. Vandevelde, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A.
Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury found Michael Elliott Macovichuk guilty of one count of making
a criminal threat. (Pen. Code, § 422.)1 The trial court placed Macovichuk on
formal probation for a term of three years.
Macovichuk asserts several arguments on appeal. First, he contends
that his constitutional right to a speedy trial, under both the federal and
state constitutions, was violated because pandemic-related delays resulted in
a time span of 19 months between the time he was charged and the date of
his trial, during which one of his intended trial witnesses died. Second, he
contends that the trial court abused its discretion in overruling an
evidentiary objection to the admission of certain photographs. Third, he
challenges the imposition of certain fines and fees on the ground that they
were not imposed by the trial court, on the record, at the sentencing hearing.
Finally, he challenges the imposition of certain probation conditions.
We conclude that Macovichuk’s only meritorious challenge relates to
the imposition of the fines and fees. As the People concede, the trial court
was not clear during the sentencing hearing about which fines and fees it
intended to impose and in what amounts. Accordingly, we will vacate the
imposition of the fines and fees specified in the minute order from the
sentencing hearing and the order granting formal probation, and we will
remand for the trial court to hold further proceedings with respect to the
fines and fees it intends to impose.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of February 21, 2020, Macovichuk was speaking on the
phone to his brother, J., who was in Houston. As J. described the phone call
1 Unless otherwise indicated, all further statutory references are to the
Penal Code.
2
during his trial testimony, Macovichuk became upset, saying that everyone
was against him and that “nothing matters in life.” Macovichuk threatened
to harm himself and then started saying that he was going to kill other
people. As the intended victims, Macovichuk specifically named his mother
(Mother) and everyone else who was at Mother’s house, which included two of
Macovichuk’s nephews, and Macovichuk’s sister and her family. Macovichuk
also said he was going to kill Tim F., in whose house Macovichuk was
residing.
At first, J. did not believe the threats, but then Macovichuk stated that
he had a gun, and he told J. to listen to a sound, which J. identified as the
sound of loading bullets into the magazine of a gun. At some point during the
conversation, Macovichuk told J. that he had rifles. Macovichuk repeatedly
said there would be dead people, and kept reiterating that he was going to
act. Macovichuk was aggressive and yelling. Macovichuk told J. that it was
J.’s choice, “It’s either 30 people or one,” which J. understood to mean that
Macovichuk was either going to shoot 30 people or shoot himself.
J.’s telephone conversation with Macovichuk lasted approximately 40
minutes and ended when Macovichuk hung up on J. During much of that
time, J. was communicating by text message with Mother. J. urged Mother
to call 911, and she did so. In his text messages to Mother, J. warned Mother
about Macovichuk’s threats to her and others, kept her updated on
Macovichuk’s statements, and worked with her to determine where
Macovichuk might be located. In addition, both Mother and J. attempted to
contact Tim F. to warn him of Macovichuk’s threats.
Based on statements that Macovichuk made during their conversation,
J. inferred that Macovichuk was at a storage facility where he had a storage
unit. After J. and Mother figured out the likely location of the storage
3
facility, which was about 10 miles from Mother’s house, police responded to
that location and contacted Macovichuk in the parking lot. Macovichuk did
not have any weapons on his person or in his car. However, when police
searched Macovichuk’s storage unit, they found a loaded pistol and two
loaded rifles.
Macovichuk was arrested on February 21, 2020. On February 25, 2020,
Macovichuk was arraigned on a complaint charging him with one count of
making a criminal threat. The complaint identified Mother as the victim of
the threat.
A preliminary hearing was held on May 19, 2020, at which Macovichuk
was arraigned on the information.2 On the day of the preliminary hearing,
Macovichuk was released from custody on bail. A readiness hearing was held
on June 16, 2020, with trial set for July 8, 2020.
With Macovichuk’s agreement to a time waiver, the trial date was
continued to September 23, 2020, and then to October 28, 2020. Thereafter,
the disruptions related to the COVID-19 pandemic caused the trial court to
continue the trial date nine times between October 28, 2020, and August 25,
2021, without obtaining a time waiver from Macovichuk, and over his
objection. On September 14, 2021, Macovichuk requested a continuance of
the trial date.3
2 At a March 4, 2020 readiness hearing, Macovichuk waived time, and a
preliminary hearing was scheduled to take place on April 14, 2020. Because
of pandemic-related disruptions, that hearing was continued to May 19, 2020.
Macovichuk filed a motion to dismiss based on the delay in holding the
preliminary hearing, which the trial court denied.
3 A pleading filed by Macovichuk in the trial court stated that the
request for a continuance was “due to COVID quarantine and car trouble.”
4
A jury trial commenced on October 6, 2021. On the day of trial, the
People amended the information to add a second count alleging the making of
a criminal threat (§ 422) with J. as the victim.4 Also on the day of trial, the
trial court considered and denied Macovichuk’s motion to dismiss the action
based on an alleged denial of his right to a speedy trial.5
The jury convicted Macovichuk on one count of making a criminal
threat, with J. as the victim, but it was unable to reach a verdict on the count
alleging that he made a criminal threat against Mother. A mistrial was
declared on that count, and the People subsequently dismissed it.
The trial court placed Macovichuk on formal probation for a period of
three years.
II.
DISCUSSION
A. Macovichuk’s Right to a Speedy Trial Was Not Violated
We first consider Macovichuk’s contention that his conviction must be
reversed because he was denied the right to a speedy trial as guaranteed by
the federal Sixth Amendment and the California Constitution.
1. Relevant Factual Background
We begin with the factual basis for Macovichuk’s argument. As we
have explained, Macovichuk was arrested and arraigned in late February
2020, and his trial started more than 19 months later in early October 2021.
4 Although there was no evidence that Macovichuk threatened to
injure J., section 422 makes it a crime to threaten the safety of a person’s
immediate family members, including a parent. (§ 422, subds. (a), (b).)
5 The trial court denied the motion to dismiss without prejudice so that
Macovichuk could renew it at the end of trial. Macovichuk renewed the
motion at the end of trial, and the trial court again denied it.
5
As the People point out, some of the 19-month delay was agreed to by
Macovichuk, as he waived time for the continuance of the trial dates from
July 8 to October 28, 2020, and from September 14 to October 6, 2021.
However, it is undisputed that the approximate 11-month delay between
October 28, 2020 and September 14, 2021 was due to the disruption to the
trial court’s operations caused by the COVID-19 pandemic. Macovichuk
repeatedly objected to that 11-month delay, and he thereafter brought a
motion to dismiss based on the denial of his right to a speedy trial.
During the entire 11 months that the trial court delayed Macovichuk’s
trial, general orders were in place that extended the deadline to hold a
criminal trial due to the exceptional circumstance of the COVID-19
pandemic.6 Moreover, as the San Diego Superior Court began again to hold
criminal trials as the pandemic subsided, the court’s general orders
prioritized trials for in-custody defendants, rather than out-of-custody
defendants like Macovichuk.7 As the trial court explained in ruling on
6 On our own motion, we take judicial notice of the general orders of the
presiding department of the San Diego County Superior Court which
extended the deadline to hold criminal trials due to the pandemic during the
timeframe when Macovichuk’s trial was delayed over his objection. (Super.
Ct. San Diego County, Gen. Order Nos. 100720-95 (Oct. 7, 2020), 110520-101
(Nov. 5, 2020), 120820-109 (Dec. 8, 2020), 010121-48 (Dec. 31, 2020), 010821-
52 (Jan. 8, 2021), 020321-56 (Feb. 3, 2021), 031021-60 (Mar. 10, 2021),
040821-65 (Apr. 8, 2021), 050621-69 (May 6, 2021), 060721-73 (June 7, 2021),
070821-78 (July 8, 2021), 080621-82 (Aug. 6, 2021), 090221-85 (Sept. 2,
2021).)
7 On our own motion, we take judicial notice of the general orders of the
presiding department of the San Diego County Superior Court that gave
priority to criminal trials for in-custody defendants during the time period
that Macovichuk’s trial was continued over his objection. (Super. Ct. San
Diego County, Gen. Order Nos. 010121-44 (Dec. 31, 2020), 072721-80 (July
27, 2021).)
6
Macovichuk’s motion to dismiss on October 6, 2021, “When we restarted the
conduct[ing] of trials, I think there were some limited trials that were being
done for in-custody defendants only because they are prioritized in that way,
and I think it’s only been in the last month or two that we in the county have
started doing out-of-custody trials.”
In the trial court, in an attempt to establish that the delay of his trial
caused him to suffer prejudice, Macovichuk presented evidence that one of his
intended defense witnesses, Tim F., died on January 23, 2021, while
Macovichuk was awaiting trial. Macovichuk explained in his motion to
dismiss that he “would have called [Tim F.] to 1) testify that [J.] did not say
that [Macovichuk] threatened [Mother] . . . or their family, and 2) testify that
[J.] is sneaky and lies.” On the first point, the motion to dismiss explained,
“[Tim F.] gave a statement to a deputy that on February 21, 2020, [J.] called
him and said he needed to leave his house right away and that [Macovichuk]
threatened to ‘kill 30 people and he ([Tim F.]) was one of them.’ [¶] [Tim F.]
did not say [J.] said [Macovichuk] threatened to kill [J.]. [Tim F.] did not say
[Macovichuk] threatened to kill anyone from [J.’s] family.” On the second
point, the motion explained that, based on an interview with Tim F.’s mother,
Linda F., Tim F. believed “that [J.] is sneaky and he lies.”8
In denying the motion to dismiss, the trial court explained that the
testimony Macovichuk would have presented through Tim F. was not
material to Macovichuk’s defense. The trial court stated, “[T]he fact that
there are purported threats made to specific individuals and then those
threats are not necessarily communicated to this witness, [Tim F.], doesn’t
8 Defense counsel submitted a declaration setting forth his
understanding of the statement that Tim F. gave to law enforcement and
describing the statements that Linda F. made during an interview.
7
necessarily mean or doesn’t have any real impact or effect on whether or not
those threats were made to these other witnesses.” The trial court concluded,
“I don’t necessarily think it’s material, nor very probative, as to the issue as
to whether or not the threats were made to these other individuals.”
2. Applicable Legal Standards
“A criminal defendant’s right to a speedy trial is guaranteed by the
Sixth Amendment to the federal Constitution and article I, section 15 of the
California Constitution. ‘The California Legislature has “re-expressed and
amplified” these fundamental guarantees by various statutory enactments,
including Penal Code section 1382.’ ” (People v. Lomax (2010) 49 Cal.4th 530,
552-553.)9 “[A] defendant may claim a violation of the state Constitution’s
speedy trial right based on delay not covered by any statutory speedy trial
provision.” (People v. Martinez (2000) 22 Cal.4th 750, 766 (Martinez).)
With respect to the standard of review applicable to constitutionally-
based speedy trial challenges, the People’s appellate brief does not address
the issue. Macovichuk argues that we should apply the de novo standard of
review used to evaluate mixed questions of law and fact that arise in the
context of constitutional issues. (See People v. Cromer (2001) 24 Cal.4th 889,
9 Section 1382 generally provides that, unless good cause to the contrary
is shown or a waiver is obtained from the defendant, the court shall dismiss a
felony prosecution that is not brought to trial within a 60-day statutory
deadline after arraignment. On appeal, Macovichuk does not premise his
speedy trial challenge on any statutory violation. Indeed, this court’s recent
opinion in Elias v. Superior Court (2022) 78 Cal.App.5th 926, 941 (Elias)
precludes such an argument. In Elias we explained that because of “[t]he
series of emergency orders from the Chief Justice and the San Diego Superior
Court” that “extended the section 1382 period to commence trials for criminal
defendants due to the COVID-19 pandemic,” the time to bring the defendant
to trial under section 1382 had not expired, and there was accordingly no
violation of his statutory right to a speedy trial. (Ibid.)
8
894, 901 [noting the “usual practice” of applying independent review, de novo
review “for review of mixed question determinations affecting constitutional
rights”]; U.S. Bank Nat. Assn. ex rel. CWCapital Asset Management LLC v.
Village at Lakeridge, LLC (2018) __ U.S. __, __ [138 S.Ct. 960, 967, fn. 4]
[noting that “[i]n the constitutional realm” the court has “often held that the
role of appellate courts ‘in marking out the limits of [a] standard through the
process of case-by-case adjudication’ favors de novo review even when
answering a mixed question primarily involves plunging into a factual
record”].) That approach is consistent with the practice in the federal courts
when reviewing Sixth Amendment speedy trial challenges. (See, e.g., U.S. v.
Molina-Solorio (5th Cir. 2009) 577 F.3d 300, 304 [concluding that a federal
constitutional speedy trial challenge presents a mixed question of law and
fact, and citing five other federal circuits reaching the same conclusion]; U.S.
v. Tchibassa (D.C. Cir. 2006) 452 F.3d 918, 924.) As the People do not
expressly oppose the de novo standard of review advocated by Macovichuk,
and because our application of that standard is not outcome determinative in
this case, for the purpose of our analysis we will assume, without deciding,
that a de novo standard of review applies.10
As the analysis for a speedy trial challenge differs in certain respects
between the state and federal constitutions, we proceed to consider each in
turn.
10 Our Supreme Court has not recently addressed the standard of review
that applies to constitutionally-based speedy trial challenges. Older case law
noted a substantial evidence standard and did not consider whether a mixed
question of law and fact might be appropriate. (See, e.g., People v. Mitchell
(1972) 8 Cal.3d 164, 167 [applying a substantial evidence standard of review
to the question of whether “defendant was deprived of his right to a speedy
trial and was prejudiced thereby” (italics omitted)]; People v. Hill (1984) 37
Cal.3d 491, 499 [same].)
9
a. Federal Constitutional Challenge
“For the federal Constitution’s speedy trial right, the United States
Supreme Court has articulated a balancing test that requires consideration of
the length of the delay, the reason for the delay, the defendant’s assertion of
the right, and prejudice to the defense caused by the delay.” (Martinez,
supra, 22 Cal.4th at p. 755, citing Barker v. Wingo (1972) 407 U.S. 514, 530
(Barker), italics omitted.) “When the delay is of sufficient length to be
presumptively prejudicial, any actual prejudice is balanced with the other
Barker factors, including the justification for the delay.” (Elias, supra,
78 Cal.App.5th at p. 938.)
The Supreme Court has observed that “[d]epending on the nature of the
charges, the lower courts have generally found postaccusation delay
‘presumptively prejudicial’ at least as it approaches one year.” (Doggett v.
U.S. (1992) 505 U.S. 647, 652, fn. 1 (Doggett).) Here, the approximate 11-
month delay experienced by Macovichuk “approaches one year.” (Ibid.) We
will accordingly assume, for the sake of our analysis, that Macovichuk has
shown presumptive prejudice. We therefore proceed to conduct a balancing of
any actual prejudice with the other Barker factors. (Elias, supra,
78 Cal.App.5th at p. 938.)
As we have explained, the four Barker factors are “the length of the
delay, the reason for the delay, the defendant’s assertion of the right, and
prejudice to the defense caused by the delay.” (Martinez, supra, 22 Cal.4th at
p. 755.) “None of these four factors is ‘either a necessary or sufficient
condition to the finding of a deprivation of the right of speedy trial. Rather,
they are related factors and must be considered together with such other
circumstances as may be relevant.’ [Citation.] ‘The burden of demonstrating
10
a speedy trial violation under Barker’s multifactor test lies with the
defendant.’ ” (People v. Bradley (2020) 51 Cal.App.5th 32, 41 (Bradley).)
With respect to the first factor, i.e., the length of the delay, we consider
“the extent to which the delay stretches beyond the bare minimum needed to
trigger judicial examination of the claim.” (Doggett, supra, 505 U.S. at
p. 652.) Because “the presumption that pretrial delay has prejudiced the
accused intensifies over time” (ibid.), “in ways that neither party can prove
or, for that matter, identify” (id. at p. 655), it is significant when the “delay
before trial was uncommonly long” (id. at p. 651). Here, because the
approximate 11-month delay does not in any sense “stretch[ ] beyond the bare
minimum needed to trigger judicial examination of the claim” (id. at p. 652),
it cannot reasonably be described as “uncommonly long” (id. at p. 651), and
thus does not meaningfully contribute to the finding of a speedy trial
violation under the Barker factors.
“In applying the second factor, the reason for the delay, the United
States Supreme Court has asked, ‘whether the government or the criminal
defendant is more to blame for th[e] delay.’ [Citation.] A delay meant to
hamper the defense weighs heavily against the prosecution, while more
neutral reasons such as negligence or overcrowded courts weigh less heavily.”
(Bradley, supra, 51 Cal.App.5th at p. 41.) Here, the undisputed reason for
the delay was the COVID-19 pandemic. As we explained in Elias, “[c]ourts
have recognized that ‘[h]ealth quarantines to prevent the spread of infectious
diseases have long been recognized as good cause for continuing a trial date.’
[Citations.] ‘ “A contrary holding would require trial court personnel, jurors,
and witnesses to be exposed to debilitating and perhaps life-threatening
illness. Public health concerns trump the right to a speedy trial.” ’ ” (Elias,
supra, 78 Cal.App.5th at p. 942.) In the context of the COVID-19 pandemic,
11
Elias observed, “The backlog here was not a routine or chronic condition for
the court. The COVID-19 pandemic has been a ‘ “unique, nonrecurring
event[ ]” ’ which ‘ “ha[s] produced an inordinate number of cases for court
disposition.” ’ [Citation.] Although the continuances in this case have been
lengthy, the COVID-19 pandemic has been ‘of such severity as to justify’ the
continuance.” (Id. at p. 941.) As in Elias, “[w]e acknowledge the ‘unfortunate
hardship to defendant’ from the delays in this case, but, . . . ‘neither the
prosecution nor the court is responsible for the emergency that has
overwhelmed the nation and much of the world.’ ” (Id. at p. 942.) As in Elias,
we accordingly conclude that the COVID-19 pandemic constituted good cause
for the delay of Macovichuk’s trial.11
11 Macovichuk does not dispute that the COVID-19 pandemic was a
serious situation, out of the control of the courts and the People, that caused
the delay of his trial. However, he represents in his opening appellate brief
that “[a]lthough the COVID-19 pandemic was a public health crisis, out-of-
custody trials were occurring in [downtown] San Diego as early as December
2020,” referring to one of the San Diego County Superior Court’s courthouses.
He argues that “the record contains no justification for why an out-of-custody
trial could not have been held in [the] Vista [courthouse],” where his case was
assigned, during that time frame as well. Defense counsel attempted to
“note . . . for the record” during the October 6, 2021 hearing that “it’s my
understanding that even as of December of 2020, at least downtown San
Diego was doing in-custody trials,” but the trial court rejected that statement.
The trial court corrected defense counsel by stating, “When we restarted the
conducti[ng] of trials, I think there were some limited trials that were being
done for in-custody defendants only because they are prioritized in that way,
and I think it’s only been in the last month or two that we in the County have
started doing out-of-custody trials.” Moreover, as we have explained, the
general orders of the San Diego County Superior Court that were in force
during the period that Macovichuk’s trial was delayed set forth a policy of
giving priority to trials of in-custody defendants. (See fn. 7, ante.) Therefore,
we conclude there is no support for Macovichuk’s argument that, even in light
of the pandemic, his out-of-custody trial reasonably could have been
conducted at an earlier date.
12
“In assessing the third Barker factor (i.e., defendant’s assertion of his
speedy trial right), we note ‘the weight ascribed to complaints of pretrial
delay ordinarily depends upon their frequency and force.’ ” (Bradley, supra,
51 Cal.App.5th at p. 42.) Here, the People acknowledge that Macovichuk
repeatedly asserted his right to a speedy trial and brought a motion to
enforce his rights.
“For the fourth and final Barker factor, prejudice to the defendant, we
must consider the circumstances of this case in light of the interests the
speedy trial right is intended to protect. [Citation.] Those interests, as
identified by the United States Supreme Court, are ‘(i) to prevent oppressive
pretrial incarceration; (ii) to minimize anxiety and concern of the accused;
and (iii) to limit the possibility that the defense will be impaired.’ ” (Bradley,
supra, 51 Cal.App.5th at p. 43.) “Of these, the most serious is the last,
because the inability of a defendant adequately to prepare his case skews the
fairness of the entire system. If witnesses die or disappear during a delay,
the prejudice is obvious. There is also prejudice if defense witnesses are
unable to recall accurately events of the distant past.” (Barker, supra,
407 U.S. at p. 532.) Macovichuk focuses on the third of these interests. As he
did in the trial court during his motion to dismiss, Macovichuk contends that
his defense was impaired because Tim F. died before he could testify at trial.
Macovichuk contends that he would have called Tim F. as a witness to testify
about (1) the message that J. left for Tim F. about Macovichuk’s threat
toward him, and (2) Tim F.’s opinion that J. “is sneaky and lies.”
With respect to the first subject to which Tim F. would have testified,
we concur with the trial court that the testimony would not have been
material to Macovichuk’s defense. Defense counsel’s declaration stated that
Tim F. “gave a statement to a deputy that on February 21, 2020, [J.] called
13
him and said he needed to leave his house right away and that [Macovichuk]
threatened to ‘kill 30 people and he ([Tim F.]) was one of them.’ ” In
Macovichuk’s view, it is significant that J. did not identify Mother or the
people in Mother’s house as among the 30 people that Macovichuk had
threatened to kill.
We are not persuaded that J.’s failure to specifically identify Mother
and the people in Mother’s house in his message to Tim F. is a fact that
would have materially helped the defense. The purpose of J.’s call to Tim F.
was to warn Tim F. that Macovichuk had threatened to kill him. There was
no reason for J. to have specifically identified the other 30 people whom
Macovichuk had threatened to kill if the purpose of the call was to provide a
warning to Tim F. about the danger that he faced from Macovichuk.
Therefore, the lack of any specific mention in the message of Macovichuk’s
threat to Mother and the people in Mother’s house does not tend to prove that
those people were not among the 30 people that Macovichuk threatened. If
anything, evidence of J.’s message to Tim F. would have bolstered the
People’s case, as the content of the message was consistent with J.’s
testimony and text messages to Mother, stating that Macovichuk had
threatened to kill 30 people. The evidence of the message also would have
tended to prove that J. believed Macovichuk’s threat was serious and posed
an immediate risk, as he took action to warn Tim F. about it. (§ 422,
subd. (a) [a threat is criminal if, among other things, it “is so unequivocal,
unconditional, immediate, and specific as to convey to the person threatened,
a gravity of purpose and an immediate prospect of execution of the threat”].)
With respect to the second subject that Tim F. would have addressed in
his testimony, defense counsel’s declaration stated, “[Tim F.] would also have
testified that [J.] is sneaky and lies. [Tim F.’s] mother Linda was interviewed
14
and she said she heard from her son that [J.] is sneaky and he lies.” Defense
counsel did not provide any further explanation of the foundation that Tim F.
would have for this testimony, such as any personal interactions with J. At
trial, although the defense was not able to call Tim F. to testify that J. “is
sneaky and lies,” the defense called Tim F.’s mother, Linda F., to give
testimony on that subject. Linda F. testified that she was acquainted with J.
because Tim F. had worked for J. on two occasions. She also testified that, in
her opinion, J. is “very dishonest” and has a reputation for being “sneaky.”
Linda F. described specific instances to support her testimony, including that
J. cheated Tim F. out of commissions that were due to him, which she knew
about because she participated in a phone call with J. to discuss the subject.
She also testified that she saw emails that “didn’t align” with what J. had
told her. Further, Linda F. testified that J. did not pay Tim F. for hotel
rooms needed for work-related travel after promising to do so.
Macovichuk explains that he would have relied on Tim F.’s testimony
that J. “is sneaky and lies” to argue that the jury should not believe J.’s
testimony about what Macovichuk said during their telephone conversation.
However, in our view, Macovichuk was not materially prejudiced due to the
absence of Tim F.’s testimony on that subject. First, as we have explained,
Linda F. gave much of the same testimony that Tim F. would have given.
Based on her knowledge of Tim F.’s work-related disputes with J., Linda F.
was able to testify both that J. is sneaky and that he is dishonest. The
testimony on that subject might possibly have had more force had it come
from Tim F. directly, as he was the person who was engaged in the work-
related disputes with J., but Linda F. was nevertheless able to provide
testimony on the same subject that Tim F. would have covered and was able
to support that testimony with specific examples. Second, whether or not
15
offered through Tim F. or Linda F., evidence that J. is sneaky and lies with
respect to work-related matters, is only tangentially relevant to the issue of
whether J. would have invented a story about Macovichuk threatening to kill
multiple people. The scenario of someone allegedly cheating an employee out
of compensation, although troublesome, is very different from the scenario of
someone claiming that a brother is making threats to kill a friend and
members of his own family.
Based on the four Barker factors that we have discussed above, we
conclude that in light of the minimal prejudice identified by Macovichuk,
weighed against the good cause for the delay arising from the COVID-19
pandemic, Macovichuk has not established that he was deprived of his
federal constitutional right to a speedy trial.
b. State Constitutional Challenge
In a speedy trial challenge based on the California constitution, “[t]he
defense has the initial burden of showing prejudice from a delay in bringing
the defendant to trial. Once the defense satisfies this burden, the prosecution
must show justification for the delay. If the prosecution does that, the trial
court must balance the prejudice to the defendant resulting from the delay
against the prosecution’s justification for the delay.” (People v. Lowe (2007)
40 Cal.4th 937, 942.)
Here, Macovichuk’s challenge under the California constitution fails at
the first step. As we have discussed above, although Macovichuk contends he
was prejudiced by his inability to call Tim F. to testify, Macovichuk has not
established that the absence of Tim F.’s testimony was prejudicial.
Even were we to assume for the sake of our analysis that Macovichuk
established he was prejudiced, at least to some extent, by the delay in
bringing his case to trial, the COVID-19 pandemic constituted good cause for
16
the delay, as we have already discussed. In balancing any minimal prejudice
that Macovichuk may have incurred against the good cause for the delay, we
conclude that Macovichuk has not established a violation of his right to a
speedy trial under the California Constitution.
B. The Trial Court Did Not Abuse Its Discretion by Overruling
Macovichuk’s Objection to the Admission of Photographs of the
Firearms Found in His Storage Unit
During motions in limine, defense counsel objected to the admission of
photographs of the three loaded firearms that law enforcement located in
Macovichuk’s storage unit. The objection was based on several grounds,
including that the evidence should be excluded as more prejudicial than
probative pursuant to Evidence Code section 352. The trial court overruled
the objection. Defense counsel renewed the objection at the end of trial when
objecting to the admission of the photographs into evidence, and the trial
court again overruled it.
At trial, during the testimony of the deputy who participated in the
search of Macovichuk’s storage unit, the People showed the jury nine
photographs related to the three firearms that were found in the storage unit.
After the People established through the deputy’s testimony that he
“discovered two rifles and a pistol” in the storage unit and took photographs
of them, the People went through the photographs one by one while the
deputy described what was depicted in each of them.12
12 As Macovichuk’s appellate brief points out, for reasons that are
unclear, the exhibit numbers used by counsel when referring to the
photographs during trial were one number off from the exhibit numbers that
are marked on the photographs themselves as they appear in the appellate
record. In describing the exhibits, we refer to the numbers marked on the
photographs in the appellate record.
17
Exhibits 14 through 16 concern the pistol found in the storage unit.
Specifically, Exhibit 14 is a photograph of the inside of the storage unit,
showing a closed black case sitting on top of some other items. As the deputy
testified, the black case “contained the 9mm pistol.” Exhibit 15 is a
photograph taken inside the storage unit showing an open black case, with a
pistol inside. The deputy testified that the photograph depicted the inside of
the black case shown in Exhibit 14. Exhibit 16 is a photograph taken inside
the storage unit of a pistol and its loaded magazine lying next to an open
black case. The deputy testified that the pistol and the loaded magazine were
taken from the black case.
Exhibits 17 through 19 concern the two rifles found in the storage unit.
Specifically, Exhibit 17 is a photograph of the inside of the storage unit with
a white cloth bag nestled among other items. The deputy testified that the
white cloth bag contained rifles. Exhibit 18 depicts a rifle lying on top of the
white cloth bag inside the storage unit. The deputy testified that the rifle in
the photograph was one of the rifles he found inside the white cloth bag.
Specifically, it was “a World-War-II style firearm.” Exhibit 19 depicts a
visibly different rifle lying on top of the white cloth bag inside the storage
unit. The deputy testified that it was a Remington-style rifle.
The last three photographs, Exhibits 20 through 22, depict the three
firearms, each depicted individually, after they were taken to the police
station and marked with evidence tags. The deputy made clear in his
testimony that the photographs depicted the pistol and the two rifles found in
the storage unit and that the photographs were taken at the police station.
Evidence Code section 352 provides that “[t]he court in its discretion
may exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time
18
or (b) create substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” (Evid. Code, § 352.) “ ‘Evidence is substantially more
prejudicial than probative . . . [only] if, broadly stated, it poses an intolerable
“risk to the fairness of the proceedings or the reliability of the outcome.” ’ ”
(People v. Tran (2011) 51 Cal.4th 1040, 1047.) In applying section 352, the
trial court enjoys “ ‘broad discretion,’ ” and “ ‘[a] trial court’s discretionary
ruling under . . . section 352 will not be disturbed on appeal absent an abuse
of discretion.’ ” (People v. Clark (2016) 63 Cal.4th 522, 586.) “ ‘ “Under the
abuse of discretion standard, ‘a trial court’s ruling will not be disturbed, and
reversal . . . is not required, unless the trial court exercised its discretion in
an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.’ ” ’ ” (People v. Chhoun (2021) 11 Cal.5th 1,
26.)
Macovichuk contends that, under Evidence Code section 352, the trial
court abused its discretion in overruling his objection to the admission into
evidence of the photographs depicting the firearms because they were not
probative of any disputed issue, and they were unduly prejudicial.
With respect to the probative value of the photographs, Macovichuk
argues that the only relevant photograph was Exhibit 16. According to
Macovichuk, because that exhibit depicted the loaded pistol inside the
storage unit, it was “probative of whether [J.] heard the loading of a handgun
magazine,” but none of the other photographs of the pistol were relevant.
With respect to the photographs of the rifles, he argues that because it was
undisputed that the rifles were found in the storage unit, none of the
photographs of the rifles were “probative of any disputed fact and . . . were
not relevant.” We are not persuaded by Macovichuk’s contention that the
photographs lacked probative value.
19
As an initial matter, contrary to Macovichuk’s contention, the People
are not limited to proving their case through live testimony. Photographs
and other visual aids that relate to and depict subject matter described in
witness testimony constitute relevant probative evidence. (People v. Scheid
(1997) 16 Cal.4th 1, 14 [“a photograph need not be excluded as cumulative if
offered to prove facts established by testimony”].) “[I]t is immaterial for
purposes of determining the relevance of evidence that other evidence may
establish the same point.” (Id. at p. 16.) “ ‘ “[T]he prosecution [is] not obliged
to prove . . . details solely from the testimony of live witnesses . . . .” ’ ”
(People v. Jackson (1996) 13 Cal.4th 1164, 1216.)
Moreover, the photographs establishing the location of the loaded pistol
and the rifles inside Macovichuk’s storage unit were relevant for multiple
reasons. For one thing, they corroborated J.’s testimony about what
Macovichuk said during their conversation, namely, that he had guns,
including rifles, and he was loading them. In addition, the location of the
firearms in the vicinity of where Macovichuk was arrested shortly after his
conversation with J. is probative of whether, as required for the crime of
making a criminal threat, J.’s fear was reasonable under the circumstances,
and whether Macovichuk had the specific intent that his statements be taken
as a threat. (People v. Toledo (2001) 26 Cal.4th 221, 227-228 [elements of
making a criminal threat in violation of § 422].) Moreover, the multiple
photographs of the pistol inside the storage unit were not merely cumulative
of one another. Instead, by showing the closed black case, the pistol inside
the open black case, and then the pistol beside the open black case with the
loaded magazine, they provided a visual demonstration of where the pistol
was found, how it was stored, and the fact that it was loaded. The
photographs taken at the police station were valuable as a separate matter
20
from the photographs taken at the storage unit because they were of
significantly better quality, allowing the jury to get an accurate view of each
of the firearms.
With respect to the undue prejudice associated with the photographs,
Macovichuk argues that “[t]he prosecution’s introduction of these gratuitous,
repetitive, irrelevant photographs of guns was intended . . . to depict Mr.
Macovichuk as ‘some type of gun nut’ and to create an emotional bias against
Mr. Macovichuk.” He contends that “once in the jury room, with so many
photographs of guns, the jury might well have become confused and believed
that the locker contained three handguns and five rifles.” We are not
persuaded. As we have described, the deputy’s testimony was very clear that
only one pistol and two rifles were found in the storage unit. In addition, the
prosecutor was very careful and methodical in going through each of the
photographs during the deputy’s testimony to allow him to explain exactly
what they depicted. A reasonable juror viewing the photographs after
listening to the deputy’s testimony would not be confused about how many
guns were found in Macovichuk’s storage unit. Therefore, the admission into
evidence of the nine photographs relating to the firearms did not pose a risk
of portraying Macovichuk as “some kind of gun nut” who owned more than
three firearms.
We accordingly conclude that the trial court was well within its
discretion to overrule Macovichuk’s objection to the photographs based on
Evidence Code section 352, as it could reasonably conclude that the probative
value of the photographs was not outweighed by any undue prejudice.
21
C. Macovichuk’s Challenge to the Fines and Fees Set Forth in the
Sentencing Minute Order and the Order Granting Formal Probation
We next consider Macovichuk’s challenge to the fines and fees set forth
in the minute order from the sentencing hearing and the order granting
formal probation. Macovichuk contends that those orders are inconsistent
with the fines and fees imposed by the trial court on the record at the
sentencing hearing. According to Macovichuk, we should order that the
sentencing minute order and the order granting formal probation be
corrected to reflect the trial court’s pronouncements at the sentencing
hearing regarding the imposition of fines and fees.
1. Applicable Legal Standards
There are “two different aspects of the sentencing process: (1) the oral
pronouncement of judgment by the sentencing judge, and (2) the preparation
of the abstract of judgment by the court clerk.” (People v. Hamed (2013)
221 Cal.App.4th 928, 938.) As for the oral pronouncement, “a sentencing
court should make a ‘detailed recitation of all the fees, fines and penalties on
the record.’ ” (Ibid.) The purpose of this is to help the parties and the court
identify and correct errors in fines and fees at the trial court level, avoiding
unnecessary appeals. (Id. at pp. 939-940.) “[S]uch a detailed recitation ‘may
be tedious,’ but . . . ‘California law does not authorize shortcuts.’ ” (Id. at
p. 939.)13 “[F]ailure to specify the amount and statutory basis for each fine,
fee, and penalty assessment is a ‘legal error[ ] at sentencing’ that can be
13 Case law has recognized that the trial court may use certain shorthand
references in specifying the fines and fees, including making reference to the
amounts set forth “ ‘in a probation report, a sentencing memorandum, or
some other writing.’ ” (People v. Hartley (2016) 248 Cal.App.4th 620, 637
(Hartley).)
22
reviewed on appeal ‘ “regardless of whether an objection or argument was
raised.” ’ ” (Hartley, supra, 248 Cal.App.4th at p. 637.)
“The oral imposition of sentence constitutes the judgment in an action,
and the minutes cannot add anything substantive to the oral pronouncement.
[Citations.] Generally, the oral pronouncement controls if there is a
discrepancy, and the court clerk lacks the authority to add fines or fees not
imposed by the trial court. [Citation.] ‘The clerk cannot supplement the
judgment the court actually pronounced by adding a provision to the minute
order and the abstract of judgment. [Citation.] . . . [T]he clerk’s minutes
must accurately reflect what occurred at the [sentencing] hearing.’
[Citation.] If the clerk includes fines in the court’s minutes or the abstract of
judgment that were not part of the oral pronouncement of sentence, those
fines must be stricken from the minutes and the abstract of judgment.”
(People v. Bongani El (2021) 65 Cal.App.5th 963, 967 (Bongani El).)
2. Relevant Proceedings
At the sentencing hearing on November 10, 2021, defense counsel
asked the trial court to consider reducing Macovichuk’s conviction to a
misdemeanor because a felony conviction would likely cause Macovichuk to
lose his work-related licenses and would therefore make it harder for
Macovichuk to support himself while on probation.14 Defense counsel also
asked that the applicable fines and fees “either be lowered, waived,
minimized, applied credit, time served in custody to delete them or at least
stay them upon an ability to pay hearing.” The trial court declined to reduce
the conviction to a misdemeanor, but it stated that with respect to the fines
14 Defense counsel represented that Macovichuk had a real estate license,
a license to sell insurance, a license to sell security systems, and a “mortgage
license.”
23
and fees, “[t]o the extent the court has the ability to stay or reduce or vacate,
I will.”
Specifically, the trial court stated the following as it went through the
Judicial Council form for the order granting formal probation:15
“Fines and fees. To the extent the court has the ability to stay or
reduce or vacate, I will. I don’t know—I don’t believe I have any
ability to reduce or stay the restitution fines under [sections]
1202.4 and 1202.44. [Section] 1202.44 is the PRRF [probation
revocation restitution fine]. That’s suspended unless probation is
[revoked]. [¶] . . . [¶]
“To the extent the court can vacate or credit against the fines for
the court operations assessment fee or the criminal conviction
assessment fee, that would be my order to do so. To the extent I
can’t, that plus the restitution fines will be paid.”
This is the only statement that the trial court made about its
imposition of fines and fees on the record at the sentencing hearing. The trial
court did not specify which fines and fees it concluded it had the discretion to
reduce or vacate, and it did not specify the amount for any of the fines or fees.
It also did not specifically refer to any other document, such as the probation
officer’s report, in order to incorporate the monetary amounts for the fines
and fees set forth therein.
Following the sentencing hearing, the trial court issued a minute order
from the sentencing hearing and an order granting formal probation, both of
15 It is apparent from our review of the clerk’s transcript that the trial
court’s order granting formal probation was based on the suggested order
submitted by the probation officer, with certain edits made by the trial court
as to specific items.
24
which set forth the following fines and fees: a fine of $820;16 a criminal
conviction assessment of $30 (Gov. Code, § 70373); a court operations
assessment of $40 (§ 1465.8); a restitution fine of $300 (§ 1202.4, subd. (b))
plus a $30 collection fee (§ 1202.4, subd. (l)); and a suspended probation
revocation restitution fine of $300 (§ 1202.44).
3. Remand Is Required for the Trial Court to Clarify, on the
Record, Its Intent Regarding the Fines and Fees
Macovichuk argues that because the oral pronouncement of sentence
controls (Bongani El, supra, 65 Cal.App.5th at p. 967), the minute order and
the order granting formal probation improperly ordered fines and fees that
the trial court did not impose during the sentencing hearing. Macovichuk
specifically contends that the $820 base fine and penalty assessment were
improperly imposed in the sentencing minute order and the order granting
formal probation because the trial court did not mention any base fine or
penalty assessment during the sentencing hearing. Further, with respect to
the rest of the fines and fees (which the trial court at least mentioned by
category at the sentencing hearing), he contends that they are all fines and
fees that the trial court had the discretion to decline to impose, and that
therefore, the minute order and the order granting formal probation are in
16 Although the trial court did not mention the $820 fine during the
sentencing hearing, Macovichuk’s appellate brief explains the probable legal
basis for the $820 fine: “Even if it had been mentioned by the court, the $820
fine presumably was based on a $200 base fine pursuant to . . . section 672,
plus enhancements pursuant to other statutes. (. . . § 1464; . . . § 1465.7; Gov.
Code § 70372; Gov. Code § 76000; Gov. Code § 76000.5; Gov. Code § 76104.6;
Gov. Code § 76104.7.)” A worksheet in the probation officer’s report states
that the $820 was composed of a $200 base fine, a $580 penalty assessment,
and a $40 state surcharge.
25
conflict with the trial court’s oral pronouncement that it would reduce or
vacate them “[t]o the extent the court ha[d] the ability” to do so.17
The People take the position that the trial court’s oral pronouncement
regarding the fines and fees was unclear as to which fines and fees it meant
to impose and in what amounts, not that the trial court indicated that it
would decline to impose any of them. According to the People, “here there is
a lack of clarity rather than a discrepancy. . . . Thus, the court’s imprecise
oral pronouncement is not in conflict with the minute order and the probation
order. However, clarification by the court is needed.” The People state that
“[b]ecause it is unclear from the trial court’s oral pronouncement what fees
and fines, if any, it imposed, and on what basis it may have stricken any, the
matter should be remanded for the court to clarify its ruling, and for
[Macovichuk] to raise any related arguments he may have.”
We concur with the People’s assessment of the record. There is no
direct conflict between the oral pronouncement at the sentencing hearing and
the subsequent minute order and order granting formal probation. Instead of
indicating that it would decline to impose all of the fines and fees, the trial
court was unclear at the sentencing hearing about what it was ordering with
respect to the fines and fees. The trial court stated that it would decline to
impose any of the fines and fees it had “the ability to stay or reduce or
17 Among other things, Macovichuk contends that the trial court had the
discretion under the principles discussed in People v. Dueñas (2019)
30 Cal.App.5th 1157 and subsequent case law, to decide not to impose any of
the fines and fees. He also cites other grounds on which he believes the
imposition of certain of the fines and fees were discretionary. In light of our
disposition, we need not, and do not, consider whether there is merit to
Macovichuk’s argument that the trial court had the discretion to decline to
impose some or all of the fines and fees. Macovichuk may make any such
arguments on remand.
26
vacate,” but it did not clearly specify which of the fines and fees fell into that
category. The fines and fees it may have been intending to stay, reduce or
vacate could have included the $820 base fine and penalty assessment, as
well as the restitution fine, the probation revocation restitution fine, the
court operations assessment fee and the criminal conviction assessment fee
that it mentioned during the sentencing hearing.18
As the trial court was unclear about what fines and fees it meant to
impose, we will vacate the imposition of the fines and fees set forth in the
sentencing minute order and the order granting formal probation, and we
will remand this matter to the trial court so that it can clarify, in an oral
pronouncement, which fines and fees it intends to impose and in what
amounts.
D. Macovichuk’s Challenge to Two of the Probation Conditions Lacks Merit
In his opening brief, Macovichuk argues that two of the conditions of
probation appearing in the November 10, 2021 order granting formal
probation violated his constitutional rights. As he did not object to either of
the conditions in the trial court, Macovichuk acknowledges that he is limited
to a facial constitutional challenge of those two probation conditions. (In re
Sheena K. (2007) 40 Cal.4th 875, 887-889 (Sheena K.).)
The two conditions are as follows: (1) the requirement in paragraph
6.k, which states, “Provide true name, address, and date of birth if contacted
by law enforcement. Report contact or arrest in writing to the [probation
18 It appears that the trial court intended to impose the restitution fine
and the probation revocation restitution fine, but even as to those the record
contains some uncertainty, as the trial court stated, “I don’t know—I don’t
believe I have any ability to reduce or stay” them. To the extent the trial
court did definitively intend to impose those fines, the sentencing minute
order and the order granting formal probation are consistent with that
determination rather than inconsistent as Macovichuk contends.
27
officer] within 7 days. Include the date of contact/arrest, charges, if any, and
the name of the law enforcement agency”; and (2) the requirement in
paragraph 6.l that Macovichuk obtain the consent of his probation officer
“before leaving San Diego [C]ounty.” With respect to the second of these
conditions, for the first time in his reply brief, Macovichuk informs us that on
February 23, 2022, the trial court modified the travel restriction as follows:
“Defendant is permitted to travel outside of San Diego County and the State
of California for work purposes, not to exceed 30 days. Defendant to provide
probation with 24 hours advance notice prior to leaving.”19 In his reply brief,
Macovichuk modifies his argument to address the amended probation
condition, arguing that, even as amended, it is facially unconstitutional.20
We separately examine the two probation conditions.
1. The Challenge to the Probation Condition in Paragraph 6.k Lacks
Merit
The probation condition in paragraph 6.k requires that Macovichuk
provide identifying information “if contacted by law enforcement” and that he
“[r]eport contact” in writing to his probation officer. In his opening appellate
brief, focusing on the words “contacted” and “contact,” Macovichuk argues
that the probation condition is unconstitutionally vague and overbroad
because the term “contact” is not defined. Macovichuk primarily relies on the
Third District’s opinion in People v. Relkin (2016) 6 Cal.App.5th 1188(Relkin), which considered a condition of mandatory supervision requiring
19 The probation condition was modified by the trial court on February 23,
2022, which is more than a month before Macovichuk filed his opening
appellate brief on April 4, 2022.
20 We afforded the People the opportunity to file a supplemental letter
brief to address Macovichuk’s challenge to the amended probation condition,
as Macovichuk first raised that challenge in his reply brief.
28
the reporting of contacts with a peace officer, but using different language
than at issue here in paragraph 6.k.
Macovichuk’s opening appellate brief failed to cite this court’s opinion
in People v. Brand (2021) 59 Cal.App.5th 861, decided more than a year prior,
which is directly on point. In Brand we considered identical language to that
which appears in paragraph 6.k (id. at p. 866), and we concluded that it was
not unconstitutionally vague or overbroad (id. at p. 871). Macovichuk
acknowledges Brand in his reply brief, and he concedes that it “appears to be
controlling here.”
We rely on our opinion in Brand, supra, 59 Cal.App.5th at pages 870
to 871, to reject Macovichuk’s challenge to the probation condition appearing
in paragraph 6.k.
2. The Challenge to the Probation Condition in Paragraph 6.l, As
Amended, Lacks Merit
Macovichuk contends that the restriction on his travel outside the
County of San Diego for reasons other than work without first obtaining the
permission of his probation officer is facially unconstitutional because it is
both vague and overbroad. Specifically, he contends the probation condition
is overbroad because it infringes on his constitutional rights to travel and of
association but is “not carefully tailored to the state’s interests.” He further
contends the probation condition is both overbroad and vague because it
“delegate[s] standardless discretion to the probation officer” in deciding
whether to approve the travel.
We consider each argument in turn. “Whether a term of probation is
unconstitutionally vague or overbroad presents a question of law, which we
review de novo.” (People v. Stapleton (2017) 9 Cal.App.5th 989, 993
(Stapleton).)
29
a. The Probation Condition Is Carefully Tailored to a
Legitimate State Interest
A probation condition “ ‘is unconstitutionally overbroad . . . 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.” [Citations.] The essential question in an overbreadth
challenge 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 necessity will justify some infringement.’ ”
(People v. Arevalo (2018) 19 Cal.App.5th 652, 656-657 (Arevalo).)
“Although not explicitly guaranteed in the United States Constitution,
‘[t]he right to travel, or right of migration, now is seen as an aspect of
personal liberty which, when united with the right to travel, requires “that
all citizens be free to travel throughout the length and breadth of our land
uninhibited by statutes, rules, or regulations which unreasonably burden or
restrict this movement.” ’ ” (People v. Moran (2016) 1 Cal.5th 398, 405
(Moran).)
Our Supreme Court has explained the legitimate state interest in
imposing probation conditions that restrict a person’s right to travel.
“Imposing a limitation on probationers’ movements as a condition of
probation is common, as probation officers’ awareness of probationers’
whereabouts facilitates supervision and rehabilitation and helps ensure
probationers are complying with the terms of their conditional release.
[Citations.] [¶] Although criminal offenders placed on probation retain their
constitutional right to travel, reasonable and incidental restrictions on their
movement are permissible.” (Moran, supra, 1 Cal.5th at p. 406.)
30
Case law has held that when a probation condition does not bar a
person’s ability to travel altogether but instead requires advance permission
from a probation officer, the condition is closely tailored to avoid
unconstitutional overbreadth. (Relkin, supra, 6 Cal.App.5th at p. 1195 [“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”]; In re Antonio R. (2000) 78 Cal.App.4th 937, 942
(Antonio R.) [a minor’s constitutional rights were not “impermissibly
burdened” by a probation condition restricting travel to Los Angeles County
from Orange County in light of the “safety valve” that allowed such travel
with the permission of a probation officer or a parent (italics omitted)]; People
v. Thrash (1978) 80 Cal.App.3d 898, 902 [rejecting a challenge to a probation
condition providing that “the defendant is not to leave town without getting
permission from the proper authorities”].)
Here, because the probation condition does not contain an outright ban
on travel outside the county, but instead permits such travel (1) at any time,
not to exceed 30 days, for work purposes; and (2) at any other time with the
“safety valve” of probation officer permission (Antonio R., supra,
78 Cal.App.4th at p. 942), it is carefully tailored to avoid being impermissibly
overbroad.
b. The Probation Condition Is Not Vague or Overbroad Due to
the Probation Officer’s Discretion Whether to Approve
Travel
Macovichuk argues that because his ability to travel (except for work
purposes) depends on permission from the probation officer, the probation
condition is both overbroad and vague in that it “delegates standardless
discretion to the probation officer.” He contends that the probation officer is
31
“subject to no standards set by the court” and there are “no limits on the
probation officer’s discretion.”
We reject the argument in the context of this facial challenge. A
probation condition “should be given ‘the meaning that would appear to a
reasonable, objective reader,’ ” and in giving it this meaning, one may
presume that a probation officer will not withhold approval for irrational or
capricious reasons. (People v. Olguin, 45 Cal.4th 375, 382-383.) The grant of
discretionary authority to a probation officer includes an implicit
requirement that the discretion be exercised reasonably. (See Stapleton,
supra, 9 Cal.App.5th 989, 996-997 [“A probation officer cannot issue
directives that are not reasonable in light of the authority granted to the
officer by the court. Thus, a probation officer cannot use the residence
condition to arbitrarily disapprove a defendant’s place of residence”]; see also
Arevalo, supra, 19 Cal.App.5th at p. 658 [a condition giving the probation
officer approval power over the probationer’s residence “presumes a probation
officer will not withhold approval for irrational or capricious reasons”].)
Here, even though the probation condition at issue permits a probation officer
to exercise discretion in granting or denying a request to leave the county, it
“does not grant . . . the power to issue arbitrary or capricious directives that
the court itself could not order.” (Stapleton, at pp. 996-997, citing People v.
Kwizera (2000) 78 Cal.App.4th 1238, 1240-1241 [a probation condition
requiring a probationer to obey directions from his probation officer did not
give the probation officer “power to impose unreasonable probation
conditions”].) Therefore, the probation officer’s discretion to approve or
disapprove travel, in itself, does not render the probation condition
unconstitutionally overbroad for the purpose of a facial constitutional
32
challenge, as we “presume[ ] a probation officer will not withhold approval for
irrational or capricious reasons.” (Arevalo, at p. 658.)
With respect to the 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,’ if it
is to withstand a challenge on the ground of vagueness.” (Sheena K., supra,
40 Cal.4th at p. 890.) Here, although the probation officer has the discretion
to approve or disapprove a request to travel, there is no logical reason why
Macovichuk should be uncertain about whether he is permitted to travel out
of the county on any specific occasion. Because the probation condition
plainly states that Macovichuk must obtain permission from his probation
officer before traveling outside San Diego County for non-work purposes, the
probation condition is sufficiently precise for Macovichuk to know exactly
what is required of him and for the court to determine if the condition has
been violated. Macovichuk need only make a request to travel and then wait
for the response to know whether or not he may travel outside the county on
any specific date for non-work purposes, and if he travels for non-work
purposes without such permission, he has violated the condition.
33
DISPOSITION
The imposition of the fines and fees in the November 10, 2021
sentencing minute order and the order granting formal probation are
vacated. This matter is remanded to the trial court so that it may make an
oral pronouncement regarding the fines and fees that it intends to impose. In
all other respects, the judgment is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.
34