People v. Smith

79 Cal.App.5th 897

295 Cal.Rptr.3d 182

The PEOPLE, Plaintiff and Respondent,

v.Tanequa SMITH, Defendant and Appellant.

A162551

Court of Appeal, First District, Division 5, California.

Filed June 13, 2022

Robert F. Kane, under appointment by the First District Appellate Project, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, and Julia Y. Je, Deputy Attorney General, for Plaintiff and Respondent.

BURNS, J.

Tanequa Smith challenges the trial court's imposition of a probation condition requiring that she participate in any treatment program, including residential treatment, as directed by her probation officer. She also challenges a probation condition requiring her to disclose her financial information to her probation officer. Smith contends that both conditions are unconstitutional and unreasonable. We conclude that the treatment condition improperly delegates judicial authority to the probation officer, but we uphold the financial disclosure condition.

BACKGROUND

A.

Smith, a single mother, was arrested in connection with the theft of a cell phone and iPad from an unlocked vehicle. After Smith gave police consent to search her vehicle, the police found multiple cell phones in her purse, and she admitted she had stolen two iPhones. Police also located a receipt containing the last four digits of a stolen credit card, and Smith stated that she had attempted to use the credit card four times to purchase Target gift cards. In addition, the police found suspected methamphetamine in her purse, and Smith admitted it was hers.

The police also searched the vehicle of Smith's friend, B.L., whom they believed had committed the theft along with Smith. They found a backpack containing two wallets with identification cards, credit cards, personal checks, and other documents belonging to other individuals. The police believed the items in the backpack were stolen by Smith and B.L. B.L. told police that Smith said the backpack belonged to her daughter.

Four days later, police stopped Smith's car and, during a search, found suspected methamphetamine. Smith admitted the methamphetamine belonged to her and stated that she " ‘likes to get high.’ " In Smith's wallet, the police also located a bank card belonging to someone else. Smith stated that she had attempted to use the bank card after finding it on a sidewalk, but it was declined. Police subsequently contacted the owner of the bank card, who stated that his bank card was stolen several months earlier when his car was burglarized.

B.

In exchange for two years of supervised probation and the dismissal of other charges, Smith pled guilty to a single count of unauthorized use of personal identifying information belonging to another person for the purpose of obtaining goods ( Pen. Code, § 530.5, subd. (a) ).

The probation report recounted Smith's statement that she had been using methamphetamine since 2014, and that she had stopped using it approximately four months after her arrest, in 2020. Smith believed that she could stop using drugs whenever she wanted.

During sentencing, defense counsel noted that Smith had been unable to find child care for her daughter during the coronavirus pandemic, and the People acknowledged that Smith "does have a young child that she is taking care of." In conformance with the plea agreement, the trial court sentenced Smith to two years of supervised probation. The court determined that she presented an unusual case in which supervised probation was warranted because of her substance abuse problem and the great likelihood that she would respond to treatment. The court stated that "it's clear that there is some form of treatment that's required to address the underlying issues, and those are substance [abuse] issues."

The court imposed a probation condition requiring Smith to "complete a drug and alcohol assessment and follow through with treatment as directed by probation." In addition, the court imposed a condition that Smith "participate in any treatment/therapy/counseling program, including residential, as directed by the probation officer" (treatment condition). The court also required that Smith "provide complete and current financial information, including verification of earnings, as directed by the probation officer" (financial disclosure condition). Smith's appeal concerns the latter two conditions.

DISCUSSION

A.Treatment Condition

Smith asserts that the treatment condition is unconstitutional because it is vague and overbroad, and it improperly delegates judicial authority to the probation officer. In addition, she contends that the treatment condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545 ( Lent ). We agree with Smith that the condition includes an unconstitutional delegation of authority.

1.

As an initial matter, the People argue that Smith forfeited her challenge to the treatment condition because she failed to object to it in the trial court. Although her attorney did not object, Smith herself did ask what the court meant by the condition that she go to a program, suggesting that she believed there was some vagueness or lack of specificity with the treatment condition. In any event, Smith's facial constitutional challenge may be considered for the first time on appeal because it does not depend on the underlying factual record. (See In re Sheena K. (2007) 40 Cal.4th 875, 884-886, 55 Cal.Rptr.3d 716, 153 P.3d 282 ( Sheena K. ).) Her Lent challenge is forfeited, however. ( Sheena K., supra, at pp. 884-886, 55 Cal.Rptr.3d 716, 153 P.3d 282.)

2.

To survive a vagueness challenge, a probation condition must be precise enough to provide the probationer with notice of what is required or prohibited and allow the court to ascertain whether the probationer has violated its terms. ( Sheena K. , supra , 40 Cal.4th at p. 890, 55 Cal.Rptr.3d 716, 153 P.3d 282 ; People v. Gonsalves (2021) 66 Cal.App.5th 1, 7, 280 Cal.Rptr.3d 705 ( Gonsalves ).) When a probation condition impinges on a person's constitutional rights, the condition is overbroad if its restrictions are not closely tailored to the purpose served by the condition. ( Sheena K. , supra , at p. 890, 55 Cal.Rptr.3d 716, 153 P.3d 282.)

By leaving key determinations to be decided ad hoc, a vague probation condition may also result in an impermissible delegation of authority to the probation officer. (See Sheena K. , supra , 40 Cal.4th at p. 890, 55 Cal.Rptr.3d 716, 153 P.3d 282.) Under the separation of powers doctrine ( Cal. Const., art. III, § 3 ), judicial powers may not be delegated to nonjudicial officers. ( In re S.H. (2003) 111 Cal.App.4th 310, 318, fn. 11, 3 Cal.Rptr.3d 465.) While the probation officer may properly specify the details necessary to effectuate the court's probation conditions, it is the court's duty to determine the nature of the requirements imposed on the probationer. ( Gonsalves, supra , 66 Cal.App.5th at p. 8, 280 Cal.Rptr.3d 705 ; see People v. O'Neil (2008) 165 Cal.App.4th 1351, 1358-1359, 81 Cal.Rptr.3d 878.)

Smith's constitutional challenges present questions of law that we consider de novo. (See In re David C. (2020) 47 Cal.App.5th 657, 668-669 & fn. 7, 261 Cal.Rptr.3d 144.) When construing probation conditions, we consider their context and we use common sense. ( People v. Rhinehart (2018) 20 Cal.App.5th 1123, 1129, 229 Cal.Rptr.3d 721.) Where the trial court has made oral or written comments clarifying the probation condition, we may consider those comments in determining whether a challenged condition is unconstitutionally vague. (See Sheena K. , supra , 40 Cal.4th at p. 891, 55 Cal.Rptr.3d 716, 153 P.3d 282.)

3.

The challenged condition provides: "Defendant to participate in any treatment/therapy/counseling program, including residential, as directed by the probation officer." Smith contends that the treatment condition is vague, overbroad, and an improper delegation of authority because it allows the probation officer to decide whether she will be required to attend any treatment, counseling, or therapy program and it fails to provide her with notice of the nature of the treatment, counseling, or therapy required.

The People do not dispute that the treatment condition as worded may be problematic in the respects Smith has identified. But the People correctly argue that it is more clear and focused when read in context. The treatment condition must be considered alongside the assessment condition, which provides that Smith must "complete a drug and alcohol assessment and follow through with treatment as directed by probation." This is consistent with the court's oral comments that Smith needed treatment for her substance abuse problem.

When considered in light of the assessment condition and the court's comments, the condition passes muster. The court mandated treatment for substance abuse based on the assessment while leaving the probation officer to oversee the details. (See United States v. Young (2d Cir. 2018) 910 F.3d 665, 671 ( Young ) [upholding condition requiring treatment if a substance abuse evaluation indicates a need for treatment].)

4.

Smith contends that the treatment condition violates the separation of powers doctrine because it delegates to the probation officer the discretion to decide whether she must attend a residential program, as opposed to an outpatient program. We agree.

A residential program can impose far greater burdens on a person's liberty interests than an outpatient program. (See United States v. Esparza (9th Cir. 2009) 552 F.3d 1088, 1091 ( Esparza ).) Unlike outpatients, participants in residential programs may be confined to the treatment facility for the duration of the program, separated from family and friends, and unable to maintain a job. ( United States v. Matta (2d Cir. 2015) 777 F.3d 116, 122 ( Matta ); ...