Filed 8/25/17
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D070918
Plaintiff and Respondent,
v. (Super. Ct. No. JCF36056)
MICHAEL BROOKS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County,
Christopher J. Plourd, Judge. Affirmed as modified.
Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, Steve Oetting, Supervising
* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of part 1, 2, and 3.
Deputy Attorney General, and Warren J. Williams, Deputy Attorney General for Plaintiff
and Respondent.
The Imperial County District Attorney filed an information charging Michael
Brooks with unlawful possession of ammunition (Pen. Code1, § 30305, subd. (a)(1))
(count 1); possession of controlled substance paraphernalia (Health & Saf. Code,
§ 11364, subd. (a)) (count 2); and possession of a controlled substance (Health & Saf.
Code, § 11377, subd. (a) (count 3). As to count one, the information alleged that Brooks
was prohibited from possessing a firearm as a result of a number of prior convictions.
After a preliminary hearing, Brooks entered into a plea agreement in which he
pled no contest to count 1 and admitted one prison prior. The remaining counts and
allegations were dismissed. Brooks agreed to a sentence of three years for the conviction
plus one year for the prison prior, with the sentence to be suspended and Brooks to be
placed on formal probation for three years. The terms of probation included serving one
year in local custody and a "Fourth Amendment waiver."
The court's sentencing order set forth 29 terms of probation that were
recommended in the probation officer's report. Brooks challenges three of those
probation terms on appeal. He contends (1) the term requiring him to "participate in a
counseling/educational program as directed by the probation officer" improperly
delegates judicial decision-making power to the probation officer and is
unconstitutionally vague, (2) the term requiring him to "follow all standard terms of
1 All statutory references are to the Penal Code unless otherwise specified.
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probation" fails to provide the notice required by due process and is unconstitutionally
vague, and (3) the court erred in imposing the term requiring him to pay a drug testing fee
under a county ordinance and Section 1203.1ab because Section 1203.1ab does not apply
to his conviction of unlawful possession of ammunition. We agree with Brooks's
contentions.
FACTUAL AND PROCEDURAL BACKGROUND2
On February 17, 2016, while Brooks was on Post-Release Community
Supervision, an Imperial County deputy sheriff conducted a probation check on Brooks's
mobile home. The deputy found white powder in the bedroom on a nightstand and in a
closet. The powder field-tested presumptively positive for methamphetamine. A
backpack found in the closet contained three unspent .9 millimeter rounds of ammunition.
The deputy searched a closet in the hallway of the mobile home and found two
safes. Inside one of the safes were six hypodermic needles containing a clear liquid that
tested positive for methamphetamine. There was a B.B. gun and more methamphetamine
inside the other safe. The deputy also found a type of glass pipe commonly used for
smoking methamphetamine in a drawer in the bedroom.
Brooks' written plea agreement included the following language: "(Appeal
rights) I give up my right to appeal . . . any sentence stipulated herein." Brooks's
stipulated sentence under the agreement provided for formal probation for three years.
2 Brooks stipulated to the preliminary hearing transcript as the factual basis for his
no contest plea.
3
The agreement also included the following "Harvey waiver":3 "The sentencing judge
may consider my prior criminal history and the entire factual background of the case,
including any unfiled, dismissed or stricken charges or allegations or cases when granting
probation, ordering restitution or imposing sentence." Brooks filed his notice of appeal
without obtaining a certificate of probable cause under Section 1237.5.4
DISCUSSION
1. Express Waiver and Failure to Obtain a Certificate of Probable Cause
The People contend we should not reach the merits of Brooks's appeal because he
did not obtain a certificate of probable cause under Section 1237.5 after entering his no
contest plea and he waived the right to appeal his sentence as part of his plea agreement.
We disagree.
An exception to the requirement of a certificate of probable cause to appeal from a
judgment of conviction entered on a plea of guilty or no contest applies to appellate
3 A Harvey waiver is a defendant's agreement, as part of a plea bargain, to allow the
sentencing court to consider facts supporting dismissed counts. (See generally People v.
Harvey (1979) 25 Cal.3d 754, 758.) Harvey prohibits the court from considering
dismissed counts absent the defendant's consent. (People v. Munoz (2007) 155
Cal.App.4th 160, 166-167.)
4 Section 1273.5 provides in relevant part that "[n]o appeal shall be taken by the
defendant from a judgment of conviction upon a plea of guilty or nolo
contendere . . . except where both of the following are met: [¶] (a) The defendant has
filed with the trial court a written statement, executed under oath or penalty of perjury
showing reasonable constitutional, jurisdictional, or other grounds going to the legality of
the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable
cause for such appeal with the clerk of the court."
4
claims arising after the plea, including sentencing issues. (People v. Cuevas (2008)
44 Cal.4th 374, 379.) This exception is set forth in California Rules of Court, rule
8.304(b)(4)(B), which provides that a defendant need not obtain a certificate of probable
cause under Section 1237.5 "(1) if the notice of appeal states that the appeal is based on:
[¶] [¶] (B) Grounds that arose after entry of the plea and do not affect the plea's
validity."5 The exception applies to Brooks's appeal because Brooks is challenging only
probation conditions the court imposed after he entered his no contest plea; he is not
challenging the validity of his plea.
Similarly, Brooks's express waiver of the "right to appeal . . . any sentence
stipulated herein" does not preclude his appeal because he is not challenging his agreed
sentence consisting of three years for the conviction plus one year for the prison prior,
with the sentence to be suspended, and three years of formal probation. Rather he is
challenging specific terms and conditions of his probation that the court imposed after he
agreed to the sentence specified in the plea agreement.
As this court has observed, "[a] defendant may waive the right to appeal as part of
a plea bargain where the waiver is knowing, intelligent and voluntary. [Citation.] A
broad or general waiver of appeal rights ordinarily includes error occurring before but not
after the waiver because the defendant could not knowingly and intelligently waive the
right to appeal any unforeseen or unknown future error. [Citation.] Thus, a waiver of
5 On Brooks's Judicial Council form notice of appeal, the box is checked that
contains the statement: "This appeal is based on the sentence or other matters occurring
after the plea that do not affect the validity of the plea."
5
appeal rights does not apply to ' "possible future error" [that] is outside the defendant's
contemplation and knowledge at the time the waiver is made.' " (People v. Mumm (2002)
98 Cal.App.4th 812, 815 (Mumm), quoting People v. Panizzon (1996) 13 Cal .4th 68, 85;
accord, In re Uriah R. (1999) 70 Cal.App.4th 1152, 1160 [a general waiver does not
preclude attacks on subsequent errors that are unforeseen or unforeseeable at the time the
waiver was made].)
The defendant in Mumm "agreed to waive his right to appeal based on 'issues
regarding prior allegations.' At the time [the defendant] made that waiver, the [trial]
court had not yet determined whether his prior Arizona conviction was a strike within the
meaning of the three strikes law. Because the issue of the Arizona conviction was
unresolved at the time [defendant] entered his guilty plea, it fell 'outside of [his]
contemplation and knowledge when the waiver was made.' " (Mumm, supra, 98
Cal.App.4th at p. 815, quoting People v. Panizzon, supra, 13 Cal.4th at p. 86.)
Consequently, the court rejected the People's request to dismiss the appeal on the ground
the defendant had expressly waived his right to appeal any issues regarding his prior
conviction allegations.
In the present case although Brooks expressly waived his right to appeal his
"stipulated sentence," we construe that language to apply to the terms of the stipulated
sentence specified in his plea agreement. Brooks could not have knowingly waived the
right to challenge unforeseen probation conditions that had not yet been imposed at the
time of the plea agreement. Accordingly, we will address the merits of Brooks's appeal.
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2. The Requirement to Participate in A Counseling/Education Program "As Directed"
As noted, the court's sentencing order lists 29 terms and conditions of probation.
Term No. 3 states: "Defendant shall participate in a counseling/educational program as
directed by the probation officer and not terminate said participation without the mutual
consent of the probation officer and the program director." Brooks contends this term is
unconstitutionally vague and violates the separation of powers doctrine by improperly
delegating judicial decision-making power to the probation officer.
"[S]ection 1203.1, subdivision (j) gives a trial court the authority to impose
reasonable conditions of probation 'as it may determine are fitting and proper to the end
that justice may be done, that amends may be made to society for the breach of the law,
for any injury done to any person resulting from that breach, and generally and
specifically for the reformation and rehabilitation of the probationer.' 'Trial courts have
broad discretion to set conditions of probation in order to "foster rehabilitation and to
protect public safety pursuant to . . . section 1203.1." ' " (People v. O'Neil (2008) 165
Cal.App.4th 1351, 1355) However, probation conditions may be challenged on the
grounds of unconstitutional vagueness and overbreadth. (People v. Lopez (1998) 66
Cal.App.4th 615, 630 (Lopez ).)
" 'The underlying concern of the vagueness doctrine is the core due process
requirement of adequate notice.' " (Lopez, supra, 66 Cal.App.4th at p. 630, italics
omitted.) A probation condition violates due process when it forbids or requires the
doing of an act in terms so vague that a person of common intelligence must necessarily
guess at its meaning. (Ibid.) A probate condition or law that is void for vagueness also
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" ' "impermissibly delegates basic policy matters to [governmental agents] for resolution
on an ad hoc and subjective basis, with the attendant dangers of arbitrary and
discriminatory application." ' " (Ibid.; see People v. Cervantes (1984) 154 Cal.App.3d
353, 361 [Section 1203.1 does not permit a court to place restitution within the sole
discretion of the probation officer].) To avoid a successful vagueness challenge, a
probation condition " ' "must be sufficiently precise for the probationer to know what is
required of him." ' " (Lopez, at p. 630.) We review constitutional challenges to a
probation condition de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) We
have the power to modify an unconstitutional probation condition "to render the
condition constitutional." (In re Sheena K. (2007) 40 Cal.4th 875, 892.)
We agree with Brooks that the order requiring him to "participate in a
counseling/educational program as directed by the probation officer" on its face is
unconstitutionally vague and an improper delegation of judicial authority to the probation
officer because it grants the probation officer unlimited discretion to choose any
counseling or educational program, and thus was not sufficiently precise to provide
notice to Brooks of the type of program he would be required to complete.
The People argue that the probation term in question was not unconstitutionally
vague and did not improperly delegate judicial authority because the parties and the court
were aware that the officer in his probation report recommended Brooks participate in a
"drug and alcohol course." Thus, Brooks knew from the probation report that he would
be enrolled in drug and alcohol program of the probation officer's choosing.
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The record supports the People's view that the parties and the court understood
Probation Term No. 3 contemplated a drug and alcohol program. The probation report
noted that Brooks began smoking marijuana at the age of 12 and began drinking alcohol
at age 17. At the time of sentencing he smoked marijuana on a monthly basis and drank
alcohol daily. Brooks told his previous probation officer in July 2016 that he had
voluntarily entered a detoxification program because he had relapsed. The probation
report stated that Brooks's "top three criminogenic needs were in the areas of: Drug/Use
and Alcohol, Attitude/Behaviors and Residential." Thus, the probation officer ranked
substance abuse as Brooks's number one criminogenic need. The report continued: "This
officer will be recommending drug and alcohol terms. It is recommended the defendant
enroll, partake and complete a drug and alcohol course. This officer will also be
recommending the defendant be randomly drug tested to determine his sobriety."
At the sentencing hearing, Brooks's counsel objected to probation term No. 3,
stating it was "vague and overbroad, specifically the unspecified counseling or education
programs. I don't think that puts Mr. Brooks on notice about what is and is not required
for potential counseling from probation." Counsel then challenged the imposition of a
separate probation condition that would require Brooks to totally abstain from the use of
alcohol, arguing it was unrelated to being in possession of ammunition. The prosecutor
argued that the alcohol abstention condition was reasonable given Brooks's history of
substance abuse.
The court commented that although the offense of unlawful possession of
ammunition was not related to alcohol, "that's not the total [probation] analysis. The
9
analysis is look at the background and circumstances of the probationer. You want to
fashion specific terms applicable to him to successfully complete probation. I think
based upon his backgroundnot the offensethe alcohol issue, substance abuse issues
are significant for his successful completion of probation."
Thus, it is clear the court intended to impose probation terms and conditions that
would address Brooks's longstanding problem with substance abuse. Probation term
No. 3 is the only probation term that required Brooks's participation in a counseling or
educational program, and the two terms immediately following it required him to abstain
from possession and use of "any drugs, narcotics, or other illicit substances" (No. 4) and
to abstain from alcohol use (No. 5). No type of program other than a drug and alcohol
program was mentioned in the probation report or at the sentencing hearing. Because the
record reflects that the court intended to require participation in a drug and alcohol
program in ordering probation term No. 3, we will modify the term to clarify that intent.
3. The Requirement to Follow "All Standard Terms" of Probation
Probation term No. 9 states: "Defendant shall follow all standard terms of
probation and reasonable orders of the probation officer." Brooks claims the first clause
imposing "standard terms of probation" is unconstitutionally vague and fails to provide
the notice required by due process.
We agree the language Brooks challenges is vague as to whether there are
undisclosed "standard terms of probation" that the court did not articulate but that Brooks
10
is expected to follow.6 We note that the court is empowered to impose "reasonable
conditions, as it may determine are fitting and proper to the end that justice may be
done . . . and generally and specifically for the reformation and rehabilitation of the
probationer." (§ 1203.1, subd. (j).) Thus, any "standard terms of probation" imposed on
Brooks are necessarily limited to those the court has determined to be "fitting and proper"
in this case. The court's directive to "follow all standard terms of probation" (italics
added) cannot be deemed to impose additional, unexpressed conditions. As noted, the
probation officer recommended a comprehensive list of 28 terms of probation (excluding
the general directive to "follow all standard terms") and the court imposed all 28,
implicitly and necessarily finding them to be fitting and proper in Brooks's present case.
The court's additional directive to follow "all standard terms of probation" was
superfluous in light of the court's imposition of a thorough and exhaustive set of specific
"standard terms" that the court determined to be appropriate. Accordingly, we will strike
that condition from the sentencing order.
6 At the sentencing hearing, Brooks's counsel stated that his only objection to this
probation term was that "I don't know what it means." The court responded, "I always
wondered about that, what does that mean[?] How does somebody violate that? I'll ask
probation to print out the list of what the standard terms and conditions are, reasonable
orders are. I take your point."
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4. Drug Testing Fee
Probation term No. 27 requires Brooks "to pay drug-testing fee in the amount of
$7.00 per test" under a county ordinance and Section 1203.1ab.7 Section 1203.1ab
provides: "Upon conviction of any offense involving the unlawful possession, use, sale,
or other furnishing of any controlled substance, as defined in Chapter 2 (commencing
with Section 11053) of Division 10 of the Health and Safety Code, in addition to any or
all of the terms of imprisonment, fine, and other reasonable conditions specified in or
permitted by Section 1203.1, unless it makes a finding that this condition would not serve
the interests of justice, the court, when recommended by the probation officer, shall
require as a condition of probation that the defendant shall not use or be under the
influence of any controlled substance and shall submit to drug and substance abuse
testing as directed by the probation officer. If the defendant is required to submit to
testing and has the financial ability to pay all or part of the costs associated with that
testing, the court shall order the defendant to pay a reasonable fee, which shall not exceed
the actual cost of the testing."
Brooks contends the court erred in imposing this term because unlawful
possession of ammunition is not one of the offenses specified in Section 1203.1ab for
which a drug testing fee may be imposed. The People argue that because
7 The sentencing order erroneously identified Section 1203.1ab as "1203.1b(a)PC."
Both parties represent that the county ordinance referenced in term No. 27 provides:
"Pursuant to [Section] 1203.1ab, the county of Imperial establishes a drug testing fee of
seven dollars ($7.00) per test. However, pursuant to statute, this amount may be adjusted
by the probation department based on ability to pay."
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methamphetamine was found in Brooks's home where the ammunition was located, his
conviction of the ammunition offense "involved" a controlled substance within the
meaning of Section 1203.1ab and the drug testing fee was therefore a proper probation
term. The People additionally argue that Brooks's Harvey waiver allowed the court to
consider the underlying facts of the dismissed drug possession charges, noting that
Brooks expressly agreed "[t]he sentencing judge may consider my prior criminal history
and the entire factual background of the case, including any unfiled, dismissed or stricken
charges or allegations or cases when granting probation, ordering restitution or imposing
sentence."
"In construing a statute, a court's objective is to ascertain and effectuate legislative
intent. [Citation.] To determine legislative intent, a court begins with the words of the
statute, because they generally provide the most reliable indicator of legislative intent."
(Hsu v. Abbara (1995) 9 Cal.4th 863, 871.) "If the statutory language is clear and
unambiguous our inquiry ends. 'If there is no ambiguity in the language, we presume the
Legislature meant what it said and the plain meaning of the statute governs.' [Citations.]
In reading statutes, we are mindful that words are to be given their plain and
commonsense meaning. [Citation.] . . . Only when the statute's language is ambiguous or
susceptible of more than one reasonable interpretation, may the court turn to extrinsic
aids to assist in interpretation." (Murphy v. Kenneth Cole Productions, Inc. (2007) 40
Cal.4th 1094, 1103.)
We conclude that the plain meaning of Section 1203.1ab authorizes imposition of
a drug testing fee only when the probationer has been convicted of a drug-related offense.
13
The statute authorizes imposition of the fee "[u]pon conviction of any offense involving
the unlawful possession, use, sale, or other furnishing of any controlled substance."
Given Brooks's Harvey waiver, the court could consider the dismissed drug offenses in
ordering probation terms, and properly did so. For example, the court ordered Brooks to
abstain from drug and alcohol use, to submit to drug and alcohol testing, and to not
associate with known users or sellers of narcotics. However, under Section 1203.1ab, the
court was authorized to impose the drug testing fee only for a conviction involving a
controlled substance. Although the scope of Brooks's overall case and probation
involved both unlawful possession of controlled substances and unlawful possession of
ammunition, his sole conviction was for possession of ammunition, and that offense does
not have any substantial nexus to the controlled substances.8 Because Brooks was not
convicted of any offense involving a controlled substance, the court was not authorized to
impose the drug testing fee under Section 1203.1ab and the probation term ordering
payment of that fee must be stricken.
DISPOSITION
The judgment is modified as follows: Probation term No. 9 and probation term
No. 27 are stricken from sentencing order dated August 17, 2016. Probation term No. 3
in the sentencing order is modified to state: "Defendant shall participate in a drug and
alcohol counseling/educational program as directed by the probation officer and not
8 Thus, this is not like a case where a defendant commits a theft or robbery and
drugs are the object of the crime.
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terminate said participation without the mutual consent of the probation officer and the
program director." The judgment is affirmed as modified.
DATO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
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