Filed 10/6/20 P. v. Hudson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
E072991
Plaintiff and Respondent,
(Super.Ct.No. RIF1300129)
v.
OPINION
ARLENE MARIE HUDSON,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge.
Affirmed and remanded with directions.
William D. Farber, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Britton B. Lacy,
and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
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Arlene Marie Hudson pleaded guilty to one count of offering a false and forged
document for filing, registering, and recording, and three counts of foreclosure consultant
fraud in exchange for three years’ probation. The terms and conditions of her probation
required her to report any contact with law enforcement to her probation officer and to
participate in and complete “any counseling, rehabilitation/treatment program deemed
appropriate by [her] probation officer.”
On appeal, Hudson argues those two conditions of probation are unconstitutionally
vague and the treatment term also violates the separation of powers doctrine. We remand
to allow the trial court to modify both probation conditions.
I
FACTS
In July 2010, Hudson intentionally offered a false deed (No. 2008-0405637) to be
filed, registered, and recorded. In June 2012, she received compensation from three
different victims prior to performing services she was contracted to do as a foreclosure
consultant in violation of Civil Code section 2945.4, subdivision (a), which forbids
foreclosure consultants from taking any money from clients until they have fully
performed their contractual duties.
On May 7, 2014, the Riverside County District Attorney charged Hudson with
eight counts of filing false property documents (Pen. Code, § 115) and one count of
conspiracy to attempt to file false property documents. (Pen, Code, § 182 subd. (a).) That
same day, in a separate action, the Riverside County District Attorney also charged
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Hudson with three counts of foreclosure consultant fraud. (Civ. Code, § 2945.4,
subd. (a).) The district attorney successfully moved to consolidate these actions.
Hudson pleaded guilty to one count of filing false property documents, and three
counts of foreclosure consultant fraud. In exchange, the People agreed to dismiss the
conspiracy count and agreed to probation with no jail time.
On July 25, 2018, the trial court suspended imposition of the sentence and placed
Hudson on three years’ probation under certain terms and conditions. As noted, the terms
required her to “[r]eport any law enforcement contacts to the Probation Officer within 48
hours” and “[p]articipate [in] and complete at your expense any counseling,
rehabilitation/treatment program deemed appropriate by your probation officer.” The
court imposed these terms on its own; they weren’t negotiated as part of her plea
agreement. The court also dismissed the remaining counts in the interest of justice.
II
ANALYSIS
Hudson argues the probation conditions requiring her to report all contacts with
law enforcement and participate in any counseling or rehabilitation program probation
deems fit are unconstitutionally vague. She also argues delegating to probation the
authority to choose the program violates the separation of powers doctrine. The People
argue Hudson waived her right to challenge these conditions. On the merits, they concede
the term requiring her to report contacts with law enforcement is vague but otherwise
contest Hudson’s claims.
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A. Hudson’s Claims are not Forfeited
The People raise two arguments regarding forfeiture. First, they argue Hudson
waived her right to appeal the conditions in her plea deal. Second, they argue she
forfeited her right to challenge the probation conditions on appeal because she didn’t
object to them in the trial court.
“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 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.) “The mere fact that [Hudson] knew some unspecified ‘reasonable’ restrictions
or requirements could be imposed as a condition of [her] probation does not mean [s]he
was agreeing to accept anything the court decided to include.” (People v. Patton (2019)
41 Cal.App.5th 934, 940.) Here, the challenged conditions were not part of the negotiated
plea deal, and the People don’t argue Hudson had prior knowledge what conditions the
trial court would impose. It follows that Hudson couldn’t have waived her right to
challenge them.
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Nor has Hudson forfeited her right to object to these conditions. “In general, the
failure to make a timely objection to a probation condition forfeits the claim of error on
appeal.” (People v. Relkin (2016) 6 Cal.App.5th 1188, 1194 (Relkin).) However,
constitutional challenges which pose a pure question of law are not forfeited by a failure
to object. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.).) Hudson’s
argument that the conditions are unconstitutionally vague and violate the separation of
powers doctrine raise “ ‘ “pure questions of law that can be resolved without reference to
the particular sentencing record developed in the trial court,” ’ ” and as such are not
subject to forfeiture principles. (Id. at p. 889; quoting People v. Welch (1993) 5 Cal.4th
228, 235.)
B. Vagueness
Generally, we review a trial court’s imposition of probation conditions for abuse
of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379.) But where, as here, a
defendant challenges a probation condition on constitutional grounds, we review its
constitutionality de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
“[T]he underpinning of a vagueness challenge is the due process concept of ‘fair
warning.’ ” (Sheena K., supra, 40 Cal.4th at p. 890.) “The vagueness doctrine bars
enforcement of ‘ “a statute which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at its meaning and differ
as to its application.” [Citation.]’ [Citation.] A vague law ‘not only fails to provide
adequate notice to those who must observe its strictures, but also “impermissibly
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delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc
and subjective basis, with the attendant dangers of arbitrary and discriminatory
application.” [Citation.]’ ” (Ibid.) Thus, “[a] probation condition ‘must be sufficiently
precise for the probationer to know what is required of him, and for the court to
determine whether the condition has been violated,’ if it is to withstand a challenge on the
ground of vagueness.” (Ibid.) Where a term or condition of probation is
unconstitutionally vague, a reviewing court has the power to modify it to render it
constitutional. (Id. at p. 892.)
We agree with the parties that the law enforcement contacts condition is
unconstitutionally vague as imposed. Relkin is instructive. There, the trial court imposed
a condition requiring the defendant to “ ‘report to the probation officer, no later than the
next working day, any arrests or any contacts with or incidents involving any peace
officer.’ ” (Relkin, supra, 6 Cal.App.5th at pp. 1196-1197.) The court found “the portion
of the condition requiring that defendant report ‘any contacts with . . . any peace officer’
is vague and overbroad,” because it “leave[s] one to guess what sorts of events and
interactions qualify as reportable.” (Id. at p. 1197.)
The same is true here. The condition as imposed does not adequately identify
which contacts between Hudson and law enforcement trigger her reporting requirement.
While she could infer that arrests or detentions would probably qualify, there is nothing
in the language of the condition excluding more casual encounters with law enforcement
that one may not even register as meaningful contacts. (See, e.g., Relkin, supra, 6
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Cal.App.5th at p. 1197 [“We disagree with the People’s argument that the condition is
clearly not triggered when defendant says ‘hello’ to a police officer or attends an event at
which police officers are present, but would be triggered if defendant were interviewed as
a witness to a crime.”].) “The language does not delineate between such occurrences and
thus casts an excessively broad net over what would otherwise be activity not worthy of
reporting.” (Ibid.)
Because the condition fails to delineate which kind of law enforcement contacts
trigger the reporting requirement, the term is unconstitutionally vague. On remand, the
trial court shall narrow the term to specify which contacts trigger the reporting
requirement, or else strike the term entirely.
As to the counseling and treatment program condition, both parties agree the trial
court had the authority to order Hudson to participate in and complete any such program
it specified. But Hudson argues the court erred by delegating that specification to
probation. According to Hudson, leaving such wide discretion in the hands of probation
renders the term unconstitutionally vague.
People v. Penoli (1996) 46 Cal.App.4th 298, 308 (Penoli) dealt with a vagueness
challenge to a similar probation condition that delegated to probation the authority to
select a treatment program. As previously noted, a condition “must be sufficiently precise
for the probationer to know what is required of him [or her], and for the court to
determine whether the condition has been violated.” (People v. Reinertson (1986) 178
Cal.App.3d 320, 324-325 (Reinertson).) Taking a practical approach to the issue, the
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court observed that “[t]he trial court is poorly equipped to micromanage selection of a
program, both because it lacks the ability to remain apprised of currently available
programs and, more fundamentally, because entry into a particular program may depend
on mercurial questions of timing and availability.” (Penoli, at p. 308.) Given this reality,
the court concluded it is appropriate for probation treatment conditions to be somewhat
open-ended, so as to provide probation with ample breathing room to navigate the
everchanging circumstances of court-ordered programs. Therefore, even if a court could
be more specific in its order, that does not necessarily render a condition vague or
overbroad. (Ibid. [“Desirable as such a narrowing of the probation officer’s discretion
might be, however, we are not prepared at this time to hold that its absence constitutes
prejudicial error.”])
However, the condition in Penoli was different. There, the trial court had specified
the type of treatment program the defendant was required to complete—drug treatment.
(Penoli, supra, 46 Cal. Ap.4th at p. 301.) Here, the trial court didn’t specify the type of
treatment Hudson needs, and in our view, that makes the condition unconstitutionally
vague. Under the terms as imposed, Hudson doesn’t know whether she will be required to
participate in and complete a drug rehabilitation program, a mental health treatment
program, an anger management program, some other program, or no program at all. It is
simply too open-ended to put Hudson on any kind of meaningful notice.
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Moreover, the decision in Penoli seems to have turned on facts which are not
present in this case. In Penoli the defendant argued that he had “ ‘a right to more specific
guidelines from the court as to the scope of the proposed program.’ ” (Penoli, supra, 46
Cal.App.4th at p. 309, italics added.) The court found this argument unpersuasive
because the defendant’s attorney “was amply familiar with the range of possibilities to
which defendant was exposed,” from “ ‘a ten-day detoxification period to a two-year
program of behavioral modification.’ ” As a result, “counsel, if not his client, knew that
agreement to this condition entailed a potential restraint of up to two years.” (Penoli, at
p. 309.) In other words, the court’s conclusion the term was not unconstitutionally vague
rested in part on the fact the defendant had some idea of what fulfilling it would look like.
That is not, and could not, be true of the condition here because the trial court
gave no hint as to what type of treatment Hudson would have to complete. Nor is there
any clue to be found in the record as to what type of treatment the court had in mind. For
example, if Hudson’s crimes were drug-related, or if the court identified drug treatment
as appropriate, or even if the court placed the condition alongside other conditions
concerning drugs, it might be reasonable to conclude the term was not vague because the
parties understood the term to refer to drug treatment programs. The same could be said if
the record showed Hudson had anger management or mental health issues which the
court felt needed to be treated as a condition of probation. Here, there is nothing in the
record to provide any explanation or context for the court’s decision to order treatment.
Indeed, given the open-ended nature of the condition, it is entirely possible the court
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expected probation not to compel any treatment. If we can’t tell what the court expected
when it imposed this condition, we’re hard-pressed to say it is “sufficiently precise for
[Hudson] to know what is required of [her].” (Reinertson, supra, 178 Cal.App.3d at
pp. 324-325.)
While we agree with Penoli that it is both legally permissible and often practically
necessary for a trial court to delegate program selection to probation, the condition at
issue here is so open-ended as to render it unconstitutionally vague. While a trial court
need not notify a defendant of which specific programs they will be required to complete,
it must, at the very least, provide notice as to what category of treatment they must
complete. Accordingly, we remand to allow the trial court to modify the condition by
specifying what type of treatment it had in mind when imposing the condition. At that
point, Hudson may choose to object to a more specific condition on reasonableness
grounds.
III
DISPOSITION
We remand to permit the sentencing court to modify the conditions requiring
Hudson to “[r]eport any law enforcement contacts to the Probation Officer within
48 hours,” and “[p]articipate [in] and complete at your expense any counseling,
rehabilitation/treatment program deemed appropriate by [her] probation officer.” The law
enforcement contact condition should specify which contacts trigger the reporting
requirement, or else strike the term entirely. The treatment condition should specify what
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type of treatment the trial court directs Hudson to undergo, if any. In all other respects,
we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
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