Filed 1/24/20 P. v. Johnson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, FOURH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBIN JOHNSON,

Defendant and Appellant.

D074876

(Super. Ct. No. SCD272829)

APPEAL from a judgment of the Superior Court of San Diego County, Michael S. Groch, Judge. Affirmed.

Lindsay M. Ball and Lynelle K. Hee, under appointments by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

After being convicted by a jury of various crimes, the trial court suspended Robin Johnson’s sentence and placed him on probation. He now challenges the constitutionality of two probation conditions and the imposition of fines and fees without consideration of his ability to pay under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We conclude that his probation terms are not unconstitutionally overbroad or vague, and that his Dueñas challenge was forfeited. Accordingly, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Johnson was convicted by a jury of various charges for physically abusing his girlfriend. The trial court suspended the execution of an eight-year prison term upon the successful completion of five years of formal probation. Johnson accepted his probation terms without objection. On appeal he challenges the imposition of fines and fees, and two probation terms as unconstitutionally vague and overbroad: (1) an employment approval condition, which states he must “obtain P.O. [(probation officer)] approval as to employment,” and (2) a directive to “follow such course of conduct that the P.O. communicates to the defendant.”

DISCUSSION

Johnson brings facial challenges to both the employment approval and “follow such course of conduct” conditions. Neither poses a constitutional problem. Requiring a probationer to obtain employment approval is not facially overbroad. There are many circumstances in which such a condition would properly balance the aims of probation with a limited infringement on constitutional rights. Nor is it vague, because it does not deprive a probationer of reasonable notice by leaving the terms of compliance uncertain. The “follow such course of conduct” clause also survives scrutiny because we reasonably construe it as relating to compliance with other probation terms.

Adult probationers agree to limits on their constitutional rights to avoid the far greater infringement of incarceration. (People v. Stapleton (2017) 9 Cal.App.5th 989, 994.) But to survive an overbreadth challenge, probation terms that limit a defendant’s constitutional rights must be tailored and related to the state’s interests in rehabilitation and public safety. (In re E.O. (2010) 188 Cal.App.4th 1149, 1153; People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355.) To survive a vagueness challenge, terms must be specific enough to give the probationer notice of how to comply. (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) Probation terms in need of interpretation are construed reasonably. (People v. Olguin (2008) 45 Cal.4th 375, 382 (Olguin).)

Facial constitutional challenges to probation conditions may be raised for the first time on appeal (Sheena K., supra, 40 Cal.4th at p. 879), but only claims that are truly facial—presenting pure questions of law. (Id. at p. 889.) This is an “abstract” inquiry of “generalized legal concepts.” (Id. at p. 885.) We review facial constitutional challenges de novo. (People v. Appleton (2016) 245 Cal.App.4th 717, 723.)

To show that a condition is facially overbroad, the defendant must demonstrate that the challenged condition would be unconstitutional in any circumstance. (People v. Patton (2019) 41 Cal.App.5th 934, 946.) In other words, we will only find a condition overbroad on its face if there is no conceivable set of facts that would justify imposition of the term. Anything less would necessitate looking at the factual record in the case, and would therefore constitute as-applied review.

1. The Employment Approval Probation Condition

Johnson asserts that the employment approval condition infringes on his constitutional rights to free association and intrastate travel. Johnson stops just short of asking us to consider the record by arguing “the nature of appellant’s domestic violence offense does not suggest a need to monitor his place of employment.” If Johnson is asking us to consider the nature of his specific offense, he is asking for as-applied review. We do not reach that inquiry; he forfeited the argument by failing to raise it at sentencing. (People v. Kendrick (2014) 226 Cal.App.4th 769, 778; People v. Welch (1993) 5 Cal.4th 228, 237.)

If Johnson merely asserts domestic violence cases in general do not justify any monitoring of employment, his argument fails on the merits. We can imagine a number of situations where requiring a probationer who was convicted of assaulting an intimate partner to obtain job approval properly balances the legitimate ends of probation with the burden on the probationer. From making sure a probationer will not work with vulnerable populations to confirming the job location is an adequate distance from the home of a victim, there are many justifications for this kind of provision.

We turn to Johnson’s contention that the employment approval condition is vague. This is a due process protection to ensure no term is left so uncertain that the probationer cannot be sure if he or she has complied. (Sheena K., supra, 40 Cal.4th at p. 890.) We fail to see how the term as written could lead to confusion. It states Johnson must “obtain P.O. approval as to employment.” This reasonably means that before Johnson accepts a job offer, he must obtain approval from his probation officer. Johnson essentially concedes that the condition is clear because he makes no argument as to how the language leads to confusion. He simply asserts he should have more notice as to which kinds of jobs might be approved or disapproved.

Due process does not require that Johnson receive detailed or precise direction about his job search—it guards against making him liable for compliance with an unclear probation condition. The language of the provision does not run that risk. Any remaining concern that the employment approval condition might be wielded arbitrarily to deny Johnson legitimate job opportunities can be addressed by the trial court if such a harm occurs.

2. The “Follow Such Course of Conduct” Probation Condition

Johnson’s probation order states he must “follow such course of conduct that the P.O. communicates to the defendant.” He contends it is vague and overbroad.

Johnson might be correct if we were to interpret the clause in the broadest possible way—but we construe the language of probation conditions reasonably. (Olguin, supra, 45 Cal.4th at p. 382.) We do not assume this condition attempts to, or succeeds in, vesting broader authority in a probation officer than is statutorily permitted. (Pen. Code, §§ 1202.8, subd. (a), 1203; People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240 (Kwizera).) The officer may direct Johnson to comply with the terms of his probation. The clause in question authorizes nothing further. (Kwizera, at p. 1240.)

3. The Dueñas Decision and Johnson’s Ability to Pay Fines and Fees

At sentencing, Johnson was assessed a $300 restitution fine (Pen. Code, §1202.4, subd. (b)), a $300 suspended probation revocation restitution fine (Pen. Code, §1202.44), a $120 court operations fee (Pen. Code, § 1465.8), a $90 criminal conviction fee (Gov. Code, § 70373), and a $154 criminal justice administration fee (Gov. Code § 29550). He did not challenge the fines or fees and the court did not conduct a hearing to determine his ability to pay.

Johnson now asserts that, under Dueñas, supra, 30 Cal.App.5th 1157, he is entitled to an ability to pay hearing regarding his fines and fees. Much has been written about Dueñas. We will not add unnecessarily to that discussion because Johnson’s case is distinguishable.

Dueñas dealt with a due process challenge to mandatory fines and fees where the trial court was statutorily precluded from considering the defendant’s ability to pay. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) In contrast, Government Code sections 29550 to 29550.2, which authorize Johnson’s criminal justice administration fee, permit judicial consideration of a defendant’s ability to pay. Moreover, the California Supreme Court has already held that failure to challenge this kind of fee at sentencing forfeits the claim on appeal. In People v. McCullough (2013) 56 Cal.4th 589 (McCullough), the defendant argued the trial court was required to consider his ability to pay before assessing him a booking fee under Government Code sections 29550 to 29550.2. (Id. at p. 590.) The court held the defendant had a statutory right to request a determination of his ability to pay, which he forfeited by failing to raise it at sentencing. (Id. at pp. 592–593, 599.) Johnson also forfeited his current objection to the criminal justice administration fee by not raising it below. McCullough’s forfeiture rule (rather than any principles announced in Dueñas) is determinative here.

Johnson’s remaining fines and fees were mandatory regardless of ability to pay. (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1170.) But he plainly could have challenged over 20 percent of the total—$154 of $664—based on ability to pay. Presumably, if he would struggle to pay the full amount, objecting to 20 percent would be both significant and rational. (See, e.g., People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) For this reason, we conclude he forfeited his challenge to all the fines and fees assessed.

DISPOSITION

The judgment is affirmed.

DATO, J.

WE CONCUR:

O’ROURKE, Acting P. J.

AARON, J.