1 Filed 11/21/13 P. v. Dunson CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. RUBEN WILEY DUNSON, JR., Defendant and Appellant. E056631 (Super.Ct.No. INF1200316) OPINION

APPEAL from the Superior Court of Rive rside County. B. J. Bjork, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) A ffirmed as modified with directions. Jesse W.J. Male and Arthur B. Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christine Levingston Bergman and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.2 Defendant and appella nt Ruben Wiley Dunson, Jr., wa s initially charged by felony complaint with the unlawful taki ng of a vehicle (Veh. Code, § 10851, subd. (a), count 1) and receiving a stolen vehicle (Pen. Code, § 496d, count 2). 1 He was subsequently charged by informatio n with vehicle theft with a prio r vehicle theft conviction (Pen. Code, § 666.5, subd. (a), count 1) and receiving a stolen vehicle (Pen. Code, § 496d, count 2). It was also alleged that defenda nt had four prior prison convictions. (Pen. Code, § 667.5, subd. (b).) A ju ry found defendant gu ilty of both counts. In a bifurcated proceeding, a trial court found true the allega tions of the prison priors and prior vehicle theft conviction. The court sent enced defendant to a total term of seven years. Pursuant to Penal Code section 1170, subdivision (h), th e court ordered him to serve four years in county jail and then three years on supervis ed release, in acco rdance with conditions applicable to persons on probation. (Pen. Code, § 1170, subd. (h)(5)(B)(i).) On appeal, defendant challenges two of th e conditions of his future supervised release as unconstitutionally vague and overbroad. He al so argues that the court improperly imposed a probation revocation restitution fine, and that the judgment should be corrected to accurately reflect that he wa s convicted of violati ng Vehicle Code section 10851, subdivision (a), in count 1, and was sentenced pursuant to Penal Code section 666.5, subdivision (a). The People concede, a nd we agree, that the judgment should be modified to reflect a conviction of Vehicl e Code section 10851, subdivision (a), in

1 All further statutory references will be to the Penal Code, unless otherwise noted.3 count 1. We also agree th at the supervised release conditions should be modified. Otherwise, we affirm the judgment. FACTUAL BACKGROUND A police officer responded to a stolen vehi cle report, in which it was reported that a 1998 white Jeep Cherokee belonging to the Verizon company was missing. The vehicle was taken from a Verizon company yard . The vehicle had tw o Verizon logos on the driver’s door and the fr ont passenger’s door. Later th at day, while on patrol, the officer spotted a white Jeep Ch erokee parked on the street. The officer ran the license plate as he passed by. The license plate came back for a car that was not a Jeep. The officer was dispatched on another call, and when he returned to chec k on the Jeep, it was no longer parked where he last saw it. The officer saw the Jeep in a nearby alley, and he saw defendant opening the front passenger do or. The officer pulled his car over and approached defendant. The officer checked the vehicle identification number and discovered that it matched that of the Jeep re ported stolen. He noticed that the Verizon logos had been spray-painted over with white paint and that underneath the license plate on the vehicle was the actual license plate that belonged to the Je ep. In his pocket, defendant had a tool which had sockets that fit the bolts on the license plate. He also had what appeared to be white paint on his fingers.4 ANALYSIS I. The Trial Court Properly Imposed a Restitution Re vocation Fine Pursuant to Section 1202.44 Defendant contends that the trial court erred in im posing a $240 “supervised release” revocation restitution fine pursuan t to section 1202.44 because supervised release under section 1170, subdivision (h), does not qualify under section 1202.44 as a “conditional sentence.” We conclude that th e court correctly imposed a restitution fine that would become effective should defe ndant be reincarcerated for violating the conditions upon which he had been granted a period of supervised release. A. Relevant Proceedings Below At the sentencing hearing, the court sent enced defendant to seven years in state prison, but, pursuant to secti on 1170, subdivision (h), ordered defendant to serve four years in county jail and then three years on supervised release. 2 The court asked defendant if he had reviewed and agreed to all of the cond itions of supervised release, including the fines, fees, and costs, and defe ndant said yes. His counsel confirmed that he had gone over all the terms with defendan t. The court explained that, like probation conditions, if defendant failed to comply with the terms of s upervised release, he would be subject to revocation and incarceration fo r the balance of the unserved supervised release. The court confirmed for the record that defendant accepted the conditions of

2 Under the terms of the recent realignmen t legislation, the courts are permitted to sentence certain nonviolent felons to county jail, rather than state prison. The courts also have discretion to have the co nvicted person serve part of the sentence under supervised release. (See § 1170 , subd. (h)(5)(B).)5 supervised release, and then imposed a restitution fine as follows: “Pay restitution fine of $240. Pay $240. That should be ‘supervised release revocation restitution.’ [¶] Said restitution fine is stayed, and the stay sha ll be lifted upon the revo cation of supervised release. [¶] I see they’re s till not changing all the necessary language. [¶] Defendant is sentenced to prison or county jail without pr obation or conditional sentence imposed. No he actually is. There is a condition, a cond ition of supervised release. They’re still changing these things around . So he will be remanded.” B. Supervised Release Is a Condition al Sentence Under Section 1202.44 Defendant contends that s upervised release is not a conditional sentence for purposes of the Penal Code. We disagree. We reach this conclusion via a joint reading of sections 1170, 1202.4, and 1202.44, keep ing in mind the rule th at, when scrutinizing the words of a statute, courts give the wo rds their usual, ordinary, and commonsense meaning. ( People v. Valladoli (1996) 13 Cal.4th 590, 597.) The Oxford English Dictionary defines the word “conditional” as follows: “Subject to, depending on, or limited by, one or more conditio ns; not absolute; made or granted on certain terms or stipulations.” 3 In the legal setting, the meaning of the words of a statute must also be derived from the context in which the words are used and with reference to the entire statutory scheme so that the whole may be harmonized and retain effectiveness. ( People v. Pieters (1991) 52 Cal.3d 894, 899.)

3 That Web site can be found at <http://www.oed.com/view/Entry/38552.>6 The relevant provision of section 1170 states that the trial court may commit a defendant to county jail and suspend execution of a concluding porti on of the applicable term “. . . during which time the defendant shall be supervised by the county probation officer in accordance with the terms, conditions, and proced ures generally applicable to persons placed on probation, for the remaining unserved por tion of the sentence imposed by the court.” (§ 1170, subd. (h)(5)(B)(i).) Te rms and conditions generally applicable to persons placed on probation or given “conditional sent ences” include revocation restitution fines. To wit: “In every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed, the court shall, at the time of imposing the re stitution fine pursuant to subdivision (b) of Section 1202.4, assess an a dditional probation revocation restitution fine in the same amount as that imposed pursuant to subdivisi on (b) of Section 1202.4. This additional probation revocation restitution fine shall become effective upon the revocation of probation or of a conditional sentence , and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record.” (§ 1202.44, italics added.) Here, the probation-officer-supervised-rele ase portion of defendant’s sentence was dependent on his acceptin g and agreeing to terms and conditions that are virtually identical to standard terms of probation. De fendant reviewed and agreed to those terms, and for the last three years of his seven-year sentence, he will have to abide by them if he wishes to stay out of jail. (§ 3455, subds. (a) & (b).) Ac cordingly, pursuant to section 1202.44, defendant is subject to a supervised release revo cation restitution fine in the7 same amount as the mandatory fine imposed un der section 1202.4, subd ivision (b), $240. If he fails to abide by those conditions and causes his (conditional) supervised release to be revoked, the fine which is curre ntly stayed will become effective. 4 (§ 1202.44.) In sum, defendant was given a sentence that included a conditional release segment. Under section 1202.44, he was subject to a supervised release restitution revocation fine should he fa il to abide by the terms and conditions of that conditional release. 5

4 Although section 1202.45, subdivision (b), was not yet in effect at the time defendant was sentenced, any confusion that ma y have existed as to the fines to which a person on supervised rel ease—conditioned upon abidin g by terms and conditions generally applicable to persons placed on probation—is subjec t, has been clarified by its addition to the Penal Code. The language of the provision is vi rtually identical to that of section 1202.44 except for the substituti on of the words “postrelease community supervision” or “mandatory supervision” for the word “probation” wherever it appears. It provides: “In every case wher e a person is convicted of a crime and is subject to either postrelease community supervision under Sec tion 3451 or mandatory supervision under subparagraph (B) of paragraph (5) of subdivisi on (h) of Section 1170, the court shall, at the time of imposing the restitu tion fine pursuant to subdivi sion (b) of Section 1202.4, assess an additional postrele ase community supervision re vocation restitution fine or mandatory supervision revocati on restitution fine in the sa me amount as that imposed pursuant to subdivisi on (b) of Section 1202.4 . . . .” (§ 1202.45, subd. (b).)

5 We note defendant’s contention in his re ply brief, that under this interpretation of section 1202.44, individuals who receive a realigned sentence, as of January 1, 2013, “should receive: 1) a proba tion revocation fine because Penal Code s ection 1202.44 should be harmonized so that supe rvised release constitutes probation; and 2) a mandatory supervision revoca tion fine under Penal Code section 1202.45, subdivision (b).” (Italics added.) However, as the c ourt remarked when it imposed the fine, the Legislature at that time had “still not chang[ed ] all the necessary language.” Now that the Legislature has added section 1202.45, a court would not order both a probation revocation fine under section 1202.44, and a mandatory supervis ion revocation fine under section 1202.45, subdivision (b). As defendant suggests, such order would be “duplicative absurdity,” especially in light of the nearly identical language of sections 1202.44 and 1202.45, subdivision (b).8 II. The Conditions of Supervised Release Should Be Modified Defendant challenges two of the terms of his supervised release as being unconstitutionally vague and overbroad. Th e People concede that one of the terms should be modified, but not the other. We conclude that both conditions should be modified. As an initial matter, defendant asserts, a nd the People agree, that the validity and constitutionality of a condition of supervised release should be evaluated in the same manner as the validity and constitutionality of conditions of probation. Supervised release is to be monitored by county proba tion officers “in accord ance with the terms, conditions, and procedures genera lly applicable to persons placed on probation . . . .” (§ 1170, subd. (h)(5)(B)(i).) We thus agree that the constituti onal validity of the terms of supervised release should be analyzed under standards an alogous or parallel to those applied to terms of probation. A. Standard of Review In general, the courts are given broad discretion in fashioning terms of probation or supervised release, in order to foster the reformation and reha bilitation of the offender, while protecting public safety. ( People v. Carbajal (1995) 10 Cal.4th 1114, 1120; People v. Urke (2011) 197 Cal.App.4t h 766, 774.) Thus, the impos ition of a particular condition of probation is subject to review for abuse of that discretion. “As with any exercise of discretion, the court violates this standard when it imposes a conditi on of probation that is arbitrary, capricious or exceeds the bound s of reason under the circumstances. [Citation.]” ( People v. Jungers (2005) 127 Cal.App.4th 698, 702.) However,9 constitutional challenges are reviewed under a different standard. Whether a term of probation or supervised rel ease is unconstitutionally vague or overbroad presents a question of law, which we review de novo. ( In re J.H. (2007) 158 Cal.App.4th 174, 183; In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143 .) We agree with defendant’s contention that the failure to object below that a condition of supervised release is unconstitutionally overbroad does not forfeit review of the issue on appeal, as it is a pure issue of law. (See In re Sheena K. (2007) 40 Cal.4th 875, 888-889 ( Sheena K. ); People v. Welch (1993) 5 Cal.4th 228, 235.) B. Condition No. 3 Should Be Modified Defendant asserts that cond ition No. 3 uses the word “g ang,” without providing a definition of that word. It r eads as follows: “Do not associ ate with any unrelated person you know to be a possessor, user, or trafficker of controlled substances, or any unrelated person you know to be on prob ation or parole or a gang member.” Defendant requests that this condition be modified to include a reference to section 186.22, subdivision (f), which defines a “criminal street gang.” We agree and will modi fy the condition to include the following: For purposes of th is paragraph, the word “gang” means a “criminal street gang” as de fined in Penal Code secti on 186.22, subdivision (f). Defendant further contends that conditio n No. 3 is overbroad because the portion that prohibits him from associating with “a possessor, user, or trafficker of controlled substances” prohibits association with se llers and users of commonly prescribed medications. The People concede that the te rm “controlled substances” is very broad. Controlled substances are defi ned and listed in Health and Safety Code sections 11054-10 11058. The lists include not only illegal s ubstances, like heroin and marijuana (Health & Saf. Code, § 11054, subds. (c)(11), (d)(13)), bu t many commonly prescribed medications. Thus, the probation condition, as written, may prohibit defendant from associating with persons using or selling pres cription medication. We as certain no rehabilitative purpose in such restriction. “‘California Courts have traditionally been wary of using the probation system for any nonr ehabilitative purpose, no matter how superficially rational.’ [Citation.]” ( People v. Tilehkooh (2003) 113 Cal.App.4th 14 33, 1444, superseded by statute on other grounds, as stated in People v. Moret (2009) 180 Cal.Ap p.4th 839, 853, fn. 12.) We conclude that co ndition No. 3 should be modified to include the concept of the illegality of the controlled substances. C. Condition No. 10 Should Be Modified Condition No. 10 reads as follows: “Inform the Probation Officer of your place of residence and reside at a re sidence approved by the Probation Officer; give written notice to the Probation Officer 24 hours before ch anging your residenc e and do not move without the approval of the Prob ation Officer.” Defendant c ontends that the portion of the condition requiring him to “reside at a re sidence approved by the Probation Officer” is vague and overbroad, as it restricts his ri ght to travel and to freely associate with others. We agree that it is overbroad. Courts have broad discre tion to impose conditions of probation that foster rehabilitation or protect public safety. (§ 1203.1.) The California Supreme Court has clarified the review of proba tion conditions on appeal. It he ld, “We review conditions of probation for abuse of discretion. [Citati ons.] Generally ‘[a] c ondition of probation will11 not be held invalid unless it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reas onably related to future crimin ality . . . .” [Citation.]’ [Citation.] This test is conj unctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.” ( People v. Olguin (2008) 45 Cal.4th 375, 379 ( Olguin ).) The test of the validity of a condition of probation “may be supplemented by a second level of scrutiny: where an otherw ise valid condition of probation impinges on constitutional rights, such conditions must be carefully tailored, ‘“reasonably related to the compelling state interest in reformati on and rehabilitation . . . .”’ [Citations.]” ( People v. Bauer (1989) 211 Cal.Ap p.3d 937, 942 ( Bauer ).)
In Bauer , supra , 211 Cal.App.3d 937, the defenda nt was found guilty of false imprisonment and assault. He was placed on probation with a condition that he “obtain his probation officer’s approval of his residence . . . .” ( Id . at p. 940.) Bauer held this condition failed the requirements for probati on conditions, as it was not related to the defendant’s crime and was not rela ted to future criminality. ( Id . at p. 944.) The Bauer court went on to hold that the probation co ndition was “all the more disturbing” because it impermissibly impinged on the defendant’s constitutional rights to travel and of freedom of association. ( Ibid .) The condition was not narrowl y tailored to interfere as little as possible with these important rights, but rather gave the pr obation officer broad power over the defendant’s living situation. ( Id . at pp. 944-945.) Here, there is nothing in the record refe rring to defendant’s living situation. Defendant was convicted of vehicle theft with a prior vehicle theft conviction and12 receiving a stolen vehicle. There is no indi cation that his home life contributed to these offenses. Thus, the condition was not in any way related to defendant’s offenses. Like the court in Bauer , we do not find that the condition itself is inappropriate in all circumstances (see Bauer , supra , 211 Cal.App.3d at p. 944 [finding residence approval condition not related to the defe ndant and his crimes in the case, but not invalidating the condition in every case]), but that such appr oval was not related to defendant’s crimes and living situation in this case. Furthermore, the condition is not reas onably related to defendant’s future criminality. There is no indication that he wa s living or planned to live with individuals that might impede his rehabilitation. It is me re speculation to believe he might move to an undesirable location or live in a residence or community which “might be ‘a source of temptation to continue to pursue a criminal lifestyle,’” as th e People assert. Imposing the residence approval portion of th e condition was unreasonable. The People contend that Bauer does not control here be cause that case “involved an objection to the residence-approval conditi on as it applied to the defendant [Citation], whereas [defendant here] raises a facial constitutional challe nge.” However, the court in
Bauer also held that the condition impinged on the right to travel and freedom of association. ( Bauer , supra , 211 Cal.App.3d at p. 944.) The People here claim that the condition is “narrowly tailored to achiev e the state’s compe lling interest in rehabilitation.” However, as the court in Bauer held, “[r]ather than being narrowly tailored to interfere as little as possible w ith [the rights to travel and freedom of association], the restricti on is extremely broad.” ( Ibid .)13 We do not find the condition to be unc onstitutionally vague, however. It is “‘“sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated.”’ [Citations.]” ( In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) If defendant wants or needs to move, he must simply inform the probation officer of his pot ential residence and obta in approval to live there. In any event, because we find the residen ce approval portion of the condition to be overbroad, we will strike that po rtion of it. We do see the be nefit of the probation officer being informed if defendant’s residence has changed. Thus, cond ition No. 10 should be modified to read as follows: Keep the pr obation officer informed of your place of residence and give written notice to the probation officer twenty -four (24) hours prior to a change in residence. III. The Judgment Should Be Corrected to Accu rately Reflect the C onviction in Count 1 Defendant argues, and the People concede, that the judgment should be corrected to reflect that he was convicted of violatin g Vehicle Code section 10851, subdivision (a), in count 1 and was sentenced pursuant to Pe nal Code section 666.5, subdivision (a). We
agree. The pleadings, instructions, and verdict fo rms all describe defendant’s offense as a violation of Penal Code section 666.5. Ho wever, Penal Code section 666.5, subdivision (a), provides for increased punishment for re peat violators of Vehicle Code section 10851. In other words, it “c reates only enhanced punishment for repeat offenders, not a new substantive offense.” ( People v. Young (1991) 234 Cal.App.3d 111, 115.)14 The parties understood that defendant was charged in count 1 with vehicle theft and, as a repeat offender, he was subject to increased punishment. At the hearing on the prior convictions, the prosecutor moved to in terlineate the information to refer to the vehicle theft offense as a violation of Vehicl e Code section 10851, instead of Penal Code section 666.5. The court granted the motion. Nonetheless, at the outset of the sentencing hearing, the court stated that defendant was convicted in count 1 of a violation of Penal Code section 666.5, subdivision (a). When th e court actually sent enced defendant, it stated, “[a]s to Count 1, . . .” and did not refer to a code section. The sentencing minute order similarly states, “As to Count 1, the Co urt imposes the MID term of 3 years . . . .” In the interest of clarity, we direct the superior court to prepare an amended sentencing minute order to clearly reflect th at defendant was convicted of violating Vehicle Code section 10851, subdivision (a), in count 1, and sentenced pursuant to Penal Code section 666.5, subdivision (a). 6 We will further direct the superior court to forward a copy of the amended sentencing minute orde r to local custody of ficials. (§ 1213.) DISPOSITION We hereby modify defenda nt’s supervised release conditions as follows: Condition No. 3 is modified to read: Do not associate with any unrelated person you know to be a possessor, user, or traffick er of illegal controlled substances, or any unrelated person you know to be on probation or parole or a gang member. For purposes

6 There was apparently no abstract of judgment prepared be low since defendant was not sentenced to state prison.15 of this paragraph, the word “gang” means a “criminal street gang” as defined in Penal Code section 186.22, subdivision (f). Condition No. 10 should be modi fied to read: Keep the probation officer informed of your place of residence and give written notice to the probation officer twenty-four (24) hours prior to a change in residence. Furthermore, the superior court clerk is directed to prepare an amended sentencing minute order clearly reflecting that, in count 1, defendant was convicted of violating Vehicle Code section 10851, subdivision (a), and sentenced pursu ant to Penal Code section 666.5, subdivision (a). We also direct the superior court to forward a copy of the amended sentencing minute order to local custody officials. In all other respects, th e judgment is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST Acting P. J.

We concur:

KING J.

MILLER J.