IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Placer
February 16, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JONATHAN NELCE LANCASTER, DEFENDANT AND APPELLANT.
Super. Ct. No. 72-005780
The opinion of the court was delivered by: Butz ,j.
P. v. Lancaster CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Jonathan Nelce Lancaster of stalking (Pen. Code, § 646.9, subd. (b)),*fn1 perjury by declaration (§ 118), and seven counts of disobeying a court order, misdemeanors (§ 166, subd. (a)(4)). The jury acquitted defendant of criminal threats (§ 422), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), and three other counts of disobeying a court order. The jury was unable to reach a verdict on making annoying telephone calls (§ 653m, subd. (b)), making a false report of a criminal offense (§ 148.5, subd. (a)), and two other counts of disobeying a court order.
Defendant was sentenced in November 2009. The court imposed an aggregate state prison sentence of four years, suspended execution, and granted probation for a term of five years subject to certain terms and conditions including 365 days in jail.
Defendant appeals. He contends (1) the "no contact" condition of probation requires modification to include a "knowledge" requirement and (2) the condition that he "seek and maintain gainful employment" exceeded the court's statutory authority. We agree in part with his first contention and reject the second contention.
Linda and Mark Vierra live next door to defendant in Olympic Valley. Mark bought a snow removal business in 1989. Defendant agreed that Mark could park a snow blower in defendant's driveway in exchange for free snow removal. An argument between Mark and defendant over politics in 2006 led to the following events. Mark stopped parking his snowplow in defendant's driveway but continued plowing the driveway until April 30, 2007. After a bad snowstorm in December 2007, defendant called Mark on his cell phone and said he would call the sheriff if Mark did not plow defendant's driveway. Defendant called the sheriff when Mark did not plow the driveway and the sheriff's department assigned a deputy to intervene in the dispute to no avail.
Defendant complained to the county that the Vierras did not have a license for the snow removal business. The Vierras thereafter got a business license. The Vierras reported defendant driving back and forth in front of their house, staring, and taking a picture of a snow blower and of Linda. The Vierras were granted a temporary restraining order. Linda then started taking notes about defendant's actions. She did so because a law enforcement officer suggested it.
In April and May 2008, defendant's actions of harassing and annoying the Vierras constituted the seven counts of disobeying a court order (the restraining order). Defendant's actions of harassing and threatening the Vierras from January 2008 to March 2009 constituted stalking.
Defendant submitted a declaration falsely stating that on March 10, 2009, Linda had thrown a full can of an energy drink and hit defendant in the back.
I. Conditions of Probation
The court imposed sentence, suspended execution, and granted probation subject to numerous terms and conditions. For the most part, defense counsel, the prosecutor and the court discussed probation versus prison, where defendant planned to live if granted probation and how much time he would need to move out of his current home. Neither defense counsel nor defendant voiced any objections to the two conditions of probation defendant now challenges on appeal.
First, the court orally imposed the condition that defendant "not have any contact, annoy, harass, or in any way contact, speak to, drive your car past, or in any way contact any of the Vierras." The written condition on the probation order reflects that defendant "shall not annoy, harass or contact in any way" the victims.
Second, the court imposed the condition that defendant "[s]eek and maintain gainful employment."
Defendant's failure to object would normally forfeit his challenge to both conditions but constitutional challenges involving pure questions of law are not forfeited. (See In re Sheena K. (2007) 40 Cal.4th 875, 887 (Sheena K.).) Thus, his challenge to the first condition is not forfeited; however, his challenge to the second condition is forfeited.
"[A] challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law." (Sheena K., supra, 40 Cal.4th at p. 887.) There is no need here to refer to the sentencing record to address defendant's constitutional arguments.
"A probation condition is subject to the 'void for vagueness' doctrine, and thus 'must be sufficiently precise for the probationer to know what is required of him . . . .' [Citations.] [¶] Two principles guide the evaluation of whether a law or, in this case a probation condition, is unconstitutionally vague. First, 'abstract legal commands must be applied in a specific context. A contextual application of otherwise unqualified legal language may supply the clue to a law's meaning, giving facially standardless language a constitutionally sufficient concreteness.' [Citation.] Second, only reasonable specificity is required. [Citation.] Thus, a statute 'will not be held void for vagueness "if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources."'" (People v. Lopez (1998) 66 Cal.App.4th 615, 630 (Lopez).) Where the terms of a statute or condition of probation have a reasonably understood meaning, the condition is not vague. (People v. Rodriquez (1975) 50 Cal.App.3d 389, 397-398.) A probation condition is constitutionally overbroad when it substantially limits rights without closely tailoring the condition to the purpose for its imposition. (People v. Olguin (2008) 45 Cal.4th 375, 384; In re White (1979) 97 Cal.App.3d 141, 146-148.)
With respect to the first condition, the "no contact" order as orally imposed ("not have any contact, annoy, harass, or in any way contact, speak to, drive your car past, or in any way contact any of the Vierras") is unconstitutionally overbroad to an extent. (See Lopez, supra, 66 Cal.App.4th at p. 628 [condition prohibiting the defendant from associating with persons not known to him to be gang members "suffers from constitutionally fatal overbreadth"].) The People concede that modification is required.
Accidental contact with the Vierras would not constitute a violation. The condition must be modified to prohibit only "knowingly and purposefully contacting, speaking to, or driving defendant's car past" the Vierras. The terms "annoy" and "harass" imply knowing and purposeful conduct, so prohibiting "knowingly and purposefully" annoying and harassing the Vierras would be redundant.
With respect to the second condition, as previously stated, defendant's challenge is forfeited. In any event, section 1203.1, subdivision (d) expressly authorizes a court to require a probationer to work and earn money in order to pay his fees, fines and assessments imposed as conditions of probation. The court imposed fees and fines. At sentencing, defendant stated that he wanted to get out of jail and go back to work and planned to obtain employment as a computer consultant in the Bay Area. The standard condition requiring defendant to seek and maintain employment just reinforced defendant's stated plans.
II. Additional Presentence Credit
We deem defendant to have raised the issue whether amendments to former section 4019, effective January 25, 2010, which increased the rate at which prisoners earn presentence conduct credits, apply retroactively to his pending appeal and entitle him to additional conduct credits.*fn2 (Misc. Order No. 2010-002.) We conclude that the amendments apply retroactively to defendant's pending appeal and entitle him to additional presentence credits. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240 [applying Estrada to amendment involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment following award of custody credits].)
The subsequent amendments to sections 2933 and 4019, which went into effect on September 28, 2010 (see Stats. 2010, ch. 426, §§ 1, 2, 5), are not applicable to defendant because he was not sentenced to state prison.
Defendant is not among the prisoners excepted from additional accrual of credit. (§ 4019, former subds. (b)(2) and (c)(2) [Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50].) Therefore, having served 227 actual days in presentence custody, defendant is entitled to 226 conduct days, rather than the 112 conduct days awarded by the trial court.
The judgment (order of probation) is modified to provide that defendant is prohibited from annoying, harassing, or "knowingly and purposefully" contacting, speaking to, or driving his car past, any of the Vierras. It is further modified to provide for additional conduct credits (actual 227, conduct 226, total 453 days). A copy of the amended probation order shall be forwarded to the Placer County Probation Department. As modified, the judgment (order of probation) is affirmed.
NICHOLSON , Acting P. J.