PEOPLE v. HERNANDEZ (1995)

Defendant Daniel Hernandez (“defendant”) appeals from a judgment of conviction entered after he pleaded no contest to the charge of discharging a firearm with gross negligence.   Defendant challenges certain of the conditions of probation imposed upon him, contending they were not part of the plea bargain disposition to which he had agreed.   Additionally, defendant asserts these challenged conditions are unreasonable and unconstitutional because they are not sufficiently related to the charged offenses and because one is also overly broad.   As a further ground for relief, defendant asserts error in the fact the trial court did not permit him to say anything at his sentencing hearing.   We find none of the contentions has merit and we affirm the judgment.

PROCEDURAL AND FACTUAL BACKGROUND

On July 27, 1993, while riding with several others in the bed of a pickup truck, defendant was observed by sheriff's deputies to pull a handgun from his pants pocket and fire it into the air.   The deputies stopped the truck and arrested defendant.   Defendant was charged in count one with violating Penal Code section 246.3 (discharging a firearm with gross negligence), in count two with violating Penal Code section 12031, subdivision (a)(1) (carrying a loaded firearm on his person in a city) and in count three with violating Penal Code section 12025, subdivision (a)(2) (having a firearm concealed on his person).

On July 29, 1993, defendant appeared in court with appointed counsel and agreed to enter a plea of no contest to the felony charge in count one and receive a sentence of probation for three years, with service of 90 days in the county jail as a condition of probation, and a restitution fine.   The case was continued to August 12, 1993, for further proceedings, pending a probation report.

In his written report, the probation officer noted that defendant admitted to being sent four times to probation camps as a juvenile for being under the influence of drugs and for burglaries.   The report shows that as an adult, defendant was convicted of (1) possession of dangerous drugs without a prescription, (2) vandalism and (3) possession of a controlled substance without prescription.   Defendant admitted to the probation officer that he has used methamphetamines, cocaine and marijuana.   Defendant had once been offered the opportunity for drug diversion in Orange County but declined it.   The report also shows that as an adult, defendant had been picked up and/or arrested on weapons and stolen property charges.

The probation report shows the probation officer told defendant that the officer was recommending to the court that as a condition of defendant's probation, he be required to refrain from using drugs and submit to narcotic testing.   Defendant “felt that this was unfair as in this current matter he had nothing to do with drugs,” but that he would comply if the court placed him on probation.   Although not conveyed to defendant, the probation officer stated in his report that he recommended as conditions of probation that defendant be ordered to (1) refrain from using or possessing drug paraphernalia and stay away from places where users, buyers or sellers of drugs congregate, (2) not associate with persons known by defendant to be drug users or sellers, or gang members.

While interviewing defendant, the probation officer advised him that he (defendant) could write a letter to the judge or provide letters of references.   When asked if he had a statement for the court, defendant answered:  “No.”

On August 12, 1993, the court indicated it was aware that defendant had agreed to a negotiated disposition of his case, to wit, three years probation and 90 days in jail on count 1.   The court stated:  “I assume that is a lock.”   After verifying with the court that defendant had no prior felony convictions, the prosecutor stated:  “Then it is a 90–day lock.”

Thereafter, the judge pronounced sentence of three years probation, with certain conditions of probation, including, among others, 90 days in county jail and drug-related restrictions on defendant.   Defendant's attorney questioned the imposition of the drug-related terms of probation, saying:  “Your Honor, as to the conditions of narcotics, I see the probation officer checked all of them off, ․ I am just assuming he must have been mistaken because there is no drug charge even in the ones dismissed.   I would object to those conditions.”   The court acknowledged that there were no drug charges against defendant but justified the challenged terms of probation by saying that defendant's “usage record” “goes back a lot of years and involves a lot of drugs.”   At that point, defendant asked the court if he could say something.   The court answered “No,” telling defendant it was “not inviting comment.”   Defendant said:  “All right.”   Two days later, defendant filed a notice of appeal.¹

ISSUES ON APPEAL

In his appeal, defendant challenges three drug-related conditions of probation.   The conditions are (1) stay away from places where users and buyers and sellers of drugs and narcotics congregate, (2) refrain from associating with any person known or even suspected by defendant of being a narcotic or drug user, buyer or seller, and (3) submit to periodic anti-narcotic testing as directed by the probation officer.²  Defendant contends the conditions were not part of the plea bargain and therefore could not properly be imposed without his agreement.   He also asserts they are improper because they are “not sufficiently related to the charged offenses to be reasonable or constitutionally valid.”   Additionally, defendant contends he was denied due process when the trial court refused to let him speak in his own behalf at sentencing.

DISCUSSION

1. The Plea Bargain Issue

In arguing that the drug-related conditions of probation were not part of the plea agreement and therefore could not be imposed on him without his consent, defendant relies on a line of cases where the trial courts imposed conditional additional punishment on defendants as a means of getting them to return for sentencing.   The Supreme Court in considering these “judicial return provisions,” stated that they were impermissible because they worked as an “additional or enhanced sentence for a separately chargeable offense without the benefit of a trial on that charge, and in the absence of a knowing and intelligent waiver, [were] clearly offensive to the principles of due process.”  (People v. Cruz (1988) 44 Cal.3d 1247, 1253, 246 Cal.Rptr. 1, 752 P.2d 439.)   Those cases are factually distinguishable since the additional terms of which defendant complains are not in effect an additional sentence for a separate offense.   However, the basis of the court's analysis in Cruz was Penal Code section 1192.5, a section which is relevant to an analysis of defendant's contentions here.

 Penal Code section 1192.5 (“§ 1192.5”) states in relevant part:  “Upon a plea of guilty or nolo contendere to an accusatory pleading charging a felony, ․ the plea may specify the punishment to the same extent as it may be specified by the jury on a plea of not guilty or fixed by the court on a plea of guilty, nolo contendere, or not guilty, and may specify the exercise by the court thereafter of other powers legally available to it.  [¶] Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.  [¶] If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so.”   Section 1192.5 applies to cases where the defendant is given probation.   (People v. Campbell (1994) 21 Cal.App.4th 825, 26 Cal.Rptr.2d 433;  People v. Allen (1975) 46 Cal.App.3d 583, 120 Cal.Rptr. 127;  People v. Ramos (1972) 26 Cal.App.3d 108, 102 Cal.Rptr. 502.)

Section 1192.5 was reviewed at length in People v. Walker (1991) 54 Cal.3d 1013, 1 Cal.Rptr.2d 902, 819 P.2d 861.   In Walker, the defendant entered into a plea bargain whereby he pleaded guilty to attempted use of a destructive device with the intent to intimidate or injure.   In return for his plea, the district attorney agreed to dismiss another charge and agreed to a five-year sentence to state prison.   The court orally explained to the defendant that the maximum penalties for his offense were either three, five or seven years in prison and a fine of up to $10,000.   Then the court sentenced him to the five-year prison term as agreed to in the plea bargain.   However, the court also imposed a restitution fine of $5,000 even though the plea bargain had not called for such a fine.   Prior to sentencing, the only indication that such a fine might be imposed was a recommendation in the probation report that a $7,000 restitution fine by given.   The report had been supplied to the defense.   Defendant did not object to the fine at sentencing.   However, he challenged it on appeal.

 The Walker court stated that when a defendant enters a plea in exchange for specified benefits, such as dismissal of other counts or a specific punishment, both the defendant and the state must abide by the bargain and the punishment given by the court “may not significantly exceed that which the parties agreed upon.”  (People v. Walker, supra, 54 Cal.3d at p. 1024, 1 Cal.Rptr.2d 902, 819 P.2d 861.)   Failure of the state to abide by the agreement violates the defendant's due process rights and the defendant has a constitutional right to some remedy.  (Ibid.)

 However, not every variation from a plea bargain warrants such remedies.   As noted above, the state is only prohibited from significantly deviating from the terms of the plea bargain.  (People v. Walker, supra, 54 Cal.3d at pp. 1024, 1027, 1 Cal.Rptr.2d 902, 819 P.2d 861.)  “[T]he variance must be ‘significant’ in the context of the plea bargain as a whole to violate the defendant's rights.   A punishment or related condition that is insignificant relative to the whole, such as a standard condition of probation, may be imposed whether or not it was part of the express negotiations.”   (Id. at p. 1024, 1 Cal.Rptr.2d 902, 819 P.2d 861, emphasis added.)

 This instructive language from Walker makes it clear that in determining whether a condition of probation will pass constitutional muster even though it was not made a specific part of a plea bargain, one must consider the defendant's particular situation.   In the instant case, we find that the conditions of probation which defendant challenges are nothing more than standard conditions of probation commonly utilized when the charged crimes are drug-related and/or the defendant has a history of using or dealing in drugs.  (Cf. People v. Campbell, supra, 21 Cal.App.4th at pp. 829–830, 26 Cal.Rptr.2d 433, [court held that restitution to a victim is a frequently imposed condition of probation and is not penal in nature].)

2. The Issue of Whether the Conditions Are Sufficiently Related to the Crime

 Penal Code section 1203.1, subdivision (j), gives the trial court, when determining conditions of probation, the authority to impose reasonable conditions “for the reformation and rehabilitation of the probationer.”   The court has “broad discretion” in determining which conditions of probation to impose, and a condition “will 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 reasonably related to future criminality․’  (People v. Dominguez (1967) 256 Cal.App.2d 623, 627 [64 Cal.Rptr. 290]․)”  (People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545, fn. omitted.)   Since the test approved of in Lent is in the conjunctive, it is clear that the conditions of probation challenged in the instant case are appropriate since they require and forbid conduct which is very reasonably related to defendant's future criminality.   In addition, as the trial court noted, defendant's “usage record ․ goes back a lot of years and involves a lot of drugs.”   Thus, the challenged conditions can also be justified as reasonably related to his “reformation and rehabilitation” (Pen.Code, § 1203.1).

 We recognize that a trial court's discretion in imposing conditions of probation is not without bounds and when such conditions require a waiver of a defendant's constitutional rights, they “must be narrowly drawn.”   (People v. Burden (1988) 205 Cal.App.3d 1277, 1279, 253 Cal.Rptr. 130.)   As Burden noted, “To the extent [the condition] is overbroad it is not reasonably related to a compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights.  [Citation.]”  (Ibid.)

 However, we do not find that defendant is suffering from an unconstitutional restriction of his fundamental rights.   While his right to freedom of association and freedom of movement are impacted by the requirements that he not associate with drug dealers, sellers and users and not be at places where such persons congregate, we cannot say that the conditions are overbroad.   They are simply and reasonably tailored to keeping defendant away from situations where he is likely to once again break the laws against drug use and sales.

Additionally, the conditions are not overbroad in that they limit defendant's association to persons known or suspected by him of having drug connections.   Such a condition is different from the one imposed in People v. Garcia (1993) 19 Cal.App.4th 97, 23 Cal.Rptr.2d 340, where the defendant was prohibited from associating with “ ‘any felons, ex-felons, users or sellers of narcotics.’ ”  (Id. at p. 100, 23 Cal.Rptr.2d 340.)   The reviewing court modified the condition to forbid association with “persons he knows to be users or sellers of narcotics, felons or ex-felons.”  (Id. at p. 103, 23 Cal.Rptr.2d 340, emphasis added.)   We see no reason why the condition imposed here had to be so limited.   We disagree with defendant that including in his restriction persons who are “suspected” by him to be associated with narcotics is overbroad.   Defendant's history shows he is sufficiently acquainted with the “drug scene” so that he can form a reasonable suspicion that another is using, buying, or selling drugs.

Likewise, the condition which requires him to submit to periodic drug testing is fundamental to determining whether he is turning his life around or is still using drugs.   Additionally, we cannot help but note that since defendant has been found carrying a weapon, it is in the interest of a safer society that he stay drug-free since weapons are especially dangerous in the hands of someone under the influence of drugs.   In that respect, the conditions of probation are also sufficiently related to the crime of which defendant was convicted.   Finally, Health and Safety Code section 11551, subdivision (a), provides that if a court grants probation “to a person who the court has reason to believe is or has been a user of controlled substances, the court may require as a condition to probation that the probationer submit to periodic tests ․ to determine, by whatever means is available, whether the probationer is addicted to a controlled substance.”

3. Defendant's Right to Speak at Sentencing

 Penal Code section 1200 provides:  “When the defendant appears for judgment he must be informed by the court, or by the clerk, under its direction, of the nature of the charge against him and of his plea, and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him.”   At defendant's probation and sentencing hearing, the court asked whether defendant waived formal arraignment and defendant's attorney answered “Yes.”   Then the court asked:  “Is there any legal cause?”   Defendant's attorney replied there was not.   The court proceeded to review the terms of the negotiated plea and then pronounced the terms of probation.   After defendant's attorney questioned the drug-related probation terms and the court explained why they were being imposed, defendant himself requested to speak to the court but the court declined comment from him.

On appeal, defendant contends this refusal to listen to him constitutes a denial of his due process rights.   He cites People v. Coleman (1975) 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024;  however, that case involved a probation revocation hearing.   A case which does address defendant's contention is People v. Sanchez (1977) 72 Cal.App.3d 356, 359, 140 Cal.Rptr. 110, where the court held that the mere asking if any legal cause existed why judgment should not be pronounced, coupled with defense counsel's reply there was no legal cause, constitutes full compliance with section 1200.   The court held it is within a trial court's discretion to allow a defendant, who is represented by counsel, to also speak on his own behalf.   Here, nothing in the facts of this case shows an abuse of discretion.   Besides, the defendant was already given an opportunity by his probation officer to make a statement specifically for the trial court.   He declined.   Additionally, defendant had the opportunity to inform the probation officer of information he considered important relative to the questions he was being asked.

Sanchez was decided prior to another case upon which defendant relies, People v. Robbins (1988) 45 Cal.3d 867, 888–889, 248 Cal.Rptr. 172, 755 P.2d 355.  Robbins dealt with a capital offense.   However, the Supreme Court noted that a federal district court had ruled it a denial of due process to refuse to let a defendant in a noncapital case speak if the defendant “ ‘effectively communicates his desire to the trial judge to speak to the imposition of sentence.’ ”   The federal case is Ashe v. State of North Carolina (4th Cir.1978) 586 F.2d 334.  Robbins noted that Ashe had “offered little analytical support for its conclusion.”  (People v. Robbins, supra, 45 Cal.3d at p. 889, 248 Cal.Rptr. 172, 755 P.2d 355.)  Robbins went on to distinguish the case before it from Ashe, noting that Ashe was a noncapital case:  “Assuming Ashe is correct in its federal due process analysis, that case is distinguishable.   In the noncapital sentencing context, a defendant does not generally have an opportunity to testify as to what penalty he feels is appropriate.   Accordingly, Ashe might be correct in saying a defendant may not be denied that opportunity when he requests it.”   (Ibid.)

This subject of requests by defendants to address the jury in capital cases versus requests by defendants to address the court in non-capital cases was before the Supreme Court again in People v. Clark (1993) 5 Cal.4th 950, 22 Cal.Rptr.2d 689, 857 P.2d 1099.  Clark noted that a more recent federal case, Boardman v. Estelle (9th Cir.1992) 957 F.2d 1523, made a ruling similar to that in Ashe.  (Clark, at p. 1036, 22 Cal.Rptr.2d 689, 857 P.2d 1099.)   The Clark court, reviewing a capital case, noted its prior analysis in Robbins, (which we have quoted above), without further comment on the issue of defendants in noncapital cases having a right to address the court at sentencing.  (Id. at p. 1037, 22 Cal.Rptr.2d 689, 857 P.2d 1099.)

A more recent California case addressing defendant's position is In re Shannon B. (1994) 22 Cal.App.4th 1235, 27 Cal.Rptr.2d 800.  Shannon B. traced the historical background of a defendant's right to personally speak to the court at his sentencing.   In doing so, the court noted common law, federal law and California statutes.  (Id. at pp. 1239–1246, 27 Cal.Rptr.2d 800.)   The court concluded that defendants have the right to make personal statements to the court on their own behalf.   However, the court determined the right did not apply in the case before it because the appeal was taken from a juvenile proceeding, and in such proceedings, juveniles have the right to testify during dispositional hearings and address the court on the subject of disposition.   (Id. at pp. 1238, 27 Cal.Rptr.2d 800.)

 Given Penal Code sections 1200 and 1201, we respectfully disagree with the analysis in Shannon B.  Section 1200 provides that the sentencing court is to inquire of the defendant whether he has “any legal cause to show why judgment should not be pronounced against him.”  (Emphasis added.)  Section 1201 limits this “legal cause” to three grounds:  insanity, reasons for a new trial, and reasons for an arrest of judgment.   Further, even if a court fails to make the section 1200 inquiry, the error is harmless if the defendant is present, is represented by counsel and no prejudice is shown.  (People v. Sanchez, supra, 72 Cal.App.3d at p. 359, 140 Cal.Rptr. 110.)   Thus, those California statutes make no provision for a defendant to personally address the court.   Additionally, because Shannon B. concerned the appeal of a juvenile, we regard the court's conclusions regarding adult defendants as dicta.

In the case before us, the court made the section 1200 inquiry.   For all that we can determine, the defendant in this case wished only to discuss sentencing issues (i.e., the imposition of the drug related probation conditions to which his counsel had already objected).   Defendant makes no claim on appeal that he wished to speak to any of the three matters addressed in Penal Code section 1201.   Thus, he has made no showing that he had legal cause for not imposing judgment.   Therefore, assuming that a defendant represented by counsel, as was the defendant here, even has a right to address the court personally on the issue of legal cause, we find no prejudicial error in the trial court's refusal to let him do so.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   We seriously question the sincerity of the principal issue raised by this appeal.   The trial court could have put the defendant to the test by simply offering to let him withdraw his plea if these conditions were unacceptable.   Given that the defendant faced three years in state prison for a crime committed in the presence of two police officers, we have no doubt what his answer would have been.

2.   These are commonly imposed probation conditions and, indeed, are printed on the standard probation order form routinely used by the trial court;  imposition of such conditions is recorded by simply checking the appropriate boxes.

CROSKEY, Associate Judge.

KLEIN, P.J., and KITCHING, J., concur.