Condition of probation imposing treatment program as directed by probation officer is unconstitutional

People v. Smith (Cal. Ct. App., June 13, 2022, No. A162551) 2022 WL 2127656, at *1–4

Summary: Smith challenged the trial court’s imposition of a probation condition requiring that she participate in any treatment program, including residential treatment, as directed by her probation officer. Smith contends this condition are unconstitutional and unreasonable. The Court of Appeal agreed that the treatment condition improperly delegates judicial authority to the probation officer.
Facts:Smith, a single mother, was arrested in connection with the theft of a cell phone and iPad from an unlocked vehicle. After Smith gave police consent to search her vehicle, the police found multiple cell phones in her purse, and she admitted she had stolen two iPhones. Police also located a receipt containing the last four digits of a stolen credit card, and Smith stated that she had attempted to use the credit card four times to purchase Target gift cards. In addition, the police found suspected methamphetamine in her purse, and Smith admitted it was hers.
In exchange for two years of supervised probation and the dismissal of other charges, Smith pled guilty to a single count of unauthorized use of personal identifying information belonging to another person for the purpose of obtaining goods (Pen. Code, § 530.5, subd. (a)).
The probation report recounted Smith’s statement that she had been using methamphetamine since 2014, and that she had stopped using it approximately four months after her arrest, in 2020. Smith believed that she could stop using drugs whenever she wanted.
During sentencing, defense counsel noted that Smith had been unable to find child care for her daughter during the coronavirus pandemic. The trial court sentenced Smith to two years of supervised probation. The court determined that she presented an unusual case in which supervised probation was warranted because of her substance abuse problem and the great likelihood that she would respond to treatment. The court stated that “it’s clear that there is some form of treatment that’s required to address the underlying issues, and those are substance [abuse] issues.”
The court imposed a probation condition requiring Smith to “complete a drug and alcohol assessment and follow through with treatment as directed by probation.” In addition, the court imposed a condition that Smith “participate in any treatment/therapy/counseling program, including residential, as directed by the probation officer” (treatment condition).
Treatment Condition
Smith asserts that the treatment condition is unconstitutional because it is vague and overbroad, and it improperly delegates judicial authority to the probation officer. In addition, she contends that the treatment condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545 (Lent). The Court agreed with Smith that the condition includes an unconstitutional delegation of authority.
Vagueness Challenge to Probation Condition
A probation condition must be precise enough to provide the probationer with notice of what is required or prohibited and allow the court to ascertain whether the probationer has violated its terms. (Sheena K., supra, 40 Cal.4th at p. 890, 55 Cal.Rptr.3d 716, 153 P.3d 282; People v. Gonsalves (2021) 66 Cal.App.5th 1, 7, 280 Cal.Rptr.3d 705 (Gonsalves).) When a probation condition impinges on a person’s constitutional rights, the condition is overbroad if its restrictions are not closely tailored to the purpose served by the condition. (Sheena K., supra, at p. 890, 55 Cal.Rptr.3d 716, 153 P.3d 282.
By leaving key determinations to be decided ad hoc, a vague probation condition may also result in an impermissible delegation of authority to the probation officer. (See Sheena K., supra, 40 Cal.4th at p. 890, 55 Cal.Rptr.3d 716, 153 P.3d 282.) Under the separation of powers doctrine (Cal. Const., art. III, § 3), judicial powers may not be delegated to nonjudicial officers. (In re S.H. (2003) 111 Cal.App.4th 310, 318, fn. 11, 3 Cal.Rptr.3d 465.) While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer.
When construing probation conditions, courts consider their context and use common sense. (People v. Rhinehart (2018) 20 Cal.App.5th 1123, 1129, 229 Cal.Rptr.3d 721.)

The challenged condition provides: “Defendant to participate in any treatment/therapy/counseling program, including residential, as directed by the probation officer.” Smith contends that the treatment condition is vague, overbroad, and an improper delegation of authority because it allows the probation officer to decide whether she will be required to attend any treatment, counseling, or therapy program and it fails to provide her with notice of the nature of the treatment, counseling, or therapy required.

The court mandated treatment for substance abuse based on the assessment while leaving the probation officer to oversee the details. (See United States v. Young (2d Cir. 2018) 910 F.3d 665, 671 (Young) [upholding condition requiring treatment if a substance abuse evaluation indicates a need for treatment].)
Probation condition violated separation of powers
Smith argued that the treatment condition violates the separation of powers doctrine because it delegates to the probation officer the discretion to decide whether she must attend a residential program, as opposed to an outpatient program. The court agreed.
A residential program can impose far greater burdens on a person’s liberty interests than an outpatient program. (See United States v. Esparza (9th Cir. 2009) 552 F.3d 1088, 1091 (Esparza).) Unlike outpatients, participants in residential programs may be confined to the treatment facility for the duration of the program, separated from family and friends, and unable to maintain a job. (United States v. Matta (2d Cir. 2015) 777 F.3d 116, 122 (Matta); United States v. Martinez (5th Cir. 2021) 987 F.3d 432, 435 (Martinez).) Given the significant liberty interests at stake, a court—not a probation officer—must make the decision to require a defendant to attend residential treatment. (See, supra, at p. 123; United States v. Mike (10th Cir. 2011) 632 F.3d 686, 695-696 (Mike).) Entrusting the decision whether to mandate residential treatment to the probation officer is an improper delegation of judicial authority. (Martinez, supra, at pp. 435-436; Matta, supra, at pp. 122-123; Mike, supra, at pp. 695-696; Esparza, supra, at p. 1091.)
Here, the parties negotiated a disposition that would allow Smith to remain out of custody in part because she had a young daughter for whom she cared at home. Although the trial court made clear that Smith needed “some form of treatment” for substance abuse, the court did not require that she attend a residential treatment program as opposed to an outpatient program. Nor did the probation report specify residential treatment.
The Court reversed the authorization for the probation officer to determine whether residential treatment is required and remand for the trial court to decide if it wishes to mandate residential treatment. The court’s decision may be informed by the results of any assessment and additional information provided by the parties.
Disposition
The matter remanded  to the trial court with directions either to strike the words “including residential” from the treatment condition or to specify that the court requires Smith undergo residential treatment. In all other respects, the judgment is affirmed.