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People v. Jimenez CA4/1 ( 2023 )


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  • Filed 2/15/23 P. v. Jimenez 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    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    THE PEOPLE,                                                                  D079640
    Plaintiff and Respondent,
    v.                                                                 (Super. Ct. No. SCD291109)
    ISMAEL JIMENEZ,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of San Diego County,
    Polly H. Shamoon, Judge. Reversed in part, affirmed in part, and remanded
    with directions.
    Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal,
    for Defendant and Appellant.
    Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
    Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A.
    Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and
    Respondent.
    Ismael Jimenez pled guilty to assault by means of force likely to
    produce great bodily injury. (Pen. Code, § 245, subd. (a)(4)1.) The trial court
    granted Jimenez probation subject to various terms and conditions, including
    an electronic search condition and a condition requiring him to participate in
    “treatment, therapy, counseling, or other course of conduct as suggested by
    validated assessment tests.” The court also imposed various fines and fees,
    including a county collection fee that is no longer collectible under recent
    legislation. On appeal, Jimenez argues the electronic search condition is
    invalid under People v. Lent (1975) 
    15 Cal.3d 481
     (Lent) and the treatment
    condition is an improper delegation of the court’s authority and
    unconstitutionally vague. He also challenges the county collection fee and
    asks this court to correct the sentencing order of conviction, which does not
    reflect the stayed revocation restitution fine. Finally, Jimenez asks us to
    remand the matter for the trial court to clarify whether it imposed a
    restitution fine.
    The People concede the electronic search condition is invalid, that the
    county collection fee should be stricken, and that the sentencing minute order
    requires correction. With respect to the treatment condition, the People
    argue that Jimenez forfeited his challenge by not raising it in the trial court,
    and that even if not forfeited the condition should be upheld. As we shall
    explain, we agree with Jimenez and the People that the sentencing order
    requires reversal and correction with respect to the electronic search
    condition and fees and fines, and we agree with the People that the treatment
    condition should be affirmed.
    1     Subsequent undesignated statutory references are to the Penal Code.
    2
    FACTUAL AND PROCEDURAL BACKGROUND2
    A female security guard for a CVS store in downtown San Diego saw
    Jimenez sleeping on the store’s property. The guard woke Jimenez and asked
    him to leave. In response, Jimenez hurled obscenities at the security guard
    and threatened her life. Jimenez then stood, put his fists up, and moved
    toward her. As the guard back peddled, she pulled out a knife and swiped it
    at Jimenez, cutting him in the chest. The security guard radioed her partner
    to call 911, and a bystander pushed Jimenez away. When police arrived,
    Jimenez told them the security guard had attacked him. However, video
    surveillance footage from the CVS showed that Jimenez was the aggressor in
    the encounter and the guard was defending herself.
    Jimenez was arrested, taken to the hospital for treatment, and later
    transported to jail. The District Attorney filed an information charging
    Jimenez with making a criminal threat (§ 422) and interference with civil
    rights by force or threats (§ 422.6, subd. (a)). The same day, the trial court
    entered a criminal protective order preventing Jimenez from contacting the
    security guard.
    Thereafter, Jimenez pled guilty to assault by means of force likely to
    produce great bodily injury and, in exchange for the guilty plea, the
    prosecution moved to dismiss the initial charges. The trial court granted
    Jimenez formal probation for two years under certain terms and conditions.
    Jimenez timely appealed from the judgment.
    2    Because Jimenez pled guilty, the facts are derived primarily from the
    probation report.
    3
    DISCUSSION
    I
    As stated, the trial court imposed various terms on the grant of
    probation. The terms included a condition, labeled 6.n on the form formal
    probation order, requiring Jimenez to “[s]ubmit person, vehicle, residence,
    property, personal effects, computers, and recordable media plus pass codes to
    search at any time with or without a warrant, and with or without reasonable
    cause, when required by [Parole Officer] or law enforcement officer.” (Italics
    added.) Jimenez asserts, and the People agree, that the portion of this
    condition that relates to computers and recordable media is invalid under
    Lent.
    “The Legislature has placed in trial judges a broad discretion in the
    sentencing process, including the determination as to whether probation is
    appropriate and, if so, the conditions thereof.” (Lent, supra, 15 Cal.3d at
    p. 486.) Under this grant of discretion, a trial court may impose any
    “reasonable conditions, as it may determine are fitting and proper to the end
    that justice may be done, that amends may be made to society for the breach
    of the law, for any injury done to any person resulting from that breach, and
    generally and specifically for the reformation and rehabilitation of the
    probationer ….” (§ 1203.1, subd. (j).) “[W]e ‘ “review conditions of probation
    for abuse of discretion.” ’ [Citation.] Specifically, we review a probation
    condition ‘for an indication that the condition is “arbitrary or capricious” or
    otherwise exceeds the bounds of reason under the circumstances.’ ” (In re
    Ricardo P. (2019) 
    7 Cal.5th 1113
    , 1118 (Ricardo P.).)
    In Lent, the Supreme Court adopted a three-part test to determine
    whether a probation condition is reasonable and, therefore, statutorily-valid.
    “A condition of probation will not be held invalid unless it ‘(1) has no
    4
    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 ….’ ” (Lent, supra, 15
    Cal.3d at p. 486.) “This test is conjunctive—all three prongs must be satisfied
    before a reviewing court will invalidate a probation term.” (People v. Olguin
    (2008) 
    45 Cal.4th 375
    , 379.)
    Here, the parties agree the Lent test is satisfied for the portion of
    condition 6.n that Jimenez challenges. The electronic search condition bears
    no relationship to the crime he admitted, and the use of computers and
    recordable media is not inherently criminal. (See People v. Cota (2020) 
    45 Cal.App.5th 786
    , 789‒790 (Cota).) With respect to the third prong of the Lent
    test, the relationship to future criminality, where a significant privacy
    interest is at issue, the condition will be considered unreasonable unless it is
    “proportional to achieving some legitimate end of probation.” (Ricardo P.,
    supra, 7 Cal.5th at p. 1127.) Reasonableness requires “more than just an
    abstract or hypothetical relationship between the probation condition and
    preventing future criminality.” (Id. at p. 1121.) “In other words, to justify a
    burdensome condition, there must be a specific relationship—grounded in the
    facts of the case—between the condition and preventing future criminality.”
    (Cota, at p. 790.)
    Over an objection by Jimenez’s counsel that there was “no nexus”
    between the crime and the electronic search condition, the trial court stated it
    wanted to ensure the probation department had “the ability to monitor to
    make sure” Jimenez did not contact the victim in light of his threats to her.
    This rationale was not sufficient to justify the invasion of privacy created by
    the condition. Specifically, the electronics portion of the search condition is
    unreasonable because there was no “substantial and particularized
    5
    justification” for the court to impose it. (Ricardo P., supra, 7 Cal.5th at
    p. 1126; Cota, supra, 45 Cal.App.5th at p. 791.) Nothing in the record
    indicates that Jimenez’s current crime of assault by force likely to result in
    great bodily injury or his previous crimes (mentioned by the court during the
    sentencing hearing) are related to electronic devices.
    However, our ruling does not foreclose the possibility that a narrower
    electronics search condition might be appropriate based on facts not before
    us. Therefore, we strike the challenged portion of the condition without
    prejudice to the People, who may demonstrate to the trial court with
    additional facts that a more narrowly drawn electronics search condition is
    proportionate to the burden on Jimenez’s privacy interest.3
    II
    Jimenez next challenges the probation condition, labeled 7.b on the
    formal probation order, that requires him to “[p]articipate in treatment,
    therapy, counseling, or other course of conduct as suggested by validated
    assessment tests.” Although Jimenez did not object to the condition in the
    trial court, he argues the condition is both an improper delegation of judicial
    authority and unconstitutionally vague. The People respond that Jimenez
    forfeited these arguments and, alternatively, that the condition is valid.
    First, we agree with the People that Jimenez’s assertion that the
    condition is an improper delegation of judicial authority is forfeited. (People
    v. Welch (1993) 
    5 Cal.4th 228
    , 235.) To the extent he had concerns about the
    court’s delegation of authority to the probation officer, he could have objected
    3     Because we conclude the challenged portion of condition 6.n, i.e. the
    reference to “computers, and recordable media plus passcodes,” is invalid
    under Lent, we do not reach Jimenez’s additional claim it is
    unconstitutionally overbroad. (See, e.g., Agarwal v. Johnson (1979) 
    25 Cal.3d 932
    , 951 [electing not to reach an issue when the case resolved on narrower
    grounds].)
    6
    and asked the trial court to address those concerns when condition 7.b was
    imposed. By accepting this probation term without objection, Jimenez
    deprived the trial court of the opportunity to narrow or modify the condition
    if appropriate. The purpose of the forfeiture rule is to avoid precisely this
    situation—where an objection would have permitted the trial court to address
    the concern or make a better record to support the court’s decision. (See In re
    Sheena K. (2007) 
    40 Cal.4th 875
    , 881 (Sheena K.).)
    In any event, even if we were to exercise our discretion to consider the
    claim, we would conclude that the challenged condition is a reasonable and
    appropriate delegation of authority. The court is statutorily required to
    delegate authority over probationers to probation officers. (§ 1203.1,
    subd. (j).) The pragmatic reason is that the goals of probation include
    reformation and rehabilitation of the probationer—and a trial court “is poorly
    equipped to micromanage selection of a [treatment or counselling] program.”
    (People v. Penoli (1996) 
    46 Cal.App.4th 298
    , 308 (Penoli).)
    Moreover, Jimenez did not object to a related condition (condition 6.r),
    which requires that he “[p]articipate and comply with any assessment
    program if directed by the [probation officer].” That acquiescence effectively
    concedes that the trial court properly delegated the discretion to select tests
    designed to diagnose Jimenez’s rehabilitative needs. It would make little
    sense to withhold a concomitant delegation of discretion to direct his
    7
    participation in reasonable treatment plans designed to meet those needs
    once they are understood.4
    In a related argument also made for the first time on appeal, Jimenez
    contends that condition 7.b “fails qualification as a valid probation condition
    due to the vague wording of the text, or fair warning of the required conduct,
    other than obedience to the suggestions of ‘valid assessment tests.’ ” He
    further argues the “condition fails to define any connection, purpose, or
    limitation between the assessment tests and [his] probation.”
    Again, even if the point had been properly preserved by objection in the
    trial court, we would disagree. In addition to a general reasonableness
    requirement, a probation condition “ ‘must be sufficiently precise for the
    probationer to know what is required of him, and for the court to determine
    whether the condition has been violated,’ if it is to withstand a challenge on
    the ground of vagueness.” (Sheena K., supra, 40 Cal.4th at p. 890.) Here,
    condition 7.b is not unconstitutionally vague. It plainly directs Jimenez to
    participate in “treatment, therapy, counseling, or other course of conduct” as
    indicated by the results of assessment programs and as directed by the
    probation officer.
    4     Jimenez argues that Penoli supports his contention that condition 7.b
    improperly delegates judicial authority to the probation department.
    Although Penoli upheld an order granting the probation department “to
    unilaterally select a residential drug rehabilitation program and determine
    whether defendant successfully completed that program,” Jimenez asserts
    the case is distinguishable because its probation order specified the type of
    treatment required. (Penoli, supra, 46 Cal.App.4th at p. 307.) We disagree.
    In Penoli the defendant’s admitted methamphetamine addiction made it clear
    that drug treatment was an appropriate rehabilitative measure. (Ibid.) In
    contrast, in this case it is not clear what type of rehabilitation is needed.
    Thus, the trail court appropriately tasked the probation department with
    assessing Jimenez to make that determination.
    8
    Moreover, the record does not show that Jimenez has been directed by
    a probation officer to participate in any “course of conduct as suggested by
    validated assessment tests.” In the future, if he is directed by a probation
    officer to comply with this condition in a manner that does not give him
    sufficient information to discern what conduct is required, he may challenge
    the manner in which the condition has been implemented. (§§ 1203.2,
    subd. (b)(1), 1203.3, subd. (a); see People v. Keele (1986) 
    178 Cal.App.3d 701
    ,
    708 [trial court retains jurisdiction to review probation officer’s actions].)
    III
    At the time of Jimenez’s sentencing, the court imposed a $30 surcharge
    for county collection costs pursuant to former section 1202.4, subdivision (l).
    As Jimenez asserts, effective January 1, 2022, the Legislature abolished this
    fee by eliminating the authorizing provision and adding section 1465.9,
    subdivision (b), which makes the balance of this fee unenforceable and
    uncollectible and requires us to vacate the portion of the judgment imposing
    the fee. (Stats. 2021, ch. 257, §§ 19, 20, 35.) The People concede the issue,
    and we accept the concession.
    Accordingly, we will direct the trial court to vacate any unpaid portion of the
    $30 administrative fee imposed pursuant to former section 1202.4,
    subdivision (l).
    IV
    Finally, in his opening brief, Jimenez asks this court to conform the
    sentencing order of conviction to the court’s oral pronouncement of the
    sentence, which struck the imposition of a probation revocation restitution
    fine under section 1202.44. In response, the People ask this court to modify
    the sentencing order to include the imposition of a $300 restitution fine under
    section 1202.4, subdivision (b) and to keep in place the matching $300
    9
    probation revocation restitution fine, which they assert is mandatory. In his
    reply brief, Jimenez asserts that the People waived any challenge to the trial
    court’s decision to strike the probation revocation restitution fine. Jimenez
    also modifies his request to this court, and asks us to remand the matter for
    the trial court to resolve the conflicts in the various orders regarding these
    fines.
    During the sentencing hearing, the trial court did not reference the
    restitution fine required under section 1202.4, subdivision (b). The court did
    state that it was striking the restitution revocation fine, identified on the
    written order granting formal probation under section 2.s. The prosecution
    did not object to the court’s decision to strike the fine at the hearing. The
    written order granting formal probation imposes a restitution fine of $300
    and, reflecting the oral pronouncement, sets the probation revocation
    restitution fine at $0. The sentencing order of conviction, however, indicates
    a restitution fine of $0 and a probation revocation restitution fine of $300.
    “Under subdivision (b) of Penal Code section 1202.4, a trial court must
    impose ‘a separate and additional restitution fine’ as part of the judgment of
    conviction entered against a criminal defendant, ‘unless it finds compelling
    and extraordinary reasons for not doing so, and states those reasons on the
    record.’ ” (People v. Smith (2001) 
    24 Cal.4th 849
    , 851, fn. omitted.)
    Section 1202.44 provides that “[i]n 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 restitution
    fine pursuant to subdivision (b) of Section 1202.4, assess an additional
    probation revocation restitution fine in the same amount as that imposed
    pursuant to subdivision (b) of Section 1202.4. This additional probation
    revocation restitution fine shall become effective upon the revocation of
    10
    probation or of a conditional sentence, and shall not be waived or reduced by
    the court, absent compelling and extraordinary reasons stated on record.”
    In People v. Tillman (2000) 
    22 Cal.4th 300
     the California Supreme
    Court held that an appellate court may not correct the sentencing court’s
    failure to impose a restitution fine and an associated parole revocation
    restitution fine where the People failed to object in the trial court. (Id. at
    p. 303.) The court concluded that the waiver doctrine applies when “ ‘the
    trial court[] fail[s] to properly make or articulate its discretionary sentencing
    choices’ ” and that the fine under section 1202.4, subdivision (b) is a
    discretionary sentencing choice because the statute permits the court to
    determine the amount or to waive the fine if its reasons for doing so are made
    clear on the record. (Tillman, at p. 302.) In so holding, the court “reasoned
    that waiver principles ‘encourage development of the record and a proper
    exercise of discretion in the trial court,’ as well as helping to ‘discourage …
    invalid probation conditions and reduce the number of costly appeals brought
    on that basis.’ ” (Id. at p. 303.)
    Like section 1202.4, subdivision (b), section 1202.44 contains the same
    discretionary language permitting the court to waive or reduce the fine if it
    states on the record that there are “compelling and extraordinary reasons” for
    doing so. (§ 1202.44.) This language was the basis for the California
    Supreme Court’s conclusion in Tillman that section 1202.4, subdivision (b)
    provided the trial court with sentencing discretion and, thus, the failure to
    object results in a waiver of any claim of error. (Tillman, 
    supra,
     22 Cal.4th at
    pp. 302–303.) In this case, at the hearing the trial court did not state any
    reason for its waiver of the probation revocation restitution fine, and its
    failure to do so was error. The record is clear, however, that the prosecution
    did not object to the reduction. Thus, any challenge to the court’s failure to
    11
    state its reasons for its discretionary sentencing choice to reduce the fine was
    forfeited. (Ibid.)
    Accordingly, we agree with Jimenez that the People’s failure to object
    to the reduction of the probation revocation restitution fine forfeited any
    challenge to that reduction. We also conclude that the court’s statements at
    the hearing make clear that it intended to exercise its discretion to waive
    that fee and the sentencing order of conviction must be modified to conform to
    that decision.
    The record is less clear with respect to the restitution fine under
    section 1202.4, subdivision (b). Because there are conflicting orders in the
    record concerning the imposition of that fine, and the court made no
    pronouncement about the fine at the hearing, we agree with Jimenez that
    remand is necessary for the trial court to determine whether to impose that
    fine. We note that if the trial court waives the restitution fine on remand, it
    must state on the record its “compelling and extraordinary reasons” for doing
    so. (§ 1202.4, subd. (b).)
    DISPOSITION
    The judgment is reversed in part and remanded with the following
    directions:
    1. The trial court is directed to strike the portion of probation
    condition 6.n that states “computers, and recordable media plus
    passcodes.” This direction is made without prejudice to the
    People, who may demonstrate to the trial court with additional
    facts that a more narrowly drawn electronics search condition is
    proportionate to the burden on Jimenez’s privacy interest.
    2. The trial court is directed to vacate any unpaid portion of the
    $30 administrative fee imposed pursuant to former section
    1202.4, subdivision (l).
    12
    3. The trial court is directed to vacate the imposition of the $300
    probation revocation restitution fine contained in the sentencing
    order of conviction.
    4. The trial court is directed to determine whether to impose the
    $300 restitution fine contained in the formal order of probation.
    If the court determines that fine should be waived, it must state
    its reasons on the record.
    The judgment is otherwise affirmed.
    McCONNELL, P. J.
    WE CONCUR:
    O’ROURKE, J.
    BUCHANAN, J.
    13
    

Document Info

Docket Number: D079640

Filed Date: 2/15/2023

Precedential Status: Non-Precedential

Modified Date: 2/15/2023