People v. Drummond CA4/1 ( 2024 )

Filed 9/10/24 P. v. Drummond 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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, D083408
Plaintiff and Respondent,
v. (Super. Ct. No. SCD300616)
ROBERT L. DRUMMOND,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Polly H. Shamoon, Judge. Affirmed.
William P. Melcher, 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,
Collette C. Cavalier and Kathryn Kirschbaum, Deputy Attorneys General for
Plaintiff and Respondent.
I
INTRODUCTION
Defendant Robert L. Drummond pleaded guilty to one count of abusing
a cohabitant. Thereafter, the probation department filed a report
recommending that the trial court place Drummond on formal probation for
three years subject to several conditions, including a condition (hereafter,
Condition 6(o)) requiring him to “[s]eek and maintain full-time employment
… if directed by the [probation officer].” During sentencing, the court orally
imposed a three-year term of formal probation and adopted “[e]verything” in
the probation department’s recommendation. It also issued a written court
order granting probation and imposing Condition 6(o) as set forth in the
probation department’s recommendation. However, during sentencing, the
court—using slightly different language—at times opined that Drummond
needed to “get a job” as a condition of probation.
Drummond appeals the judgment and contends the trial court imposed
an unreasonable and invalid probation condition insofar as it ordered him to
“get a job.” The People claim the court did not impose a condition requiring
him to get a job (hereafter, a “Get a Job” condition); rather, it imposed
Condition 6(o) as it was phrased in the probation department’s
recommendation and the written court order granting probation. However, to
the extent there is an inconsistency between the oral pronouncement and the
written court order, the People do not oppose a modification of the probation
condition to match Condition 6(o).
The court’s statements that Drummond must “get a job” give rise to at
least a partial discrepancy between the oral pronouncement of the probation
condition and the probation condition set forth in the written court order.
The traditional rule is that a court’s oral pronouncement of a probation
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condition controls when there is a discrepancy between the oral
pronouncement and a written court order, but the modern rule is that the
part of the record that will prevail is the one that should be given greater
credence under the particular circumstances of the case. Here, the
circumstances of the case dictate that Condition 6(o), as set forth in the
written court order, is the governing probation condition. Because Condition
6(o) is the controlling probation condition, we need not consider whether a
“Get a Job” probation condition would be a reasonable and valid condition.
The judgment is affirmed.
II
BACKGROUND
The district attorney filed a felony complaint against Drummond
charging him with abuse of a cohabitant (Pen. Code,1 § 273.5; count 1);
assault by means likely to produce great bodily injury (§ 245, subd. (a)(4);
count 2); assault with a deadly weapon (§ 245, subd. (a)(1); count 3); and
making a criminal threat (§ 422; count 4). For counts 2, 3, and 4, the felony
complaint alleged the victim was a person defined in Family Code
section 6211 within the meaning of section 1203.097.
Pursuant to a plea agreement, Drummond pleaded guilty to the abuse
of a cohabitant charge and the court dismissed all of the other pending
charges. For the factual basis of the plea, Drummond admitted he willfully
and unlawfully inflicted a corporal injury resulting in a traumatic condition
on M.T., a person with whom he previously cohabitated.
Prior to sentencing, the probation department prepared and filed a
report recommending that the court place Drummond on formal probation for
three years. The report included a proposed court order granting probation,
1 Further undesignated statutory references are to the Penal Code.
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which included Condition 6(o) as a condition of probation. Condition 6(o)
required Drummond to “[s]eek and maintain full-time employment,
schooling, or a full-time combination thereof if directed by the [probation
officer].”
At sentencing, the court suspended imposition of sentence and placed
Drummond on formal probation for three years. At the outset of the hearing,
the court indicated it had read and considered the probation department’s
report. The court then stated it was imposing probation subject to conditions,
including “[e]verything in paragraph … 6” of the proposed court order that
was attached to the probation department’s report. (Italics added.) The court
asked Drummond if he accepted probation on these terms, and Drummond
replied, “Yes.”
After Drummond accepted probation on these terms, the following
colloquy between the court and Drummond ensued:
“THE COURT: Do you currently have a full-time job?
THE DEFENDANT: No. I’m on disability …. [¶]
THE COURT: … [A]re you currently taking medication?
THE DEFENDANT: No.
THE COURT: You need a job.
THE DEFENDANT: It’s a learning disability that I have.
THE COURT: You can get a job. Learning disability – you can
wash dishes anywhere. Sir, you’re not going to get away with
that here. You’re on such a disability that you don’t have even
medication you’re on. I don’t have any evidence of an Axis 1
diagnosis. [¶] I’m telling you, you need to get a job. That’s a court
order, and it’s a term and condition of your probation.
THE DEFENDANT: As far as the medication, the reason why I
haven’t been taking medication lately is because I have to go to
the doctors, and I don’t know how to do that. …
THE COURT: Sir, you’re going to get a job. And if you don’t get
a job, it’s going to be a violation of probation. You are going to get
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a job. You are 34 years old, and there’s no reason why you can’t
get a job in this case.”
Defense counsel objected to the probation condition on the ground that
Drummond was eligible for disability benefits and currently receiving them.
The court replied, “That’s not the only reason for a job, is just to get income.
[¶] He – first of all, he is going to pay the victim restitution if it’s ordered …
[and] he has fines that are ordered. But given what his underlying issues
are, he has no focus in anything else he’s involved with in his life. He seems
like, based on the issues he’s had for some time, he could use something in
his life that’s productive to do. But he’s not in school, from what I
understand, he’s not taking medication for any sort of condition, and it seems
that he could be a contributing member of society. [¶] So I’m going to order
that he get a job, and I’m going to let probation monitor him doing that. But
he needs to get a job.”
After sentencing, the court issued a written court order placing
Drummond on formal probation for three years, subject to various conditions.
Condition 6(o) of the written court order mirrored Condition 6(o) from the
probation department’s proposed court order, word-for-word. It required
Drummond to “[s]eek and maintain full-time employment, schooling, or a
full-time combination thereof if directed by the [probation officer].” The court
also issued a separate written minute order, dated December 13, 2023, which
in the margin stated, “The court orders defendant to get a job.”
III
DISCUSSION
“ ‘Probation is a form of leniency which is predicated on the notion that
a defendant, by proving his ability to comply with the requirements of the
law and certain special conditions imposed upon him, may avoid the more
severe sanctions justified by his criminal behavior.’ ” (People v. Garcia (2006)
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39 Cal.4th 1070, 1087.) Under state law, a trial court may impose any
“reasonable conditions [of probation], 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), italics added.) A
court has “broad discretion” to set the conditions of probation in order to
achieve these aims. (People v. Lopez (1998) 66 Cal.App.4th 615, 624.)
By statute, a court may “require as a condition of probation that the
probationer go to work and earn money for the support of the probationer’s
dependents or to pay any fine imposed or reparation condition, to keep an
account of the probationer’s earnings, to report them to the probation officer
and apply those earnings as directed by the court.” (§ 1203.1, subd. (d).) “Not
surprisingly, ‘[a]n order that a criminal defendant seek and maintain gainful
employment as a condition of probation is one commonly imposed.’ ” (People
v. Sanchez (2019) 38 Cal.App.5th 907, 919.) However, the reasonableness of
such a condition depends on the “particular circumstances” of the
probationer. (People v. Kim (2011) 193 Cal.App.4th 836, 841.) “[T]he
possibility of noncompliance [with a probation condition] due to
circumstances beyond a probationer’s control precludes the imposition of the
condition of probation in the first place only where the trial ‘court can say as
a matter of law [that] compliance would be impossible.’ ” (Sanchez, at p. 919.)
Drummond’s sole contention on appeal is that the trial court imposed a
“Get a Job” probation condition that is unreasonable because his claimed
disability could make it infeasible for him to obtain employment. Drummond
states that Condition 6(o) of the written court order—requiring him to “[s]eek
and maintain full-time employment … if directed by the [probation officer]”—
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is reasonable because it “considers [his] particular circumstances with regard
to his learning disability,” but he claims the court imposed a “Get a Job”
condition, not Condition 6(o). In response, the People argue that the court
orally imposed Condition 6(o), as it was phrased in the probation
department’s proposed court order and later memorialized in the written
court order, and the court was merely admonishing Drummond to abide by
Condition 6(o) when it informed him to get a job.
There is at least a partial discrepancy between the oral pronouncement
of the probation condition and the written court order granting probation.
During the oral pronouncement, the court informed Drummond he needed to
get a job as a probation condition and the probation department would
monitor him. By contrast, Condition 6(o) of the written court order requires
Drummond to seek and maintain full-time employment if directed by the
probation officer. Given this discrepancy, we must decide which probation
condition governs—Condition 6(o) or the “Get a Job” condition.
“Although the traditional rule was that a court’s oral pronouncement of
probation conditions controlled over the written version, ‘the modern rule is
that if the clerk’s and reporter’s transcripts cannot be reconciled, the part of
the record that will prevail is the one that should be given greater credence in
the circumstances of the case.’ ” (In re D.H. (2016) 4 Cal.App.5th 722, 725;
see People v. Contreras (2015) 237 Cal.App.4th 868, 880 [“if the reporter’s
transcript and the clerk’s transcript … cannot be reconciled, we do not
automatically defer to the reporter’s transcript, but rather adopt the
transcript that should be given greater credence under the circumstances of
the particular case”].) “Indeed, the oral pronouncement may well be less
inclusive given that ‘probation conditions “need not be spelled out in great
detail in court as long as the [probationer] knows what they are; to require
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recital in court is unnecessary in view of the fact the probation conditions are
spelled out in detail on the probation order.” ’ ” (In re D.H., at p. 725.)
Applying the modern rule, we conclude Condition 6(o) is the governing
probation condition. As noted, the probation department filed a written
report recommending probation, which included a proposed court order
containing Condition 6(o). At sentencing, the court stated it had read and
considered the probation department’s report and recommendation. The
court then imposed “[e]verything” in Paragraph 6 of the proposed court order,
an expansive and inclusive ruling that presumably encompassed
Condition 6(o), and it obtained Drummond’s confirmation he accepted
probation on these terms. Only after imposing probation on these terms did
the court engage in a discussion with the defense in which the defense
seemed to suggest Drummond should not have to pursue any employment
opportunities at all due to his claimed disability. Given this context, we view
the court’s “get a job” statements as admonitions to Drummond that he must
adhere to Condition 6(o), not as an attempt by the court to modify Condition
6(o), which it had imposed just moments earlier (together with “[e]verything”
else in Paragraph 6 of the proposed court order). Our conclusion is reinforced
by the fact that the court later issued a written court order that included
Condition 6(o), not a “Get a Job” condition.
In short, Condition 6(o), as set forth in the probation department’s
proposed court order, as adopted by the court during the sentencing hearing,
and as memorialized in the written court order granting probation, is the
controlling condition of probation related to employment. Condition 6(o), in
relevant part, requires Drummond to “[s]eek and maintain full-time
employment … if directed by the [probation officer].” Because Condition 6(o)
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is the controlling employment-related condition, it is unnecessary for us to
assess whether a “Get a Job” condition would be reasonable.
IV
DISPOSITION
The judgment is affirmed.
The matter is remanded with instructions that the trial court strike the
following language from its written minute order, dated December 13, 2023:
“The court orders defendant to get a job.”
McCONNELL, P. J.
WE CONCUR:
O’ROURKE, J.
DO, J.
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