People v. Gonzalez

Filed 11/24/20
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077208
Plaintiff and Respondent,
v. (Super. Ct. Nos. CA276381,
M175354CE)
GEORGE GONZALEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Frederick Maguire, Judge. Affirmed.
Law Office of Matthew S. Koken and Matthew S. Koken for Defendant
and Appellant.
Mara W. Elliott, City Attorney, John C. Hemmerling, Assistant City
Attorney, and Steven K. Hansen, Deputy City Attorney, for Plaintiff and
Respondent.
I.
INTRODUCTION
In May 2014, George Gonzalez pled guilty to two misdemeanor counts
of using his premises without a permit or variance (San Diego Mun. Code,
§ 121.0302, subd. (a); counts 1, 4) and one count of maintaining an
unauthorized encroachment (San Diego Mun. Code, § 54.0110, subd. (a);
count 6).1 The trial court placed Gonzalez on probation for three years,
subject to various stipulated conditions, including that he “must bring all San
Diego Municipal Code violations at all properties owned by or through the
Defendant in the City of San Diego (City) into compliance with the San Diego
Municipal Code, and take any and all actions to bring such properties into
compliance as required by [agencies of the City].”
On five separate occasions thereafter, Gonzalez violated probation. On
each occasion, the court revoked and then reinstated Gonzalez’s probation,
with terms to which Gonzalez expressly agreed, including stayed terms of
custody of increasing lengths. During a hearing on the third of these
violations, Gonzalez agreed to additional specific probation conditions
relating to property that he owned on Aldine Drive (Aldine Property).
Gonzalez specifically agreed to a probation condition that required that he
sell the Aldine Property for fair market value if he failed to comply with
various probation conditions mandating that he undertake specified
corrective work on the property. In March 2017, after admitting a fourth
probation violation, Gonzalez agreed to an extension of the probationary
period to February 2020 and to modify the stayed term of custody to 90 days.
In November 2017, after holding an evidentiary hearing concerning the
conditions at the Aldine Property, the trial court found Gonzalez in violation
1 Counts 1 and 4 pertained to property that Gonzalez owned on Newtown
Avenue (Newtown Property). Count 1 alleged that Gonzalez unlawfully
stored material outdoors and count 4 alleged that Gonzalez maintained an
unlawful industrial development without a permit. Count 6 alleged that
Gonzalez unlawfully maintained vegetation obstructing a public right-of-way.
The location of the property pertaining to count 6 is not clear from the record.
2
of probation for a fifth time. Gonzalez was again given an opportunity to cure
the violations prior to the next hearing in May 2018. When Gonzalez failed
to cure the violations by that date, the court again found Gonzalez in
violation of probation and ordered Gonzalez to sell the Aldine Property. The
trial court also lifted the stay of the 90 days in custody.
On appeal, Gonzalez challenges the order to sell the Aldine Property.
In his opening brief, Gonzalez claims that the order to sell the Aldine
Property is invalid because it was entered after the expiration of the
maximum three-year probation period (Pen. Code, § 1203a)2 authorized by
his May 2014 guilty plea. Gonzalez further argues that the order is invalid
because an order directing the sale of real property is not specified as a
potential punishment for municipal code violations in the San Diego
Municipal Code. Gonzalez also maintains that the order to sell amounts to
an unconstitutional taking under the state and federal constitutions. In his
reply brief, Gonzalez contends that the order to sell the Aldine Property is an
invalid probation condition under People v. Lent (1975) 15 Cal.3d 481 (Lent).
We conclude that Gonzalez is estopped from challenging the expiration
of the probationary term. (See People v. Jackson (2005) 134 Cal.App.4th 929(Jackson) [concluding appellant who agreed to extension of probation beyond
maximum statutory period in the trial court is estopped from challenging
extension on appeal].) We also conclude that the order to sell the Aldine
Property is a condition of probation, not a punishment and, as a result, the
fact that the San Diego Municipal Code does not provide for the sale of real
property as a punishment is irrelevant in determining the validity of the
order. We further conclude that Gonzalez’s takings claim is without merit.
2 Unless otherwise specified, all subsequent statutory references are to
the Penal Code.
3
Finally, we conclude that Gonzalez forfeited any challenge to the
reasonableness of the probation condition under Lent by failing to raise such
a challenge in the trial court or in his opening brief on appeal. Accordingly,
we affirm the trial court’s order directing the sale of the Aldine Property.3
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The complaint
In October 2013, the People filed a misdemeanor complaint charging
Gonzalez with six counts of using a premises without a permit or variance in
violation of San Diego Municipal Code section 121.0302, subdivision (a)
(counts 1–5, 7) and one count of maintaining an unauthorized encroachment
in violation of San Diego Municipal Code section 54.0110.4
3 Gonzalez’s briefs fail to provide a single citation to either the reporter’s
transcripts or clerk’s transcript, in blatant disregard of California Rules of
Court, rule 8.204(a)(1)(C), which provides: “(1) Each brief must: [¶] . . . [¶]
(C) Support any reference to a matter in the record by a citation to the
volume and page number of the record where the matter appears. If any part
of the record is submitted in an electronic format, citations to that part must
identify, with the same specificity required for the printed record, the place in
the record where the matter appears.” (See California Rules of Court, rule
8.360 (a) [briefs in criminal appeals must comply with California Rules of
Court, rule 8.204].)
We choose to exercise our authority under California Rules of Court,
rule 8.204(e)(2)(C) to disregard such noncompliance, not because Gonzalez’s
transgressions are minor, but because, as discussed below, Gonzalez’s claims
are without merit and we do not wish to further delay the proceedings. (See
Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 113 [lamenting
failure to provide adequate record citations, but choosing to disregard
noncompliance so as not to further delay the appeal].)
4 The complaint specified that the allegations in counts 1 through 5 and
count 7 pertained to the Newton Property. The complaint did not refer to a
specific property with respect to count 6.
4
B. Gonzalez’s guilty plea
In May 2014, Gonzalez pled guilty to two counts of using a premises
without a permit or variance (San Diego Mun. Code, § 121.0302, subd. (a);
counts 1, 4) and one count of maintaining an unauthorized encroachment
(San Diego Mun. Code, § 54.0110; count 6). The plea agreement specified
that Gonzalez was subject to a maximum sentence of one year six months in
jail.
C. The trial court’s initial grant of probation
The trial court suspended imposition of sentence and placed Gonzalez
on probation subject to various stipulated terms and conditions. While the
bulk of the conditions mandated that Gonzalez undertake specific clean up
and remediation efforts on the Newtown Property, paragraph No. 13 required
that Gonzalez bring all of the properties that he owned within the City into
compliance with the municipal code, and paragraph No. 14 required that
Gonzalez permit inspectors to access all property owned by Gonzalez within
the City upon 24 hours’ notice.
D. Gonzalez’s first probation violation
In August 2014, Gonzalez admitted violating probation. The trial court
revoked and reinstated probation with the same terms and conditions.
E. Gonzalez’s second probation violation
In May 2015, Gonzalez again admitted violating probation. The trial
court revoked and reinstated probation with modified stipulated conditions,
including the imposition of 30 days of custody, stayed.
F. Gonzalez’s third probation violation and agreement to undertake
corrective work on the Aldine Property and to place the Aldine Property for
sale if he failed to perform the work
In September 2015, Gonzalez admitted violating probation for a third
time. The trial court revoked and reinstated probation with modified
5
stipulated conditions. The modified stipulated conditions provided,
“[Gonzalez] admits violating probation and accepts all of the following terms
and conditions of probation to be included with all of his previous terms and
conditions of probation,” including the imposition of an additional 30 days of
stayed custody. The conditions outlined a series of requirements pertaining
to the Aldine Property, including removing improperly stored items,
removing inoperable vehicles from the yard, obtaining appropriate building
permits, and completing corrective work on the property. In addition, the
conditions provided:
“If [Gonzalez] does not obtain all final inspections and
approval from [a City agency] for the corrective work
required under paragraph 17.g.[5] within 180 days of the
date any required permits are issued, [Gonzalez] must
place [the] Aldine [Property] for sale to the public within 30
days of that date at a sale price reflecting market value as
determined by a licensed appraiser.”
Gonzalez and his counsel both signed the document setting forth the
stipulated conditions.
5 It is clear that the intended reference was to paragraph 18.g., which
mandated that Gonzalez provide applications and plans for obtaining
“permits, inspections, and approvals” for:
“Removing all structural, electrical, and plumbing/
mechanical work and other development, including the
move-on single dwelling and additions, on the [Aldine]
Property, OR permitting all structural, electrical, and
plumbing/mechanical work and other development,
including the move-on single dwelling and additions, on the
[Aldine] Property in compliance with the San Diego
Municipal Code[.]”
6
G. Gonzalez’s fourth probation violation and agreement to extend the
probationary period to February 2020
In February 2017, the trial court held an evidentiary hearing
pertaining to allegations that Gonzalez failed to comply with probation
conditions pertaining to the Aldine Property. At the hearing, a City employee
testified concerning Gonzalez’s failure to timely and appropriately respond to
corrections of Gonzalez’s applications for building permits pertaining to the
Aldine Property. A second City employee testified concerning the condition of
the exterior of the Aldine Property as of February 8, 2017. The employee
testified that the exterior of the property contained the following items:
“A portable toilet porta potty, refrigerator, microwave,
large spool of rubber hose or some stuff like that. Metal
fencing, old sinks, vacuum cleaner, a bunch of items that
are non-incidental to the property.”6
The City employee also testified that photographs of the exterior of the
Aldine Property taken at various times prior to February 2017 depicted
improperly stored items on the exterior of the property. A long-time neighbor
testified that the exterior of the Aldine Property appeared “disheveled and
incomplete.” The neighbor also described a video of the exterior of the Aldine
Property taken in September 2016.7 Among other conditions, the neighbor
stated that the video depicted “debris and old building materials,” an
6 The court admitted photographs of the Aldine Property in evidence.
Gonzalez’s appellate counsel has not requested transmission of the exhibits to
this court. (See Cal. Rules of Court, rules 8.320(e) & 8.224(a).) We remind
counsel that it is an appellant’s responsibility to have transmitted to this
court all exhibits that are necessary to review appellant’s claims on appeal.
7 The court admitted the exhibit containing the video in evidence. This
exhibit also has not been transmitted to this court. (See fn. 6, ante.)
7
“unfinished deck,” “rusted containers,” and an “old abandoned bike.” On
cross-examination, the neighbor acknowledged that she had been attempting
to resolve the issue of the condition of the Aldine Property with the City for
four to five years.
Prior to the resolution of the hearing, the parties reached an agreement
pursuant to which Gonzalez would admit to violating probation and the court
would reinstate probation with modified conditions. In accordance with the
parties’ agreement, Gonzalez admitted violating paragraph Nos. 18a, 20, and
26 of the conditions of probation, all of which pertained to the Aldine
Property. Paragraph No. 18a required that Gonzalez remove improperly
stored items from the outside of the property, paragraph No. 20 required that
Gonzalez make timely corrections to applications for building permits, and
paragraph 26 required timely inspections to ensure “substantial . . .
compliance” toward completing the corrective work mandated by paragraph
No. 18g of the conditions. (See fn. 5, ante (outlining the mandated corrective
work).)
In addition, the trial court revoked and reinstated Gonzalez’s probation
to include the following stipulated modified conditions: a total of 90 days of
custody stayed, a requirement that Gonzalez obtain all necessary building
permits for the Aldine Property within 45 days, and an extension of probation
to February 21, 2020. Gonzalez and his counsel again both signed the
document containing the stipulated conditions. The trial court expressed
concern with whether it had the authority to extend probation beyond the
initial maximum three years and set the matter for further hearing on this
issue, stating that it would consider striking the extended term if it lacked
the authority to extend Gonzalez’s probation. Near the conclusion of the
hearing, the following colloquy occurred:
8
“The court: And the one thing I will tell [you], and I just
wanted to say, sir, to make sure you understand what
you’ve agreed to. There’s 90 days now custody that’s been
stayed. Previously it was 60. Meaning there’s a violation,
I’ve stayed this numerous times, you’re agreeing . . . that I
would [lift] that stay, and you’d be going to jail for up to 90
days.
“Do you understand that?
“[Gonzalez]: Yes, your Honor.
“The Court: So[,] I’m hopeful that you’ll follow the terms
and conditions, but one of the reasons I’m keeping this with
the status conference is I really want to see this situation
taken care of. [¶] There’s a number of different things
everybody is agreeing to, and I understand to get this
property completed to a place that the city is asking, that
there’s permitting involved and there’s a lot involved with
that.
“With that being said, just at a basic level, I’m looking at
what the witness described as the eyesore of the place, and
it appears—I didn’t make any findings—but it did appear
that there may have been additional violations of the
municipal code separate from the conditions of your
probation, which would be a violation of probation,
meaning that property has got to be put in order I think so
the neighbors don’t look at it as an eyesore.”
At a hearing in March 2017, after receiving a letter with authorities
from the People addressing the legality of the extension of the probationary
term beyond three years from the initial grant, the trial court maintained the
extension of Gonzalez’s probation to February 21, 2020.8 Gonzalez’s counsel
stated that Gonzalez agreed with the extension of Gonzalez’s probationary
period.
8 The letter is not in the record.
9
H. Gonzalez’s fifth probation violation
In November 2017, the trial court held another evidentiary hearing on
allegations that Gonzalez had violated probation conditions related to the
Aldine Property. Two City employees testified concerning Gonzalez’s
ineffective efforts to obtain required permits for the Aldine Property, as
required by the probation conditions. For example, according to a City
employee, some of the plans that Gonzalez submitted were “incomplete and
illegible,” “items that were . . . in the corrections report were not addressed,”
and Gonzalez had not filed certain required applications, including the
engineering building submittal and historic review submittal, as of August 8,
2017. In addition, Gonzalez had not obtained the required permits for the
project until the day before the probation hearing.
Gonzalez also testified at the hearing. He stated that the project at the
Aldine Property had begun in the 1970s. He explained that, although the
project had “been previously permitted,” that it was “never finished,” and
that, as a result, the City considered “it a code violation because it’s not a
place that’s approved to occupy.”
At the conclusion of the hearing, the court found Gonzalez in violation
of probation. The court stated, “The terms and conditions of the
supplemental probation order signed on September 15, 2015, are pretty clear.
You were required to submit [proper applications for building permits] within
a certain time period and you didn’t.” The court noted that Gonzalez had now
obtained the necessary permitting for the project and stated that Gonzalez
would have six months to complete all of the required corrective work and
obtain final inspections on the project.9
9 The minute order for the hearing states that Gonzalez has “six months
to complete all inspections and complete all work,” and “all work to be
10
I. The trial court’s order to lift the stay of custody and sell the Aldine
Property
On May 25, 2018, the trial court held a final hearing. At the outset of
the hearing, the court noted that, at the November 2017 hearing, the court
had given “[Gonzalez] an opportunity to get everything taken care of” prior to
the May 2018 hearing. Defense counsel acknowledged that Gonzalez had not
had a final inspection of the Aldine Property and that Gonzalez was “not at
the level that we were hoping he’d be at since the last hearing.”
A City employee testified that, since the November 2017 hearing, “no
progress or no inspections were made [until] one [inspection] was called two
weeks ago.” The court found Gonzalez in violation of probation, ordered
execution of the previously-stayed 90-day sentence, and ordered Gonzalez to
sell the Aldine Property pursuant to the conditions of probation to which
Gonzalez had previously agreed.
That same day, the court issued a written order directing the sale of
the Aldine Property. The order states in relevant part:
“Under the Code Enforcement Case Plea Bargain
Agreement, Additional Terms and Conditions of Probation
paragraph number 25, imposed by the Court on February
21, 2017, this Court HEREBY ORDERS THAT:
“1. Effective Sixty (60) days from the date of this Order,
[Gonzalez] shall enter into a listing agreement with a
licensed real estate agent or broker to sell [the] Aldine
[Property].”
completed and all work to be inspected by next hearing date of May 25,
2018.”
11
The order further specifies a series of conditions pertaining to the sale
including that, “The purchase price[10] for the [Aldine Property] shall not be
more than 3 percent above area comparable properties.”
J. Gonzalez’s appeal to the appellate division of the superior court
In June 2018, Gonzalez appealed from the May 25 order to sell the
Aldine Property to the Appellate Division of the San Diego County Superior
Court.
While Gonzalez’s appeal in the appellate division was pending, that
court requested supplemental briefing on the following question:
“Was the order to sell the Aldine Drive property in excess of
the court’s jurisdiction? [Citations.] Does estoppel apply?
[Citation.]”
Gonzalez filed a supplemental brief in which he argued that his
probationary period should have expired on May 7, 2017, and that the trial
court had erred in extending probation beyond that date. Gonzalez further
maintained that he was not estopped from raising this argument. In January
2020, the appellate division ordered the trial court to vacate its May 25 order
directing the sale of the Aldine Property. The appellate division concluded:
“An order to sell the property was not contemplated by the
[L]egislature as a punishment for such petty misdemeanor
offenses. Sale of the property is not mandated by the
statute enacted [by] the San Diego City Council nor is it
provided for as a remedy for violations of the Land
10 The remainder of the order makes it clear that the court used the term
“purchase price” to mean “listing price.” For example, another portion of the
order states, “If [Gonzalez] and his licensed real estate agent or broker fail to
enter into a Residential Real Estate Purchase Agreement with a Buyer
within 60 calendar days from the date of this Order or from the date of a sale
cancelation; then [Gonzalez] and his licensed real estate agent or broker shall
reduce the purchase price by 1 percent every month thereafter until the
[Aldine Property] sells.” (Italics added.)
12
Development Code. Here, the plea bargain purported to
authorize the court to exercise a power it does not have
under California’s sentencing provisions or under the
comprehensive statutory scheme regarding eminent
domain. The order to sell the real estate, as a condition of
probation, was contrary to the law.”
The appellate division further concluded:
“The Order directing the forced sale of the residential
property on Aldine Drive for violations of probation for
petty offenses related to the Newton Avenue property
constitutes a taking of private property by a government
entity and therefore must be pursuant to the eminent
domain statutes and not by a court order in a criminal
misdemeanor action.”
K. This court’s transfer of the matter for hearing and decision
In March 2020, this court, on its own motion, transferred the matter for
hearing and decision. (See Cal. Rules of Court, rule 8.1002 [“A Court of
Appeal may order a case transferred to it for hearing and decision if it
determines that transfer is necessary to secure uniformity of decision or to
settle an important question of law. Transfer may be ordered on: [¶] . . . [¶]
(3) The Court of Appeal’s own motion”].)11
III.
DISCUSSION
A. Gonzalez is estopped from challenging the extension of the probationary
period beyond the three-year period established by section 1203a
Gonzalez claims that the trial court’s order to sell the Aldine Property
is invalid because the trial court issued the order to sell after the expiration
11 Upon such transfer, “[W]e review the trial court’s order independently
of the appellate division’s opinion.” (People v. Noriega (2004) 124 Cal.App.4th
1334, 1339.)
13
of the original maximum three-year probationary period specified in section
1203a, and the trial court’s extension of the three-year period was invalid.
1. Governing law
a. The three-year maximum period of probation
Section 1203a provides:
“In all counties and cities and counties [sic] the courts
therein, having jurisdiction to impose punishment in
misdemeanor cases, shall have the power to refer cases,
demand reports and to do and require all things necessary
to carry out the purposes of Section 1203 of this code
insofar as they are in their nature applicable to
misdemeanors.[12] Any such court shall have power to
suspend the imposing or the execution of the sentence, and
to make and enforce the terms of probation for a period not
to exceed three years; provided, that when the maximum
sentence provided by law exceeds three years
imprisonment, the period during which sentence may be
suspended and terms of probation enforced may be for a
longer period than three years, but in such instance, not to
exceed the maximum time for which sentence of
imprisonment might be pronounced.” (Italics added.)
Where the maximum sentence provided by law in a misdemeanor case
does not exceed three years,13 a trial court may not extend probation beyond
three years. (See People v. Ottovich (1974) 41 Cal.App.3d 532, 534
[“Appellant was originally granted probation on November 18, 1970.
12 Section 1203 specifies the manner by which a trial court may grant
probation.
13 It is undisputed that the maximum sentence for the three misdemeanor
offenses to which Gonzalez pled guilty was less than three years.
14
Therefore, the maximum duration for probation would be three years from
that date. Extension beyond that period was error.”].)
b. Estoppel
In Jackson, supra, 134 Cal.App.4th at page 933, the Court of Appeal
concluded that a defendant who had consented to the extension of a
probationary period beyond the statutory maximum in the trial court was
estopped from challenging the legality of the extension on appeal.14 The
Jackson court reasoned in part:
“[I]n this case, appellant asked the trial court on November
23, 1999 to extend her term of probation through November
23, 2004. Although the court erred by acquiescing in her
request, appellant is estopped from now challenging the
order. To hold otherwise would permit appellant to trifle
with the courts and the probation system by leading the
trial court into error, obtaining the benefit of the court’s
error by avoiding incarceration, and then exploiting on
appeal the error she induced the trial court to commit.”
(Jackson, supra, 134 Cal.App.4th at p. 933, fn. omitted.)
In People v. Ford (2015) 61 Cal.4th 282, 288 (Ford), the California
Supreme Court noted that in Jackson, the “defendant was estopped from
challenging [the] court’s jurisdiction to impose a probationary term exceeding
the statutory maximum by requesting the extension.” The Ford court relied
on the Jackson court’s estoppel analysis in concluding that a defendant was
estopped from challenging the holding of a restitution hearing after his
probationary term had expired. (Ford, at p. 285.) The Ford court reasoned,
14 The Jackson court also concluded that the defendant’s failure to timely
appeal from the November 1999 order extending the period of probation
precluded the defendant from challenging the extension in an appeal filed in
November 2004. (Jackson, supra, 134 Cal.App.4th at p. 932 [“the 1999
extension is beyond challenge at this time, as appellant did not timely appeal
from that order”].)
15
“By agreeing to a continuance of the restitution hearing to a date after his
probationary term expired, defendant impliedly gave his consent to the
court’s continued exercise of jurisdiction.” (Ibid.)
2. Factual and procedural background
The trial court initially placed Gonzalez on probation in May 2014.
On February 21, 2017, before the conclusion of a contested probation
revocation evidentiary hearing, Gonzalez entered into an agreement with the
People to modify the terms and conditions of his probation. The agreement
stated in relevant part, “Defendant’s probation is extended to February 21,
2020.”
At a March 24, 2017 hearing, the court extended Gonzalez’s probation
to February 21, 2020, in accordance with the parties’ stipulation. At the
hearing, Gonzalez’s counsel expressly agreed to the extension, stating, “We’re
not objecting, Your Honor. It’s part of an agreement that we made with the
People.”15
3. Application
Given Gonzalez’s express stipulation to the extension of the
probationary period to February 21, 2020, he is estopped from challenging
the legality of the extension in this appeal. (Jackson, supra, 134 Cal.App.4th
at p. 933; accord Ford, supra, 61 Cal.4th at p. 288.) Gonzalez fails to present
any argument to the contrary in either his opening brief or in reply.16
15 As noted in part II.G, ante, Gonzalez signed a document containing the
stipulated extension of probation.
16 In their respondent’s brief, the People argued that Gonzalez is estopped
from challenging the trial court’s extension of his probationary period.
16
Accordingly, we conclude that Gonzalez is estopped from challenging
the extension of the probationary period beyond the three-year period
established by section 1203a.17
B. Gonzalez is not entitled to reversal of the order to sell the Aldine Property
on the ground that an order directing the sale of real property is not an
authorized punishment for code violations under the San Diego Municipal
Code
Gonzalez argues that the court’s order directing the sale of the Aldine
Property is invalid because an order directing the sale of real property is not
among the “variety of penalties for code enforcement violations,” specified in
the San Diego Municipal Code.18 This argument fails for the fundamental
reason that the trial court’s order to sell the property was not a legislatively
mandated punishment, but rather, was a condition of probation.
17 In light of our conclusion that Gonzalez is estopped from challenging
the extension of the probationary period, we need not consider the People’s
contention that the trial court’s extension of the three-year period was proper
under section 1203.2, subdivision (c), which provides in relevant part, “Upon
any revocation and termination of probation the court may, if the sentence
has been suspended, pronounce judgment for any time within the longest
period for which the person might have been sentenced.”
Nor need we consider the impact of Gonzalez’s failure to appeal from
the March 24, 2017 order extending Gonzalez’s probationary term. (See fn.
14, ante.)
18 This argument echoes the primary reason that the appellate division
gave for reversing the trial court’s order. In its decision, the appellate
division stated, “[N]one of the remedies provided for by Municipal Code
included the court-ordered sale of the real property as a possible punishment
for such petty offenses.” The appellate division also stated, “Sale of the
property is not mandated by the statute enacted the San Diego City Council
nor is it provided for as a remedy for violations of the Land Development
Code.”
17
The validity of conditions of probation are not spelled out in statutes (or
municipal codes), and it is well established that a probation condition may be
valid even if it “ ‘requires or forbids conduct which is not itself criminal.’ ” (In
re Ricardo P. (2019) 7 Cal.5th 1113, 1118 (Ricardo P.).) Thus, a defendant is
not entitled to reversal of an order imposing a probation condition merely
because the condition is not a legislatively specified punishment for violation
of a criminal law. Rather, a defendant must establish either that the
probation condition violates case law requiring that a trial court impose only
“ ‘reasonable’ ” probation conditions (see id. at p. 1128 [“A probation condition
that imposes substantially greater burdens on the probationer than the
circumstances warrant is not a ‘reasonable’ one.”])19 or the defendant must
demonstrate that the condition is “unconstitutionally overbroad.” (Ricardo P.
at p. 1118, quoting In re Sheena K. (2007) 40 Cal.4th 875, 890.)20 Thus, as
the People argue in their brief, “it is irrelevant that the [San Diego Municipal
Code] does not specify sale of a property as a punishment for criminal
violations.”
Accordingly, we conclude that Gonzalez is not entitled to reversal of the
order to sell the Aldine Property on the ground that an order directing the
sale of real property is not an authorized punishment for code violations
under the San Diego Municipal Code.21
19 In part III.D, post, we conclude that Gonzalez forfeited such a
challenge.
20 In part III.C, post, we consider Gonzalez’s constitutional challenge to
the order directing the sale of his property.
21 Gonzalez also argues that the trial court acted “outside the Court’s
jurisdiction,” in September 2015 when it added conditions relating to the
18
C. Gonzalez has failed to establish any violation of the takings clauses of the
federal or state constitutions
Gonzalez claims that the trial “[c]ourt’s order to sell the real property
constitutes a taking,” under the federal and state constitutions. (U.S. Const.,
5th Amend.; Cal. Const., art. I, § 19.)
1. Gonzalez failed to raise any constitutional claim in the trial court
and therefore may raise only a facial constitutional challenge on
appeal
In People v. Patton (2019) 41 Cal.App.5th 934 (Patton), this court
explained that constitutional challenges to probation conditions must
ordinarily be brought in the trial court, unless the challenge constitutes a
facial challenge, which may be brought for the first time on appeal:
“The People argue Patton forfeited his overbreadth
challenge by failing to raise it before the trial court. An as-
applied constitutional challenge is forfeited unless
previously raised. [Citation.] ‘ “The purpose of this rule is
to encourage parties to bring errors to the attention of the
Aldine Property because there had not been any “change of circumstance
from the original plea.”
We reject this argument because there clearly was a change of
circumstances between the time of the plea in May 2014 and the imposition
of the conditions pertaining to the Aldine Property in September 2015,
namely, Gonzalez had thrice admitted to violating probation—in August
2014, in May 2015, and in September 2015. (See pt. II, ante.) Thus,
Gonzalez is not entitled to reversal of the order to sell on the ground that
there had been no change of circumstances since Gonzalez’s initial plea.
Gonzalez’s argument to the contrary is frivolous. The record does not
indicate the reason for the addition of specific conditions pertaining to the
Aldine Property in September 2015. However, as noted in part I, ante, in
May 2014, Gonzalez agreed to “bring all San Diego Municipal Code violations
at all properties owned by or through the Defendant in the City of San Diego
into compliance with the San Diego Municipal Code, and take any and all
action to bring such properties into compliance as required by [agencies of the
City].”
19
trial court, so that they may be corrected.” ’ [Citation.]
However, the forfeiture rule does not extend to facial
constitutional challenges presenting pure questions of law
that can be resolved without referring to the particular
sentencing record developed below.” (Id. at p. 946.)
The Patton court also explained the nature of a facial challenge:
“A facial challenge ‘does not require scrutiny of individual
facts and circumstances but instead requires the review of
abstract and generalized legal concepts.’ [Citation.] The
claim is that a condition cannot have any valid application,
without relying on any facts in the sentencing record.
[Citation.]” (Patton, supra, 41 Cal.App.5th at p. 944.)
Gonzalez failed to raise any constitutional challenge in the trial court
to the order to sell the Aldine Property. Thus, Gonzalez may raise only a
facial constitutional challenge on appeal. (See Patton, supra, 41 Cal.App.5th
at p. 946.)
2. Gonzalez has failed to establish that a judicial order to sell property
as a condition of probation constitutes a facial violation of the
takings clauses of the federal or state constitutions
a. Governing law
i. Facial challenges to probation conditions
“[A] facial overbreadth challenge is difficult to sustain.” (Williams v.
Garcetti (1993) 5 Cal.4th 561, 577.) This is because “[i]nherent in the very
nature of probation is that probationers ‘do not enjoy “the absolute liberty to
which every citizen is entitled.” ’ ” (United States v. Knights (2001) 534 U.S.
112, 119.)
ii. Takings law
“The takings clause of the Fifth Amendment [of the federal
constitution] prohibits a governmental entity from taking private property for
public use without just compensation.” (City of Perris v. Stamper (2016)
20
1 Cal.5th 576, 591; U.S. Const., 5th Amend. [“nor shall private property be
taken for public use, without just compensation”].)
California Constitution, article I, section 19, subdivision (a) provides in
relevant part:
“Private property may be taken or damaged for a public use
and only when just compensation, ascertained by a jury
unless waived, has first been paid to, or into court for, the
owner.”
“The United States Supreme Court has defined a facial takings claim
as an ‘uphill battle’ and ‘difficult’ to demonstrate.” (Action Apartment Assn.
v. City of Santa Monica (2008) 166 Cal.App.4th 456, 468.) The party
asserting a facial takings claim must demonstrate that the governmental
action constitutes a taking. (Ibid.)
b. Application
Gonzalez argues that trial court’s order to sell the Aldine Property
constitutes an unconstitutional taking because the court-ordered forced sale
of the property is a taking of private property and takings of private property
can be effectuated only through California’s eminent domain law.22 Even if
construed as a facial challenge, it is clear that Gonzalez’s argument falls far
short of demonstrating that the trial court’s order is facially invalid.
As the People point out in their brief, judicial action may result in a
person ceasing to own private property for any number of lawful reasons
entirely outside of the eminent domain law. For example, marital dissolution
proceedings, judgment enforcement actions, nuisance abatement proceedings,
and forfeiture proceedings all may result in divesting a person of his or her
private property. None of these proceedings involve eminent domain law. As
22 Gonzalez’s argument in this regard is nearly identical to the appellate
division’s takings analysis.
21
the proponent of the constitutional violation, it is Gonzalez’s burden to
demonstrate that a probation condition mandating the sale of real property is
not lawful. Gonzalez’s contention that the divestiture of private property did
not occur pursuant to the eminent domain law fails to make such a showing.
Gonzalez failed to present any authority pursuant to which a court has
found a taking under similar circumstances. That is, Gonzalez has presented
no case in which an order to sell property for full market value has been
found to constitute a taking, particularly where the order was entered
pursuant to a condition to which the owner expressly agreed. Gonzalez also
failed to present any argument grounded in takings law arising under the
state or federal constitutions, beyond the argument that we reject ante.
Further, even assuming that there could be a court order to sell property so
disproportionate in relation to the magnitude of the probation violation at
issue in the case that it would violate the takings clauses of the state or
federal constitutions,23 Gonzalez has failed to establish that a probation
order requiring a probationer to sell real property for fair market value is
invalid in every instance. Because such a showing is required in order for
Gonzalez to prevail on his facial constitutional challenge, Gonzalez is not
entitled to reversal. (See Patton, supra, 41 Cal.App.5th at p. 944 [to establish
that probation condition is facially invalid the “condition cannot have any
valid application”].)
23 As noted in part III.C.1, ante, Gonzalez forfeited his as applied takings
challenge in this case by failing to raise a constitutional challenge in the trial
court. In so stating, we in no way intend to suggest that Gonzalez would
have prevailed on an as applied challenge to the trial court’s order in this
case, given the factual and procedural circumstances outlined in part II, ante,
pertaining to the Aldine Property.
22
Accordingly, we conclude that Gonzalez is not entitled to reversal of the
trial court’s order to sell the Aldine Property on the ground that the order is
facially constitutionally invalid as violating the takings clauses of the state
and federal constitutions.
D. Gonzalez forfeited his claim that the trial court’s order to sell the Aldine
Property is unreasonable under Lent
In his reply brief, citing Lent, supra, 15 Cal.3d at page 486, Gonzalez
claims that the trial court “did not have authority to order the sale of [the
Aldine Property] as a condition of probation.” (Italics and capitalization
omitted.)
In Lent, the California Supreme Court held that “a condition of
probation which requires or forbids conduct which is not itself criminal is
valid if that conduct is reasonably related to the crime of which the defendant
was convicted or to future criminality.” (Lent, supra, 15 Cal.3d at p. 486; see
also Ricardo P., supra, 7 Cal.5th at p. 1116 [concluding that electronics
search probation condition was “not reasonably related to future criminality
and is therefore invalid under Lent,” where there was no indication that
probationer “had used or will use electronic devices in connection
with . . . any illegal activity”].)
It is well established that a defendant may not raise a Lent challenge
for the first time on appeal. (See People v. Welch (1993) 5 Cal.4th 228, 237
[“We therefore hold that failure to timely challenge a probation condition
on . . . [‘]Lent’ grounds in the trial court waives the claim on appeal.”].) It is
also well established that arguments may not ordinarily be raised on appeal
for the first time in a reply brief. (People v. Taylor (2020) 43 Cal.App.5th
1102, 1114 [“In his reply brief, Taylor raises other arguments for the first
time. Taylor has forfeited these tardy arguments.”].)
23
Gonzalez did not raise a Lent challenge in the trial court24 nor did he
do so in his opening brief on appeal. We therefore conclude that Gonzalez’s
claim in reply that the trial court’s order to sell the Aldine Property is
unreasonable under Lent is forfeited.25
24 Gonzalez not only failed to object to the initial September 2015
probation condition authorizing an order to sell the Aldine Property if he
failed to satisfy certain conditions, he expressly agreed to the condition
authorizing such an order pursuant to a written stipulation. In addition,
Gonzalez raised no Lent objection in May 2018 when the court ordered the
sale of the Aldine Property due to Gonzalez’s failure to satisfy the written
conditions specified in the September 2015 probation condition.
25 We emphasize that in light of Gonzalez’s forfeiture of his Lent objection
we have no occasion to consider, on the merits, the reasonableness of the
order directing the sale of Gonzalez’s real property. We also observe that this
court would expect forced sales of real property as a condition of probation to
be rare, and that the reasonableness and constitutionality of such orders
would depend on a variety of factors, including the seriousness and number of
violations as well as a careful examination of the full record pertaining to
such issues. However, in light of Gonzalez’s failure to raise either a Lent or
constitutional objection in the trial court, this court is unable to undertake
such a review in this appeal.
24
IV.
DISPOSITION
The order requiring Gonzalez to sell the Aldine Property is affirmed.
AARON, J.
WE CONCUR:
BENKE, Acting P. J.
DATO, J.
25