Error and/or relief
It was an improper delegation of authority to impose a condition of probation that left it up to the probation officer to decide whether treatment should be residential or outpatient. There was also error regarding imposition of fees.
First Holding:
Though the defendant did not object to the condition at the time, the issue is not forfeited on appeal. His claim is cognizable because it is a facial constitutional challenge presenting a pure question of law that does not depend on the underlying factual record. We thus address defendant’s constitutional challenge on the merits, which we review de novo.
Authority:
People v. Smith (2022) 79 Cal.App.5th 897, 901 [a facial constitutional challenge may be considered for the first time on appeal because it does not depend on the underlying factual record]
In re Sheena K. (2007) 40 Cal.4th 875, 884–886
Second Holding:
Under the separation of powers doctrine, judicial powers may not be delegated to nonjudicial officers. 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.
A court may dictate the basic policy of a condition of probation, leaving specification of details to the probation officer, but the court’s order cannot be entirely open-ended. It is for the court to determine the nature of the prohibition placed on a defendant as a condition of probation. By leaving key determinations to be decided ad hoc, a vague probation condition may result in an impermissible delegation of authority to the probation officer.
Authority:
Cal. Const., art. III, sec. 3
People v. Smith (2022) 79 Cal.App.5th 897, 902
In Victor L. (2010) 182 Cal.App.4th 902, 919
Third Holding:
A condition requiring the defendant to enter a residential drug treatment program but authorizing probation to select which residential program may be upheld. We remand for the trial court to either strike the condition, or modify it to specify the type of treatment program in which defendant is directed to participate, including whether it requires defendant to undergo residential treatment. The court’s decision may be informed by the results of any assessment and additional information provided by the parties.
Authority:
People v. Penoli (1996) 46 Cal.App.4th 298, 307–308
People v. Smith (2022) 79 Cal.App.5th 897, 903, 905,
People v. O’Neil (2008) 165 Cal.App.4th 13
Fourth Holding:
Appellants implicitly concede a respondent’s argument by failing to respond in their reply brief to the respondent’s argument on that point. A court may assume respondent’s claim was correct if the defendant did not dispute respondent’s claim in his reply.
Authority:
Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 89–90
Reygoza v. Superior Court (1991) 230 Cal.App.3d 514, 519 and fn. 4
Fifth Holding:
An order of probation, like an abstract of judgment, must specify the statutory basis of each fine or fee imposed.
Authority:
People v. Eddards (2008) 162 Cal.App.4th 712, 716
Sixth Holding:
In general costs of prosecuting and rehabilitating criminals are not recoverable absent express statutory authority to the contrary. The Legislature repealed section 1203.1b (which authorized to court to impose an order for the cost of probation services, depending on ability to pay, and it could not be a condition of probation) and enacted section 1465.9, which states in relevant part, that on after July 1, 2021, the balance of any court-imposed costs pursuant to section 1203.1b [among numerous other statutes] shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.
Authority:
PEN 1465.9
People v. Baker (1974) 39 Cal.App.3d 550, 559–560
Seventh Holding:
The abstract of judgment contains an error. It states that the jury found true the enhancement for great bodily injury under section 12022.7. This conflicts with the actual oral statement of the judge (who conducted a court trial on the enhancement), in which the judge stated “I am not going to find true the allegation of great bodily injury.”
Where, as here, discrepancies exist between the court’s oral pronouncement of judgment and the minute order, the oral pronouncement controls. The trial court should thus modify the probation order to conform to its oral pronouncement.
Authority:
People v. Zackery (2007) 147 Cal.App.4th 380, 385
