Error and/or relief
Though we find that a condition of probation that requires the defendant participate and complete any counseling, rehabilitation, or treatment program deemed appropriate by the probation officer was not an improper delegation of the court’s authority under the separation of powers doctrine, it was improper to impose as a condition of probation that the defendant participate at his own expense.
The challenged probation condition should be modified to delete the portion of the condition requiring defendant to be responsible for the payment of the costs/fees of any counseling or rehabilitation/treatment program. The court is directed to issue a separate order for the payment of such costs and fees. Before the court may order defendant to pay any or all costs associated with his probation, it must make an inquiry and determination as to his ability to pay and determine the amount of payment.
First Holding:
A trial court may order a defendant to pay for reasonable costs of probation; however, such costs are collateral and their payment cannot be made a condition of probation. Instead, the court must issue a separate order for the payment of such costs. Moreover, before ordering a defendant to pay costs of probation, the court must make an inquiry and determination of the defendant’s ability to pay and the amount of payment.
Authority:
PEN 1203.1b(a)
Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321-322
Second Holding:
Though we find there was no improper delegation, the defendant’s claim that the condition of probation is an improper delegation of the court’s authority under the separation of powers doctrine has not been forfeited for lack of objection, because it raises a pure question of law.
Authority:
In re Sheena K. (2007) 40 Cal.4th 875, 888
People v. Mendez (2013) 221 Cal.App.4th 1167, 1172
Third Holding:
A trial court has broad discretion to impose probation conditions to foster rehabilitation of the defendant and to protect the public. Further, the court has authority to empower the probation department with authority to supervise the probation conditions. We review a constitutional challenge to a probation condition de novo.
Authority:
PEN 1203.1(j)
People v. Carbajal (1995) 10 Cal.4th 1114, 1120
People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240
In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143
Fourth Holding:
A trial court is governed by the separation of powers doctrine. The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution. Although the separation of powers doctrine does not prohibit one branch from taking action that might affect another, the doctrine is violated when the actions of one branch defeat or materially impair the inherent functions of another. Separation of powers does not mean an entire or complete separation of powers or functions, which would be impracticable, if not impossible.
Authority:
Cal. Const., art. III, sec. 3
In re D.N. (2022) 14 Cal.5th 202, 212
Fifth Holding:
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. 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. The court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court’s order cannot be entirely open-ended.
Authority:
People v. Smith (2022) 79 Cal.App.5th 897, 902
People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358-1359
Sixth Holding:
A probation condition directing that a defendant participate in any treatment program when considering another condition requiring a defendant complete a drug and alcohol assessment and follow through with treatment as prescribed by the probation officer, passes constitutional muster. This is particularly true where the court’s oral comments reflect that the defendant needs treatment for a substance abuse problem. However, where the condition includes the possibility of participation in a residential treatment program, as directed by the probation officer, it is an improper delegation of judicial authority.
Authority:
People v. Smith (2022) 79 Cal.App.5th 897, 902-903
People v. Cruz (2011) 197 Cal.App.4th 1306, 1310 [Invalidating probation condition that gave the probation officer sole discretion to decide whether the defendant should be subject to GPS monitoring.]
People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355, 1359 [Invalidating condition that provided, “You shall not associate socially, nor be present at any time, at any place, public or private, with any person, as designated by your probation officer.”]
People v. Kwizera (2000) 78 Cal.App.4th 1238,-1241 [Upholding probation condition that directed defendant to “follow such course of conduct as the probation officer may prescribe”]
People v. Penoli (1996) 46 Cal.App.4th 298, 307 [Upholding condition that probation officer may unilaterally select a residential drug rehabilitation program and determine whether defendant successfully completed that program.]
Seventh Holding:
A probation condition should be given the meaning that would appear to a reasonable, objective reader. Following that precept, we read the challenged provision here not as delegating adjudicatory powers to the probation officer but as indicating the court’s advance approval of an agreement that the probation officer might reach with defendant. If a probation officer does interpret the condition in an arbitrary manner, defendant may then file a petition for modification of his probation condition. Thus, the probation condition did not improperly delegate judicial authority to the probation officer.
Authority:
PEN 1203.2(b)(1)
PEN 1203.3
In re D.N. (2022) 14 Cal.5th 202, 211
People v. Olguin (2008) 45 Cal.4th 375, 382
People v. Keele (1986) 178 Cal.App.3d 701, 708 [trial court retains jurisdiction to review probation officer’s actions]
People v. Arevalo (2018) 19 Cal.App.5th 652, 658 [If probation officer interprets probation condition in an arbitrary way, the defendant can file a petition for modification of his probation condition.]
