Tag Archives: Separation of powers

Appellate Principles, Probation Parole PRCS, Sentencing

Case 000655

Posted on by Gary McCurdy

Error and/or relief

The probation condition ordering treatment but permitting the probation officer to decide whether such treatment should be residential was an improper delegation of the court’s authority.

First Holding:

Under the state constitution, judicial powers may not be delegated to nonjudicial officers. Allowing the probation officer discretion to decide whether the probationer had to attend a residential program, as opposed to outpatient treatment, improperly delegated judicial authority in violation of the separation of powers doctrine.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 902-903

Second Holding:

The defendant did not object to this probation condition with the trial court, but his appellate claim is not forfeited because he claims a facial constitutional violation.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 888–889 [appellate claim that a probation condition was unconstitutionally vague and overbroad was not forfeited by failure to object below where the facial challenge was a pure question of law]

Abstracts and Minutes, Probation Parole PRCS, Sentencing

Case 000513

Posted on by Gary McCurdy

Error and/or relief

It is improper for a trial court to delegate to a probation officer whether to require a probationer to undergo residential substance abuse treatment.

First Holding:

In resolving whether a clerk’s transcript or the reporter’s transcript controls in the event of a conflict, we do not apply a mechanical rule in favor of the reporter’s transcript but instead consider the circumstances of each particular case to determine which portion of the record because of its origin and nature or otherwise, is entitled to greater credence. F

or reasons we explain below, in this case, we conclude that the clerk’s transcript best reflects the trial court’s intention to delegate to a probation officer whether to require the defendant to attend residential treatment. In this case the clerk’s minutes note that some of the probation conditions are set out in the probation order. Provision number nine of that order provides, “Complete a program of residential treatment and aftercare if directed by the probation officer.” The reporter’s transcript, however, with respect to this condition, states only, “Plead [sic] to any kind of treatment or aftercare if directed by probation.” We must determine which of the two versions reflects the court’s true intention.

Authority:

People v. Smith (1983) 33 Cal.3d 596, 599

Second Holding:

As a general rule, courts will attempt to harmonize the record if a conflict exists. Historically, when a conflict between the court’s oral pronouncement and the written record could not be resolved, the oral pronouncement was given preference However, 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.

Authority:

People v. Smith (1983) 33 Cal.3d 596, 599

People v. Contreras (2015) 237 Cal.App.4th 868, 880

People v. Pirali (2013) 217 Cal.App.4th 1341, 1346

Third Holding:

With respect to the type of record at issue here, when evaluating a court’s oral pronouncement of probation conditions, a thorough explanation of the conditions is not necessary if the defendant knows what the proposed conditions are. Therefore, the oral pronouncement may be less detailed than the probation order. In this instance, it is clear that the court summarized the conditions of the probation as outlined in the probation order proposed by the probation officer. We conclude that the court intended to adopt the language proposed, to the extent that it did not modify the language (as it did with some proposed conditions. We therefore conclude that the minute order and the probation order are to be given “greater credence” than the oral pronouncement in determining the applicable probation condition under review.

Authority:

People v. Pirali (2013) 217 Cal.App.4th 1341, 1346 [recital of probation conditions in court is unnecessary because conditions are spelled out in detail in the probation order]

People v. Smith (1983) 33 Cal.3d 596, 599

Fourth Holding:

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 the Constitution. Trial courts have the authority to determine if a defendant is eligible for probation and if so, which conditions would be appropriate under the circumstances. By ordering probation, a court may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.

Accordingly, a court may require a defendant to complete a residential treatment program, even though it would place a significant burden on a defendant’s liberty interests. A probation officer, on the other hand, has discretion to oversee and enforce the trial court’s orders. The probation officer may not create conditions not expressly authorized by the court.

Authority:

Cal. Const., art. III, sec. 3

PEN 1203

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Pirali (2013) 217 Cal.App.4th 1341, 1350

People v. Smith (2022) 79 Cal.App.5th 897, 903

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358

Fifth Holding:

It is an unconstitutional delegation to the probation officer to decide whether the defendant needed to complete residential treatment, as opposed to an outpatient program. Unlike outpatients, participants in residential programs may be confined to the treatment facility for the duration of the program, separated from family and friends, and unable to maintain a job. Given the significant liberty interests at stake, a court—not a probation officer—must make the decision to require a defendant to attend residential treatment.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 905

Abstracts and Minutes, Probation Parole PRCS, Sentencing

Case 000500

Posted on by Gary McCurdy

Error and/or relief

The condition that the defendant participate in and complete, at his expense, any counseling, rehabilitation, or treatment program deemed appropriate by his probation officer is unconstitutional. The sentencing memorandum must be amended to reflect the court’s waiver of all fines and fees.

First 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 (Cal. Const., art. III, sec. 3), 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. Here, defendant’s condition does not specify the kind of program defendant might be required to complete; rather, it allows defendant’s probation officer to determine whether and in what type of program defendant could be ordered to participate. Thus, the probation condition improperly delegates judicial authority to the probation officer.

Authority:

Cal. Const. art. III sec. 3

People v. Smith (2022) 79 Cal.App.5th 897, 902

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358-1359

Second Holding:

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, 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 global positioning system monitoring]

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355, 1359 [Invalidating condition that provided that the defendant 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] [CONTRA] People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240-1241 [Upholding probation condition which directed defendant to follow such course of conduct as the probation officer may prescribe] [CONTRA:] 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]

Third Holding:

The sentencing memorandum should be modified to accurately reflect the court’s oral pronouncement that all applicable fines and fees be waived. We shall direct the court to correct the sentencing memorandum.

Authority:

People v. Serrano (2024) 100 Cal.App.5th 1324, 1340 [The oral pronouncement of judgment ordinarily controls when there is a discrepancy between it and the clerical recording of the judgment]

People v. Contreras (2009) 177 Cal.App.4th 1296, 1300, fn. 3 [The reviewing court has the authority to correct clerical errors]

Appellate Principles, Discretion, Duty of the court, Fines and fees, Probation Parole PRCS, Sentencing, Standard of review

Case 000454

Posted on by Gary McCurdy

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.]

Discretion, Duty of the court, Juveniles, Standard of review

Case: 000415

Posted on by Gary McCurdy

Error and/or relief

The court failed to show it recognized and exercised its discretion to designate second degree burglary as a felony or a misdemeanor, and the program condition of probation delegated impermissibly broad discretion to the probation officer

First Holding:

Second degree burglary is a “wobbler,” that is, an offense that may be punished as either a felony or a misdemeanor. This determination is important not only because felonies are subject to longer periods of confinement, but also because felony convictions have additional adverse consequences, including use without limitation for impeachment under Proposition 8 in subsequent criminal proceedings, enhancement of sentences, and the general blight upon the character of persons convicted of felonies. To ensure that juvenile courts are aware of their discretion to charge wobblers as misdemeanors and that they consciously choose to treat wobblers committed by juveniles as felonies, juvenile courts are required to expressly declare how they are treating such offenses. If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.

Authority:

WIC 707

People v. Williams (2010) 49 Cal.4th 405, 461, fn. 6

In re Manzy W. (1997) 14 Cal.4th 1199, 1207, 1209

In re Kenneth H. (1983) 33 Cal.3d 616, 619, fn. 3

Second Holding:

Although remand is not automatically required when a juvenile court fails to expressly declare that a wobbler is a felony or misdemeanor, to establish prejudice a juvenile need not show a reasonable probability of a more favorable outcome. Also, challenges under Welfare and Institutions Code section 702 are not forfeited by failure to object at trial. Instead, in this context, the key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit. The record in this case does not reflect that the court was aware of its discretion to properly exercise it. A minute order may not substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or a felony.

Authority:

In re F.M. (2023) 14 Cal.5th 701, 704, 711-714, 717

In re Manzy W. (1997) 14 Cal.4th 1199, 1209

Third Holding:

We review juvenile placement decisions for abuse of discretion. It was not an abuse of discretion to order the minor to be placed in a secure facility.

Authority:

In re Nicole H. (2016) 244 Cal.App.4th 1150, 1154

Fourth Holding:

In placing the minor in a secure facility, the juvenile court imposed a number of terms and conditions, including a requirement that he participate in and complete any appropriate programs as directed by [his] Probation Officer. We review orders of this nature de novo. This condition is an improper delegation of judicial authority. Probation conditions may be challenged for the first time on appeal if they are challenged as unconstitutional on their face and the challenge therefore presents a pure question of law.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 888

Fifth Holding:

Although juvenile courts have greater discretion to formulate probation terms than adult criminal courts, their discretion to delegate authority is restricted by the separation-of-powers doctrine. Under the California Constitution, separation of powers does not mean an entire or complete separation of powers or functions, which would be impracticable, if not impossible. Thus, a court may delegate to a probation officer authority to specify the details necessary to effectuate the court’s probation conditions. However, the separation-of-powers doctrine limits the delegation of judicial authority to nonjudicial officers, especially in the absence of judicial supervision and review of the exercise of that authority. Consequently, a court may not delegate complete discretion over a significant aspect of the court’s legal control. To satisfy the separation-of-powers doctrine, a court delegating judicial authority to a probation officer must dictate the basic policy of a condition of probation.

Authority:

In re Victor L. (2010) 182 Cal.App.4th 902, 910, 919

In re D.N. (2022) 14 Cal.5th 202, 208-209, 212

People v. Smith (2022) 79 Cal.App.5th 897, 902, 903 [holding impermissible delegation of authority permitting probation officer to choose between residential and outpatient substance abuse programs]

People v. O’Neal (2008) 165 Cal.App.4th 1351, 1359 [the court’s order cannot be entirely open-ended]

People v. Leon (2010) 181 Cal.App.4th 943, 952 [holding impermissible delegation of authority permitting probation officer to authorize probationer to attend court proceedings and otherwise barring probationer from attending court proceedings unless a party or witness]