Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. FSB705009, John N. Martin, Judge.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER J.
FACTUAL AND PROCEDURAL HISTORY
An officer observed defendant, Edgar Alcantara, sitting lethargically in a vehicle with a syringe sticking out of his leg. After removing defendant from the vehicle, the officer retrieved a pink balloon from the car’s center console containing what he recognized as heroin.
The People charged defendant by felony complaint with possession of a controlled substance (count 1—Health & Saf. Code, § 11350, subd. (a)). The complaint noted that “defendant... is eligible for probation pursuant to the provisions of Penal Code [s]ection 1210.1 (Proposition 36).”
All further statutory references are to the Penal Code unless indicated.
Defendant pled guilty as charged in return for an agreed upon three-year term of probation on terms and conditions to be determined at sentencing. No reference to Proposition 36 or its statutory enactment, section 1210.1 et seq., appeared in either defendant’s written or oral plea. As part of defendant’s plea agreement he initialed provision No. 20 which read: “I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain.”
Over defendant’s objection, the court imposed a probationary condition requiring that defendant “[p]ermit visits and searches of [his] place of residence by agents of the Probation Dept. and/or law enforcement for the purpose of ensuring compliance with the terms and conditions of probation; not do anything to interfere with this requirement, or deter officers from fulfilling this requirement, such as erecting any locked fences/gates that would deny access to probation officers, or have any animals on the premises that would reasonably deter, threaten the safety of, or interfere with, officers enforcing this term.” Likewise over defendant’s objection, the court imposed a $35 processing fee pursuant to section 1205. Again, no mention of Proposition 36 or its statutory counterpart was made at sentencing or appeared in defendant’s conditions of probation.
DISCUSSION
A. Proposition 36 Probation
Defendant contends that since he was solely convicted of a nonviolent drug offense he was eligible for, and the court was required to impose, probation pursuant to the conditions dictated in section 1210.1 et seq. The People respond that the issue is noncognizable on appeal since he failed to request and obtain a certificate of probable cause. Defendant replies that he is not required to obtain a certificate of probable cause because he is merely attacking the conditions of his probation, not the plea itself. We agree with the People that defendant’s contention that his probation should be modified to place him on probation within the purview of Proposition 36 is an attack on the validity of his plea, requiring the issuance of a certificate of probable cause. Moreover, defendant expressly waived his right to appeal from the conviction.
“Proposition 36 requires the court to grant probation and drug treatment to any defendant convicted of a nonviolent drug possession offense and prohibits incarceration as a condition of probation. (§ 1210.1, subd. (a).)” (People v. Esparza (2003), 107 Cal.App.4th 691, 693.) Proposition 36 probation proffers more lenient terms than regular felony probation; for instance, defendant may violate drug-related conditions of probation without facing revocation of probation and may, if probation is successfully completed, have the charged offense dismissed. (§ 1210.1; People v. Dagostino (2004), 117 Cal.App.4th 974, 986-987.)
Section 1237.5 provides that, in most instances, a defendant must obtain a certificate of probable cause in order to challenge a judgment entered on a guilty plea. (See People v. Buttram (2003), 30 Cal.4th 773, 780 (Buttram).) One exception permits appellate challenge to the trial court’s exercise of its sentencing discretion after a guilty plea, so long as the challenge is not a challenge to the “validity of the plea.” (Id. at pp. 781-782.) Similarly, a defendant is not permitted to challenge on appeal an unauthorized sentence prescribed by a plea bargain to which he or she has assented (id. at p. 783), unless acceptance of the plea bargain is beyond the fundamental jurisdiction of the trial court. (See People v. Nguyen (1993), 13 Cal.App.4th 114, 122-123.) “The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to ‘trifle with the courts’ by attempting to better the bargain through the appellate process. [Citation.] It is especially appropriate to enforce an appeal waiver as to such issues.” (Id. at p. 123.) When a sentence is part of the plea bargain, an attack on the sentence is an attack on the validity of the plea, requiring a certificate of probable cause for appellate challenge. (Buttram, at p. 785.)
Defendant’s contention that he should have been granted probation pursuant to section 1210.1 is a challenge to the validity of his plea because his plea specifically provided that he would be given three years of felony probation, i.e. probation outside the purview of Proposition 36. None of defendant’s probation conditions required participation in a drug treatment program as would be mandatory under Proposition 36 probation. (§ 1210.1, subd. (b)(4).) The plea agreement provided no discretion to the court regarding the sentence to be imposed, excepting the conditions of probation. However, defendant neither sought nor obtained a certificate of probable cause. Rather, defendant checked the box on the notice of appeal indicating that his appeal was solely “based on the sentence or other matters occurring after the plea.” Thus, we conclude that defendant’s contention that he should have been granted Proposition 36 probation is not cognizable on appeal.
Defendant is essentially claiming that the plea bargain granting him regular felony probation was invalid and that the court was required by law to sentence him pursuant to section 1210.1. However, felony probation was the bargained-for condition of defendant’s plea; thus, defendant may not challenge on appeal an unauthorized sentence prescribed by the plea bargain to which he assented. (Buttram, supra, 30 Cal.4th at p. 783.) Furthermore, we note that neither the court nor the parties made any reference to Proposition 36’s applicability at either the entry of the plea or sentencing. Thus, defendant’s failure to raise the issue may reflect an off-the-record waiver of his eligibility to receive Proposition 36 probation. (People v. Chatmon (2005), 129 Cal.App.4th 771, 773-774.)
Where defendant explicitly agreed to felony probation outside the purview of Proposition 36 as a condition of his plea agreement, failed to raise the applicability of Proposition 36 probation to his case at the time of entry of the plea or sentencing, expressly waived his right to appeal as a condition of his plea, and failed to request or procure a certificate of probable cause, a determination of his eligibility for Proposition 36 probation on appeal is noncognizable. We find appellate counsel’s request in the reply brief that the matter should be remanded so that defendant may accept or reject Proposition 36 probation particularly telling. If defendant had never previously indicated any desire to receive such probation, his failure to procure a certificate of probable cause and his waiver of his appeal rights certainly signify he has no real interest or reason in having the matter examined by this court. Finally, a trial court does not act in excess of its fundamental jurisdiction by accepting and imposing sentence pursuant to a plea bargain that calls for sentencing outside the Proposition 36 scheme. (People v. Chatmon, supra, 129 Cal.App.4th at p. 773 [reaching the merits of the defendant’s identical claim only after he obtained a certificate of probable cause].)
B. Probationary Conditions
Defendant contends that the condition of his probation requiring that he not erect any locked fences or gates and not have any animal on the premises that would interfere with probation officers’ execution of the search term of his probation is not reasonably related to future criminality, limits his fundamental rights, and is overbroad. We disagree.
Probation conditions are reviewed for abuse of discretion. (People v. Olguin (2008), 45 Cal.4th 375, 379 (Olguin).) “‘A condition of probation will not be held invalid unless it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality....” [Citation.]’ [Citation.]” (Ibid.) In Olguin, the California Supreme Court held that a condition of probation requiring the probationer to inform officers of the presence of any pets at his residence was “reasonably related to the supervision of defendant and hence to his rehabilitation and potential future criminality.” (Id. at p. 380.) This was because “[a] condition of probation that enables a probation officer to supervise his or her charges effectively is... ‘reasonably related to future criminality.’ [Citations.]” (Id. at pp. 380-381.)
Both conditions to which defendant objects are reasonably related to future criminality because they ensure that probation officers tasked with supervising defendant and ensuring his compliance with the terms of his probation may effectively do so. As Olguin noted, “[p]roper supervision includes the ability to make unscheduled visits and to conduct unannounced searches of the probationer’s residence. Probation officer safety during these visits and searches is essential to the effective supervision of the probationer and thus assists in preventing future criminality. Therefore, the protection of the probation officer while performing supervisory duties is reasonably related to the rehabilitation of a probationer for the purpose of deterring future criminality.” (Olguin, supra, 45 Cal.4th at p. 381.) The presence of animals that would reasonably deter, threaten the safety of, or interfere with officers’ enforcement of the conditions of probation would, necessarily, compromise the efficacy of the officers’ performance of their duties, thereby negating the rehabilitative purpose of probation. This is because “[a]nimals can be unpredictable and potentially dangerous when faced with a stranger in their territory, and some pose a great or even life-threatening hazard to persons in these circumstances.” (Ibid.)
Defendant’s erection of locked gates or fences would prove similarly inefficacious regarding the execution of a probationary check-up. Here, where defendant’s underlying offense was possession of controlled substances, it is imperative that officers checking to ensure that defendant does not continue to use or possess such substances have sufficiently ready access to his residence so that he is unable to quickly dispose of such substances. Were defendant permitted to erect locked gates and fences and possess dangerous animals, it would render the search and check terms nugatory by adding unreasonable additional obstacles to probation officers’ execution of their duties. Thus, the conditions are directly related to defendant’s potential future criminality.
We note also that the probationary condition does not prohibit defendant from owning any pet; rather, it simply proscribes his keeping of animals which “would reasonably deter, threaten the safety of, or interfere with, officers” effecting the search terms of his probation. Thus, the term does not “‘authorize a probation officer to irrationally or capriciously exclude a pet.’ [Citation.]” (Olguin, supra, 45 Cal.4th at p. 383.) Defendant may, therefore, preliminarily clear with his probation officer any particular pet he desires to obtain without being exposed to a violation of his probation.
To the extent that defendant contends the term interferes with his constitutional right to own pets or protect himself, we observe that “probation is a privilege and not a right, and that adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights—as, for example, when they agree to warrantless search conditions.” (Olguin, supra, 45 cal.4th at p. 384.) “If a defendant believes the conditions of probation are more onerous than the potential sentence, he or she may refuse probation and choose to serve the sentence.” (Id. at p. 379.) Indeed, Olguin noted that other jurisdictions have specifically found that the regulation of the ownership of dogs “‘does not implicate fundamental constitutional rights....’ [Citation.]” (Id. at p. 385, fn 3.) Defendant has not, here, been prohibited from owning any particular pet nor has one been taken from him. (Id. at p. 385.) Neither has defendant shown that his security necessarily requires the use of an animal or the erection of a fence that would violate the conditions of his probation. Defendant has not been banned from installing or maintaining locks on his windows or doors, installing a security system, and/or implementing any alternative, similarly effective means of securing his safety.
Defendant’s arguments that his ownership of a hamster or his erection of a two-foot fence could expose him to revocation of probation are purely academic. Defendant has not expressed his intent, desire, or need to do either. No actual enforcement of either provision is at issue here. The term, as written, is sufficiently narrow that such an interpretation would be highly unlikely and/or ludicrous. As Olguin noted, even if the People decide to proceed upon technical or petty grounds such as those posited by defendant, the trial court ultimately maintains discretion to determine “whether ‘the interests of justice’ require that probation be revoked in any particular case.” (Olguin, supra, 45 Cal.4th at p. 386, fn. 5.) At any hearing preceding such a determination, defendant, with the assistance of counsel, may argue “that a particular application of a probation condition exceeds the bounds of reason under the circumstances.” (Ibid.) Thus, imposition of the probation condition as written was well within the trial court’s discretion.
C. Processing Fee
At sentencing, the trial court imposed a $35 processing fee pursuant to section 1205, subdivision (d). Defendant contends that the $35 fine imposed must be stricken because it is inapplicable in this case when read in conjunction with subdivision (e) of that section.
Subdivision (d) of section 1205 provides: “The defendant shall pay to the clerk of the court or the collecting agency a fee for the processing of installment accounts. This fee shall equal the administrative and clerical costs, as determined by the board of supervisors, except that the fee shall not exceed thirty-five dollars ($35). The Legislature hereby authorizes the establishment of the following program described in this section, to be implemented in any county, upon the adoption of a resolution by the board of supervisors authorizing it. The board of supervisors in any county may establish a fee for the processing of accounts receivable that are not to be paid in installments. The defendant shall pay to the clerk of the court or the collecting agency the fee established for the processing of the accounts. The fee shall equal the administrative and clerical costs, as determined by the board of supervisors, except that the fee shall not exceed thirty dollars ($30).” Subdivision (e) of that section states: “This section shall only apply to restitution fines and restitution orders if the defendant has defaulted on the payment of other fines.”
We have found no published cases interpreting these two subdivisions. Hence, we must conduct a statutory construction of these provisions. “As with any statutory construction inquiry, we must look first to the language of the statute. ‘To determine legislative intent, a court begins with the words of the statute, because they generally provide the most reliable indicator of legislative intent.’ [Citation.] If it is clear and unambiguous our inquiry ends. There is no need for judicial construction and a court may not indulge in it. [Citation.] ‘If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.’ [Citation.]” (Diamond Multimedia Systems, Inc. v. Superior Court (1999), 19 Cal.4th 1036, 1047.) “The fundamental task of statutory construction is to ‘ascertain the intent of the lawmakers so as to effectuate the purpose of the law.’” (People v. Cruz (1996), 13 Cal.4th 764, 774-775.)
The court in People v. Sierra (1995), 37 Cal.App.4th 1690, 1693, footnote 2, noted that section 1205, subdivision (d), authorizes the imposition of the installment fee in all cases where an installment plan for the payment of fines is established. However, that case was decided before subdivision (e) was enacted. Section 1205 subdivision (e), was not enacted until 1996, the following year. (Stats. 1996, ch. 1077, § 22.)
Under the plain language of the statute, defendant appears to be correct in his assertion that this section applies only if a defendant “has defaulted on the payment of other fines.” (§ 1205, subd. (e).) In other words, when section 1205 subdivisions (d), and (e) are read together, the court was not authorized to impose the $35 fee, as there was no evidence to suggest defendant had defaulted on the payment of fines. Subdivision (e) is clear and unambiguous on its face. Accordingly, our inquiry ends here. (See Halbert’s Lumber, Inc. v. Lucky Stores, Inc. (1992), 6 Cal.App.4th 1233, 1238-1239.)
DISPOSITION
The judgment is hereby modified by striking the $35 fee imposed pursuant to section 1205, subdivision (d). The trial court is directed to amend the abstract of judgment and its minute order so as to reflect this modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST, Acting P. J., KING, J.