Opinion
A130419 Napa County Super. Ct. No. CR152246
10-21-2011
THE PEOPLE, Plaintiff and Respondent, v. TYRONE PERFECTO GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Tyrone Perfecto Garcia appeals from an order placing him on probation. He contends (1) some of the probation conditions the trial court imposed are invalid, and (2) some of the fines and fees the court imposed must be stricken. We will reject these arguments and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 24, 2010, near 8:30 p.m., appellant went to his 76-year-old great-aunt's home in Napa for a visit. The great-aunt invited appellant in and they sat around the kitchen table to talk. As they spoke, the great-aunt noticed appellant was moving around quite a bit. She glanced over and saw appellant was playing with his genitals and exposing himself to her. The great-aunt immediately ordered appellant to leave. Appellant replied telling his great-aunt that she was a "nasty person" just like his grandmother.
Based on these facts, an information was filed charging appellant with felony indecent exposure (Pen. Code, § 314), and misdemeanor causing injury to an elder adult (§ 368, subd. (c)).
Unless otherwise indicated, all further section references are to the Penal Code.
The case was resolved through a plea bargain. Appellant pleaded no contest to both charges. In exchange the prosecutor agreed a state prison sentence would not be imposed immediately.
Subsequently, the court suspended the imposition of sentence and placed appellant on probation.
II. DISCUSSION
A. Probation Conditions
The trial court placed appellant on probation subject to several terms and conditions. As is relevant here, the court ordered that appellant:
"Immediately enroll in a sex offender treatment program approved by the Probation Officer, pay the required fees, [and] attend and successfully complete the program."
"Do not drink or possess alcoholic beverages or be in any place where alcohol is sold as the primary income of the business."
"Attend a 12-step program at the discretion of the probation officer (if required by the Probation Officer) and give written proof of attendance to the Probation Officer."
And, "not [to] own or possess any firearm, ammunition or other weapon."
Appellant now challenges each of these conditions arguing they were invalid.
The trial court has broad discretion to determine whether a defendant is suitable for probation and under what conditions. (People v. Olguin (2008) 45 Cal.4th 375, 379.) On appeal we will reverse such a decision only where the trial court abused its discretion. As a general rule, a probation condition will not be held invalid unless it (1) has no relationship to the crime of which the defendant was convicted, (2) related to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. This test is conjunctive: all three prongs must be satisfied before a condition will be invalidated. (Ibid.)
With these principles in mind, we turn to the arguments that have been advanced.
Appellant first challenges the condition that he attend a sex offender treatment program. Appellant argues the condition is too vague because the court did not specify the type of program in which he should participate. Appellant is correct that a probation condition must be sufficiently precise for the probationer to know what is required of him and for the court to determine whether the condition has been violated. (In re Sheena K. (2007) 40 Cal.4th 875, 890.) But the condition in question meets that standard easily. The court did not simply tell appellant he must participate in a sex offender treatment program. It stated appellant must "enroll in a sex offender treatment program approved by the Probation Officer . . . ." (Italics added.) If appellant should have some question about whether a potential sex treatment program is appropriate, he need only contact his probation officer and ask. The condition is sufficiently definite.
Next, appellant challenges the conditions that require him to abstain from alcohol and to attend a 12-step treatment program. Appellant contends these conditions are invalid because his current offenses were not related to drugs or alcohol. It is true that appellant denied being under the influence of drugs or alcohol when he committed the crimes at issue. But a condition need not be based on the facts of the underlying crime to be valid. "[E]ven if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (People v. Olguin, supra, 45 Cal.4th at p. 380.) Here, the probation report indicates appellant has a long history of abusing drugs and alcohol. The report also indicates appellant has had mixed success dealing with those problems. Appellant reported that he graduated from the Napa County Adult Recovery Program in 2005 and from Project 90 in 2007. But information obtained by the probation department also indicated appellant enrolled in but failed to complete treatment programs offered by Project 90 and the Jericho project in 2009. Given appellant's history of alcohol and drug abuse and his apparently mixed success in dealing with those problems, the trial court reasonably could conclude that appellant's chance of succeeding on probation would be enhanced if he refrained from drinking and obtained the treatment he needed.
Our conclusion on this issue is fully supported by case law. In People v. Balestra (1999) 76 Cal.App.4th 57, a defendant who pleaded guilty to a charge of elder abuse challenged probation conditions that required him to submit to alcohol and drug testing. The Balestra court ruled the conditions were valid explaining its ruling as follows: "'Whether the trial court determines to impose such a condition is . . . within its sound discretion and, if it does, the defendant must either submit to the condition or, if [he] considers the condition "more harsh than the sentence the court would otherwise impose, [exercise] the right to refuse probation and undergo the sentence." [Citations.] That the use of alcohol is not otherwise illegal does not render the defendant's decision to accept such a condition subject to challenge on appeal. [Citation.]'" (People v. Balestra, supra, 76 Cal.App.4th at p. 69, quoting People v. Beal (1997) 60 Cal.App.4th 84, 86-87.)
Here, as in Balestra, the court acted well within its discretion when it imposed the alcohol and treatment conditions. If appellant was unwilling to comply with those conditions, he had the right to forego probation and be sentenced by the court.
Next, appellant challenges the condition that he not possess any firearms. He argues the condition is invalid because his crimes did not involve the use of a weapon. But as we have stated, a probation condition will not be held invalid unless it relates to conduct which is not in itself criminal. (People v. Olguin, supra, 45 Cal.4th at p. 379.) Appellant as a convicted felon, is precluded by law from possessing firearms. (§ 12021, subd. (a)(1).) The condition is valid.
B. Fees and Fines
The trial court imposed a series of fees and fines on appellant as part of its sentencing decision. As is relevant here, the court ordered appellant to pay a presentence report fee of $560 under section 1203.1b, an annual probation supervision fee not to exceed $240 for three years under section 1203.1b, and a $500 sex offender fine under section 290.3. The court declined to impose a jail booking fee and ruled appellant would not be required to reimburse the county for the cost of his court appointed attorney based on a "Statement of Assets" appellant filed that indicated he had no income, no job, and no assets.
Appellant now contends the court erred when it imposed the fees and fines we have set forth above.
Turning first to the probation fees, section 1203.1b grants court the authority to order a defendant to pay some or all of the costs associated with his probation: "The court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs . . . ." (§ 1203.1b, subd. (b).) The term "ability to pay" is defined by section 1203.1b, subdivision (e) to mean "the overall capability of the defendant to reimburse the costs, or a portion of the costs, of conducting the presentence investigation . . . and probation supervision . . . and shall include, but not be limited to, the defendant's: [¶] (1) Present financial position. [¶] (2) Reasonably discernible future financial position. . . . [¶] (3) Likelihood that the defendant shall be able to obtain employment within the one-year period from the date of the hearing. [And] [¶] (4) Any other factor or factors that may bear upon the defendant's financial capability to reimburse the county for the costs." (§ 1203.1b, subd. (e).)
Here, the evidence appellant submitted does indicate that he is not doing well financially. He currently had no income, no job, and no assets. On the other hand, the record also indicates appellant has marketable skills. He has a 12th grade education and has a relatively strong work history, having worked on and off at tire shops for the prior six to seven years. Indeed, appellant was working at a tire shop in Napa shortly before his arrest on the current charges. Based on appellant's education and work history, we conclude the trial court could reasonably conclude appellant had the potential "ability to pay" the relatively modest probation fees the court imposed.
Turning next to the sex offender fine, section 290.3, subdivision (a) states: "[e]very person who is convicted of any offense specified in subdivision (c) of Section 290 shall . . . be punished by a fine . . . of five hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine." "Section 290.3 does not limit the evidence the trial court may consider in determining a defendant's ability to pay the sex offender fine. Consequently, the trial court may consider all evidence relevant to ability to pay, including the amount of any fine . . . ordered and the defendant's potential future income." (People v. Burnett (2004) 116 Cal.App.4th 257, 261.)
The same analysis we set forth above is equally applicable here. It undoubtedly is true that appellant is facing a challenging financial situation. On the other hand, appellant has a decent education and a relatively strong work history. Given these facts, we cannot conclude the trial court erred when it imposed the relatively modest $500 sex offender fine at issue.
III. DISPOSITION
The judgment is affirmed.
Jones, P.J.
We concur:
Simons, J.
Needham, J.