Opinion
A164757
03-20-2023
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ANTHONY JUMP, Defendant and Appellant.
NOT TO BE PUBLISHED
(Sonoma County Superior Ct. No. SCR7482121)
Langhorne, J. [*]
Appellant Richard Anthony Jump challenges terms of mandatory supervision requiring him to "to participate in and complete programs [and counseling] as directed by probation," and prohibiting him from leaving any such program without the probation office's approval. According to appellant, those terms amount to an unconstitutional delegation of judicial authority in violation of the separation of powers doctrine. We agree.
I. BACKGROUND
Appellant pleaded no contest to felony possession of stolen property in violation of Penal Code section 496, subdivision (a), in the case underlying this appeal. Before sentencing, he entered similar no-contest pleas in two other cases. For the convictions appellant suffered in those three matters, the trial court imposed a sentence that included 36 months' mandatory supervision. (§ 1170, subd. (h)(5)(B).)
All subsequent references to statute are to the Penal Code, unless otherwise noted.
As reported in the minute order for appellant's sentencing hearing, his mandatory supervision is subject to 23 conditions. Condition 4 requires appellant to "participate[] in and complete[] programs and services targeting risk factors as directed by the Probation Officer and jail personnel ...." Under condition 13, he must "[p]articipate and complete programs" and services targeting risk factors "as directed by Probation Officer," and is not to "leave the program without prior written consent ...." Similarly, at the sentencing hearing, the trial court ordered appellant "to participate in and complete programs of assistance and counseling as directed by probation, including educational, vocational, financial, medical, psychiatric, psychological, domestic violence, alcohol, and/or drug programs as directed by probation," and not to "leave any program without permission of the probation office."
II. DISCUSSION
We turn first to the threshold question raised by respondent, who argues that appellant forfeited any right to appeal the challenged conditions by failing to object below. In some circumstances, a "failure to timely challenge" such a condition "in the trial court waives the claim on appeal." (People v. Welch (1993) 5 Cal.4th 228, 237.) But where the appeal raises"' "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court," '" no waiver is effected by an appellant's failure to object timely. (In re Sheena K. (2007) 40 Cal.4th 875, 889.) Here, the appeal raises a single question: whether a trial court may delegate to the probation officer the authority to determine what kinds of programs, services, or counseling a defendant must seek as a condition of mandatory supervision. Because that is a question of law requiring no reference to the circumstances attending appellant's sentencing, we conclude that there was no forfeiture.
Appellant argues that condition 4, condition 13, and the quoted oral pronouncement of the trial court violated the separation of powers doctrine inscribed in Article III, section 3 of the California Constitution. We recently addressed a similar question in People v. Smith (2022) 79 Cal.App.5th 897, 903 (Smith), concluding that the separation of powers doctrine was violated by a substance abuse treatment condition which delegated "to the probation officer the discretion to decide whether [the appellant] must attend a residential program, as opposed to an outpatient program."
"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." (Cal. Const., art. III, § 3.)
Respondent attempts to distinguish Smith from appellant's case, noting that our conclusion in Smith rested on the additional burden imposed on a defendant's liberty interests by residential placement. (Ibid.) However, the treatment conditions challenged here are of great import to appellant's own liberty. Under those conditions, the parole officer might direct appellant to complete a single program, or in the alternative might direct him to complete nine different kinds of treatment-"educational, vocational, financial, medical, psychiatric, psychological, domestic violence, alcohol, and/or drug." Thus, the principle undergirding Smith applies with equal force here: "Given the significant liberty interests at stake, a court-not a probation officer- must" decide what kinds of treatment are required. (Ibid.) We therefore conclude that the challenged treatment conditions violate the separation of powers doctrine.
On the other hand, we agree with respondent that appellant's requested remedy-"strik[ing] the challenged . . . conditions in their entirety, rather than" ordering "a simple modification"-sits uncomfortably next to his separation-of-powers argument invoking Smith. In Smith, we remanded the matter "to the trial court with directions either to strike the words 'including residential' from the treatment condition or to specify that the court requires [the appellant] undergo residential treatment." (Id. at p. 905, italics added.) Having no reason to do otherwise, we adopt a similar approach here.
III. DISPOSITION
The matter is remanded to the trial court with directions either to strike condition 4, condition 13, and the quoted portion of trial court's oral pronouncement, or to amend those conditions by specifying each kind of required program, service, and counseling.
WE CONCUR: JACKSON, P.J., BURNS, J.
[*] Judge of the Superior Court of Napa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.