Opinion
D072346
02-26-2018
THE PEOPLE, Plaintiff and Respondent, v. NICOLE ANN VILLARINI-NICHOLSON, Defendant and Appellant.
Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE369785) APPEAL from a judgment of the Superior Court of San Diego County, Daniel G. Lamborn, Judge. Affirmed. Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Nicole Ann Villarini-Nicholson entered a guilty plea to one count of identity theft (Pen. Code, § 530.5, subd. (a)). The remaining counts and allegations were dismissed as part of the plea bargain. Appellant was granted probation on various terms and conditions.
Appellant appeals challenging three of the probation conditions for the first time on appeal. Specifically, she challenges the following conditions of probation:
Condition 6(r): Participate and comply with any assessment program if directed by the probation officer (P.O.).
Condition 7(b): Participate in treatment, therapy, counseling, or other course of conduct as suggested by validated assessment tests.
Condition 7(d): Attend and successfully complete psychiatric, individual, group, substance abuse, dual diagnosis, anti-theft [and] CBT counseling program approved by the P.O. if directed by the P.O.
Appellant argues her objections to the listed conditions should not be deemed forfeited because the conditions are facially unconstitutional. The conditions appellant now challenges are part of a larger group of conditions addressing mental health and substance abuse issues. Appellant ignores the context of the challenged conditions thus making an argument they are vague and overbroad as if they were isolated conditions. In our view, the current challenge requires reference to the facts of the case and goes beyond a facial challenge. Because there was no objection at trial, we do not have an adequate record on which to address the current claims. Accordingly, we will find the issues have been forfeited by failure to make a timely objection.
STATEMENT OF FACTS
This case arises from a guilty plea. It is sufficient to note that a search of Appellant's car produced a small quantity of methamphetamine, a glass pipe and a credit card belonging to someone other than appellant.
DISCUSSION
In order to challenge a condition of probation on appeal it is necessary for a defendant to make a timely and specific objection to the proposed condition. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) Failure to make such timely objection ordinarily results in forfeiture of the issue on appeal. The absence of objection deprives the trial court of the opportunity to correct any problem conditions and deprives the appellate court of a clear record of the circumstances surrounding the imposition of the condition. (In re Justin S. (2001) 93 Cal.App.4th 811, 814.)
An exception to the requirement of a timely objection is exemplified by the court's discussion in In re Sheena K. (2007) 40 Cal.4th 875, 880 (Sheena K.). In that case the court held an objection was not necessary to preserve a challenge that a condition is vague or overbroad where the defect in the condition is contained in the language itself. In such cases it is not necessary for the appellate court to consider the record underlying the condition since the challenge can be understood from the face of the condition. (Id. at p. 887.)
In Sheena K., the court addressed a condition that prevented the minor from associating with people who were disapproved. The defect in the condition was that it did not contain a scienter or knowledge component, which defect could be understood from the language of the condition without resort to the record. (Sheena K., supra, 40 Cal.4th at p. 889.) The court recognized such cases as exceptions to the general requirement of a timely objection. The opinion in Sheena K. thus cannot be treated as an excuse for failing to timely challenge proposed probation conditions. The question in each case, where the question of forfeiture arises is whether any defect can be discerned from the plain language of the condition, or whether resort to the record is necessary in order to gauge the validity of such condition.
In the present case, appellant speculates that the probation officer might select a program or assessment unrelated to the offense or appellant's supervision. She further speculates the officer might send her to a religious based program to which she might possibly object. We find these speculative concerns do not rise to constitutional infirmity based simply on the language of the conditions. Further, appellant contends the conditions improperly delegate judicial authority to the probation officer. Again, nothing in the plain language of the conditions supports such contention. It is not unreasonable for the court to permit the probation officer to select appropriate programs for a probationer and to be allowed to determine if the probationer is completing the necessary treatment. (People v. Penoli (1996) 46 Cal.App.4th 298, 307-310.)
The conditions in section 6 of the order are general conditions which include 6(r) requiring participation in assessments ordered by the P.O. The conditions in section 7 of the order relate to "TREATMENT, THERAPY, COUNSELING." The subsections which follow all deal with obtaining necessary counseling and mental health treatment for appellant. Thus, in the context of the whole order, the challenged conditions appear to relate closely to the identified objective of rehabilitation of appellant. In order to assess the validity of the challenged conditions it would be necessary to examine the entire probation grant, the reasons for it and reasonable limitations the court might have imposed if a challenge had been made. Appellant's failure to object has deprived this court of a meaningful record on which to evaluate the belated claim the conditions are impermissible.
Finally, we observe there is no apparent reason to speculate the probation officer might arbitrarily select some assessment or program that is unrelated to or otherwise inappropriate for supervision of this probationer. In any event, appellant always has the ability to return to the trial court to correct any perceived overreaching by the probation officer.
We find appellant's failure to timely object to the challenged conditions has resulted in forfeiture of the issues on appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. GUERRERO, J.