Opinion
E082258
07-30-2024
THE PEOPLE, Plaintiff and Respondent, v. ERIC NOE BARRIOS, Defendant and Appellant.
Charles Thomas Anderson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel, and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI22003812 Shannon L. Faherty, Judge. Affirmed as modified.
Charles Thomas Anderson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel, and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON ACTING P. J.
I.
INTRODUCTION
Pursuant to a negotiated plea agreement, defendant and appellant Eric Noe Barrios pled no contest to driving with a .08 percent blood alcohol level causing injury (Veh. Code, § 23153, subd. (b); count 2). In return, the remaining allegation was dismissed and defendant was placed on formal probation for 36 months with various terms and conditions of probation. After sentencing, the trial court modified defendant's probationary terms by adding a "no alcohol" term. Defendant's sole contention on appeal is that the trial court erred by modifying his probation because there was no change in circumstance to justify it. The People agree the trial court lacked a factual basis for modification and thus acted in excess of its jurisdiction. We agree there was no change of circumstances justifying imposition of the no alcohol term of probation, and order this term stricken.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A summary of the factual background is taken from the police report which provided the factual basis for the no contest plea.
On July 16, 2021, defendant rear-ended a vehicle stopped at a red light. The other driver's 13-year-old son, who was a passenger in the vehicle, suffered whiplash and curvature of the spine from the collision and required physical therapy. The responding officer noticed that defendant smelled of alcohol and his speech was slurred. The officer opined defendant's unsafe speed and the influence of drugs and alcohol contributed to the cause of the collision. Defendant's blood sample, collected after the accident, revealed defendant had a .23 percent blood alcohol content.
On December 19, 2022, a felony complaint was filed charging defendant with driving under the influence (DUI) of alcohol causing injury (Veh. Code, § 23153, subd. (a); count 1) and driving with a .08 percent blood alcohol content causing injury (Veh. Code, § 23153, subd. (b); count 2).
Pursuant to a negotiated disposition, defendant pled no contest to count 2 on May 17, 2023. In return, count 1 was dismissed, and defendant was promised a grant of probation for a period of 36 months on various terms and conditions of probation, including serving 360 days in county jail. The parties stipulated that the complaint and police reports would serve as the factual basis for the plea. Thereafter, defendant waived his right to the preparation of a probation report and requested immediate sentencing. The trial court sentenced defendant to formal probation in accordance with his plea agreement subject to various terms and conditions. Defendant waived the court's reading of the DUI terms and conditions, stating he had reviewed and accepted the terms by placing his initials on the agreed upon terms and conditions of probation. Defendant did not initial the term stating, "Neither possess nor consume any alcoholic beverages nor enter places where such beverages are the chief item of sale, such as bars and liquor stores, and submit to tests at the direction of the Probation Officer."
About four months after sentencing, on September 12, 2023, the probation department filed a request to modify the terms of defendant's probation to prohibit him from possessing or consuming any alcohol and from entering places where alcohol is the chief item of sale ("no alcohol" term). In the request, the probation department summarized the car accident, referred to the results of defendant's sobriety test, and described the injuries suffered by the passenger of the other vehicle. The probation department recommended the court add the "no alcohol" term based on the "severity of the circumstances of the offense" and to "ensure proper supervision."
A hearing to modify defendant's probationary terms was held on September 26, 2023. At that time, defense counsel requested the trial court stay the condition requiring defendant to complete alcohol education classes or "DUI school" as defendant was enrolled in an outreach program. The People offered no objections. After granting defense counsel's request, the court heard argument concerning the probation department's request to modify defendant's probation terms to include the "no alcohol" term. Defense counsel objected to probation's request, arguing the term was not part of the bargained for plea deal and that there had been no change in circumstance to justify the modification. Defense counsel noted defendant was making positive steps to address his situation and that the court was not "jurisdictionally available" to make the requested modification.
In response, the prosecutor asserted the court had the ability and discretion to amend defendant's probation terms to include the "no alcohol" term on two grounds. First, the prosecutor explained the plea agreement was conditioned upon the completion of DUI terms and conditions, which generally include a ban on entering locations where alcohol is the principal item of sale. Second, defendant agreed to "'cooperate with any directives made by probation' which would include staying away from locations where the chief item of sale is alcohol." Defense counsel replied that the requested term should not be imposed because it was not a mandatory DUI term and the term was not submitted as part of the plea agreement.
The trial court acknowledged the requested term was not mandatory. However, based on the circumstances of the offense and deference to the probation department, the court modified defendant's probation terms and added the "no alcohol" term to defendant's conditions of probation. Defendant timely appealed.
III.
DISCUSSION
Defendant argues the trial court exceeded its jurisdiction when it added the no alcohol term because no new facts or changed circumstances warranted modifying his probation since his sentencing hearing. The People agree the trial court lacked a factual basis to modify defendant's terms of probation and thus acted in excess of its jurisdiction. We also agree.
At any time during the probationary period, a trial court has the authority to modify the terms of probation. (Pen. Code, § 1203.3, subd. (a).) However, "'[a] change in circumstances is required before a court has jurisdiction to . . . modify probation. As [the Supreme Court] held in In re Clark (1959) 51 Cal.2d 838, "An order modifying the terms of probation based upon the same facts as the original order granting probation is in excess of the jurisdiction of the court, for the reason that there is no factual basis to support it." (Id. at p. 840, [italics omitted,] italics added.)'" (People v. Leiva (2013) 56 Cal.4th 498, 505 [appeal from order revoking probation], quoting People v. Cookson (1991) 54 Cal.3d 1091, 1095 [appeal from order extending probation].) In this context, a "change in circumstance" requires "a fact 'not available at the time of the original order.'" (Cookson, supra, at p. 1095.) Such an order is improper because "the court [has] reached a different conclusion based upon the same facts." (People v. Mendoza (2009) 171 Cal.App.4th 1142, 1156, citing In re Bine (1957) 47 Cal.2d 814, 816.)
Here, the trial court ordered the modification based on the circumstances of the offense and its deference to the probation department. However, the circumstances of the offense were known at sentencing and provided the factual basis for defendant's plea. Likewise, the trial court's deference to the probation department's request is insufficient to justify the modification. In its report, the probation department requested the "no alcohol" term be added based on the "severity of the circumstances of the offense" and to "ensure proper supervision." But it did not assert defendant violated any originally imposed terms of probation. The probation department also did not provide "new facts" showing a change in circumstance. The trial court thus erred in relying on the same facts as the original order granting probation. Because there was no change in circumstances to justify the modification of defendant's probation terms, the trial court acted in excess of its jurisdiction in modifying the May 2023 probation conditions.
IV.
DISPOSITION
We modify the order of September 26, 2023 by striking the no-alcohol probation condition. The order is affirmed as modified.
We concur: FIELDS J., MENETREZ J.