Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Cruz County Super. Ct. No. F15560
Mihara, J.
Defendant Angel Cesar Garibay entered a hotel and took a laptop computer. He was convicted by jury trial of grand theft (Pen. Code, § 487, subd. (a)), receiving stolen property (Pen. Code, § 496, subd. (a)), and commercial burglary (Pen. Code, § 459). Defendant admitted that he had served a prison term for a prior felony conviction (Pen. Code, § 667.5, subd. (b)). The trial court imposed a three-year prison term, but it suspended execution of sentence and placed defendant on probation.
On appeal, defendant challenges the validity of three probation conditions that were not mentioned by the court at the sentencing hearing, but were included in a written probation order signed by both defendant and the trial judge. He also contends that one of these three probation conditions must be stricken because it is incurably unconstitutionally vague and overbroad. At our request, the parties submitted supplemental briefs addressing two additional issues. One issue concerns the discrepancy between the court’s statement at the sentencing hearing that the probationary term would be four years, and the written probation order’s statement that the probationary term would be three years. The other issue upon which we requested supplemental briefing concerns Penal Code section 496, subdivision (a)’s prohibition on convictions for both receiving and theft of the same property. The jury was not instructed that it could not convict defendant of both offenses, and defendant was convicted of both receiving and theft of the same property. The trial court imposed sentence on both counts. After defendant filed his notice of appeal, the trial court attempted to correct this problem by striking the receiving conviction.
We agree with defendant that one of the probation conditions is unconstitutionally vague and overbroad. We also conclude that the probation order’s ambiguity about the length of the probationary term necessitates a remand. Finally, we conclude that the trial court lacked jurisdiction to strike the receiving conviction after the filing of the notice of appeal. Consequently, we reverse the probation order, and remand the matter for clarification of the length of the probationary term and elimination of the unconstitutional probation condition. We also reverse the judgment and remand the matter to the trial court for it to strike either the receiving or theft conviction, and to resentence defendant on the remaining counts.
I. Factual and Procedural Background
On July 1, 2007, at 4:25 a.m., defendant entered the Coast Hotel in Santa Cruz accompanied by his unleashed, “scary” pit bull dog. He took a laptop computer from the front desk and left the hotel. A hotel employee immediately summoned the police, who arrived within a minute. The laptop computer was found just outside the hotel in the bushes. Defendant and his dog were detained nearby a few minutes later.
Defendant was charged by amended information with grand theft, receiving stolen property, and commercial burglary, and it was further alleged that he had served a prison term for a prior felony conviction. Defendant testified at trial that he had only entered the hotel to retrieve his dog, which had wandered into the hotel. He denied taking the laptop. The court failed to instruct the jury that it could not convict defendant of both stealing and receiving the same property. The jury convicted him of all three counts. Defendant admitted the prison prior.
The October 24, 2007 probation report recommended that defendant be placed on probation and itemized a number of recommended probation conditions “in addition to the usual terms . . . .” The probation report did not identify the “usual terms” of probation.
At the October 30, 2007 sentencing hearing, the trial court imposed a two-year prison term for the receiving count and a one-year term for the prison prior. It imposed two-year terms for each of the other counts, but it stayed those terms under Penal Code section 654. The court suspended execution of the three-year prison sentence and placed defendant on probation for four years. The court orally imposed a number of probation conditions including that defendant “obey all laws.” The court did not include the “standard” or “usual” conditions of probation in its oral recitation of the probation conditions. At the conclusion of the sentencing hearing, the court informed defendant: “You’re also going to get a recitation of [your appellate rights] in writing to sign along with your sentencing order.”
The clerk’s minutes from the sentencing hearing stated that defendant had been placed on probation for three years, and listed 17 probation conditions, three of which had not been mentioned by the court at the sentencing hearing. “03) Do not change your place of residence or leave the State of California without prior permission of the probation officer. [¶] 04) Notify the Probation Officer of any arrests or citations no more than 24 hours after they occur. [¶] 05) Obey all laws and do not associate with persons whose behavior might lead to criminal activities.”
The written “PROBATION/CONDITIONAL SENTENCE ORDER” was signed by both defendant and the trial judge on October 30, 2007. This order stated that defendant has been placed on probation for three years “under the terms and conditions checked below.” There is a check below next to “Comply with general terms listed on back of form.” On the back of the form is a list of “standard conditions of probation in all cases.” The three probation conditions, numbered “03[,]” “04[,]” and “05” in the clerk’s minutes, appear in this list as numbers 3, 4, and 5.
On November 1, 2007, defendant filed a timely notice of appeal “from the judgment entered herein and the sentence imposed on October 30, 2007.” In March 2008, the trial court purported to modify the judgment to “set aside” defendant’s receiving stolen property conviction on the ground that “defendant cannot be convicted of both 496(a) [receiving stolen property] and 487(a) [grand theft] pc.”
II. Discussion
A. Probation Conditions
1. Forfeiture
The Attorney General contends that defendant has forfeited his challenges to the probation conditions because he failed to interpose any objection to the probation conditions below.
“In general, the forfeiture rule applies in the context of sentencing as in other areas of criminal law. As a general rule neither party may initiate on appeal a claim that the trial court failed to make or articulate a ‘“discretionary sentencing choice[ ].”’” (In re Sheena K. (2007) 40 Cal.4th 875, 881 (Sheena K.).) The forfeiture rule applies to a challenge to the reasonableness of a probation condition (Sheena K., at p. 882), but it does not apply to every challenge to a probation condition.
“An obvious legal error at sentencing that is ‘correctable without referring to factual findings in the record or remanding for further findings’ is not subject to forfeiture.” (Sheena K., supra, 40 Cal.4th at p. 887.) Defendant’s claim that the trial court was not authorized to impose three of the probation conditions in the probation order, because it failed to orally impose those conditions at the sentencing hearing, is a claim of legal error that does not require reference to any factual finding or a remand for factual findings. Hence, this claim was not forfeited by the absence of an objection below.
Defendant’s constitutional challenge to one of these probation conditions is also not subject to the forfeiture rule. “In common with a challenge to an unauthorized sentence that is not subject to the rule of forfeiture, a challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law.” (Sheena K., supra, 40 Cal.4th at p. 887.) No objection is necessary to preserve such a constitutional challenge. (Ibid.) Defendant’s constitutional challenge raises a pure question of law, so it was not subject to the forfeiture rule.
2. Imposition of Probation Conditions By Written Order
Defendant contends that the trial court could not validly impose probation conditions by written order that it had not orally imposed at the sentencing hearing.
Defendant relies on the general rule that any conflict between a court’s oral pronouncement of judgment and the clerk’s minutes recording the judgment or the abstract of judgment must be resolved in favor of the oral pronouncement. “‘Rendition of judgment is an oral pronouncement.’ Entering the judgment in the minutes being a clerical function (Pen. Code, § 1207), a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error.” (People v. Mesa (1975) 14 Cal.3d 466, 471.)
Here, there is no discrepancy regarding the court’s judgment. The court’s judgment was the imposition of a three-year state prison term. The court’s oral pronouncement, the clerk’s minutes, and the probation order, consistently state that the court’s judgment was a three-year prison term. The discrepancy that is the object of defendant’s contention is not a discrepancy regarding the court’s judgment, but a discrepancy regarding the court’s probation order. The rule that the oral pronouncement of a judgment prevails over the minutes or the abstract is based on the requirement that a felony judgment be imposed in the defendant’s presence. (Pen. Code, § 1193, subd. (a); People v. Zackery (2007) 147 Cal.App.4th 380, 386-387.) The imposition of an order of probation is not required to occur in the defendant’s presence. (Pen. Code, § 1203, subd. (b)(3).) Consequently, the rule that the oral pronouncement of a judgment prevails does not apply to the imposition of an order of probation.
The question remains whether the three probation conditions that appear in the probation order but were not part of the trial court’s oral imposition of probation were properly imposed on defendant. The Attorney General contends that a probation condition may be lawfully imposed by written order even if the condition was not mentioned in the oral imposition of probation.
The Attorney General’s position is supported by People v. Thrash (1978) 80 Cal.App.3d 898 (Thrash). In Thrash, there was no mention in the probation report or at the sentencing hearing of a probation condition restricting travel, but the written probation order included a travel restriction condition. (Thrash, at p. 900.) Thrash violated the travel restriction condition, and his probation was revoked. On appeal, he claimed that the travel restriction was not properly imposed as a condition of his probation because he had not been orally informed of it at the sentencing hearing. The Court of Appeal held that the trial court was not required to orally identify all of the probation conditions at the sentencing hearing. “These conditions need not be spelled out in great detail in court as long as the defendant knows what they are; to require recital in court is unnecessary in view of the fact the probation conditions are spelled out in detail on the probation order and the probationer has a probation officer who can explain to him the contents of the order.” (Thrash, at pp. 901-902.)
The Attorney General also relies on In re Frankie J. (1988) 198 Cal.App.3d 1149 (Frankie J.). In Frankie J., the juvenile court included the “‘the usual terms and conditions’” of probation when it orally imposed probation. (Frankie J., at p. 1154.) The challenged condition was one of the “‘usual terms’” of probation that were included on a preprinted form. (Frankie J., at p. 1154.) Here, unlike in Frankie J., the court did not mention the standard terms of probation when it orally imposed probation. Frankie J. therefore does not advance our analysis.
Defendant acknowledges Thrash, but he relies on In re Robert H. (2002) 96 Cal.App.4th 1317 (Robert H.). In Robert H., the court inadvertently failed to impose any conditions of supervision, although the minutes stated that a number of conditions had been imposed. The Court of Appeal stated: “Such orders were required to be made orally on the record, and not later in a minute order. (See People v. Hartsell (1973) 34 Cal.App.3d 8, 13.)” (Robert H., at p. 1331.) While Robert H. correctly held that probation conditions cannot be imposed by mere inclusion in the minutes, the Court of Appeal incorrectly stated that the conditions of probation were required to be identified orally. People v. Hartsell (1973) 34 Cal.App.3d 8 (Hartsell) does not support that proposition. Hartsell was not a case involving probation conditions. Instead, Hartsell was a case in which the court applied the rule that the oral pronouncement of a judgment prevails over the minutes. (Hartsell, at pp. 13-14.)
In the case before us, the challenged probation conditions were included in a formal, written probation order signed by both the court and defendant. As the oral pronouncement of judgment rule does not apply to probation conditions, the court was not precluded from identifying the probation conditions by written order rather than by oral recitation. Consequently, we reject defendant’s challenge to the validity of the court’s written imposition of these three probation conditions.
3. Vague and Overbroad Probation Condition
Defendant contends that the probation condition that he “not associate with persons whose behavior might lead to criminal activities” is unconstitutionally vague and overbroad. The Attorney General maintains that “any vagueness or overbreadth potential” would be eliminated by adding a knowledge requirement. The Attorney General suggests modifying the condition to state that defendant “not associate with persons whose behavior you know might lead to criminal activities.” Defendant insists that such a modification would not render the condition constitutional.
“[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders’ [citation], protections that are ‘embodied in the due process clauses of the federal and California Constitutions.’ [Citations.]” (Sheena K., supra, 40 Cal.4th at p. 890.) “In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that ‘abstract legal commands must be applied in a specific context,’ and that, although not admitting of ‘mathematical certainty,’ the language used must have ‘“reasonable specificity.”’” (Ibid.) “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,’ if it is to withstand a challenge on the ground of vagueness. [Citation.] A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” (Ibid.)
The challenged probation condition directed defendant: “Obey all laws and do not associate with persons whose behavior might lead to criminal activities.” To be constitutionally valid, the condition must be “sufficiently precise” for the probationer to know what is prohibited and for the court to determine if the condition has been violated, and the condition must be “closely tailor[ed]” to its purpose. This condition does not satisfy these requirements.
First, because the condition lacks a knowledge requirement, it does not give fair warning as to whether association with a particular person is barred. The probationer may not be aware of all of the behaviors in which his or her associates engage. Second, the addition of a knowledge requirement alone would not eliminate the condition’s vagueness and overbreadth. The words “might lead” are so imprecise that they do not apprise the probationer of which associations are prohibited, and so broad that the condition’s prohibition is set adrift from its purpose of discouraging the probationer from engaging in criminal activity. As defendant points out, a person who drinks alcohol “might” drive a vehicle. Does the condition mean that the probationer is barred from associating with anyone who drinks alcohol? A person who is prone to argue “might” assault another in anger. Does the condition bar the probationer from associating with anyone who argues? The imprecision of the condition suggests that it could be so interpreted, and such an interpretation would not be closely tailored to its purpose. Third, the wording of the condition is ambiguous with regard to whether the condition bars association with a person whose behavior might lead that person to engage in criminal activities or only those whose behavior might lead the probationer to engage in criminal activities.
A third possibility is that the condition bars association with any person whose behavior might lead to criminal activity by third parties. We think this possibility is not what was intended, and would clearly be vague and overbroad.
The obvious purpose of this condition is to reduce the risk of the probationer engaging in criminal activities. We agree with defendant that the condition imposed by the trial court is unconstitutionally vague and overbroad because it is too imprecise to give fair warning of what is prohibited and lacks the close tailoring that is necessary to tether it to its purpose. Because this probation condition cannot be readily remedied by the addition of a knowledge requirement, the appropriate disposition is to strike the unconstitutional condition.
As this probation condition is one of the standard probation conditions on Santa Cruz County’s preprinted form probation order, we urge the court to modify its form to eliminate this unconstitutional condition.
B. Length Of Probationary Term
At the sentencing hearing, the court said it was placing defendant on probation for four years. The clerk’s minutes from this hearing state that defendant was placed on probation for three years. The written probation order provides that defendant will be on probation for three years. Defendant contends that the discrepancy should be resolved in favor of the written probation order. The Attorney General takes the position that the discrepancy cannot be resolved on this record, and a remand is necessary.
We agree with the Attorney General. On this record, it is simply not possible to resolve the direct conflict between the court’s oral statement at the sentencing hearing that the probationary term would be four years and its written probation order specifying a probationary term of three years. In our view, this discrepancy may be resolved only by a remand to the trial court.
C. Convictions For Both Receiving and Theft Of The Same Property
“A principal in the actual theft of the property may be convicted pursuant to this section [of receiving stolen property]. However, no person may be convicted both pursuant to this section and of the theft of the same property.” (Pen. Code, § 496, subd. (a).)
Defendant was convicted pursuant to Penal Code section 496, subdivision (a) of receiving stolen property, and he was also convicted of grand theft. The stolen property was the same—the hotel’s laptop. The trial court failed to instruct the jury that it could not convict defendant of both counts, and it neglected to strike either of the two convictions when it imposed judgment. More than four months after the court entered judgment, it purported to modify the judgment to “set aside” the receiving conviction so as to comply with Penal Code section 496, subdivision (a). While we appreciate the trial court’s good faith attempt to belatedly correct its error, the timing of the trial court’s effort rendered it ineffective.
“The general rule, of course, is familiar and universally recognized that a duly perfected appeal divests the trial court of further jurisdiction of the cause in which the appeal has been taken.” (France v. Superior Court (1927) 201 Cal. 122, 126.) Although a court may recall a sentence under certain circumstances and resentence a defendant (Pen. Code, § 1170), the trial court’s action “set[ting] aside” the receiving conviction was not a recall of defendant’s sentence, and the court did not purport to resentence defendant. Instead, the trial court attempted to eliminate one of defendant’s convictions, an action which is ineffective after the filing of the notice of appeal.
In People v. Nelms (2008) 165 Cal.App.4th 1465 (Nelms), after the filing of the notice of appeal, the trial court purported to recall the sentence and then dismissed one of the counts and resentenced the defendant. The Court of Appeal found that the trial court lacked jurisdiction to dismiss a conviction, even though it had the authority to correct an unauthorized sentence. (Nelms, at pp. 1471-1473.) “In the present matter, the trial court had no jurisdiction to dismiss the smuggling count once defendant filed his notice of appeal, even if the parties agreed to such action. And because the resentencing was premised on dismissal of the smuggling count, it too is of no force and effect. Thus, the matter before us remains as it was when defendant filed his notice of appeal.” (Nelms, at p. 1473.)
The general rule applies here. Defendant’s “duly perfected” appeal was pending in this court when the trial court purported to set aside defendant’s receiving conviction in March 2008, so the trial court’s action was void. (People v. Alanis (2008) 158 Cal.App.4th 1467, 1472-1473.) Of course, it remains true that defendant cannot stand convicted of both grand theft and receiving stolen property, as the laptop he took was the sole basis for both counts. The appropriate disposition is to remand the matter to the trial court to provide it with jurisdiction to strike one of these two counts.
The question of whether, when there are both receiving and theft convictions, a trial court must always strike the receiving conviction (People v. Recio (2007) 156 Cal.App.4th 719, 723-724) or may strike either the receiving or the theft conviction is currently pending before the California Supreme Court in People v. Ceja, review granted Jan. 16, 2008, S157932.
III. Disposition
The judgment is reversed, and the matter is remanded to the trial court with directions to strike either the receiving or theft conviction, and to resentence defendant accordingly. The probation order is reversed and remanded with directions to (1) determine whether the probationary term is three years or four years, and (2) strike standard condition number 5.
WE CONCUR: Rushing, P. J., McAdams, J.