Opinion
E066964
08-29-2017
THE PEOPLE, Plaintiff and Respondent, v. VICTORIA GOMEZ, Defendant and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, and Sharon L. Rhodes, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CR003335) OPINION APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Victoria Gomez pleaded guilty to felony evading in Los Angeles Superior Court and was placed on supervised probation in Los Angeles County. During the probationary period, she voluntarily moved to Victorville, located in San Bernardino County. Her case was transferred to San Bernardino County. Upon transfer, the San Bernardino County Probation Department recommended additional terms and conditions of probation normally imposed by San Bernardino County in order to ensure officer safety and offender compliance. Defendant objected to the new conditions. The trial court ordered the additional terms be imposed.
Defendant claims on appeal that the transfer of probation from Los Angeles County to San Bernardino County did not authorize additional or different probation terms because it did not constitute a change of circumstances and the change in conditions violated her plea bargain.
FACTUAL AND PROCEDURAL HISTORY
On January 7, 2015, defendant was charged in a felony complaint in Los Angeles Superior Court with evasion of a pursuing peace officer within the meaning of Vehicle Code section 2800.2 and taking a vehicle without consent in violation of Vehicle Code section 10851, subdivision (a). Defendant pleaded no contest to a violation of Vehicle Code section 2800.2 and was placed on probation for three years under various terms and conditions on January 22, 2015.
On March 24, 2015, defendant made a request for an intercounty transfer to San Bernardino County since she had moved to Victorville. On September 4, 2015, the Los Angeles County Probation Department filed a notice of transfer to San Bernardino County. A residence check was performed by the San Bernardino County Probation Department and it was established that defendant had established permanent residence in Victorville. San Bernardino County agreed to the transfer on October 29, 2015.
The matter was set for a hearing regarding modification of the terms and conditions of probation. At the hearing on September 27, 2016, defendant's counsel objected to defendant "being required to follow any additional or different terms other than those terms imposed on her originally from Los Angeles County." He continued, "I don't believe that a transfer into this county is sufficient change in circumstances to warrant the change of any probation terms." The trial court responded, "It is, and I'll tell you why. We are the largest county in the continental United States. Sometimes things occur because of logistics that require a change in the terms if that's the kind of term. [¶] I understand where you're coming from. If all of a sudden she has to do some kind of more jail time, for example, yeah. I agree with you. That should not happen."
The trial court also explained, "[T]he other thing about Los Angeles, having come from Los Angeles, they don't monitor their people, okay? There's just too many of them, okay? We can monitor them here, and that's the big difference between us and them. So she's chosen to move here; she has to deal with our rules and regulations. If there's a specific one you're objecting to, let me know. Otherwise, the terms and conditions that are listed in the probation officer's report filed August 25th, 2016 are imposed." Defendant was ordered to report to her probation officer immediately.
The additional terms that defendant has raised in her brief, which she insists should not have been added were as follows: (1) "Not associate with persons known to defendant to be convicted felons or anyone actively engaged in criminal activity, or codefendant(s) and/or victim(s)" (Condition No. 19A); (2) "Submit to, and cooperate in, a field interrogation by any Peace Officer at any time of the day or night" (Condition No. 42); and (3) "Carry at all times a valid California driver's license or Department of Motor Vehicle identification card containing your true name, age and current address, and display such identification upon request by any peace officer and not use any other name for any purpose without first notifying the Probation Officer" (Condition Nos. 43A, 43B).
DISCUSSION
Defendant contends that the transfer of supervision to San Bernardino County did not constitute a change in circumstances, and absent a change in circumstances, her probation conditions could not be modified. Moreover, the stated reasons by the trial court for the change in conditions were unsupportable. She additionally contends that the modification of the probation conditions violated the plea and sentence bargain entered into in Los Angeles County.
A. CHANGE IN CIRCUMSTANCES
Penal Code section 1203.9, subdivision (a)(1) governs the transfer of probation cases from one county to another and provides in pertinent part: "[W]henever a person is released on probation or mandatory supervision, the court, upon noticed motion, shall transfer the case to the superior court in any other county in which the person resides permanently, meaning with the stated intention to remain for the duration of probation or mandatory supervision, unless the transferring court determines that the transfer would be inappropriate and states its reasons on the record." Pursuant to subdivision (b) of Penal Code section 1203.9, "The court of the receiving county shall accept the entire jurisdiction over the case effective the date that the transferring court orders the transfer."
The procedure for transferring a case to another county is outlined in California Rules of Court, Rule 4.530. (See Pen. Code, § 1203.9, subd. (f) [judicial council shall promulgate rules of court procedures for the transfer of probation cases].) Subdivision (h)(1)(B) of Rule 4.530 provides "The receiving court and receiving county probation department may impose additional local fees and costs as authorized." Further, subdivision (g) of Rule 4.530 entitled "Transfer" provides in subsection (6), "Upon transfer the probation officer of the transferring county must transmit, at a minimum, any court orders, probation or mandatory supervision reports, and case plans to the probation officer of the receiving county."
Neither Penal Code section 1203.9 nor the California Rules of Court, Rule 4.530 specifically address whether probation conditions can be modified upon transfer to another county. Section 1203.3, subdivision (a) states "The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence.'" This section "broadly states the court's power to modify." (People v. Cookson (1991) 54 Cal.3d 1091, 1100 (Cookson).) A defendant is subject to notice, a hearing, and reasons for the modification to be placed on the record before the modification. (Pen. Code, § 1203.3, subd. (b).)
Any clarification as to whether a transfer to another county qualifies in itself as a change in circumstances that authorizes a change in probation conditions, like the ability of the receiving county to change the fees and costs, will have to come from the Legislature.
A court can modify a term of probation at any time before the expiration of that term and need not wait until a probation violation occurs. (Cookson, supra, 54 Cal.3d at p. 1098; see People v. Leiva (2013) 56 Cal.4th 498, 505.) In Cookson, the defendant was ordered to pay restitution for diverting construction funds at the time that his probation was granted, but the probation department set up an incorrect payment schedule resulting in insufficient funds being paid by defendant on the restitution when his probation term was set to expire. (Cookson, at p. 1094.) The superior court extended the time for probation in order for the defendant to be supervised while completing the payments on restitution. (Id. at pp. 1094-1095.)
The California Supreme Court noted that "'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.'" (Cookson, supra, 54 Cal.3d at p.1095.) Although the defendant had complied with all of the probation conditions, and the miscalculation of the monthly payments was solely the fault of the probation officer, the Supreme Court determined "the Court of Appeal correctly determined that a change in circumstance could be found in a fact 'not available at the time of the original order,' namely, 'that setting the pay schedule consistent with [the] defendant's ability to pay had resulted in defendant's inability to pay full restitution as contemplated within the original period of probation." (Id. at p. 1095.)
Here, the change in circumstances was that defendant moved her permanent place of residence. The San Bernardino County Probation Department justified the change in conditions in the probation report based on "[t]hese terms and conditions are commonly used in San Bernardino County in order to ensure officer safety and offender compliance." The trial court explained at the hearing on the modification that San Bernardino County was the largest county in the continental United States and sometimes because of the logistics there was a need to change the terms of probation. The trial court also noted from its own personal experience that the probation department in Los Angeles County did not monitor its probationers.
Here, the San Bernardino County Probation Department's suggested changes to the conditions were reasonably related to ensure officer safety. The additional terms of probation included that defendant not associate with persons known to be convicted felons (Condition No. 19A), and submit to field interrogation by peace officers (Condition No. 42). These conditions certainly were aimed at ensuring officer safety in San Bernardino County. In addition, as stated by the trial court, it was concerned with the logistics of managing a probationer in the large, spread-out county and certainly could modify the conditions based on this concern. Defendant voluntarily moved to San Bernardino County and the trial court stated specific reasons as to why Los Angeles County differed from San Bernardino County.
Further, the requirement that defendant carry an identification card at all times and display such identification to any peace officer at any time (Condition Nos. 43A, 43B) was no different than the condition imposed in Los Angeles County that she use only her true name, date of birth and address, and not give any false information to any peace officer at any time. Moreover, as noted, the trial court gave valid reasons why San Bernardino County imposed different conditions.
Further, we disagree with defendant that the trial court's reasons for the change in conditions of probation did not support the new conditions. The probation department was concerned with officer safety and the trial court recognized San Bernardino County was a large county that made a concerted effort to supervise its probationers. These new conditions were reasonably related to the goal of maintaining supervision and safety of the officers. The record supports a change in circumstances.
B. PLEA BARGAIN
Defendant further contends that the change in probation conditions violated her plea bargain. She insists that when she entered her nolo contendre plea in Los Angeles County, she entered into a contract with the People that did not include the additional probation conditions imposed by San Bernardino County.
"The process of plea bargaining which has received statutory and judicial authorization as an appropriate method of disposing of criminal prosecutions contemplates an agreement negotiated by the People and the defendant and approved by the court. [Citations.] Pursuant to this procedure the defendant agrees to plead guilty in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged. [Citation.]" (People v. Orin (1975) 13 Cal.3d 937, 942.) A trial court retains its authority to "revoke, modify, or change probation or modify conditions that were not made a part of the parties' plea agreement. Nonetheless . . . it [is] not at liberty to modify a condition integral to the granting of probation in the first place—a negotiated condition included within the plea agreement entered into by the parties, accepted by the court, and incorporated into the judgment." (People v. Segura (2008) 44 Cal.4th 921, 936.)
Defendant relies upon the Tahl form signed by him to support that he accepted the plea on the condition that the additional terms imposed by the San Bernardino County trial court were not part of his bargain. However, the Tahl form included language "Grant Probation under the conditions to be set by the Court[.]" There were no probation conditions listed in the Tahl form. Defendant entered her nolo contendre plea and then the trial court imposed the conditions. There is nothing in the record to support that the bargain between defendant and the People included specific probation conditions.
In re Tahl (1969) 1 Cal.3d 122. --------
Defendant speculates that a defendant in any county, including Los Angeles, would be made aware of the standard probation terms prior to his or her plea. We will not speculate as to defendant's knowledge of the Los Angeles County probation conditions at the time she entered her plea. Changes to the probation conditions did not violate any bargain between defendant and the People as the record does not support that the parties agreed upon any probation conditions.
Based on the foregoing, there was a change of circumstances that justified a modification of the terms and conditions of defendant's probation. Further, the change in conditions did not violate the plea bargain entered into by defendant.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.