Opinion
NOT TO BE PUBLISHED
Super. Ct. No. F3082
BUTZ, J.Defendant Charlene Joy Grimes was charged in an information with felony grand theft (Pen. Code, § 487, subd. (a)) and receiving stolen property (§ 496, subd. (a)). In a negotiated agreement, the felony grand theft charge was dismissed and defendant pleaded no contest to misdemeanor receiving stolen property. The trial court suspended imposition of sentence and ordered that defendant be placed on formal probation for three years under certain conditions.
Undesignated statutory references are to the Penal Code.
After two probation violations, the probation department filed a petition to modify or revoke probation, alleging that defendant had violated the condition that she provide a urine sample to her probation officer upon request. Following a contested hearing, the trial court found her in violation of probation, reinstated probation and sentenced defendant to serve an additional 90 days in county jail.
Defendant appeals, contending (1) the probation condition that she provide a urine sample “on demand” violated due process, and (2) the trial court abused its discretion in finding that she violated her probation. We shall affirm the judgment (order of probation).
FACTUAL BACKGROUND
On October 19, 2004, defendant pleaded no contest to a misdemeanor violation for receiving stolen property. (§ 496, subd. (a).) The court suspended imposition of sentence and placed her on formal probation for three years, under certain conditions, including county jail time and completion of a drug rehabilitation program.
On March 9, 2005, the probation department filed a petition to modify or revoke probation, on the ground that defendant failed to enroll in the drug treatment program and failed to notify the department of her change in address within 24 hours of leaving her current residence. The court issued a bench warrant for defendant when she failed to appear in court on the probation violation. When defendant appeared over a year later and admitted the allegations, the court reinstated probation provided that she comply with a number of conditions, including that she “consent to blood, urine, or other chemical testing for alcohol, drugs, or narcotics upon request of a Probation Officer, at [defendant’s] expense.”
On May 9, 2006, a second petition to modify or revoke probation was filed, alleging that defendant was found in possession of a methamphetamine smoking pipe. Defendant admitted the allegation, and the court reinstated defendant’s probation on the same terms and conditions, plus additional jail time.
All further calendar references are to 2006.
On November 9, the probation department filed a third petition to modify or revoke probation on the ground that defendant had failed to provide a urine sample when requested to do so by her probation officer. Defendant denied the allegation and a contested hearing was held on December 12. We summarize the evidence at the hearing.
Prosecution’s case at December 12 contested hearing
On November 8, Calaveras County Probation Officer Teri Hall met with defendant for a scheduled interview at 2:00 p.m. After a 15-minute interview, Hall asked defendant to provide a urine sample. Defendant told Hall she was “unable to urinate” at that time. Hall then directed defendant to go to the Behavioral Health Substance Abuse Program to complete her enrollment and return by 4:30 p.m. to provide a urine sample. Hall told defendant to “get a soda or do whatever she needed to do” to enable her to provide a urine sample. Defendant returned before 4:30 p.m., but did not provide a urine sample, telling Hall she was unable to urinate. When asked on cross-examination why she did not take defendant to the hospital for a blood test, Hall replied that was not the “practice” of the probation office.
Defense case at December 12 contested hearing
Testifying in her own defense, defendant stated that when Hall requested she provide a urine sample, defendant went into the restroom and tried to urinate but was unable to provide a sample. Defendant stated she drank water and bought a soda, but still could not urinate after returning from the Behavioral Health Substance Abuse Program at 3:15 p.m. Defendant testified she could not urinate despite using her “best efforts” to provide a sample for probation that day.
The trial court sustained the petition and reinstated defendant’s probation on the same terms and conditions, plus an additional 90-day term in county jail.
DISCUSSION
I. Constitutionality of the Probation Condition
Defendant contends that “(1) [a]ny probation condition which requires a probationer to produce urine on demand is unconstitutional and, therefore, (2) [i]n order to comply with due process, the probation condition in [defendant’s] case required that a blood test be made available if she could not produce a urine sample.”
We conclude that defendant has forfeited her constitutional challenges to the probation condition by failing to object to the condition in the trial court, despite several opportunities to do so. As a general rule, “‘the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal.’ [Citations.] This applies to claims based on statutory violations, as well as claims based on violations of fundamental constitutional rights.” (In re Seaton (2004) 34 Cal.4th 193, 198.) Failure to object to a probation condition at the time of sentencing forfeits for appellate purposes any challenge to the condition. (People v. Welch (1993) 5 Cal.4th 228, 234.) An adult who elects to receive probation in lieu of incarceration fairly may be charged with the responsibility of objecting in the trial court or forfeit any claim of error. (Id. at p. 235.)
The record shows that the condition of providing a blood or urine sample for drug testing was imposed at the hearing on March 28, at which time defendant orally acknowledged to the court that she understood the condition. Defendant even provided a urine sample to Hall on July 26. On October 31, the same probation condition was again imposed, without objection. Finally, defendant failed to raise a constitutional objection at the contested hearing that resulted in this appeal.
In her reply brief, defendant insists that she has not forfeited her constitutional argument because she is not challenging the constitutionality of the probation condition on its face but as applied, because she was not offered a blood test after failing to urinate.
That concession renders defendant’s constitutional argument even more spurious. A challenge to a probation condition that depends on the particular facts developed in the trial court must be raised in the trial court to be cognizable on appeal. (Welch, supra, 5 Cal.4th at p. 236.) By failing to object to the condition when it was imposed, defendant has forfeited any claim of constitutional defect. (People v. Gardineer (2000) 79 Cal.App.4th 148, 151.)
Defendant asserts that trial counsel made the “best record possible under the circumstances” by asking Hall about why she did not give defendant a blood test, but was thwarted when the trial court sustained the prosecutor’s objections.
The record shows that defense counsel first asked Hall whether she gave defendant a blood test, to which she replied, “No.” The following exchange then occurred:
“[DEFENSE COUNSEL]: If you had done a blood test that day of the urine test
“[PROSECUTOR]: Objection; speculation and relevance.
“[¶] . . . [¶]
“THE COURT: The Court will sustain it on relevance.
“The issue before the Court is whether or not [defendant] failed to submit to a urine sample and, therefore, [whether] they could have taken her for a blood test is not relevant. It would also be speculative and it assumes facts not in evidence. The Court will sustain it.
“Next question, [defense counsel].
“[DEFENSE COUNSEL]: Does Probation ever take a blood sample from its probationers?
“[PROSECUTOR]: Objection; relevance.
“[¶] . . . [¶]
“THE COURT: The same ruling, that is, it’s not before the Court, the issue before the Court, so it’s not relevant. Under [Evidence Code section] 352, the consumption of time outweighs the relevancy and, in addition, it calls for speculation. Actually, it’s just not relevant. The question doesn’t call for speculation.”
At no point during this sequence did defense counsel assert that the line of questioning was relevant to the constitutionality of the urine sample condition, nor did counsel raise any objection to the condition at any other time. The cited portion of Hall’s cross-examination was plainly insufficient to inform the trial court that defendant was challenging the probation condition on constitutional grounds. (See People v. Chaney (2007) 148 Cal.App.4th 772, 778-779 [the defendant’s objection that he could not cross-examine adverse witness at trial was not specific enough to apprise the trial court he was raising a confrontation clause violation].)
II. Abuse of Discretion
Defendant contends that the trial court abused its discretion in finding she violated her probation by failing to provide a urine sample.
“[T]he facts supporting revocation of probation may be proven by a preponderance of the evidence.” (People v. Rodriquez (1990) 51 Cal.3d 437, 439.) “[T]he determination whether to . . . revoke probation is largely discretionary.” (In re Coughlin (1976) 16 Cal.3d 52, 56.) Absent an abuse of discretion, an appellate court will not disturb the trial court’s findings. (People v. Self (1991) 233 Cal.App.3d 414, 417.)
Defendant argues that she could not be found in violation of her probation absent a finding that she “willfully” failed to comply. Because there was no evidence or finding that her failure to provide a urine sample was willful, defendant claims the order was an abuse of discretion.
Defendant’s claim that “willfulness” is a necessary prerequisite to a probation violation finding is unpersuasive. A court may revoke probation “if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation.” (§ 1203.2, subd. (a), italics added.) There is nothing in this language that requires a trial court to find the violation to be “willful,” and defendant cites no authority holding that such a requirement should be implied.
Indeed, just the opposite is true. Section 1203.2 states in relevant part: “[P]robation shall not be revoked for failure of a person to make restitution . . . as a condition of probation unless the court determines that the defendant has willfully failed to pay and has the ability to pay.” (§ 1203.2, subd. (a), italics added.) The Legislature has thus expressed the intent that a “willful” state of mind is necessary only where the violation consists of a failure to pay restitution.
“Well-established canons of statutory construction preclude a construction which renders a part of a statute meaningless or inoperative.” (Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal.4th 257, 274.) If defendant’s interpretation that all probation violations must be “willful” were correct, the “willful” reference in section 1203.2, subdivision (a) to restitution violations would be rendered superfluous. The Legislature’s careful use of the term “willful” to apply only to a narrow class of probation violations manifests an intent to exclude a “willful” requirement for other violations. (See Phillips v. San Luis Obispo County Dept. etc. Regulation (1986) 183 Cal.App.3d 372, 379 [where Legislature has employed a term or phrase in one place and excluded it in another, it should not be implied where excluded].)
We have little difficulty concluding that substantial evidence supports a finding that defendant failed to comply with the terms of her probation. Probation Officer Hall testified that defendant was asked to provide a urine sample pursuant to the terms of her probation, but failed to do so. Hall even afforded defendant ample time to drink soda or do whatever was necessary to provide a urine sample, but defendant still did not test. The trial court was entitled to reject defendant’s claim that she used her “best efforts” to urinate as unworthy of belief. The court did not abuse its discretion in finding that defendant violated her probation.
DISPOSITION
The judgment (order of probation) is affirmed.
We concur: MORRISON, Acting P.J., ROBIE, J.