Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. FSB705033, FVI025344, Annemarie G. Pace, Judge.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
Pursuant to a negotiated plea agreement combining two separate cases, defendant Gary Cameron Jackson pled guilty to one count of possession of stolen property, to wit, a motor vehicle (Pen. Code, § 496d, subd. (a)) and one count of welfare fraud (Welf. & Inst. Code, § 10980, subd. (c)). In exchange, he received a grant of felony probation. Defendant’s sole contention on appeal is that at the time of sentencing the trial court denied him a meaningful opportunity to object to the terms and conditions of his probation. We reject this contention and affirm the judgment.
The details of defendant’s criminal conduct are not relevant to the limited issue he raises in this appeal and we will not recount them here. Instead, we will recount only those facts that are pertinent to the issue we must resolve in this appeal.
At defendant’s May 15, 2008, sentencing hearing, the trial court indicated it had read and considered the probation report (which set forth all proposed terms and conditions of probation) and asked if counsel wished to be heard. The following colloquy thereafter ensued:
“[DEFENSE COUNSEL]: Term One on both cases is for
“THE COURT: Weekends concurrent.
“[DEFENSE COUNSEL]: -- work release. [¶] Then, additionally, [defendant] would like to refer to the Probation Report certain sentences and say he disagrees with those
“THE COURT: Okay.
“[DEFENSE COUNSEL]: -- sentences, and I have informed him to simply state the sentence that he disagrees and then go on.
“THE COURT: Okay. [¶] [Defendant], which sentence?
“THE DEFENDANT: Yes, ma’am. [¶] On page number one, which will be sentence where it says “start on July 24th.”
“THE COURT: [¶]... [¶] That’s not your statement. That’s what’s from the police report.
“THE DEFENDANT: Okay... [¶] My understanding was I could go through what’s in the Probation Report.
“THE COURT: You don’t get to correct what they put from the police report.
“THE DEFENDANT: Okay.
“THE COURT: Your statement, if it contradicts it, indicates on its own that it disagrees with the police report.
“THE DEFENDANT: Okay. I understand. Okay.
“THE COURT: Okay? [¶] Anything else?
“THE DEFENDANT: Well, no. [¶] Yeah, I would like to
“THE COURT: Go ahead.
“THE DEFENDANT: Thank you. [¶] [I]n the police report it said that the Deputy Sheriff was on
“THE COURT: No. No. No. No. No. No.
“THE DEFENDANT: Okay.
“THE COURT: I already told you: You[r] statement, to the extent that it conflicts with the Probation Report, I will take as your disagreement... with the Police Officers’ report. I’m not going to waste court time for you to tell me you disagree with the police report. I already know that.
“THE DEFENDANT: Okay.
“THE COURT: So what in your statement or other parts of the report do you disagree with?
“THE DEFENDANT: Okay. I’ll put this down and just speak to you. [¶]... I did not receive a stolen car. The car was rented. I was making payments on the car.
“THE COURT: [Defendant], I have read that in the Probation Report. I have read the report. I understand that you disagree with it.
“THE DEFENDANT: Okay.
“THE COURT: But you are now convicted of that charge.
“THE DEFENDANT: I understand that.
“THE COURT: All right. [¶] Is there anything else?”
Defendant thereafter asked to consult with his lawyer. The court granted the request. Following a brief pause in the proceedings, defense counsel informed the court that he had “cleared up the misunderstanding” and that the defense was ready to proceed. The People submitted on the probation report.
In accordance with the parties’ plea agreement, the trial court placed defendant on probation and then began to read the relevant terms and conditions of probation as set forth in the probation report. After reading the first three probationary terms, the court asked defendant if the court needed to read “the rest of the terms” to him. The following discussion thereafter ensued:
“THE DEFENDANT: I read them.
“THE COURT: Do you understand them?
“THE DEFENDANT: I do.
“THE COURT: Do you accept them?
“THE DEFENDANT: Not all of them, no. I don’t.
“THE COURT: Okay. [¶] Then here’s what my option is: I can sentence you to state prison.
“THE DEFENDANT: Okay.
“THE COURT: What terms do you not agree with?
“THE DEFENDANT: Well, I have no choice. I accept.
“THE COURT: No. I want you to have the opportunity to tell me which ones you disagree with.
“THE DEFENDANT: I agree with all of them, every single one. I agree.
“THE COURT: [¶]... [¶] You accept every single term of probation?
“THE DEFENDANT: I do.
“THE COURT: Okay. [¶] The terms and conditions of probation as recommended and/or modified in the Probation Report and agreed to by [defendant] will now be ordered by the Court.”
Based upon the above italicized comment of the court, and without arguing on appeal which probation conditions were improper and thereby essentially conceding all imposed terms were proper, defendant complains the trial court improperly denied him a meaningful opportunity to object to the terms and conditions of his probation. Specifically, he argues that the improper constraint on his right to be heard resulted in a silent record as to which term(s) of probation he found “oppressive” and that the “only remedy,” therefore, is to vacate the order of probation and remand the matter to a different trial court for a new sentencing hearing at which defendant may be provided the opportunity to freely voice his objections to a less intimidating judge and without fear of any consequences. Based upon a thorough review of the record, we find defendant’s contention unmeritorious.
As defendant acknowledges, the Supreme Court has held that a defendant may not complain of the unreasonableness of conditions of probation for the first time on appeal, unless the issue involves a pure question of law. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) Many courts have extended that waiver rule to issues of constitutionality, i.e., vagueness or over breadth. (People v. Gardineer (2000) 79 Cal.App.4th 148, 151-152; In re Josue S. (1999) 72 Cal.App.4th 168.) However, certain exceptions have been recognized, as when an objection would be futile (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033), when the condition violates a statute (In re Khonsavanh S. (1998) 67 Cal.App.4th 532, 536-537), or when a defendant is not given a “meaningful opportunity to object” (People v. Gonzalez (2003) 31 Cal.4th 745, 752).
“[A] meaningful opportunity to object means that the defendant be given the opportunity to address the court on the matter of sentence and to object to any sentence or condition thereof imposed by the court. In short, it refers to procedural due process which, although not subject to precise definition [citation], requires notice and an opportunity to be heard. ‘The fundamental requisite of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. [Citations.]’ [Citation.]” (People v. Zuniga (1996) 46 Cal.App.4th 81, 84.) The Zuniga court concluded that “procedural due process ‘a meaningful opportunity to object’ was provided” because “[n]othing in the record suggests that appellant or defense counsel was precluded from objecting to the sentence or was in any way denied a meaningful opportunity to state his case for an alternative sentence or question the court’s reasons for a prison sentence.” (Ibid.)
A defendant is not afforded a meaningful opportunity to object to the sentence unless the court “demonstrates a willingness to consider such objections.” (People v. Gonzalez, supra, 31 Cal.4th at p. 752.) In Gonzalez, our Supreme Court concluded that the defendants had been given a meaningful opportunity to object to the sentence because “[t]he court did not tell defendants their objection was untimely or impermissible; instead it considered and rejected the objection.” (Id. at p. 755.)
In the present matter, defendant and his counsel were both provided with such meaningful opportunity to object. Although the trial court informed defendant that it had the option of sentencing him to prison in the event he did not accept all terms and conditions of his probation, the court proceeded to expressly inquire as to with which terms defendant did not agree. When defendant replied he “[had] no choice” and accordingly accepted all of the terms of his probation, the trial court responded, “No. I want you to have the opportunity to tell me which ones you disagree with.” Though it appears the court may have been impatient or terse, the record clearly indicates the court gave defendant several meaningful opportunities to object to the terms and conditions of his probation from the inception of the sentencing hearing.
II DISPOSITION
The judgment is affirmed.
We concur: KING, J., MILLER, J.