Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Ct. No. FSB802759, John N. Martin, and Michael M. Dest, Judges.
Judge Dest accepted defendant’s plea and ordered probation with specific terms, while Judge Martin presided over the probation violation hearing, which resulted in a change in one of the terms of probation.
Victoria Matthews, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, and Peter Quon, Jr., Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
I. PROCEDURAL BACKGROUND AND FACTS
On July 3, 2008, around noon, defendant Talia Lenore left her 18-month-old child in her car, which was parked in the handicap parking lot of the San Manuel Indian Casino. The car’s windows were cracked about four inches, the vehicle was not running, and the child was crying and sweating profusely. San Manuel tribal officers called the sheriff’s department. Defendant was arrested, and the child was taken to Loma Linda University Medical Center for observation.
On July 8, 2008, defendant was charged with one count of felony child endangerment. (Pen. Code, § 273a, subd. (a).) On August 18, she pleaded no contest to the charge as a misdemeanor in exchange for probation. As a condition of probation, defendant was ordered and agreed to attend and complete 52 weeks of a “parenting class, ” with proof of enrollment by September 15, 2008, and completion by October 30, 2009 (term 4). On or about January 27, 2010, the probation officer filed a petition to initiate proceedings to revoke defendant’s probation, based on the allegation that defendant had violated one of her terms by “failing to provide proof of enrollment/completion for a ‘parenting class’ by 10/30/2009.” The next day, the trial court revoked defendant’s probation.
All further statutory references are to the Penal Code unless otherwise indicated.
Subsequently, a revocation hearing was held on August 12, 2010, wherein defendant explained that she believed she had completed the parenting classes ordered. The trial court responded that defendant had not completed “the 52-week child abuse prevention program.... the law requires....” (Italics added.) Defendant then added, “I understand. I totally understand that. I have been taking—I guess I’ve been taking the wrong classes....” Thus, defendant acknowledged she had not completed a 52-week child abuse prevention program. The court reinstated probation, with the condition that defendant complete 52 weeks of “a Child Abuse prevention program, ” showing proof of enrollment in such classes by September 28, 2010. On September 27, 2010, defendant filed a notice of appeal.
Section 273a, subdivision (3)(A), in relevant part, provides that “[i]f a person is convicted of violating this section and probation is granted, the court shall require... [¶]... [¶] [the] [s]uccessful completion of no less than one year of a child abuser’s treatment counseling program....”
II. DISCUSSION
Defendant appealed, and upon her request, this court appointed counsel to represent her. Counsel filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court undertake a review of the entire record. Specifically, defense counsel questioned (1) whether the trial court abused its discretion when it changed defendant’s condition of probation from attending “parenting” classes to attending “child abuse prevention” classes, and (2) whether defendant was advised of her right to a contested probation violation hearing.
We offered defendant an opportunity to file a personal supplemental brief, which she has not done. Following our independent review of the record, we found two arguable issues. Thus, we vacated our March 11, 2011, submission of this cause and asked the parties to provide this court with informal letter briefs, which they have done. We now address the merits of the issues.
A. Was Defendant in Violation of a Condition of Her Probation when Such Condition Was Never Imposed?
Defendant contends the record does not support the trial court’s finding that she violated any terms of her probation. We agree.
“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....’ [Citation.] ‘As the language of section 1203.2 would suggest, the determination whether to... revoke probation is largely discretionary.’ [Citation.] ‘[T]he facts supporting revocation of probation may be proven by a preponderance of the evidence.’ [Citation.] However, the evidence must support a conclusion the probationer’s conduct constituted a willful violation of the terms and conditions of probation. [Citation.]” (People v. Galvan (2007) 155 Cal.App.4th 978, 981-982.)
Section 1203.2, in relevant part, provides: “(a) At any time during the probationary period of a person released on probation under the care of a probation officer... if any probation officer... has probable cause to believe that the probationer is violating any term or condition of his or her probation... the officer may... rearrest the person and bring him or her before the court or the court may, in its discretion, issue a warrant for his or her rearrest. Upon such rearrest... the court may revoke and terminate such 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....”
In People v. Buford (1974) 42 Cal.App.3d 975, 986-987, our colleagues in Division One of the First Appellate District held that the defendant’s failure to register could be excused by the complete failure of the authorities to inform him of the registration requirement, or to secure his signature on the statutory form confirming that they had explained his registration duty to him. Because the evidence was insufficient to show the defendant was in violation of a term of his probation, the trial court’s revocation of a grant of probation amounted to an abuse of discretion. (Ibid.)
Here, as noted above, there is no evidence that defendant violated, let alone was aware of, the condition that she attend a 52-week child abuse prevention program. Instead, the record shows that when she was placed on probation, it was ordered that she complete a 52-week parenting class. Even the probation officer’s petition to revoke defendant’s probation stated defendant was in violation of term 4 of her probation by “failing to provide proof of enrollment/completion for a ‘parenting class’ by 10/30/2009.” Although the probation officer also circled “Child Abuse Treatment Program, ” the petition’s description of the violation does not mention child abuse classes, it merely notes that completing a child abuse treatment program is a term of her probation. Accordingly, the evidence presented to the trial court supports the conclusion that defendant’s conduct did not constitute a willful violation of the condition that she enroll and complete a 52-week child abuse prevention program. Thus, any order finding her in violation of such term of her probation was erroneous, amounting to an abuse of the trial court’s discretion. (See People v. Zaring (1992) 8 Cal.App.4th 362, 378-379 [trial court abused its discretion by revoking probation for a tardy court appearance caused by circumstances beyond probationer’s control].)
B. Can the Trial Court Add a Statutorily Mandated Condition of Probation upon Discovery of Its Omission?
On August 12, 2010, the trial court reinstated defendant’s probation, modifying her terms by adding the 52-week child abuse prevention program. Defendant did not object. The People argue that defendant’s failure to object constitutes forfeiture of this issue on appeal. (People v. Welch (1993) 5 Cal.4th 228, 233-235 [failure to timely challenge a probation condition in the trial court generally forfeits the claim for purposes of appeal].) Defendant argues that prior to the imposition of this greater punishment, the trial court was required to advise her of her right to withdraw her plea. However, imposition of the 52-week child abuse prevention program was mandatory unless the trial court stated reasons for not imposing it. (§ 273a, subd. (c)(3)(A), (5).) Thus, the People argue the initial failure to impose such condition could be deemed an unauthorized sentence subject to correction whenever it comes to the court’s attention. (People v. Moreno (2003) 108 Cal.App.4th 1, 10-11 [judgment that fails to include mandatory victim restitution is subject to correction at any time].) We agree with the People.
III. DISPOSITION
The order finding defendant in violation of the term of her probation requiring her to attend/complete a 52-week child abuse prevention program is reversed. The matter is remanded for the trial court to state reasons for not imposing the mandatory 52-week child abuse prevention program, and if no reasons exist, to impose it as a term of her probation. In all other respects, the judgment is affirmed.
We concur: MCKINSTER J. KING J.