Opinion
NOT TO BE PUBLISHED
Super. Ct. No. F06106
CANTIL-SAKAUYE, J.
Officers executed a search warrant at the home of defendant Jebediah Lilburn and his wife after learning from an informant that the two were selling marijuana and prescription medication from their home. The warrant yielded drugs and weapons. Thereafter, defendant pled guilty to one count each of possessing a controlled substance (Health & Saf. Code, § 11350, subd. (a)), child endangerment (Pen. Code, § 273a, subd. (a)), and possessing marijuana for sale (Health & Saf. Code, § 11359), in exchange for the dismissal of two other counts and a grant of probation.
We dispense in this opinion with a recitation of the facts related to the offenses because the record on appeal contains neither a preliminary hearing transcript nor a probation report.
Having obtained a certificate of probable cause, defendant raises two claims of error on appeal, pertaining to the fines and probation conditions imposed at sentencing. Both have merit.
DICUSSION
I.
Before entering his pleas, defendant acknowledged on a written form that “a restitution fine of not less than $200 nor more than $10,000 will be imposed . . . .”
But the trial court’s subsequent recitation of the plea agreement from the bench states that the restitution fine will be $200. At the hearing at which the trial court accepted defendant’s plea, it said: “As I understand it then, Mr. Lilburn, you would be pleading guilty to Counts 1, 2, and 3 of the Complaint. The[y] are all felonies, violation[s] of 11350(a) of the Health and Safety Code, 273(a) paren (a) of the Penal Code, and 11359 of the Health and Safety Code. The Court would dismiss on People’s motion Counts 4 and 5.
“Conditions would be that there would be no state prison time at the outset, which means you would be placed on terms and conditions, one of which would be that you do 90 days in the Modoc County jail. Is that what you understand so far?
“[DEFENDANT]: Yes, sir.
“THE COURT: Understand that there would be other conditions of probation, something you would have to be -- restitution fine in the amount of $200; court security fee in the amount of $60 imposed, and there would be other things like report to the Probation Department, probably not use or possess any controlled substances without valid medical prescriptions, things like that.
“[DEFENDANT]: Yes, sir.
“THE COURT: Okay, and that’s what you want to do?
“[DEFENDANT]: Yes, sir.
“THE COURT: Did I ask you if you had any questions about the matter?
“[DEFENDANT]: I have none.”
At the subsequent sentencing hearing, however, the Court announced: “I do impose a restitution fine in the amount of $660.” Defendant did not object.
On appeal, defendant contends the imposition of a $660 restitution fine at sentencing violated the plea agreement, which called for the payment of a $200 restitution fine. The People concede the error.
“When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon.” (People v. Walker (1991) 54 Cal.3d 1013, 1024 (Walker).) “[I]mposing a discretionary restitution fine contrary to the terms of a plea bargain constitutes ‘a significant deviation’ from the terms of the bargain.” (People v. Crandell (2007) 40 Cal.4th 1301, 1309 (Crandell), citing Walker, supra, at p. 1030.) “The proper remedy is generally to reduce the fine to the statutory minimum.” (Crandell, supra, at p. 1309; Walker, supra, at p. 1030.)
Because, unfortunately, the trial court failed to advise defendant in accordance with the provisions of Penal Code section 1192.5, there can be no waiver.
Hereafter, undesignated statutory references are to the Penal Code.
A defendant may forfeit his objection to punishment exceeding the terms of the bargain by failing to raise the point in some fashion at sentencing, if the trial court has complied with the requirements of section 1192.5 by advising the defendant of his right to withdraw his plea should the court sentence him to a punishment more severe than that specified in the plea. (Walker, supra, 54 Cal.3d at pp. 1024-1025.) Walker spoke in terms of “waiver,” but “forfeiture” is technically more correct. (People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9.)
The trial court’s recitation from the bench of the plea agreement--including a $200 restitution fine--distinguishes this case from the California Supreme Court’s recent decision in Crandell, supra, 40 Cal.4th at page 1309. In Crandell, the trial court informed the defendant at sentencing that “he would ‘have to pay a restitution fund fine of a minimum of $200, a maximum of $10,000’” (id. at p. 1305), a statement which the Supreme Court concluded reflected the parties’ agreement to “leave the amount of defendant’s restitution fine to the discretion of the court” (id. at p. 1309), and prevented the defendant’s subsequent claim he understood his negotiated disposition to signify that no substantial restitution fine would be imposed. (Id. at p. 1310.) Here, in contrast, defendant was entitled to rely upon the court’s recitation of the plea agreement: “Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant . . . cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.” (§ 1192.5, italics added.)
We shall order the restitution fine reduced from $660 to $200, to conform to the terms of the plea agreement.
II.
Over defendant’s objection, the court ordered defendant, as a condition of probation, to “maintain a clean and sanitary home environment that meets the standards of Modoc County Child Protective Services and Modoc County Probation Department.”
Prior to its imposition, defendant argued that the condition is vague and ambiguous and objected to CPS having “any supervisorial authority over the terms and conditions of his probation.” No CPS case was then pending, and there were no children in the home. The probation officer explained the condition’s proposed inclusion this way: “[M]y only request for putting that is eventually and maybe during the term of the grant of probation the issue of at least one or all of the kids returning to the home may become an issue. What I would at least like to have is that, you know, the defendants make every reasonable effort to maintain a clean household and everything.” The court declined to modify or strike the condition because it provides “a standard of cleanliness and care . . . spelled out to help the defendants understand what they need to do.”
On appeal, defendant repeats his objection to the condition. First, he contends the condition is invalid because nothing in the record supports the court’s implicit conclusion that he should be subject to the standards or supervision of Child Protective Services, or explains how maintaining a clean and sanitary home environment pursuant to CPS’s standards is rationally related to his rehabilitation. (People v. Lent (1975) 15 Cal.3d 481, 486.) No testimony was taken on this issue, and no presentence report was prepared. He asks that the condition be modified to strike any reference to CPS or its standards.
In the alternative, defendant argues the condition is unconstitutionally vague because it gives no notice of the “standard” of conduct to which he is being held. He suggests the condition be modified to hold him to a “reasonable” standard while under the supervision of CPS and the county probation authority: “‘[d]efendant shall maintain a reasonably clean and sanitary home environment while under the supervision of the Modoc County Child Protective Services and Modoc County Probation Department.” The People concede the probation condition is unconstitutionally overbroad, in that it “ties [defendant] to a potentially ever-changing and arbitrary norm, and gives him no notice as to what is expected of him.”
The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. (§ 1203.1, subd. (b); Cal. Rules of Court, rule 4.414; People v. Warner (1978) 20 Cal.3d 678, 682–683; People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) The courts “have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.” (Ibid.) That broad discretion “nevertheless is not without limits.” (Id. at p. 1121.) “As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or ‘“‘exceeds the bounds of reason, all of the circumstances being considered.’” [Citations.]’ [Citation.]” (Ibid.)
“[A] condition of probation must serve a purpose specified in the statute [Penal Code section 1203.1].” (Carbajal, supra, 10 Cal.4th at p. 1121.) Numerous possible conditions of probation are set forth in Penal Code section 1203.1, such as requiring a period of imprisonment, imposing a fine, requiring restitution, requiring a performance bond, and other conditions. (§ 1203.1, subd. (a).) There is also a catchall provision, which may require either an affirmative act or which may require abstaining from certain acts. Section 1203.1, subdivision (j) provides in part: “The court may impose and require any or all of the above-mentioned terms of imprisonment, fine, and conditions, and other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer . . . .” Reasonable conditions under the catchall provision (depending on the circumstances) may include, for example, requiring a probationer to submit to a search of his person or residence without a warrant—-an example of affirmatively required conduct (see People v. Mason (1971) 5 Cal.3d 759, 765)-—or refraining from the use of drugs or alcohol-—an example of abstention (see People v. Smith (1983) 145 Cal.App.3d 1032, 1035).
The reasonableness of a particular condition depends, as noted, upon “‘“‘all of the circumstances being considered.’” [Citations.]’ [Citation.]” (Carbajal, supra, 10 Cal.4th at p. 1121.) “In addition, [the California Supreme Court has] interpreted Penal Code section 1203.1 to require that probation conditions which regulate conduct ‘not itself criminal’ be ‘reasonably related to the crime of which the defendant was convicted or to future criminality.’ [Citation.]” (Ibid.) Here, the condition in question relates to the failure to maintain a clean and sanitary home to the standards of a particular government agency, a matter which is in itself not criminal. Thus, such a condition must satisfy the requirement that it be “reasonably related to the crime of which the defendant was convicted or to future criminality.”
The seminal case on invalid probation conditions is People v. Lent (1975) 15 Cal.3d 481, 486. There, the California Supreme Court stated: “A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .’ [Citation.]” (Ibid.)
While there is “no exact formula for the determination of reasonableness [of a probation condition and each] case must be decided on its own facts and circumstances and on its total atmosphere” (In re White (1979) 97 Cal.App.3d 141, 148), the record here fails to show any reasonable relationship between defendant’s current offenses or his future criminality and the probation condition requiring him to “maintain a clean and sanitary home environment that meets the standards of Modoc County Child Protective Services . . . .” There are no facts in the record from which the trial court could have concluded that the condition is reasonably related to defendant’s drug offenses. Defendant was convicted of possessing Fentanyl, a controlled substance, and possessing marijuana for sale. There is no logical connection between living in an untidy house and defendant’s possession of drugs. In fact, a clean and sanitary home can as easily house illicit substances as a dirty one.
Nor are there facts in the record from which the trial court could have concluded that this condition is reasonably related to the child endangerment offense, and even the allegations of the complaint shed no light on how the two might be related. Moreover, when pressed, the trial court at sentencing could point to none, saying only that such a condition relating to “a standard of cleanliness and care . . . [was] spelled out to help the defendants understand what they need to do.” However, good housekeeping is not indicative of or related to future criminality.
Courts have held that the proper remedy in these circumstances is to remand to the trial court with directions to either eliminate the challenged condition of probation or modify that condition in accordance with the views expressed in this opinion. (In re White, supra, 97 Cal.App.3d at pp. 150-152 [the “manifest goals of probation and the need for individualistic treatment compels the imposition of special probation conditions framed to meet the particular needs of each individual case”]; People v. Smith (2007) 152 Cal.App.4th 1245, 1251, 1253.)
Having concluded that the challenged probation condition bears no rational relationship to defendant’s current crimes or future criminality, we need not consider his claim the condition is unconstitutional. (See Palermo v. Stockton Theaters, Inc. (1948) 32 Cal.2d 53, 65 [determination on appeal of constitutional issues is to be avoided when a case can be decided on other grounds]; Reed v. City & County of San Francisco (1992) 10 Cal.App.4th 572, 575 [same].)
DISPOSITION
The restitution fine is ordered reduced from $660 to $200. The matter is remanded to the trial court, which may either strike the condition of probation No. 14 or modify that condition in accordance with the views expressed in this opinion. In all other respects, the judgment is affirmed.
We concur: NICHOLSON, Acting P.J., HULL, J.
Not only was there no section 1192.5 advisement, but no probation report was prepared which might have given defendant notice that the trial court contemplated imposing a new or higher restitution fine than that announced at the change of plea hearing.