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People v. Lopez

California Court of Appeals, Fourth District, First Division
Mar 11, 2008
No. D050615 (Cal. Ct. App. Mar. 11, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. AUGUSTINE LOPEZ, Defendant and Appellant. D050615 California Court of Appeal, Fourth District, First Division March 11, 2008

NOT TO BE PUBLISHED

Appeal from an order of the Superior Court of San Diego County No. SCD196487, Kerry Wells, Judge.

HUFFMAN, Acting P. J.

A jury convicted Augustine Lopez of burglary (Pen. Code, § 459) and grand theft (§ 487, subd. (a)). The court suspended imposition of sentence and placed Lopez on three-years formal probation with specific conditions. Lopez appeals the order granting probation, arguing the court abused its discretion and violated the separation of powers doctrine by delegating the decision of whether he needs to take antabuse and participate in anger management classes. We affirm the order.

Statutory references are to the Penal Code.

FACTS

On June 26, 2005, Lopez broke into Corina Lira's locked car in a San Diego Costco parking lot. Lopez stole a diaper bag, a small black bag, a speaker box and an amplifier, together worth more than $600.

DISCUSSION

Lopez contends the court abused its discretion and violated the separation of powers doctrine by delegating judicial authority to the probation officer to decide whether to require certain conditions of probation. The two probation conditions at issue are the following:

"8(d): Take antabuse (if physically able, as determined by a licensed physician) if directed by the [probation officer] and continue in the program until excused. If not physically able to take antabuse, submit a written statement from physician verifying inability to do so."

"10(a): Attend and successfully complete counseling program(s) re: anger [management] (if) directed."

I

APPLICATION OF THE WAIVER RULE

In general, only claims that are properly raised and preserved by the parties in the trial court are reviewable on appeal. (People v. Smith (2001) 24 Cal.4th 849, 852.) Claims that involve a trial court's failure to properly make or articulate its discretionary sentencing choices raised for the first time on appeal are not subject to review. (Ibid.) This rule includes challenges to probation conditions. (People v. Welch (1993) 5 Cal.4th 228, 235.) "A timely objection allows the court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case." (Ibid.)

Lopez cites a narrow exception to the waiver rule for unauthorized sentences. Because these sentences cannot lawfully be imposed under any circumstances in the particular case, they are reviewable regardless of whether an objection was raised in the trial court. (People v. Smith, supra, 24 Cal.4th at p. 852.) Legal error resulting in an unauthorized sentence commonly occurs where the court violates mandatory provisions governing the length of confinement. (People v. Scott (1994) 9 Cal.4th 331, 354.)

Under section 1203.1, subdivision (a), the court was authorized to grant Lopez probation "upon those terms and conditions as it shall determine." Because the court exercised its lawful authority, the unauthorized sentence exception to the waiver rule is inapplicable. Further, Lopez did not object when the court imposed three-years probation with all the terms and conditions listed in the probation report. The court highlighted the condition requiring Lopez to attend anger management classes if directed by the probation department. Lopez acknowledged that he had the opportunity to review all the conditions of probation listed in the probation report with his attorney. He stated he understood and agreed to all the terms and conditions listed in the report. Because Lopez failed to object to the probation conditions in trial court, the waiver rule applies to preclude him from raising that challenge for the first time on appeal.

II THE TRIAL COURT DID NOT ABUSE ITS DISCRETION OR VIOLATE THE SEPARATION OF POWERS DOCTRINE

Even had Lopez not waived his right to challenge the probation conditions on appeal, no error occurred.

A trial court abuses its discretion when its determination is arbitrary, capricious or exceeds the bounds of reason under the circumstances being considered. (People v. Welch, supra, 5 Cal.4th. at p. 234.) The court has broad discretion to determine whether an eligible defendant is suitable for probation and what conditions should be imposed. (Id. at p. 233.) It is within the court's discretion to impose any "reasonable" condition that it "may determine" is "fitting and proper to the end that justice may be done." (§ 1203.1, subd. (j).) Although it is the role of the court to impose probation conditions, section 1203, subdivision (a), provides that the probation officer supervises compliance with the conditions. Thus, a nonjudicial board or officer may be authorized to perform "quasi-judicial" powers to determine facts and exercise discretion. The court's power to delegate this authority may be inferred under principles governing the separation of powers. (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1236.)

The primary purpose of the separation of powers doctrine is to prevent the combination of the fundamental powers of government in the hands of a single person or group. (Manduley v. Superior Court (2002) 27 Cal.4th 537, 557.) However, the doctrine has never required absolute separation, but instead recognizes that the three branches of government are interdependent, and permits actions of one branch that may " 'significantly affect those of another branch.' [Citation.]" (Ibid.) As such, once the trial court imposes conditions of probation, the probation officer will determine both the level and type of supervision consistent with the court-ordered conditions of probation. (§ 1202.8, subd. (a).) However, the probation officer's discretion is not unlimited. The probation department can perform quasi-judicial powers as long as (1) the exercise of such powers is subsidiary to the power otherwise properly exercised by the court and (2) the court retains ultimate control over its exercise, as by court review. (In re Danielle W., supra, 207 Cal.App.3d at p. 1236.)

Although courts cannot delegate the exercise of their discretion to probation officers, "probation officers have wide discretion to enforce court-ordered conditions, and directives to the probationer will not require prior court approval if they are reasonably related to previously imposed terms." (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373, italics added.)

Here, the probation conditions challenged by Lopez were ordered by the trial court. (Cf. In re Pedro Q., supra, 209 Cal.App.3d at p. 1372 [court never considered new probation conditions added by probation officer, who did not inform court of additional probation terms].) The court exercised its discretion by ordering Lopez to take antabuse and anger management classes, and properly delegated authority to the probation officer over the enforcement of these conditions. The court retained ultimate control over the probation officer's discretion by maintaining its power to enforce and modify the probation conditions as needed. Because the court properly delegated quasi-judicial discretion to the probation department to enforce court-ordered probation conditions, it did not abuse its discretion and did not violate the separation of powers doctrine.

DISPOSITION

The order is affirmed.

WE CONCUR: McDONALD, J. IRION, J.


Summaries of

People v. Lopez

California Court of Appeals, Fourth District, First Division
Mar 11, 2008
No. D050615 (Cal. Ct. App. Mar. 11, 2008)
Case details for

People v. Lopez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. AUGUSTINE LOPEZ, Defendant and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Mar 11, 2008

Citations

No. D050615 (Cal. Ct. App. Mar. 11, 2008)