Opinion
A156919
11-25-2019
THE PEOPLE, Plaintiff and Respondent, v. CORBIN MCDEVON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC206635)
Corbin McDevon challenges GPS monitoring imposed as a condition of mandatory supervision by the probation department. We affirm.
BACKGROUND
The facts of McDevon's offense are irrelevant to the sole issue on this appeal. McDevon pleaded guilty to identity theft and grand theft by false pretenses and was sentenced to an aggregate sentence of three years and eight months. The court imposed a split sentence, ordering McDevon to serve 10 months in county jail with 34 months suspended under mandatory supervision by probation.
As a condition of mandatory supervision, the probation department recommended that McDevon be "subject to GPS monitoring and any special conditions imposed pursuant to [Penal Code section 1170, subdivision (h)] at the discretion of the supervising agency." At sentencing the court imposed a GPS monitoring condition, as follows: "The probation department is authorized to require you to wear a GPS monitoring device and impose any conditions along with that during your mandatory release." Rejecting McDevon's objection that the condition was not reasonably related to his supervision, the court stated: "The Court finds a significant nexus between the rehabilitation efforts that will be employed during his mandatory supervision, as well as the underlying circumstances of his crimes, to impose the GPS monitoring."
The minute order reflecting the GPS monitoring condition states that "[d]efendant is subject to GPS monitoring and any special conditions imposed pursuant to [Penal Code section 1170.05, subdivision (e)] at the discretion of the supervising agency."
McDevon's appeal is timely.
DISCUSSION
McDevon contends the GPS monitoring condition is constitutionally overbroad and/or vague because, as orally imposed by the court at sentencing, it authorizes the probation department to impose "any condition," without limitation and whether or not the condition is related to his offenses or future criminality. He also asserts there are two fatal discrepancies between the court's oral pronouncement and the GPS monitoring condition as described in the minute order. First, he contends that at sentencing the court merely authorized the probation department to subject him to GPS monitoring at its discretion, but the minute order actually imposes the condition. Second, at variance with the court's oral authorization to impose "any condition" along with GPS monitoring, the minute order authorizes the probation department to subject McDevon to "any special conditions imposed pursuant to [Penal Code section 1170.05, subdivision (e)]." McDevon asserts we must therefore (1) strike the court's oral authorization of "any conditions" along with GPS monitoring as overbroad; and (2) strike the written condition subjecting him to GPS monitoring and any conditions imposed pursuant to Penal Code section 1170.05, subdivision (e) for failing to accurately reflect the allegedly overbroad condition pronounced at sentencing.
There is a more sensible course. "Frequently, as here, we encounter discrepancies in how the probation conditions imposed are stated in the reporters' versus clerks' transcripts. In this case, there are unexplained major and minor differences between the conditions proposed in the probation report and adopted by the trial court and the conditions in the signed minute order. When an irreconcilable conflict exists between the transcripts of the court reporter and the court clerk, the modern rule is not automatic deference to the reporter's transcript, but rather adoption of the transcript due more credence under all the surrounding circumstances." (People v. Rodriguez (2013) 222 Cal.App.4th 578, 586, disapproved on another point in People v. Hall (2017) 2 Cal.5th 494, 503, fn. 2.) We will harmonize the record when at all possible, "but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]. Therefore, whether the recitals in the clerk's minutes should prevail as against contrary statements in the reporter's transcript, must depend upon the circumstances of each particular case." (People v. Smith (1983) 33 Cal.3d 596, 599.)
The record here is readily harmonized. Reviewing the record in its entirety, it is obvious the court intended to actually impose GPS monitoring as a condition of McDevon's supervised release. The probation report recommended it, the probation officer indicated at sentencing that it was a standard condition in all mandatory supervision cases, and the court found, over McDevon's objection, that there was a "significant nexus between the rehabilitation efforts that will be employed during his mandatory supervision, as well as the underlying circumstances of his crimes, to impose GPS monitoring." (Italics added.) Thus, the minute order stating McDevon is "subject to GPS monitoring" accurately reflects the orally pronounced condition.
There is also no valid reason to construe the court's remark that McDevon is subject to "any condition" as unconstitutionally authorizing the probation department to impose any condition whether or not related to his offenses or rehabilitation. We think so much is reasonably understood from the court's authorization of the probation department to impose conditions "along with" the GPS monitoring. It is clearer yet when viewed in context of the entire record. The minute order refers to section 1170.05, subdivision (e), which in the context of an alternative custody program available to certain female inmates authorizes the use of GPS devices to help verify a participant's compliance with the program's rules and regulations and specifies (with exceptions) that such devices may not be used to eavesdrop or record the subject's conversations. While the provision is plainly inapplicable to McDevon, its incorporation in the minute order indicates the purpose of, and imposes limits on, his GPS monitoring condition. In sum, the court's shorthand reference to "any condition" can only reasonably be understood to authorize the probation department to impose such conditions as are necessarily related to effectuating McDevon's GPS monitoring.
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, P.J. WE CONCUR: /s/_________
Petrou, J. /s/_________
Goode, J.
Retired Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------