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People v. Meline

California Court of Appeals, Third District, Butte
Jul 28, 2008
No. C055755 (Cal. Ct. App. Jul. 28, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. BLAKE RANDAL MELINE, Defendant and Appellant. C055755 California Court of Appeal, Third District, Butte July 28, 2008

NOT TO BE PUBLISHED

Super. Ct. No. CM023191.

ROBIE, JUDGE

A jury found defendant Blake Meline guilty of evading an officer and made a finding that the crime involved the threat of great bodily harm. The court placed him on probation. On appeal, defendant contends: (1) the trial court improperly delegated to a probation officer the authority to order him to enter a residential substance abuse program; and (2) the jury finding was unauthorized and must be stricken. We agree that the trial court improperly delegated authority to a probation officer and will therefore strike special probation condition No. 20, but we will not strike the jury finding because defendant has suffered no prejudice as a result.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2005, defendant led a highway patrol officer on a high-speed car chase. After defendant crashed his vehicle and was apprehended, he was charged with evading an officer, a felony, and reckless driving, a misdemeanor. The misdemeanor was later dismissed. At trial, over defendant’s objection, the court granted the prosecutor’s request to have the jury make a special finding on the aggravating factor that the offense involved a threat of great bodily harm. Later that day, the jury found defendant guilty of evading an officer with willful disregard and found the crime involved the threat of great bodily harm.

At sentencing, imposition of the sentence was suspended and the trial court placed defendant on three years’ probation. The court imposed several probation conditions, including special condition No. 20, which provided that at the probation officer’s discretion defendant had to enter a residential substance abuse treatment program. The court imposed special condition No. 20 “if appropriate during the three years he’s on probation.” Defendant objected to this condition at sentencing on the ground it was “onerous.”

DISCUSSION

I

The Trial Court Improperly Delegated Authority To The Probation Officer To Order Defendant To Enter A Residential Substance Abuse Program

Defendant contends that special condition No. 20 constitutes an unlawful delegation of judicial authority to the probation officer.

The People argue that defendant forfeited this issue on appeal by failing to raise a timely and meaningful objection to special condition No. 20 at sentencing. The People also contend that even if defendant did not forfeit this issue, the trial court properly imposed special condition No. 20 because all the court did was to grant the probation officer the authority to “perform ‘quasi-judicial’ powers to determine facts and exercise discretion.” Finally, the People argue that while the probation officer has the authority to determine whether defendant’s enrollment in the residential rehabilitation program is necessary, the trial court imposed the special condition that gave the probation officer this authority.

A

Defendant Did Not Forfeit His Challenge To Special Condition No. 20 On Appeal By Failing To Raise A Timely And Specific Objection In The Trial Court

The People contend that because defendant failed to raise a specific objection at the time of sentencing, he has forfeited his right to challenge special condition No. 20 on appeal. Defendant argues that the issue he seeks to raise here is a “‘pure question of law’” and is not the type of issue that can be forfeited.

In People v. Lent (1975) 15 Cal.3d 481, the California Supreme Court held that “[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 itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .’” (Id. at p. 486.) In People v. Welch (1993) 5 Cal.4th 228, the court held that the “failure to timely challenge a probation condition on ‘Bushman/Lent’ grounds in the trial court waives the claim on appeal.” (Id. at p. 237.) In Welch, the defendant argued for the first time on appeal that the probation conditions imposed by the trial court should be stricken because they were “‘overbroad’” and “‘unreasonable.’” (Id. at p. 232.) The court rejected this assertion, finding the defendant objected only to the court’s erroneous use of its otherwise lawful authority, and that “probation conditions are rarely invalidated on this basis.” (Id. at p. 236.) However, the Welch court found an exception to the general rule requiring a timely challenge when the issue is an “‘unauthorized sentence.’” (Id. at p. 235.) The court also found exceptions “generally involve pure questions of law that can be resolved without reference to the particular sentencing record.” (Id. at p. 235.)

In People v. Scott (1994) 9 Cal.4th 331, the California Supreme Court held “a sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case.” (Id. at p. 354.) Additionally, the court has held that “[a]n obvious legal error at sentencing that is ‘correctable without referring to factual findings in the record or remanding for further findings’ is not subject to forfeiture.” (In re Sheena K. (2007) 40 Cal.4th 875, 887.)

Here, defendant does not assert that special condition No. 20 is unreasonable or invalid under the Lent test, but that special condition No. 20 can never be imposed because it constitutes an “unlawful delegation of judicial authority.” In other words, defendant asserts special condition No. 20 is unauthorized, and therefore the issue cannot be forfeited on appeal. We agree. While the issue in Welch was whether the trial court’s use of its legal authority was “‘unreasonable’” in a given situation (People v. Welch, supra, 5 Cal.4th at p. 236), the issue here is whether the trial court ever had the legal authority to exercise this delegation of power in the first place. This issue can be settled “independent of any factual issues presented by the record at sentencing” (People v. Scott, supra, 9 Cal.4th at p. 354); thus, it is a “pure question[] of law” (People v. Welch, supra, 5 Cal.4th at p. 235). Because whether a trial court can delegate to a probation officer the authority to order a defendant to enter a rehabilitation program is a “pure question[] of law” and not a Lent issue questioning the reasonableness of the probation condition, the issue cannot be forfeited by failing to raise a timely objection at trial.

B

The Trial Court Improperly Delegated To The Probation Officer The Authority To Order Defendant To Enter A Residential Substance Abuse Treatment Program

Defendant argues the trial court’s delegation of “unfettered authority” to the probation officer to decide whether defendant must enter rehabilitation was excessive. He contends that courts have found other orders resembling special condition No. 20 to be excessive delegations of judicial authority. For instance, defendant cites People v. Cervantes (1984) 154 Cal.App.3d 353, to show trial courts cannot delegate absolute power to probation officers to determine the amount and manner of restitution. Defendant also cites In re Shawna M. (1993) 19 Cal.App.4th 1686, 1688, which found a juvenile court order permitting visitation as “arranged through, and approved by” the county human services agency was an excessive delegation of authority to the agency.

Article III, section 3 of the California Constitution provides, “The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” Judicial power is in the courts and their function is to declare the law and determine the rights of parties in controversy before the court. (Marin Water etc. Co. v. Railroad Com. (1916) 171 Cal. 706, 711-712.) Executive or administrative officers cannot exercise or interfere with judicial powers. (Boags v. Municipal Court (1987) 197 Cal.App.3d 65, 67.)

We concluded in In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374, that delegating absolute discretion to Child Protective Services (CPS) to determine whether a father could visit his children would violate the separation of powers doctrine. (Ibid.) We also concluded, however, that delegating the discretion to determine the time, place, and manner of visits the court had ordered did “not constitute an improper delegation of judicial power where the court has decided that the parent or guardian has a right to visitation.” (Id. at p. 1377.)

The situation here is readily distinguishable from that in Moriah T. Here, a probation officer has unilateral authority to decide not only the time, place, and manner in which defendant will participate in a residential substance abuse treatment program, but also the authority to decide whether he will enter such a program in the first place. This delegation of absolute discretion to a probation officer to order defendant to enter a treatment program violates the separation of powers just as the delegation of absolute discretion to CPS to determine visitation would have violated the separation of powers in Moriah T.

This conclusion is consistent with the cases cited by defendant. The court in People v. Cervantes, supra, 154 Cal.App.3d at page 358, held there is no statutory provision allowing delegation of unlimited discretion to a probation officer “to determine the propriety, amount, and manner of payment of restitution.” The Court of Appeal in In re Shawna M., supra, 19 Cal.App.4th at page 1688 held a juvenile court order permitting parental visitation as “arranged through, and approved by” the county human services agency constituted an excessive delegation of authority.

The People argue that while it is the role of the court to impose probation conditions, Penal Code section 1203 subdivision (a) authorizes the probation officer to supervise compliance with these conditions. In the People’s view, the grant of this authority gives the probation officer the quasi-judicial power to determine facts and exercise discretion, which is permissible under separation of powers principles. (See In re Danielle W. (1989) 207 Cal.App.3d 1227, 1236.) The People contend that by deciding whether defendant should enter a rehabilitation program, the probation officer does no more than exercise the quasi-judicial power properly delegated to him.

The People cite In re Danielle W. supra, 207 Cal.App.3d at page 1227, in support of their position that the trial court’s power to delegate authority to the probation officer could be “inferred under principles governing the separation of powers.” In Danielle W., a juvenile court ordered that a mother’s visitation of her two children would be at the “‘[Department of Children’s Services’] discretion and the children’s discretion,’” but the court stressed that “the dominant factor in exercise of that discretion is the desire of the child to visit the mother.” (Id. at pp. 1230, 1233, 1237.) The court did not delegate power to the Department of Children’s Services; it “simply authorize[d] the Department to administer the details of visitation, as specified by the court.” (Id. at p. 1237, italics added.) The court held “[a] nonjudicial board or officer may be authorized to perform ‘quasi-judicial’ powers to determine facts and exercise discretion.” (Id. at p. 1236.) While the court upheld the order finding no separation of powers violation, it went on to say “a visitation order granting the Department complete and total discretion to determine whether or not visitation occurs would be invalid.” (Id. at p. 1237.)

The court noted that the Department of Children’s Services was acting as the parent’s “probation officer” in its role controlling parent/child visitation. (In re Danielle W., supra, 207 Cal.App.3d at p. 1234.)

We disagree with the People’s assertion that the trial court delegated a quasi-judicial power to the probation officer here. The probation officer will not simply determine facts or exercise discretion within the bounds of a court decision in deciding whether defendant should enter rehabilitation; instead, he has the complete and total power to order defendant to enter rehabilitation. As the court in Danielle W. held, delegating “complete and total” discretion is invalid. (In re Danielle W., supra, 207 Cal.App.3d at p. 1237.)

In Danielle W., the delegation did not violate the separation of powers doctrine because it was not complete and total. (In re Danielle W., supra, 207 Cal.App.3d at p. 1237.) The court determined that the mother would have visitation, then delegated to Department of Children’s Services the discretion to administer the visitation, which included “some discretion to determine whether a specific proposed visit would be in the best interests of the child.” (Ibid., italics added.) This limited discretion to prevent a particular visit was not unlawful delegation of judicial authority because it was not a complete and total delegation. (Ibid.) The situation here is distinguishable. Special condition No. 20 provides that “[a]t the discretion of [the] Probation Officer, [defendant is] to enter and complete a residential substance abuse treatment program as specifically approved by [his] probation officer.” Unlike in Danielle W., here the probation officer’s determination is the only factor deciding whether defendant enters rehabilitation. The power delegated to the probation officer is not conditioned on a prior determination by the court as in Danielle W.; here the probation officer has total and complete power to order defendant to enter rehabilitation. (See In re Danielle W., supra, 207 Cal.App.3d at p. 1237.) Because this delegation was invalid under separation of powers principles, we will strike special condition No. 20.

II

The Jury Finding That The Offense Involved A Threat Of Great Bodily Harm Need Not Be Stricken

Defendant contends the trial court erred by permitting the prosecution to amend the information by adding the allegation that the offense involved the threat of great bodily harm. Defendant argues that the trial court had no authority to instruct the jury on or permit the jury to make a finding on an aggravating factor under the “‘old’” determinative sentencing laws. Defendant also argues the finding should be stricken because if probation is revoked, the sentencing court may rely on the finding to impose an upper term sentence.

The People contend that the trial court properly allowed the prosecutor to include the allegation. The People argue the allegation was inherent in the original charging document read to the jury because the words used in both documents (the information and the People’s motion to request special finding) were similar; therefore the finding could not prejudice defendant. They also argue that defendant did not cite any authority providing that a trial court cannot allow a prosecutor to introduce a finding after the trial has begun. Finally, the People contend that because defendant cannot show he was prejudiced by the finding, the finding should not be stricken. We agree.

Defendant argues that despite the fact he was not sentenced, if his probation is revoked the sentencing court may later rely on the finding of the aggravating factor to impose an upper term sentence. This is pure speculation. This issue is not ripe. If a trial court later sentences defendant to an upper term sentence, defendant can then timely raise the issue of whether the finding was properly imposed.

DISPOSITION

The judgment is modified by striking special probation condition No. 20. As modified, the judgment is affirmed.

We concur: DAVIS, Acting P.J., MORRISON, J.


Summaries of

People v. Meline

California Court of Appeals, Third District, Butte
Jul 28, 2008
No. C055755 (Cal. Ct. App. Jul. 28, 2008)
Case details for

People v. Meline

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. BLAKE RANDAL MELINE, Defendant…

Court:California Court of Appeals, Third District, Butte

Date published: Jul 28, 2008

Citations

No. C055755 (Cal. Ct. App. Jul. 28, 2008)