Opinion
E065454
06-13-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JAMES MIRANDA, Defendant and Appellant.
Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Mary K. Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1503117) OPINION APPEAL from the Superior Court of Riverside County. Jean P. Leonard, Judge. Affirmed. Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Mary K. Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Michael James Miranda, pled guilty to receiving a stolen vehicle after having sustained a prior conviction for felony vehicle theft. (Count 1, Pen. Code, § 666.5, subd. (a); Veh. Code, § 10851, subd. (a).) Pursuant to the plea agreement, the court imposed a split sentence of six months' incarceration and 18 months of mandatory supervision. On appeal, defendant contends that the conditions of his mandatory supervision requiring that he obtain his probation officer's approval prior to changing residences or traveling more than 50 miles from his residence are constitutionally overbroad. We affirm.
I. PROCEDURAL HISTORY
On December 2, 2015, the People charged defendant by felony complaint with receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a); count 1) after having sustained a prior conviction for felony vehicle theft (Pen. Code, § 666.5, subd. (a); Veh. Code, § 10851, subd. (a)). The People additionally alleged defendant had sustained five prior felony convictions resulting in prison terms after which he failed to remain free from custody for five years (Pen. Code, § 667.5, subd. (b)), including: (1) spousal abuse (Pen. Code, § 273.5) on April 7, 2000; (2) possession of a controlled substance (Health & Saf. Code, § 11377) on November 4, 2002; (3) possession of a controlled substance (Health & Saf. Code, § 11377) on December 2, 2009; (4) vehicle theft (Veh. Code, § 10851) on June 19, 2013; and (5) assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) on September 11, 2013.
On December 16, 2015, defendant pled guilty as recounted above. In return, pursuant to the plea agreement, the court imposed the low term of two years' incarceration, suspended; ordered defendant to serve six months in custody; and ordered that defendant subsequently serve 18 months on mandatory supervision. The prior prison allegations were dismissed. Defendant waived preparation of a probation officer's report and requested immediate sentencing.
Defendant faced exposure to a maximum total of nine years' incarceration if convicted of the substantive offense and all the allegations were found true.
On the same date, defendant accepted the various terms and conditions of his mandatory supervision by signing a sentencing memorandum enumerating those terms. Three of the conditions to which defendant agreed, and to which he now complains, read as follows: (1) "Inform the probation officer of your place of residence and reside at [a] residence approved by the probation officer"; (2) "Give written notice to the probation officer 24 hours before changing your residence and do not move without the approval of the probation officer"; and (3) "Do not travel more than 50 miles from your residence without prior approval of the Probation Officer."
II. DISCUSSION
Defendant contends the three conditions of his mandatory supervision listed above are unconstitutionally broad. Preliminarily, we hold defendant waived and forfeited the issues by agreeing to the conditions and failing to object to them below. Regardless, we disagree the conditions are unconstitutional. A. Waiver and Forfeiture
As both parties note, on October 31, 2012, the California Supreme Court granted review of a published decision from this court on a nearly identical residential approval condition. (People v. Schaeffer (2012) 208 Cal.App.4th 1, S205260.) However, on September 21, 2016, the court dismissed the matter as moot. Our original decision remains depublished. (Cal. Rules of Court, former rule 8.528(b)(3).)
Defendant concedes he did not raise the issues below, but urges us to consider the issues as pure questions of law. We hold defendant waived and forfeited the issues on appeal.
"'Waiver,' of course, suggests an express relinquishment or abandonment of a known right or privilege. [Citations] '[T]he terms "waiver" and "forfeiture" have long been used interchangeably. The United States Supreme Court . . . observed, however: "Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the 'intentional relinquishment or abandonment of a known right.' [Citations.]"'" (People v. Mata (2013) 57 Cal.4th 178, 193.) "[F]ailure to timely challenge a probation condition . . . in the trial court [forfeits] the claim on appeal." (People v. Welch (1993) 5 Cal.4th 228, 237; accord, People v. Scott (1994) 9 Cal.4th 331, 351; accord, People v. Moran (2016) 1 Cal.5th 398, 404, fn. 7; accord, People v. Nachbar (2016) 3 Cal.App.5th 1122, 1124 [defendant forfeited residence approval requirement by not objecting in trial court], rev. granted on another issue on Dec. 14, 2016, S238210; accord, People v. Kendrick (2014) 226 Cal.App.4th 769, 777 [defendant forfeited residence approval requirement by not objecting in trial court even when presenting constitutional question where issue was framed as condition not being narrowly tailored, which necessarily required a review of the facts which is not a facial challenge to the condition].)
Here, defendant waived any right to complain about the reasonableness of the conditions of his mandatory supervision by accepting those very conditions, apparently as part of his plea agreement. Defendant initialed a provision of his plea agreement noting that "if I violate any of my probation terms, I could be sentenced to the maximum custody term . . . ." Defendant signed the sentencing memorandum containing the exact terms of which he now complains, indicating: "I have read, I understand, and I accept these terms and conditions of probation . . . ." Defendant waived any right to appeal. Defendant signed the plea agreement indicating he understood his constitutional rights and that the guilty plea waived those rights. Even to the extent defendant could be found not to have waived the issue, defendant forfeited the issue by failing to object to the terms below. Thus, we hold that defendant has waived and forfeited any appellate challenge to the terms of his mandatory supervision.
Defendant contends he has not forfeited the issue because he is facially challenging the constitutionality of the conditions. (In re Sheena K. (2007) 40 Cal.4th 875, 887 ["An 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."].) However, the court in In re Sheena K. also observed that a constitutional defect in a probationary condition which is only correctable by an examination of the record is forfeited for failure to object below. Only a constitutional challenge to a probation condition which raises a pure question of law is subject to the narrow exception to the forfeiture rule. (Ibid.)
Here, defendant's challenge to the constitutionality of his probation conditions is not a pure question of law because it raises issues which require resort to the record for the specific factual bases for the conditions imposed. Indeed, defendant notes that the conditions were not narrowly tailored to his individual circumstances, a claim which would necessarily require resort to the record. (People v. Kendrick, supra, 226 Cal.App.4th at p. 777.) Additionally, defendant complains, as it now stands, that the probation officer may unreasonably refuse any request for approval of a new residence or permission to travel outside the 50-mile limit. However, each of these contentions would require resort to the specific factual scenarios implicated; i.e., whether, in consideration of defendant's criminal history, including the offense for which he now stands convicted, any such request should be denied to prevent defendant's potential future criminality. Thus, defendant's arguments do not raise pure legal questions; as such, defendant has waived and forfeited the issues on appeal. B. Residence Condition
Assuming arguendo that defendant has not waived or forfeited the argument, we hold that the residence approval condition was reasonably related to preventing potential future criminality by defendant.
Mandatory sentencing is not the equivalent of granting probation as one can only be placed on mandatory supervision after probation has been denied; thus, mandatory supervision "is akin to a state prison commitment; it is not a grant of probation or a conditional sentence." (People v. Fandinola (2013) 221 Cal.App.4th 1415, 1422; accord, People v. Martinez (2014) 226 Cal.App.4th 759, 762-763; see People v. Cruz (2012) 207 Cal.App.4th 664, 671.) Therefore, mandatory release conditions are scrutinized under comparable criteria as those applicable to parole terms. (People v. Martinez, supra, at p. 763.) Nonetheless, this scrutiny is determined by the same standards which apply to probation conditions. (In re Hudson (2006) 143 Cal.App.4th 1, 9.)
Here, the court denied formal probation before imposing sentence.
"'[I]n the absence of a showing that the probation condition infringes upon a constitutional right,' 'this court simply reviews such a condition for abuse of discretion, that is, for an indication that the condition is "arbitrary or capricious" or otherwise exceeds the bounds of reason under the circumstances.' [Citation.]" (People v. Moran, supra, 1 Cal.5th at p. 407.) "Generally, '[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.]' [Citation.] This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. [Citation.]" (People v. Olguin (2008) 45 Cal.4th 375, 379-380.) "If a probation condition serves to rehabilitate and protect public safety, the condition may 'impinge upon a constitutional right otherwise enjoyed by the probationer, who is "not entitled to the same degree of constitutional protection as other citizens."' [Citation.]" (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355; Morrissey v. Brewer (1972) 408 U.S. 471, 477 [typically, parolees must seek permission from their parole officers before changing residences]; see People v. Soto (2016) 245 Cal.App.4th 1219, 1228, fn. 3 ["We note that there may be certain situations where obtaining the probation officer or court's approval before changing residences or leaving the state may be required for adequate supervision of the defendant and may be reasonably related to future criminality."].)
Here, defendant pled guilty to receiving a stolen vehicle after having sustained a prior conviction for felony vehicle theft. Defendant had five prior felony convictions. Two of defendant's prior convictions involved possession of controlled substances. Two of defendant's prior convictions involved crimes of violence. Where defendant lives will directly affect his rehabilitation; e.g., without any limitations, defendant could choose to live in a residence where drugs are used or sold; in or near a chop shop where stolen vehicles are brought, sold, and dismantled; and/or live in or near a previous victim or potential victim of defendant's violent tendencies. We conclude that the condition is narrowly tailored to further the state's interest in defendant's rehabilitation.
Defendant relies upon People v. Bauer (1989) 211 Cal.App.3d 937, in which the reviewing court struck a residence approval condition, which in that case, appeared designed to prevent the defendant from living with his parents because they were overprotective. Nothing in that record suggested that the defendant's home life contributed to the misdemeanor crimes of which he was convicted, or that his home life was reasonably related to future criminality. (Id. at p. 944.) Nothing in the opinion reflects the defendant had any prior criminal history. The court concluded that the residence approval condition impinged on the defendant's right to travel and freedom of association, and was extremely broad since it gave the probation officer the power to forbid the defendant from living with or near his parents. (Ibid.)
The present case is distinguishable. Defendant here pled guilty to a felony. Defendant had a substantial criminal history with five prior felony convictions, including felony drug possession and crimes of violence, which necessitates a heightened degree of supervision. Again, where defendant lives will directly affect his rehabilitation. Requiring prior approval of any residence change could eliminate defendant's continuing contact within the residence with any persons who might pose "a source of temptation to continue to pursue a criminal lifestyle. [Citations.]" (See People v. Lopez (1998) 66 Cal.App.4th 615, 626.) Under these circumstances, the state's interest in defendant's rehabilitation is properly served by the residence approval condition.
Defendant additionally relies upon People v. O'Neil, supra, 165 Cal.App.4th 1351, in which the court held that a condition prohibiting the defendant from associating with persons prohibited by his probation officer was overbroad because it was not limited to persons the defendant knew were so designated by the probation officer and because there were no guidelines as to whom the probation officer could so designate. (Id. at pp. 1357-1359.) However, the legal landscape has changed since People v. Bauer, supra, 211 Cal.App.3d 937 and People v. O'Neil, supra, 165 Cal.App.4th 1351. The Supreme Court stated in People v. Olguin, supra, 45 Cal.4th 375 that "[a] probation condition should be given 'the meaning that would appear to a reasonable, objective reader.' [Citation.]" (Id. at p. 382.) We view the residence approval condition here in light of Olguin and presume a probation officer will not withhold approval for irrational or capricious reasons. (Id. at p. 383.) If the probation officer disapproves of a particular residence for any arbitrary reason, defendant may then file a petition for modification of his probation condition. (Pen. Code, §§ 1203.2, subd. (b)(1), 1203.3, subd. (a); see People v. Keele (1986) 178 Cal.App.3d 701, 708 [trial court retains jurisdiction to review probation officer's actions].) Thus, the residence approval condition is constitutionally valid. C. Travel Restriction
Similarly, we hold that the travel restriction condition was reasonably related to preventing potential future criminality by defendant.
"Although criminal offenders placed on probation retain their constitutional right to travel, reasonable and incidental restrictions on their movement are permissible." (People v. Moran, supra, 1 Cal.5th at p. 406 [condition that the defendant stay away from all stores in the same chain he burglarized reasonable, overturning appellate court decision holding otherwise]; People v. Relkin (2016) 6 Cal.App.5th 1188, 1195 [mandatory supervision condition requiring the defendant to obtain probation officer's permission before leaving the state was constitutional]; see In re Antonio R. (2000) 78 Cal.App.4th 937, 941-942 [upholding probation condition that minor obtain his parents' or probation officer's approval before traveling to Los Angeles County]; compare with People v. Smith (2007) 152 Cal.App.4th 1245, 1251-1253 [blanket probation condition prohibiting all registered sex offenders from leaving county with or without approval constitutionally infirm as not narrowly tailored to the defendant's particularized circumstances where defendant could travel 95 miles within the county, but could not travel to a city about 10 miles away which was outside of the county]; Morrissey v. Brewer, supra, 408 U.S. at p. 477 [typically, parolees must obtain permission from their parole officers before traveling outside the community]; see People v. Thrash (1978) 80 Cal.App.3d 898, 902 [probation condition that the defendant not leave town without prior approval valid]; see People v. Soto, supra, 245 Cal.App.4th at p. 1228, fn. 3 ["We note that there may be certain situations where obtaining the probation officer or court's approval before changing residences or leaving the state may be required for adequate supervision of the defendant and may be reasonably related to future criminality."].)
Here, again, defendant's extensive felony criminal record required a heightened degree of supervision. The record does not reflect that the 50-mile travel restriction was a blanket condition applied to all individuals under mandatory supervision. Defendant's travel restriction was not arbitrary in that it did not bar him from traveling outside of certain municipal boundaries which would, nevertheless, allow him to travel great distances in some directions, but very small distances in others without approval. (People v. Smith, supra, 152 Cal.App.4th at pp. 1251-1253.) Rather, it applied a reasonable distance restriction in all directions from his residence without regard to municipal boundaries. This may result in increased contact with his probation officer, restrict him from exposure to increased criminal temptations, and allow his probation officer more ready access to defendant's whereabouts should a random search under his conditions be required. Under these circumstances, the state's interest in defendant's rehabilitation is properly served by the travel approval condition.
Moreover, again, we view the travel approval condition here in light of Olguin and presume a probation officer will not withhold approval for irrational or capricious reasons. (People v. Olguin, supra, 45 Cal.4th at p. 383.) If the probation officer disapproves of a request to travel outside the 50-mile limitation for any arbitrary reason, defendant may then file a petition for modification of the probation condition. (Pen. Code, §§ 1203.2, subd. (b)(1), 1203.3, subd. (a); see People v. Keele, supra, 178 Cal.App.3d at p. 708 [trial court retains jurisdiction to review probation officer's actions].) Thus, the travel approval condition is constitutionally valid.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. FIELDS
J.