Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS060987
RUSHING, P.J.
I. Statement of the Case
Defendant Tony Perez appeals from an order adding a search condition to the terms of his probation. He claims there were no changed circumstances to justify adding the new condition.
We reverse the order.
II. Background
On November 27, 2006, defendant entered a negotiated guilty plea to a charge of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) in exchange for the dismissal of a second charge and sentencing under Penal Code section 1210.1 (Proposition 36). The court placed him on probation for drug treatment. The terms of probation included a search condition—i.e., submission to warrantless searches. During the course of 2007, defendant violated probation a number of times, and on March 13, 2008, the court revoked probation under Proposition 36. The court then placed defendant on a general grant of probation for three years. The probation department (Department) did not request a search condition, and although the court imposed numerous conditions, it did not impose a search condition.
On April 3, 2008, the Department filed a petition to modify probation alleging a probation violation. On April 16, the department filed a second petition alleging more violations. On April 22, defendant admitted the violations, and probation was revoked. The Department recommended that probation be reinstated on the previous conditions but did not request a search condition. On May 22, 2008, the court reinstated defendant on probation with the recommended conditions.
On June 21, 2010, the Department filed another petition to modify probation. The Department did not allege a probation violation but simply wanted the court to add a search condition.
At a hearing, defendant argued that there were no changed circumstances to justify the addition of a new and different condition. Indeed, defendant noted that since probation was last reinstated, he had performed well.
The court explained that when it imposed general probation, it simply adopted the Department recommendations, which did not include a search condition. The court observed, however, that search conditions are typically included in drug cases. The court opined that the Department had inadvertently forgotten to request one. The probation officer said that it looked like the Department had simply made a mistake. Under the circumstances, the court modified probation to include a search condition.
III. Discussion
Defendant contends that the court erred in adding the search condition in the absence of changed circumstances. We agree.
“A court may revoke or modify a term of probation at any time before the expiration of that term.” (People v. Cookson (1991) 54 Cal.34d 1091, 1095 (Cookson); Pen. Code, § 1203.3, subd. (a).) However, a change in circumstances is required before a court has jurisdiction to extend or otherwise modify probation, and an order modifying the terms of probation based upon the same facts as the original order granting probation is in excess of the court’s jurisdiction, for the reason that there is no factual basis for it. (Cookson, supra, 54 Cal.3d at p. 1095; In re Clark (1959) 51 Cal.2d 838, 840; In re Bine (1957) 47 Cal.2d 814, 818.)
The Attorney General claims that the trial court’s “belated realization that it initially imposed incomplete or defective probation conditions constitute[d] a ‘change of circumstances’ justifying correction of that error” and the addition of a search condition to the terms of probation. In support of this claim, the Attorney General relies on Cookson, supra, 54 Cal.3d 1091.
In Cookson, supra, 53 Cal.3d 1091, the court ordered the defendant to make complete restitution to the victim and to do so in accordance with terms to be set by the Department. The Department determined total restitution to be $12,000 and directed the defendant to make monthly payments of $100. When probation was about to expire, the Department realized that the defendant could not comply with the court’s order to make complete restitution before his term of probation expired because they had set his monthly payments too low. The day before probation was set to expire, the Department sought to extend the term and increase the monthly payment so that the defendant could comply with the condition that he make full restitution. The court granted the petition and modified probation. (Id. at p. 1094.)
In affirming, the appellate court concluded that although the defendant’s inability to comply with the trial court’s order was not his fault, his imminent failure to pay was a change of circumstances that justified a modification of probation. (Cookson, supra, 53 Cal.3d at p. 1095.) The Supreme Court affirmed. The court stated that “the Court of Appeal correctly determined that a change in circumstance could be found in a fact ‘not available at the time of the original order, ’ namely, ‘that setting the pay schedule consistent with defendant’s ability to pay had resulted in defendant’s inability to pay full restitution as contemplated within the original period of probation.’ ” (Ibid., italics added.)
Cookson does not support the Attorney General’s claim that a court’s belated discovery that it had imposed “incomplete or defective” probation conditions constitutes a change in circumstances that reasonably necessitates and thus justifies a corrective modification of probation. In Cookson, the court did not impose an incomplete or defective probation condition: it ordered the defendant to make full restitution. Moreover, it was not the court’s discovery that authorities had miscalculated the defendant’s restitution payment schedule that constituted the change of circumstances. Rather, the change was the miscalculation itself and the defendant’s imminent inability to make full restitution, and those circumstances arose after the court had granted probation, that is, they were facts not available when probation was first granted.
Here, the absence of a search condition did not render the initial grant of general probation or its subsequent modification legally incomplete or defective. We are not aware of any statute that requires a search condition in drug cases, and the Attorney General does not suggest that search conditions are mandatory. Moreover, the fact that the court usually imposes a search condition and could have imposed such a condition and that the first grant of probation under Proposition 36 included a search condition do not establish that, without a search condition, defendant’s grant of probation was inherently incomplete or defective.
If a search condition were mandated by statute in drug cases, then the failure to impose such a condition could be deemed an unauthorized sentence, and the trial court could correct it by modifying probation even without a change in circumstances. (See People v. Moreno (2003) 108 Cal.App.4th 1 [judgment that fails to include mandatory victim restitution is subject to correction at any time].)
More importantly, however, the absence of a search condition was a fact that was available, if not obvious, when the court initially granted general probation and later modified probation to include gang conditions. In later seeking to add a search condition, the Department did not allege any fact concerning defendant’s performance on probation or his ability to comply with the existing conditions that was not available when probation was imposed and later modified. The Attorney General does not point to any facts previously unavailable to the court that might justify modifying probation. And trial court’s view it should have previously imposed a search condition is not, in our view, the sort of changed circumstance or previously unavailable fact that authorizes a modification of probation.
Finally, we note that in Cookson, there were changed circumstances, and the modification of probation was necessary to ensure the defendant’s compliance with the preexisting condition that he make full restitution. Here, the modification of probation conditions was not necessary to ensure compliance with some preexisting condition. The Department simply admitted an “oops” moment, and the court imposed an altogether different condition of probation that constituted a new and substantial burden on defendant: a partial waiver of constitutional rights. However, there was no evidence that after the previous modification of probation, defendant’s performance on probation or his ability to comply with the existing conditions changed in a way that made the search condition reasonably necessary. On the contrary, although defendant initially had difficulty complying with probation conditions, the record before the court when the Department sought to add the search condition revealed that he was performing well and complying with the existing terms and conditions. Defendant’s successful performance may arguably represent a changed circumstance, but it is not the sort of changed circumstance that reasonably warrants or justifies adding a significant new burden.
In sum, the record demonstrates that the addition of a search condition was based on facts that were previously available to the court when it first granted general probation and later modified probation to include the gang conditions. Accordingly, we conclude that the court acted in excess of its jurisdiction in modifying probation.
IV. Disposition
The order modifying probation to include a search condition is reversed.
WE CONCUR: PREMO, J., ELIA, J.