Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC829365
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
Defendant Ruben Gutierrez Plaza Jr. pleaded no contest to indecent exposure with a prior conviction (Pen. Code, § 314, subd. 1). The trial court suspended imposition of sentence and placed defendant on probation for three years. The terms and conditions of probation included that defendant serve one year in county jail and that he submit to warrantless searches. The court ordered defendant to pay various amounts, including a fine of $500 pursuant to section 290.3, and stated that defendant was not eligible for “early release programs.”
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the warrantless search condition is unreasonable, that the fine under section 290.3 should be reduced to $300, and that the order restricting early release should be set aside. For reasons that we will explain, we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken from the probation report. On December 5, 2008, a woman reported that she saw defendant holding his erect penis while sitting in a vehicle next to her vehicle in a Toys“R”Us parking lot. The woman called the police and defendant was later arrested.
On December 23, 2008, defendant was charged by complaint with indecent exposure with a prior conviction (§ 314, subd. 1). On June 25, 2009, he pleaded no contest to the indecent exposure charge and admitted that he had previously been convicted of indecent exposure. Defendant entered the plea with the understanding that he would receive one year in county jail.
On July 28, 2009, the trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that he serve one year in county jail and that he submit to warrantless searches. The court ordered defendant to pay various amounts, including a fine of $500 pursuant to section 290.3, and stated that defendant was not eligible for “early release programs.”
Defendant filed a timely notice of appeal on September 9, 2009.
III. DISCUSSION
Warrantless Search Condition
One of the terms and conditions of defendant’s probation was that he “submit [his] person, place of residence, ... car[, and] any property under [his] control to search at any time without a warrant by a peace officer.” Defendant did not object to this condition in the trial court.
On appeal, defendant contends that the warrantless search condition is unreasonable and that the trial court abused its discretion when it imposed the condition. Defendant acknowledges that he did not raise an objection to this condition in the trial court, but he asserts that the objection has not been forfeited because it “presents a pure question of law, easily modifiable on appeal....” He also argues that the appellate court has “the discretion to review claims that invoke questions of constitutional law or loss of a substantial constitutional right....” Defendant explains that in this case, he “was required to give up his constitutional right to be free from warrantless search and seizure.”
In general, a defendant who fails to object to the reasonableness of a probation condition in the trial court forfeits the claim on appeal. (People v. Welch (1993) 5 Cal.4th 228, 237; see In re Bushman (1970) 1 Cal.3d 767, 777, disapproved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1.) However, “[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. [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 887.) With respect to constitutional claims, the California Supreme Court has stated: “we do not conclude that ‘all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present “pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court.” [Citation.] In those circumstances, “[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court.” [Citation.]’ [Citation.]” (Id. at p. 889.)
In this case, defendant contends the warrantless search condition has no relationship to the crime of which he was convicted, forbids conduct that is otherwise lawful, and is not reasonably related to future criminality. Defendant’s objection concerning the reasonableness of the warrantless search condition requires an analysis of the facts and circumstances of his individual case, rather than a “review of abstract and generalized legal concepts.” (In re Sheena K., supra, 40 Cal.4th at p. 885.) As our Supreme Court has explained, “Applying the [forfeiture] rule to appellate claims involving discretionary sentencing choices or unreasonable probation conditions is appropriate, because characteristically the trial court is in a considerably better position than the Court of Appeal to review and modify a sentence option or probation condition that is premised upon the facts and circumstances of the individual case. Generally, application of the forfeiture rule to such claims promotes greater procedural efficiency because of the likelihood that the case would have to be remanded to the trial court for resentencing or reconsideration of probation conditions.” (Ibid.) Accordingly, we find that defendant has forfeited his appellate claim concerning the warrantless search condition.
Even if we were to determine that defendant did not forfeit his claim, we would conclude that the warrantless search condition is reasonable. “ ‘The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. [Citations.]’ ” (People v. Olguin (2008) 45 Cal.4th 375, 379.) We review the trial court’s imposition of probation conditions for abuse of discretion. (Ibid.) “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.]” (Id. at p. 379.) Regarding search conditions, such conditions “ ‘aid in deterring further offenses... and in monitoring compliance with the terms of probation. [Citations.] By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers.’ [Citation.] A condition of probation that enables a probation officer to supervise his or her charges effectively is, therefore, ‘reasonably related to future criminality.’ [Citations.]” (Id. at pp. 380-381.)
In this case, the terms and conditions of defendant’s probation bar him from owning, possessing, or having in his custody any firearm or ammunition (see §§ 12021, 12316, subd. (b)(1)) and bar him from residing in a home with children under the age of 18 years. In view of these conditions, a warrantless search of defendant’s person and property is an effective tool of supervision. Accordingly, we determine that the warrantless search condition is valid as reasonably related to defendant’s rehabilitation and as a deterrent to future criminality.
Section 290.3 Fine
The trial court ordered defendant to pay a fine of $500 pursuant to section 290.3. Section 290.3, subdivision (a), provides that “[e]very person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine.” (Italics added.) In this case, defendant was convicted of indecent exposure (§ 314, subd. 1) and admitted to having a prior conviction for indecent exposure. Indecent exposure (§ 314, subd. 1) is an offense specified in section 290, subdivision (c).
On appeal, defendant contends that the trial court should have imposed a fine of $300, rather than $500, because the present case involves only one conviction for indecent exposure. Defendant asserts that any prior conviction may not be considered and that the $500 fine may be imposed only in those cases where there are multiple convictions in a single proceeding.
As an initial matter, defendant contends that the fine may be corrected on appeal even if no objection was made in the trial court. The People agree that defendant may challenge the fine “notwithstanding his failure to challenge the fine at the sentencing hearing.” We find the People’s concession appropriate. “If the [section 290.3] fine constitutes an unauthorized sentence because it varies from the amount prescribed by the statute, the error is jurisdictional, and the issue may be raised for the first time on appeal. [Citations.]” (People v. Walz (2008) 160 Cal.App.4th 1364, 1369.)
Turning to the merits of defendant’s argument, the following rules guide our interpretation of section 290.3. “We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first, to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of the statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]” (People v. Flores (2003) 30 Cal.4th 1059, 1063.)
Section 290.3, subdivision (a), requires the imposition of a $300 fine “upon the first conviction” and a $500 fine “upon the second and each subsequent conviction, ” subject to the defendant’s ability to pay. The statute does not contain any language limiting the $500 fine to second or subsequent convictions that only occur in the same proceeding as the first conviction. Indeed, “the statute refers to fines for convictions, not fines for proceedings.” (People v. O’Neal (2004) 122 Cal.App.4th 817, 822 (O’Neal).) In this case, defendant admitted to having suffered a prior conviction for indecent exposure, and he pleaded no contest to a charge of indecent exposure. Consequently, the current conviction for indecent exposure constituted a second or subsequent conviction under section 290.3 and obligated the trial court to impose a $500 fine unless it determined that defendant did not have the ability to pay it.
Defendant fails to offer a plausible explanation as to why the Legislature would limit the $500 fine to multiple convictions arising from a single proceeding as contrasted to multiple convictions arising from two or more proceedings. In this regard, O’Neal, supra, 122 Cal.App.4th 817 is instructive.
In O’Neal, the defendant was convicted of two counts of lewd conduct on a child (§ 288, subd. (a)) and the trial court imposed two fines under section 290.3. (O’Neal, supra, 122 Cal.App.4th at pp. 819, 822.) At the time, section 290.3 provided for a fine of $200 for the first conviction and a fine of $300 for the second and each subsequent conviction. (O’Neal, supra, 122 Cal.App.4th at p. 822.) The defendant contended that the trial court “should have imposed a single $200 fine... and that multiple fines for multiple convictions in the same case are prohibited.” (Ibid.) The Court of Appeal disagreed. Among other reasons, the Court of Appeal explained that the defendant had pleaded guilty to two counts, each of which involved a separate conviction, and “[b]ecause there were two counts, O’Neal had a second or subsequent conviction under section 290.3.” (Ibid.) The Court of Appeal also acknowledged the Attorney General’s point that “adopting O’Neal’s position would mean there would be different fines for defendants who had the same number of convictions. If the prosecutor joined multiple counts in one case there would be a single fine, but there would be multiple fines if each count was filed in a separate action. The Legislature did not intend such a result because it would be basing fines on the prosecutor’s procedural choice, not the number of convictions.” (Ibid.)
We agree with the court in O’Neal that the Legislature intended the fines to be based on the number of convictions, irrespective of whether those convictions occurred in one proceeding or multiple proceedings.
Defendant points to the absence of specific language in section 290.3 requiring that a prior conviction be pleaded and proved. According to defendant, this suggests that the Legislature intended to impose the larger fine under section 290.3 “only for subsequent and multiple convictions in the case being sentenced” because those offenses would have been included in the complaint or information for the current case, whereas prior convictions might not have been pleaded and proven.
We are not convinced that the absence of specific language in section 290.3 concerning pleading and proof for prior convictions reflects such legislative intent. We also observe that, in this case, defendant’s prior conviction for indecent exposure was alleged in the complaint and defendant later admitted the allegation.
In sum, defendant’s current conviction for indecent exposure was his second or subsequent conviction under section 290.3. We therefore conclude that the trial court correctly imposed a fine of $500 upon his current conviction.
“ No Early Release” Order
During sentencing, when the trial court was detailing the terms and conditions of defendant’s probation, the following exchange took place between the court and clerk.
“[THE COURT:] Madam Clerk, does the file reflect as to whether or not defendant is eligible for any programs?
“THE CLERK: I don’t think so. I didn’t write it. No. It just says a year in county jail.
“I can look at your notes.
“It’s no early release.”
The trial court then ordered, “No early release programs, ” and then it continued stating the terms and conditions of defendant’s probation.
On appeal, defendant argues that the order restricting early release should be set aside.
First, defendant contends that “[i]f this condition appeared in the notes, it was wrong.” Defendant explains that he “entered his plea along with two other persons charged with unrelated crimes.” The attorney for those two individuals indicated to the trial court that the dispositions for those two individuals included “no early release.” On appeal, defendant states that in his own case, “no such restriction on early release was mentioned or agreed to.”
Second, he asserts that “[b]ecause the record does not show that ‘no early release’ was a term of the plea bargain, the court abused its discretion in adding that term.” Defendant acknowledges that the trial court “had the discretion to make such an order” concerning no early release. He argues, however, that “[a] sentence based on ignorance of the court’s discretionary powers is an abuse of discretion” and “[a] sentence imposed by a court ignorant of important facts that govern the exercise of its discretion is a denial of due process of law” under the federal constitution.
Third, defendant states that “in all likelihood, ” he will have served his jail sentence before this appeal is heard and “therefore the issue may be moot.”
Fourth, defendant acknowledges that “the trial court retains the power to modify its order granting probation (Pen. Code §1203.3, subd. (a)), and undoubtedly would consider doing so if the true facts were brought to its attention, ” but states that he “include[d] the issue on appeal, in order to avoid any implication that [he has] acquiesced in the court’s ruling....”
The People respond that the defendant should have made an argument concerning the “no early release” order in the trial court and “his failure to do so renders the claim waived.”
Although defendant contends that a restriction on early release was not mentioned or agreed to in his case, he does not assert that in connection with his plea, he was promised an early release or promised the opportunity to participate in an early release program. Further, he acknowledges that the trial court had the discretion to make an order concerning no early release. The record does not establish that the trial court was unaware of any discretionary power it had in this regard, or that it was operating under a mistaken assumption concerning the content of defendant’s plea agreement. The record only indicates that the court made the “no early release” order after the clerk apparently looked at some “notes” of the court and informed the court, “no early release.” To the extent defendant is challenging a discretionary sentencing choice by the trial court concerning “no early release programs, ” and in view of the lack of objection in the trial court, we conclude that defendant has forfeited the claim. (People v. Scott (1994) 9 Cal.4th 331, 353.)
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., duffy, J.