Opinion
E068918
07-30-2018
THE PEOPLE, Plaintiff and Respondent, v. CALEB CHARLIE TABOUR PONDER, Defendant and Appellant.
Michael S. McCormick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI17001411) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed as modified with directions. Michael S. McCormick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Caleb Charlie Tabour Ponder assaulted his roommate with a beer bottle, two brooms, a camping stove, and his fists. Subsequently, defendant pled no contest to assault by means likely to produce great bodily injury (Pen. Code, § 245, subds. (a)(4)). In return, the remaining allegation was dismissed, and defendant was placed on probation for a period of three years on various terms and conditions of probation. Defendant's sole contention on appeal is that the probation condition prohibiting him from illegally remaining in or reentering the United States was unauthorized and must be stricken because he is a United States citizen. The People respond defendant forfeited this issue on appeal for failing to object to the challenged probation condition in the court below.
All future statutory references are to the Penal Code unless otherwise stated.
After reviewing the record, we find defendant has not forfeited the challenge to the immigration probation condition. We also conclude defendant's probation condition should be stricken and direct the superior court to modify defendant's probation terms accordingly.
The details of defendant's criminal conduct are not relevant to the limited issue raised in this appeal. Those details are set out in defendant's opening brief, and we will not recount them here. Instead, we will recount only those facts and procedural background that are pertinent to the issue we must resolve in this appeal. --------
II
DISCUSSION
Defendant argues that since he is a citizen of the United States, the trial court lacked the authority to require, as a condition of probation, that he comply with federal immigration laws, which apply only to noncitizens. Specifically, among others and without objection, the trial court imposed upon defendant the following probation condition: "Do not remain in or reenter the United States without proper written authorization by the Department of Homeland Security—Bureau of Citizenship and Immigration Services. Upon reentering the United States, report forthwith to the Probation Officer with written proof of authorization." It is undisputed that defendant is a United States citizen. The People respond defendant forfeited his claim for failing to raise it below because defendant's claim is "essentially that the condition was inapplicable to his case because he is a citizen."
"Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal." (In re Sheena K. (2007) 40 Cal.4th 875, 880 (Sheena K.).) " 'The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected [citation].'. . . [¶] . . . As a general rule neither party may initiate on appeal a claim that the trial court failed to make or articulate a ' "discretionary sentencing choice[ ]." ' " (Id. at p. 881; accord, People v. Scott (1994) 9 Cal.4th 331, 352-353 (Scott).) Thus, "sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner" are forfeited on appeal absent objection. (Id. at p. 354.) "[C]ounsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention." (Id. at p. 353.) As such, forfeiture should apply where "the trial court[ ] fail[ed] to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case." (Ibid.)
Within this principle is the forfeiture of claims against alleged errors or omissions made at the time probation conditions are considered. (People v. Welch (1993) 5 Cal.4th 228, 234-235 (Welch).) The California Supreme Court in Welch expressly rejected the notion that an unauthorized sentence results where a court in imposing a probation condition "exercised its otherwise lawful authority in an erroneous manner under the particular facts." (Id. at p. 236.) Rather, "[a] timely objection allows the court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case. . . . A rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis." (Id. at p. 235.) "Applying the 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." (Sheena K., supra, 40 Cal.4th at p. 885.)
Responding to the People's assertion of forfeiture, defendant contends "the trial court lacked the authority to impose the condition so the error can be corrected on appeal nonetheless." This amounts to a claim that his sentence is " 'unauthorized,' " or "in 'excess of jurisdiction,' " which is purely a question of law that "can be resolved without reference to the particular sentencing record developed in the trial court." (Welch, supra, 5 Cal.4th at pp. 235-236.)
People v. Smith (2001) 24 Cal.4th 849 (Smith) is instructive. In Smith, our Supreme Court held the erroneous imposition of a parole revocation fine "present[ed] a pure question of law with only one answer." (Id. at p. 853, italics omitted.) At issue was a rule under which a "trial court ha[d] no choice and must impose a parole revocation fine equal to the restitution fine whenever the 'sentence includes a period of parole.' " (Ibid., italics omitted, quoting § 1202.45.) The court had properly imposed a $5,000 restitution fine under section 1202.4, but erroneously imposed a parole revocation fine of $200, an amount different than the restitution fine, in violation of section 1202.45. (Smith, supra, 24 Cal.4th at p. 853.)
Despite the People's failure to object, the court reasoned this error could be corrected on appeal because the sentencing conditions " 'could not lawfully be imposed under any circumstance in the particular case.' " (Smith, supra, 24 Cal.4th at p. 852, quoting Scott, supra, 9 Cal.4th at p. 354; accord, Sheena K., supra, 40 Cal.4th at pp. 886-887 ["A sentence is said to be unauthorized if it cannot 'lawfully be imposed under any circumstance in the particular case' [citation], and therefore is reviewable 'regardless of whether an objection or argument was raised in the trial and/or reviewing court.' "].) The court explained: "We deemed appellate intervention appropriate in these cases because the errors presented 'pure questions of law' [citation], and were ' "clear and correctable" independent of any factual issues presented by the record at sentencing.' [Citation.] In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable." (Smith, at p. 852, quoting Scott, at p. 354; accord, Sheena K., at pp. 887-889.)
Moreover, the California Supreme Court in Sheena K., supra, 40 Cal.4th 875 further explained that appellate courts have the discretion to address a party's contention in other situations in the absence of a timely objection. (Id. at pp. 887-888, fn. 7.) That discretion is properly invoked when the contention "involves an important issue of constitutional law or a substantial right," the application of the forfeiture rule is "uncertain," or the party "did not have a meaningful opportunity to object at trial." (Ibid.)
Applying the above principles, defendant's contention falls within the exception to the forfeiture doctrine for unauthorized sentences. In other words, we find no forfeiture because the challenged probation condition was unauthorized. " 'Power to regulate immigration is unquestionably exclusively a federal power.' [Citations.] '[S]tate regulation affecting the determination of who should or should not be admitted into the country or placing conditions under which a legal entrant may remain, violates the exclusive power over immigration and deportation constitutionally vested solely in the federal government.' [Citation.]" (People v. Laufasa (2010) 188 Cal.App.4th 436, 438-439, citing De Canas v. Bica (1976) 424 U.S. 351, 354, In re Manuel P. (1989) 215 Cal.App.3d 48, 61-62, & In re Adolfo M. (1990) 225 Cal.App.3d 1225, 1232.)
Based on the foregoing, the challenged immigration condition is ordered stricken.
III
DISPOSITION
The superior court is directed to modify the formal probation order and strike the challenged immigration condition consistent with this opinion. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.