Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC163539A
Banke, J.
Introduction
Defendant Samuel Serrano (Serrano) appeals from an order modifying the terms and conditions of his probation to add a search condition. Serrano contends no changed circumstances justify the modification. We agree and reverse the order.
Background
We discuss only those facts pertinent to the appeal. In April 2009, Serrano pled guilty to one felony count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). At the sentencing hearing on July 15, 2009, the trial court suspended imposition of sentence and placed Serrano on supervised probation. The court imposed numerous terms and conditions of probation, including that Serrano “not wear clothing nor wear or display items or emblems nor acquire or display tat[t]oos that are known or reasonably understood or believed to be associated with or symbolic of gang membership, ” not possess any “knife, dirk, dagger, box cutter, or other instrument with a sharpened blade or point, ” and not have “firearms or ammunition of any kind in [his] possession.”
All further statutory references are to the Penal Code.
Nine months later, in April 2010, the Probation Department sought a modification of Serrano’s probation. The Department asked the court to add a search condition, providing that Serrano “shall submit to search and seizure of his/her person, vehicle, residence, or any other property under his/her control at any time of the day or night, by any probation officer or peace officer, with or without probable cause, with or without a warrant.” The Department stated this modification would help “enforce the no weapons and gang clauses more effectively.”
At the hearing on the Department’s request, the court stated it did not believe it had authority to modify Serrano’s probation, and temporarily denied the request to research whether it had such authority. At a subsequent hearing, the court stated it believed it did so. The court candidly acknowledged the Probation Department had inadvertently failed to request, and the court had likewise failed to include, a search condition at the time of sentencing. The court also acknowledged the Department had a sound basis for asking for a search condition—so it could effectively monitor the other terms and conditions. The court accordingly modified the terms and conditions of Serrano’s probation to include the search condition. This timely appeal followed.
Discussion
A trial court has broad discretion to impose terms and conditions of probation, “particularly where those terms are intended to aid the probation officer in ensuring the probationer is complying with the fundamental probation condition, to obey all laws.” (People v. Balestra (1999) 76 Cal.App.4th 57, 69 (Balestra).) “Insofar as a probation condition serves the statutory purpose of ‘reformation and rehabilitation of the probationer, ’ (§ 1203.1) it necessarily follows that such a condition is ‘reasonably related to future criminality’ and thus may not be held invalid whether or not it has any ‘relationship to the crime of which the offender was convicted.’ ” (Id. at p. 65, quoting People v. Lent (1975) 15 Cal.3d 481, 486.) “ ‘ “ ‘The purpose of an unexpected, unprovoked search of defendant is to ascertain whether [the probationer] is complying with the terms of [probation]; to determine not only whether he disobeys the law, but also obeys the law. Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given the defendant....’ [Citations.]” ’ ” (Balestra, at p. 67, quoting People v. Reyes (1998) 19 Cal.4th 743, 752, italics & fn. omitted.)
Thus, there is no question the trial court could have imposed a search condition at the time it sentenced Serrano. And, indeed, the record makes clear such a condition is ordinarily imposed in such cases. However, due to inadvertence, a search condition was not imposed, thus precipitating the Probation Department’s request to modify the terms and conditions of Serrano’s probation to add one.
“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.3d 1091, 1095 (Cookson), citing § 1203.3.) However, “a change in circumstances is required before a court has jurisdiction to extend or otherwise modify probation.” (Cookson, at p. 1095, citing In re Clark (1959) 51 Cal.2d 838, 840.) “ ‘ “An order modifying the terms of probation based on the same facts as the original order granting probation is in excess of the jurisdiction of the court, for the reason that there is no factual basis to support it.” ’ ” (People v. Medeiros (1994) 25 Cal.App.4th 1260, 1263 .)
The only change in circumstances between Serrano’s sentencing hearing and the Probation Department’s request for modification of his probation, was the discovery that the Department had failed to request, and the trial court had failed to impose, a search condition. The Department did not assert Serrano had violated any originally imposed term or condition, nor did it offer any other new fact showing a change in circumstances. The Department simply claimed a search condition would be helpful in enforcing the original terms and conditions.
The People contend the trial court’s belated awareness that it failed to impose a search condition at the time of sentencing constituted a change in circumstances, citing Cookson, supra, 54 Cal.3d 1091. In Cookson, the trial court placed the defendant on three years’ probation on the condition he pay restitution as determined by the probation department. (Id. at p. 1093.) The department determined total restitution to be $12,000 and ordered the defendant to make monthly payments over the course of his probation. (Id. at pp. 1093-1094) Although the defendant made all monthly payments, at the end of three years he had paid only part of the restitutionary amount owing because the department had miscalculated the payment schedule. (Ibid. & fn. 3.) The trial court granted the department’s motion to extend probation for two years to secure the defendant’s full payment of restitution. (Id. at p. 1094.) The Supreme Court upheld the modification on the ground the lower courts had “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.’ ” (Id. at p. 1095, italics added.)
Cookson is significantly different from the case at hand. In Cookson, the trial court did not simply correct an inadvertent mistake made at the time of sentencing. Rather, the court had ordered the defendant to make full restitution. (Cookson, supra, 54 Cal.3d at p. 1093.) Thereafter, in trying to work out a payment schedule consistent with the defendant’s ability to pay, the department made a mistake in the repayment schedule. The department’s miscalculation and the defendant’s imminent inability to make full restitution as ordered by the court, constituted a postprobation change of circumstances, allowing modification of probation. (Id. at p. 1095.)
Here, there is no comparable post-probation change in circumstances. The lack of a search condition was a fact that existed at the time of sentencing. The Probation Department did not proffer any new facts—either as to Serrano’s performance on probation or his ability to comply with the existing terms and conditions—that were unavailable when the trial court placed him on probation. The trial court’s acknowledgement that it should have imposed a search condition at the time of sentencing does not constitute a previously unavailable fact or a changed circumstance that authorized the modification of Serrano’s probation to correct the inadvertent failure to include such a condition. Accordingly, on the instant record, the trial court erred in modifying the terms and conditions of Serrano’s probation to include a search condition.
We therefore need not, and do not, reach Serrano’s claim that he did not waive his Fourth Amendment rights.
Disposition
The order modifying the terms and conditions of Serrano’s probation to add the search condition is reversed, and the search condition is ordered stricken from the terms and conditions of his probation.
We concur: Margulies, Acting P. J., Dondero, J.