Opinion
G053781
11-29-2017
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW TYE, Defendant and Appellant.
Matthew Tye, in pro. per., for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and, Christine Y. Friedman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 10HF2304) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Thomas M. Goethals, Judge. Affirmed. Matthew Tye, in pro. per., for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and, Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Matthew Tye is a convicted sex offender and disbarred attorney. In 2013, he pleaded guilty to five counts of felony oral copulation with a minor, and three counts of felony unlawful sexual intercourse with a minor. (Pen. Code, §§ 288a, subd. (b)(1), 261.5, subd. (c).) In return, the district attorney dismissed 16 more counts alleging the same or similar crimes, as well as a multiple victim sentencing enhancement allegation. (Pen. Code, § 1203.066, subd. (a)(7).)
The court suspended imposition of sentence and put defendant on formal supervised probation for five years, subject to the agreed upon terms and conditions of probation set out in the guilty plea form. Defendant has been challenging those probation conditions and resisting probation supervision ever since. It seems he wants to enjoy the benefits of the negotiated disposition (e.g., no prison or mandatory sex offender registration), but avoid the burdens of being supervised by probation as agreed.
This is defendant's fourth appeal, and there are at least two more pending, all challenging the validity and enforceability of the agreed upon probation conditions. In this appeal, he primarily challenges a directive (the DRC Directive) from his probation officer to participate in the Day Reporting Center (DRC) program. He argues the DRC Directive is a new probation condition, and it is unlawful because a probation officer can never impose a new probation condition or modify an agreed upon probation condition.
The Attorney General primarily argues the DRC Directive is within the probation officer's authority under the agreed upon probation conditions.
The Attorney General also argues we should dismiss this appeal because defendant waived his right to appeal; failed to obtain a certificate of probable cause; and forfeited this challenge by failing to object at the time of his guilty plea. We decline to dismiss this appeal and, except as discussed below, we express no opinion on these procedural issues. Instead, we exercise our discretion to decide this appeal on the merits. --------
The trial court concluded, and we agree, the DRC Directive was expressly authorized under the agreed upon probation conditions, which are constitutional, and it was a reasonable exercise of the probation officer's authority. Therefore, we affirm.
FACTS AND PROCEDURAL HISTORY
1. The Terms and Conditions of Probation, Ex Parte Application and Motion
The agreed upon terms and conditions of probation were set out as Item Nos. 1 through 31 in the December 2013 guilty plea form, and each item was separately initialed by defendant. When the court asked defendant, "Did you understand every single term that you had to sign[,]" he replied, "Yes, your honor."
Item No. 18 (Employment Condition) required defendant to: "Seek training, schooling, or employment, and maintain residence as approved by your probation . . . officer." Item No. 21 (Obey Condition) required him to: "Obey all orders, rules, regulations, and directives of the Court, Probation Department, . . . and Jail." Item No. 31 stated: "I understand that the Court ultimately determines the conditions of probation . . . , and I have the right to request the Court modify or eliminate any condition imposed by the Probation Department that I believe is unreasonable."
On April 27, 2016, defendant filed an ex parte application for an order shortening time on a "Post-Judgment Motion for Declaratory Relief; Demurrer" (Motion). The Motion challenged the validity and enforceability of the DRC Directive, on various grounds, including those asserted in this appeal; and sought a declaration that defendant could not be subjected to a probation violation for failing to comply with the DRC Directive. The ex parte application also sought to stay enforcement of the DRC Directive pending resolution of the Motion.
On April 29, the court denied the ex parte application in toto, and set the Motion for a regularly noticed hearing on the merits in mid-May. The court explained: "This is not an ex parte matter i[n] my opinion. You have every right to litigate it, but it should be appropriately noticed, appropriately briefed, appropriately filed and you can litigate it. That's not a problem. I have no problem with that. I just don't believe it's an ex parte matter. It's not something that you needed to come in today, especially given the underlying history. It's not ex parte." 2. The Hearing, Testimony and Ruling on the Motion
On May 17, the court held an evidentiary hearing on the Motion. Defendant and his supervising probation officer, Rodney Grantham, both testified.
A. Grantham's Testimony
Grantham testified defendant had not been employed since he was put on probation in December 2013. Defendant had not shown Grantham any job search documents or resumes defendant had sent out. When Grantham made home calls, most of the time, defendant was playing a computer game.
Grantham's purpose in directing defendant to enroll in the DRC program was for defendant to seek employment. On the referral form, he indicated defendant was referred for the employment portion of the DRC program.
DRC clients attend daily and have a counselor who tailors the program to fit the probationer's specific needs. The DRC provides employment services. The DRC employment coordinator told Grantham the DRC helps probationers set up a resume and has links to felony-friendly employment. The DRC works with the One-Stop Center on job fairs for "felony-friendly" employment. DRC probationers also have supervised Internet access to look for employment.
Grantham testified he wanted defendant to obtain full-time employment, and he believed it was within his purview to direct defendant to seek employment. He did not direct defendant to the DRC to harass him. Rather, the DRC referral was precipitated by a home visit Grantham conducted in March, when defendant was again found playing a computer game.
A DRC counselor told Grantham defendant had reported to the DRC but refused to sign some DRC forms. As described to Grantham, the forms included a client grievance form, a form setting out the DRC program contract rules, and a release of information form that would allow the DRC to release information to the probation officer about the probationer's progress in the DRC program.
After Grantham directed defendant to participate in the DRC program, defendant showed Grantham a schedule for a one-day-a-week Irvine Valley College business class during the month of May. Defendant also showed Grantham three Craig's List paralegal job postings that defendant said he had applied for.
Grantham did not believe defendant could only work in the legal field. Grantham had supervised other professionals on probation who, because of the restrictions resulting from their criminal convictions, could not work in their normal field, and instead had to work at a restaurant, Home Depot or Costco.
B. Defendant's Testimony
Defendant testified he told Grantham he had been looking for work throughout the time he was on probation. Defendant had sent out an average of one to three resumes a week seeking paralegal jobs. He said Grantham was aware his girlfriend had been sending the resumes out for him.
According to defendant, Grantham had told him he was to report to the DRC so he could have supervised Internet access and conduct the job search himself. But when he reported to the DRC, he learned he would not have Internet access for the foreseeable future, and instead would be enrolled in the DRC program, which would require him to attend an hour and a half a day, six days a week.
When defendant complained the DRC was not a job search resource as represented, Grantham invoked the Obey Condition and directed him to report to the DRC regardless. Defendant then went back to the DRC, and filled out some paperwork. But there were a couple of waivers he felt he could not sign, and the DRC would not allow him to enroll unless he signed them.
The court asked defendant why he felt he could not sign the waivers, and he responded, "Because I believed . . . if I have a particular right that I am being required to waive in that way, that I don't wish to voluntarily waive it." The court then asked him what specific right he felt he was being involuntarily forced to waive.
Defendant replied, "Well, one of the waivers says something to the effect of that I am agreeing to be there voluntarily, that I am not being made to go there. Which I think is just false." He said another waiver form, "has to do with the release of information. And the document is not limited. It is very broad."
Defendant did not believe any kind of special waiver was necessary for the DRC to communicate with his probation officer and he was concerned about privacy. He explained, "[T]hey do ask a lot of very deeply personal things about things about my life that are private, that I wouldn't want to be just generally released out there."
Shortly after Grantham issued the DRC Directive, defendant enrolled in the Irvine Valley College business class, but a week later the class was cancelled. Prior to that time, he had not enrolled in any other classes.
Under questioning by the court, defendant conceded he felt it would be demeaning to accept lesser employment at a place like Home Depot, because of his education and experience. He had graduated from Loyola Law School, and worked at a couple of law firms before he was convicted and disbarred.
Defendant explained that even if he took a low-paying job because he was forced to, he would not keep the job once he was off probation, and the job would not help him with future employment. He wanted to get a job in the legal field or training in some other field where he can make "at least a middle class income." He never applied to McDonald's, Starbucks, or other similar places.
Defendant complained much of what he would be doing at the DRC was the same thing as everyone else in the DRC program, and it would not help him with employment. Also, due to the high failure rate in the DRC program, he felt the DRC Directive was "a stepping stone to getting violated through no fault of my own." He believed the DRC Directive was demeaning and retribution for his legal challenges. He claimed he would not have signed the guilty plea agreement if he had known probation would have to approve his employment efforts.
C. Court's Ruling
The court concluded that the Motion, ostensibly seeking declaratory relief, was, in substance, a motion to modify probation by invalidating the DRC Directive. The court denied the Motion. The court thoroughly explained why it found no basis for granting the requested relief, as follows:
"I don't find that any term or condition of probation imposed on you, that I am aware of, is vague. I don't find that any term or condition of probation that has been imposed upon you is overbroad or in any other way illegal, including unconstitutional. I don't find any of those things.
"The issues really are whether or not there was a reasonable basis for the order by your probation officer, who has been supervising you now for well over a year, to implement the term that you signed off on when you pled guilty back in 2013, which I have read several times.
"It specifically says, 'cooperate with your probation or mandatory supervision officer in any plan for psychological, psychiatric, alcohol and/or drug treatment; seek training, schooling, or employment, and maintain residence as approved by your probation or mandatory supervision officer.'
"That last sentence, as I discussed with you, is a conjunctive sentence. So it says you have got to seek training, schooling, or employment, and maintain residence. And both of those will be as approved by your probation or mandatory supervision officer. That's the fundamental term here. You agreed to that.
"[¶] . . . [¶]
" . . . Your circumstances, Mr. Tye, unfortunately, are hardly unique. You have been convicted of multiple sex-related felonies.
"You were a professional with professional license and you have lost it. I hope you get it back someday, if the bar feels it is appropriate, and you can go back to being a lawyer. But, as you acknowledge, that's not imminent. . . .
"I would say that if, sort of on your own, you can find a law-related job, that would be fantastic. That would be great. I am glad you are looking. But that doesn't satisfy the requirement in term 18 [the Employment Condition] in your probation agreement that, again, you signed off on when you pled guilty. This isn't anything extraordinary or unusual. And it is not vague or overbroad.
"Employment is going to be a challenge for you. But one of the legitimate goals of probation is to get you working and/or - and it is 'and/or,' one doesn't exclude the other - and/or get some more education. You can do both. And you haven't done either for two and a half years.
"This business about the recent I.V.C. class doesn't help you much, frankly. You just applied a couple of weeks ago. Maybe after your probation officer has ordered you to take another step towards trying to get a job. Any job. And you didn't even go to class.
"Maybe it is not your fault they have cancelled it, but the class was a one-night-a-week, three-hour class. That certainly doesn't necessarily and automatically satisfy term 18 of your probation agreement.
"You can do both. You can go to school at night and work during the day. Or you can go to school during the day and work at night. Or any combination thereof. Or you can go to school full-time or work full-time.
"It is really not your call. You want it to be your call. But, frankly, you have given up some of your self-determination rights when you agreed to go on felony probation.
"This is an arm's length negotiation, obviously. At that time you were represented by somebody that is one of the really good lawyers in this county. And it was an arm's length negotiation between him and one of the vigorous prosecutors in the county involving serious charges. And you agreed to all of this. And if anybody understood what he or she was agreeing to, you would. You are a lawyer.
"[¶] . . . [¶]
" . . . [S]o to suggest that you didn't understand what was going on is more than a stretch, frankly. And I don't accept it. I think you knew exactly what was going on and now, to some degree, you are frustrated by where you are. You are frustrated by the fact that you can't get a job. You are frustrated that you are being treated like other probationers. But, unfortunately, that's what you are. And you agreed to all of this.
"I don't find - well, I do find that there is a reasonable basis at this late date, given your history on probation, your lack of employment, your lack of schooling, there is a reasonable basis for your probation officer to do whatever he thinks is appropriate and necessary to try to get you working.
"And I mean in any job. Maybe counsel was being a little facetious about flipping burgers, but people in your circumstance, Mr. Tye - on at least a short-term basis - smart, professional, accomplished people who have gotten themselves convicted of felonies that disqualify them to do what they have traditionally done work at Home Depot.
"I am not being glib when I say that. They do all kinds of jobs that they are way overqualified for. Working is part of the therapeutic, rehabilitative process that has been recognized and acknowledged by case after case.
"So the fact that your probation officer, as you agreed to when you pled guilty, is trying to get you into stable employment, even if you don't think it is long-term - and maybe it won't be. The fact that your probation officer wants you to get into a structured environment where you have to get up and go to work every day is a legitimate, therapeutic, rehabilitative goal.
"Nothing else has got you there; so he sent you to the D.R.C. It is certainly clear and I can understand why. You are a smart person. You think that it is beneath you to do that kind of thing and to hang out with other probationers who don't have your educational or professional background. You feel it is demeaning and beneath you.
"And I might feel the same way. But, unfortunately, I haven't been convicted of ten felonies. And I didn't agree to this term.
"So you have got to live with it. I think it is a reasonable referral. I don't think it was an abuse of discretion. I don't find that it was punitive, as you obviously think it was. . . . Your P.O. has been trying to get you to do a variety of things.
"And there are only a limited number of options that he has got and this is one; so he has pushed you into that. I think you have been afforded due process all along the line.
"And, therefore, the bottom line is I think that this is a reasonable, legitimate exercise of your probation officer's discretion and I am going to respectfully decline your request to delete it. You have got to do it.
"And, again, this is not a probation violation hearing. I hope it is not the prelude to a probation violation hearing. Because you agreed to do things that your probation officer ordered you to do and, so long as they are a legitimate exercise of discretion - which, again, I find that they are in this case - you have got to do them or you may find yourself facing a probation violation allegation. I hope you don't.
"[¶] . . . [¶]
"And you can say, 'I can't progress because you won't let me use the Internet.' You can think that, but that's not the reality. You have got to figure out a way to progress in light of these difficult circumstances that you have created for yourself.
"It is nobody else's fault. It is not a matter of fault. You have to figure out a way to progress with the restrictions that have been imposed upon you, that you accepted, and time will tell whether or not you do that.
"[¶] . . . [¶]
"So you are on felony probation for the remaining term on the same terms and conditions that you were when you began this process of seeking modifications.
"I wish you good luck. I hope you succeed."
DISCUSSION
Defendant insists the court erroneously denied the Motion. He argues: "This case is very simple and straightforward: . . . Grantham, unlawfully imposed a new probation condition on [him]. It was unlawful because (1) probation officers may never impose new conditions, and (2) [he] was protected by a plea agreement, which could not be modified to impose this new obligation on him absent his consent. Further, [he] was protected by [Brown v. Superior Court (2002) 101 Cal.App.4th 313 (Brown)] when the DRC itself attempted to modify his [probation] conditions by requiring additional rules, consents and waivers as a condition of participation." (Footnotes omitted.)
We agree with defendant that this case is very simple and straightforward. But we disagree with his other arguments. As we will explain, we reject his fundamental premise that the DRC Directive was a new probation condition. Instead, like the court below, we conclude the DRC Directive was expressly authorized under the Obey Condition and the Employment Condition, both of which are constitutional. Further, like the trial court, we conclude the DRC Directive was a reasonable exercise of the probation officer's authority under those two probation conditions. Finally, we find defendant's reliance upon Brown is misplaced. Hence, we conclude the court did not err. 1. The DRC Directive Was Authorized Under the Obey and Employment Conditions.
Defendant's premise—the DRC Directive was a new probation condition—is based upon an incorrect interpretation of the negotiated plea agreement. "A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] 'The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code, § 1636.) If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.) On the other hand, "[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it." [Citations.]" (People v. Shelton (2006) 37 Cal.4th 759, 767 (Shelton).)
"The interpretation of a contract is a judicial function. [Citation.] In engaging in this function, the trial court 'give[s] effect to the mutual intention of the parties as it existed' at the time the contract was executed. (Civ Code, § 1636.) Ordinarily, the objective intent of the contracting parties is a legal question determined solely by reference to the contract's terms. (Civ Code, § 1639 [ ]; Civ Code, § 1638 [ ].) [¶] . . . Extrinsic evidence is admissible, however, to interpret an agreement when a material term is ambiguous. [Citations.]" (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1125-1126; see also Shelton, supra, 37 Cal.4th at p. 767.)
"We generally apply an independent, or de novo, standard of review to conclusions of law regarding interpretation of [contracts]. 'The precise meaning of any contract . . . depends upon the parties' expressed intent, using an objective standard. [Citations.] When there is ambiguity in the contract language, extrinsic evidence may be considered to ascertain a meaning to which the instrument's language is reasonably susceptible. [Citation.] . . . [¶] We review the agreement and the extrinsic evidence de novo . . . unless the interpretation depends upon credibility. [Citation.] If it does, we must accept any reasonable interpretation adopted by the trial court. [Citation.]' . . . However, extrinsic evidence is not admissible to ascribe a meaning to an agreement to which it is not reasonably susceptible. [Citation.]" (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266-1267 (ASP Properties Group).)
Applying these principles to the negotiated plea agreement leads to the inescapable conclusion the DRC Directive falls squarely within the Obey Condition and the Employment Condition. Again, the Obey Condition required defendant to: "Obey all orders, rules, regulations and directives of the Court, Probation Department, . . . and Jail." (Italics added.) The DRC Directive is plainly a directive of the Probation Department as that term is used in the Obey Condition. And because the language of the Obey Condition is clear, explicit and unambiguous, it governs. (Shelton, supra, 37 Cal.4th at p. 767.) Defendant does not dispute this interpretation. It is easy to see why.
Turning to the Employment Condition, recall it required defendant to: "Seek training, schooling, or employment, and maintain residence as approved by your probation . . . officer." The court noted the word and was used as the connective in a conjunctive sentence. Hence, the court concluded the as approved language applied to both the seek training, schooling or employment requirement and the maintain residence requirement. We agree.
The court's interpretation of the Employment Condition gave effect to the mutual intent of the parties at the time the plea agreement was executed, as determined solely by reference to the contractual language, using an objective standard. It reflected the rule that, "[t]he whole of the contract is to be taken together, so as to give effect to every part, . . . each clause helping to interpret the other." (Civ. Code, § 1641.) And it gave the Employment Condition, '"the meaning that would appear to a reasonable, objective reader.' [Citation.]" (People v. Olguin (2008) 45 Cal.4th 375, 382 (Olguin).)
Defendant's arguments for a different interpretation are not persuasive. First, he argues the as approved language was "stricken" as unconstitutional in People v. Tye (Sept. 27, 2016, G051627) [nonpub. opn.] (Tye 627). Not so. That language was narrowed not stricken, based upon the constitutional rights to travel and freedom of association, but only in relation to the maintain residence requirement. We never considered it in relation to the seek training, schooling or employment requirement.
Second, defendant argues the as approved language applies only to the maintain residence requirement, and not to the seek training, schooling or employment requirement. He reasons the Employment Condition is a compound sentence, and that the word and in the middle of it merely joins two independent clauses, which address "completely different subject matter." Thus, "[his] position is that so long as he seeks training, schooling, or employment, he has fulfilled his duty. It doesn't matter if he seeks it half-heartedly . . . . [A]nd the only way to violate it would be to utterly refuse to seek training, schooling, or employment of any kind." We disagree.
Defendant's interpretation of the Employment Condition, while not totally inconsistent with the language used, effectively renders the seek training, schooling or employment requirement meaningless surplusage. It violates the rule that the whole of the contract is to be taken together, to give effect to every part. (Civ. Code, § 1641.) It also does not give the Employment Condition, '"the meaning that would appear to a reasonable, objective reader.' [Citation.]" (Olguin, supra, 45 Cal.4th at p. 382.) And it does "involve an absurdity." (Civ Code, § 1638.) There would be no reason to include the seek training, schooling or employment language at all if it has no real meaning.
Third, defendant argues: "If the intention of the drafter was to deprive the probationer of any say in whether he went to school or in what kind of work he could apply for, it was very poorly drafted. That would make the sentence ambiguous, and all ambiguities in the contract would have to be resolved against the drafting party, in [his] favor." Defendant failed to cite any authority to support this argument as required by California Rules of Court, rule 8.204(a)(1)(B). So this argument has been forfeited. (Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948.)
The ambiguity argument also fails on the merits. Presumably defendant was attempting to invoke the rule set out in Civil Code, section 1654, which provides: "In cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist." (Italics added.) But, as we have explained, any uncertainty was removed by the preceding rules, specifically by Civil Code, sections 1636, 1638, 1639 and 1641.
And, in any event, the record does not reveal which party caused the alleged ambiguity to exist. The plea agreement was based upon a pre-printed Superior Court of Orange County standard form, but it was heavily negotiated and substantially modified. Many provisions were crossed-out, some were handwritten in, and a separate typed addendum was added. Plus, at the sentencing in 2013, defendant did not object to the Employment Condition (or any other), or request any clarification.
Even assuming arguendo that the Employment Condition is ambiguous, we are required to consider the circumstances under which this term of the plea agreement was made, and the matter to which it relates (Civ. Code, § 1647); to determine the sense in which defendant believed, at the time of making it, that the prosecutor and the court understood it (Civ. Code, § 1649). (Shelton, supra, 37 Cal.4th at pp. 767-768.)
"Generally speaking, conditions of probation 'are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large. [Citation.] These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed.' [Citation.]" (Olguin, supra, 45 Cal.4th at p. 380.)
Consistent with these goals, the Employment Condition consolidated into one sentence, what is commonly set out in two. For example, in People v. Bravo (1987) 43 Cal.3d 600, 602, fn. 1, the probation conditions included: "'Seek and maintain training, schooling or employment as approved by probation officer[,]'" and "'Maintain residence as approved by probation officer.'" (See also People v. Caron (1981) 115 Cal.App.3d 236, 244 [same]; People v. Hawkins (1975) 44 Cal.App.3d 958, 961 [same].)
From the prosecutor's and the court's point of view, the circumstances under which this term of the plea agreement was made, and the matter to which it relates, suggests the as approved language applied to both the seek training, schooling or employment requirement and the maintain residence requirement. In contrast, nothing in the record suggests defendant believed, at the time the plea agreement was made, that the prosecutor and the court interpreted the Employment Condition as he now contends.
Finally, the court obviously did not believe defendant's claim he would not have signed the plea agreement if he had known probation would have to approve his employment efforts. This is a credibility call we must accept, and anyway this extrinsic evidence is not admissible to ascribe a meaning to the plea agreement to which it is not reasonably susceptible. (ASP Properties Group, supra, 133 Cal.App.4th at p. 1267.) 2. The Obey Condition and the Employment Condition Are Constitutional.
The court found neither the Obey Condition nor the Employment Condition are vague, overbroad, or otherwise unconstitutional. Defendant claims the Obey and Employment Conditions are both unconstitutional. We reject these claims on procedural grounds and on the merits.
Preliminarily, we note defendant did not object to the Obey Condition or the Employment Condition at the sentencing in 2013. Accordingly, he has forfeited any claim these conditions do not bear a reasonable relationship to the underlying offenses and future criminality. (People v. Welch (1993) 5 Cal.4th 228, 234-238.) Even so, he may advance a facial constitutional challenge that does not require scrutiny of individual facts and circumstances, but instead requires only the review of abstract and generalized legal concepts. (In re Sheena K. (2007) 40 Cal.4th 875, 885 (Sheena K.).)
Defendant argues: "[The Obey Condition] turns everything into a full-fledged probation condition. Any utterance from a probation officer (or judicial officer, or jail deputy) can be characterized as a 'directive,' and the probationer could then be held in violation of the 'Obey' condition and sent to prison. . . . [¶] . . . [¶] This system is grossly illegal, eviscerates the Constitutional rights of all probationers in Orange County and must be torn down."
The Attorney General contends this is a repackaged argument that the Obey Condition is unconstitutionally vague and overbroad, which is barred by our decision in People v. Tye (Sept. 27, 2016, G052360) [nonpub. opn.] (Tye 360) and the law-of-the-case doctrine. Defendant says the law-of-the-case does not apply.
The Attorney General is right. In Tye 360, defendant claimed the Obey Condition is unconstitutionally vague and overbroad, and improperly delegates judicial powers. He argued, "'The problem with this "catch-all" provision is that it contradicts existing law and improperly gives unlimited power to non-judicial agencies to create new probation conditions by calling them order, rules, regulations, or directives.'"
We disagreed with defendant and held the Obey Condition is constitutional. We explained: "It is reasonable and necessary to enable the probation department to supervise compliance with the specific conditions of probation. It does no more. It does not give the probation officer the power to impose unreasonable conditions. It is authorized by [Penal Code] sections 1202.8 and 1203. It does not conflict with [People v. Lent (1975) 15 Cal.3d 481 (Lent).)], or authorize the probation officer to act irrationally as defendant fears. In short, it is a reasonable probation condition which enables the department to supervise compliance with the other probation conditions."
Tye 360 is now the law-of-the-case. '"[W]here an appellate court states a rule of law necessary to its decision, such '"must be adhered to"' in any '"subsequent appeal"' in the same case, even where the former decision appears to be '"erroneous.'"' [Citations.] Thus, the law-of-the-case doctrine 'prevents the parties from seeking appellate reconsideration of an already decided issue in the same case absent some significant change in circumstances." [Citation.]'" (People v. Boyer (2006) 38 Cal.4th 412, 441 (Boyer); see People v. Barragan (2004) 32 Cal.4th 236, 246 (Barragan).)
Defendant argues the law-of-the-case doctrine does not apply because this is not the same issue. He claims: "The prior appeal [Tye 360] only addressed a bare facial challenge in the abstract. By contrast, this is an as applied challenge based on new facts that establish abuse that was only theoretical before." For support, defendant relies on Investors Equity Life Holding Co. v. Schmidt (2015) 233 Cal.App.4th 1363, 1377 (Investors Equity). His reliance on Investors Equity is unwarranted.
Investors Equity, citing Barragan, held, "'the law of the case doctrine is subject to an important limitation: it "applie[s] only to the principles of law laid down by the court as applicable to a retrial of fact," and "does not embrace the facts themselves . . . ." . . . Where, on remand, "there is a substantial difference in the evidence to which the [announced] principle of law is applied, . . . the [doctrine] may not be invoked.'" [Citation.]" (Investors Equity, supra, 233 Cal.App.4th at p. 1377.)
But in this case, there is no substantial difference in the evidence to which the announced principle of law (that the Obey Condition is not unconstitutionally vague or overbroad) is applied. In short, as the Attorney General points out, defendant, "is just recycling old arguments." Moreover, to the extent defendant is trying to assert a constitutional claim that requires scrutiny of individual facts and circumstances, that claim has been forfeited as noted above. (Sheena K., supra, 40 Cal.4th at p. 885.)
Defendant also argues the law-of-the-case doctrine does not apply because it is a discretionary policy which need not be followed if it results in a manifestly unjust decision. Here he cites Moore v. Kaufman (2010) 189 Cal.App.4th 604, 617. We have no quarrel with the rule, and we note it applies to criminal cases too. (Boyer, supra, 38 Cal.4th at p. 441.) But it doesn't apply in this case. No manifestly unjust decision will result from following our prior holding that the Obey Condition is constitutional.
In his reply brief, defendant claims the as approved language in the Employment Condition is unconstitutional on its face under People v. O'Neil (2008) 165 Cal.App.4th 1351 (O'Neil); People v. Bauer (1989) 211 Cal.App.3d 937 (Bauer). He notes we relied on Bauer and O'Neil in finding the association and residence conditions unconstitutionally overbroad in Tye 627 and Tye 360. He argues the same is true here to the extent the as approved language applies to the Employment Condition.
This argument has been forfeited because defendant raised it for the first time in his reply brief. (People v. Zamudio (2008) 43 Cal.4th 327, 353.) It also fails on the merits. O'Neil and Bauer held that as approved by probation requirements in association and residence conditions were overbroad, based on the constitutional rights to freedom of association and travel. (O'Neil, supra, 165 Cal.App.4th at p. 1356; Bauer, supra, 211 Cal.App.3d at p. 944.) Neither case discussed as approved by probation requirements in employment conditions. What's more, defendant has not cited any authority which supports his claim that the as approved by probation language in the Employment Condition is similarly circumscribed by constitutional considerations. 3. The DCR Directive Was a Reasonable Exercise of the Probation Officer's Authority.
The court found the DRC Directive was a reasonable, legitimate exercise of probation officer Grantham's authority under the Obey and Employment Conditions, and it was neither punitive nor an abuse of discretion, given defendant's history on probation, lack of employment and lack of schooling. Once more, we agree.
We review the DRC Directive for abuse of discretion. (Olguin, supra, 45 Cal.4th at p. 379.) Generally, a probation term, "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.]" (Lent, supra, 15 Cal.3d at p. 486.)
Defendant asserts: "The DRC will never satisfy the Lent test for any probationer. It doesn't have anything to do with particular crimes, is not itself criminal, and required attendance is not reasonably related to future criminality. . . . This is not a valid tool for probation, and this tool needs to be taken away from probation officers in Orange County." He declares it is "a tool of punishment . . . ."
Defendant is wrong. The DRC Directive is part of Grantham's ongoing and legitimate effort to assure defendant serves, "a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large. [Citation.] These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed.' [Citation.]" (Olguin, supra, 45 Cal.4th at p. 380.) It is, "therefore, 'reasonably related to future criminality.' [Citation.]" (Id. at pp. 380-381.)
Further, at the time the DRC Directive was issued, defendant had not been employed for well over a year. In that time, he had mostly been sitting around his house playing computer games. He had done nothing reasonable to seek training, schooling or employment as required. It is not surprising his efforts to find work as a paralegal were unproductive, given his status as a convicted felony sex offender. In these circumstances, we conclude the DRC Directive was not punitive or an abuse of discretion. 4. Defendant's Reliance upon Brown is Misplaced.
Defendant alleges the DRC Directive is invalid because "[o]utside entities" such as the DRC: "[C]annot condition enrollment or participation on waivers, consents, releases, or any other such rules, because this gives those entities the power to extra-judicially create and impose their own conditions on probationers. Either the entity allows the probationer to enroll and participate without the forms, or the probationer is excused from participation, and [Brown] bars any attempt to violate probationers for non-participation in such circumstances." Defendant's reliance upon Brown is misplaced.
This issue is arguably not properly before this court in this appeal. (See 6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Appeal, § 164, p. 441 [matters not reviewable].) The Motion hearing was not a probation violation hearing. And, as defendant notes, "Despite taking considerable testimony on the subject, the Superior Court completely ignored this issue." Still, given the likelihood of continuing controversy, we will exercise our discretion to address this issue on the merits.
In Brown, the trial court ordered the defendant to submit to periodic polygraph testing as part of a stalking program, at his own expense, and as a condition of probation. (Brown, supra, 101 Cal.App.4th at pp. 318-319.) The appellate court: limited the testing to questions related to the successful completion of the stalking program; and ruled the defendant's obligation to pay the testing costs had to be based upon his ability to pay, and that it could not be a condition of probation. (Id. at pp. 321-322.)
The defendant in Brown also complained the stalking program required him to consent to the use of data collected during his treatment for a research project. The court held: "Participation in . . . research may aid in the rehabilitation of offenders convicted of stalking in the aggregate, but does not foster the reformation and rehabilitation of a particular probationer, and thus, it is not a valid condition of probation. [Citation.] Therefore, . . . such consent cannot be mandated before treatment can begin or made a condition of treatment." (Brown, supra, 101 Cal.App.4th at p. 322.)
Defendant avers: "Probationers have the right under [Brown] to refuse to sign any conditions, waivers, and consent forms." (Italics added.) This is an overstatement. Brown only invalidates conditions, waivers and consents, which do not foster the reformation and rehabilitation of particular probationers. And, as the Attorney General argues, defendant has not demonstrated that he was required to sign any such invalid forms as a condition of his participation in the DRC program.
At the hearing on the Motion, a packet of DRC forms was marked for identification. It included, a "Release of Information Form," and defendant testified it looked like one of the forms he had refused to sign. The stated purpose of this form was "to allow communication with supervising criminal justice agencies to ensure [defendant's] compliance and progress on issues that pertain to supervision requirements, treatment needs and public safety." It authorized the DRC to share information only with the probation department.
The types of information to be shared included: criminal activity, use of drugs or alcohol, weapons possession, use of gang signs, failure to check-in on time, failure to be employed, or to seek employment or attend school, curfew violations, failure to report financial information, failure to be available and report his whereabouts, failure to participate in treatment, urinalysis and breathalyzer test results, changes in living or working arrangements, summaries of evaluations, recommendations regarding behavior change plans and service needs, and case management reports.
Another DRC form defendant recognized was titled, "Agreement with Client Contract, Program Rules and Consent to Treatment." It stated in part: "I agree to the . . . the Client Contract and Program Rules document and give my consent for supervision and/or treatment. . . . I have read and understand all of the conditions and documents and agree to pursue and achieve the objectives of the contract. . . . I will make every reasonable effort to achieve my stated objectives and realize that my failure to do so may be cause for termination . . . ."
A third DRC form was a, "BI Incorporated Image Release Form." Defendant testified this form was familiar and, "That's something I discussed with . . . Grantham prior to going too." This form assigned to the DRC the right to use pictures of defendant for "illustration, promotion, art, advertising, trade or any other purpose whatsoever." It also contained a liability release.
The Release of Information and Agreement with Client Contract forms are not prohibited by Brown, because they foster defendant's reformation and rehabilitation through the DRC program. The Image Release form is prohibited, because it does not. But defendant has not shown he was actually required to sign the Image Release form as a condition of his participation. In fact, he acknowledges, "The record is clear that the DRC turned [him] away for refusal to sign the forms in general, not for refusal to sign individual specific forms." In sum, defendant has not met his burden of showing, "both error and prejudice." (People v. Coley (1997) 52 Cal.App.4th 964, 972.) 5. The Court Did Not Abuse Its Discretion by Denying Ex Parte Relief.
Defendant contends the court erred because it did not consider the merits of his ex parte application for an order shortening time on the Motion, and a temporary stay of the DRC Directive. He argues: "The Superior Court did not consider the merits of the ex parte application, weigh the irreparable harm or anything of that sort. Instead, it held that 'I don't think it is an ex parte matter.' [] This is a categorical refusal from the Superior Court to ever consider ex parte applications from probationers who are seeking relief from the unlawful actions of their probation officers."
Defendant is wrong on the facts and the law. He quotes the court ("I don't think it is an ex parte matter") out of context. Here is that quote in context: "You have every right to litigate it, but it should be appropriately noticed, appropriately briefed, appropriately filed and you can litigate it. That's not a problem. I have no problem with that. I just don't believe it's an ex parte matter. It's not something that you needed to come in today, especially given the underlying history. It's not ex parte."
From this, two facts are readily apparent. First, the court did consider the merits of the ex parte application, and it found those merits lacking. Second, the court did not categorically refuse to consider ex parte applications from probationers who are seeking relief from allegedly unlawful actions by their probation officers.
On the law, criminal motion practice is similar to civil motion practice. (See 4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Introduction to Criminal Procedure, § 8, p. 13.) Because of the abbreviated nature of ex parte proceedings, they are permitted only in limited circumstances. (6 Witkin, Cal. Procedure (5th ed. 2008) Ex Parte Application, § 58, p. 483.) One such limited circumstance is where there is a pressing need for immediate relief. (Id. at p. 484.)
Here, defendant claimed the order shortening time and temporary stay were needed, because otherwise he would have to comply with the DRC Directive, "out of fear of wrongful arrest." The court considered and rejected this claim. We review the court's ruling under the abuse of discretion standard. (People v. Alvarez (1996) 14 Cal.4th 155, 238; Moore v. El Camino Hospital Dist. (1978) 78 Cal.App.3d 661, 664.)
On this record, and in these circumstances, no abuse of discretion appears. 6. The Superior Court's Probation System Is Not Unlawful.
Lastly, defendant declares the entire Superior Court of Orange County probation system is unlawful. He says this, "can be inferred from the manner in which the Court ruled upon this motion, as well as explicitly defined by the terms in the . . . Plea Agreement form." He argues, "Probation is explicitly and unlawfully invested with judicial powers, which includes creating and imposing new probation conditions." And he claims this is primarily accomplished through the combination of the Obey Condition, and Item No. 31 in theplea agreement, which stated: "I understand that the Court ultimately determines the conditions of probation . . . , and I have the right to request the Court modify or eliminate any condition imposed by the Probation Department that I believe is unreasonable."
To the extent defendant would have us consider this as a challenge to the probation system as a whole, we decline to do so. It is beyond the scope of this appeal and concerns matters outside the record, and neither the Superior Court of Orange County nor the Orange County Probation Department are parties to this case or to this appeal.
To the extent defendant would have us consider this as a challenge to his experience in the probation system, beyond the issues already addressed, we add these final observations. He agreed to Item No. 31 and he is bound by it. He has provided no reasoned argument and cited no authority which would lead us to conclude otherwise.
DISPOSITION
The postjudgment order denying the Motion is affirmed.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.