Opinion
Santa Clara County Super. Ct. No. FF405914
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McAdams, J.
Defendant, Charles Shihli Wang, was found guilty of inflicting corporal injury on a spouse, a violation of Penal Code section 273.5, after a court trial. The court placed defendant on probation for three years on various terms and conditions including (1) submission of his person, residence, vehicle and property under his control to warrantless search at any time by a peace officer, and (2) payment of a probation supervision fee of not more than $64 per month. On appeal, he contends these two conditions are invalid and should be stricken. We will modify the judgment with respect to the probation supervision fee and, as modified, affirm.
STATEMENT OF FACTS
Defendant and his wife, Jane, were married on January 23, 1982, and divorced November 16, 2005. They have three children together. At the time of trial, Vivian was 23, Jacklyn was 21, and Derrick was 15. As a general rule, defendant made all the major decisions in the family and was not happy if family members disagreed with him.
On March 31, 2004, just after 11:00 p.m., Vivian called her parents from Los Angeles to tell them she had bought a new car. Defendant was “furious” that Vivian had not consulted him before buying the car. He blamed Jane and berated her. Then he began “pounding” Jane hard on her face, forehead and arms with a closed fist, “four, five six, times. I don’t know. He just [sic] pounding on me.” The pounding and berating lasted about five minutes. They went to bed. Jane told Vivian what had happened, and Vivian encouraged her to do something about it, since it had happened before. Jane told the police on April 2, 2004.
According to Jane, defendant had beaten her before, and she recounted several incidents dating from 1997. Derrick recalled two of these incidents. He was home on March 31 and heard the fight between his parents.
Defendant denied hitting his wife on March 31 or previously. He believed his wife’s accusations were financially motivated.
DISCUSSION
Search Condition
Defendant argues that the probation condition that he submit to warrantless searches is invalid because no nexus exists between his offenses and the condition. He acknowledges that People v. Welch (1993) 5 Cal.4th 228, 237, held that failure to object to a probation condition precludes a challenge to the condition on appeal, but argues that his counsel’s failure to object to the condition constituted ineffective assistance. Since we find that the trial court did not abuse its discretion in imposing the condition, we reject defendant’s claim of ineffective assistance of counsel.
A trial court has broad discretion to impose such reasonable probation conditions “as it may determine are fitting and proper to the end that justice may be done … and generally and specifically for the reformation and rehabilitation of the probationer….” (Pen. Code § 1203.1, subd. (j).) “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.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.” (People v. Lent (1975) 15 Cal.3d 481, 486.)
“As our Supreme Court has recently (and repeatedly) made clear, a warrantless search condition is intended to ensure that the subject thereof is obeying the fundamental condition of all grants of probation, that is, the usual requirement (as here) that a probationer ‘obey all laws.’ Thus, warrantless search conditions serve a valid rehabilitative purpose, and because such a search condition is necessarily justified by its rehabilitative purpose, it is of no moment whether the underlying offense is reasonably related to theft, narcotics, or firearms: ‘The threat of a suspicionless search is fully consistent with the deterrent purposes of the search condition. “ ‘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 [or she] disobeys the law, but also whether he [or she] obeys the law. Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given the defendant….’ ” ’ ” (People v. Balestra (1999) 76 Cal.App.4th 57, 67, italics and fn. omitted.)
The evidence presented at trial showed that defendant had a history of intimidating and violent behavior towards his wife and the probation report reflected that both his wife and children feared for their lives. Between conviction and sentence he violated a restraining order three times and pleaded no contest to the violations. He continued to deny wrongdoing. At sentencing, the court expressed “significant concerns about [defendant]’s willingness and capability to comply with the terms and conditions of probation” given “the learning process that Mr. Wang is going to have to go through. I don’t think he’s gotten it yet.” Thus, in addition to the search condition, the court ordered that defendant enter and complete a certified domestic violence counseling program, participate in the San Jose Alternative to Violence Men’s Drop In Group, enter and complete a parenting without violence education program, obey all family court orders, and not own or possess any firearm, ammunition, or deadly or dangerous weapon. The search condition of probation allows officers to determine whether defendant is complying with these other probation conditions. It also discourages defendant from disobeying other laws. (People v. Balestra, supra, 76 Cal.App.4th at p. 67.)
Defendant’s reliance on In re Martinez (1978) 86 Cal.App.3d 577 is misplaced. In Martinez, the defendant pleaded guilty to battery on a police officer after he was arrested for throwing a beer bottle at a police vehicle. The Martinez court invalidated a warrantless search condition imposed by the trial court, holding that a condition was valid only if there was a factual nexus between the crime, defendant’s manifested propensities, and the probation condition. In Martinez, the offense was described as an isolated incident, the defendant had no prior convictions and there was nothing in his history to indicate he might resort to the use of concealed weapons in the future. In contrast to Martinez, here defendant had demonstrated a propensity for committing repeated acts of intimidation and violence against one person, his wife.
We conclude that the trial court did not abuse its discretion in imposing the search condition. Thus, trial counsel’s failure to object to the condition was not prejudicial because there is not a reasonable probability that an objection would have resulted in the omission of the condition.
Probation Costs
Defendant also contends that the trial court improperly ordered payment of a “[p]robation supervision [fee] not to exceed $64 per month” as a condition of probation.
Penal Code section 1203.1b, subdivision (a), provides that a defendant may be ordered to pay “all or a portion of the reasonable cost of any probation supervision, ” depending upon the defendant’s ability to pay. However, section 1203.1b does not authorize payment of either costs or fees as a condition of probation. “These costs are collectible as civil judgments; neither contempt nor revocation of probation may be utilized as a remedy for failure to pay. (Pen. Code, § 1203.1b, subd. (d).)” (People v. Washington (2002) 100 Cal.App.4th 590, 592.) Thus, it is well established that the trial court may not require, as a condition of probation, payment of the cost of preparation of the probation report or the costs incurred in probation supervision. (People v. Hart (1998) 65 Cal.App.4th 902.)
Penal Code section 1203.1b, subdivision (a), provides in pertinent part, “In any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report, whether or not probation supervision is ordered by the court, and in any case in which a defendant is granted probation or given a conditional sentence, the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision or a conditional sentence, of conducting any preplea investigation and preparing any preplea report . . . .”
Penal Code section 1203.1b, subdivision (d), provides in pertinent part, “Execution may be issued on the order issued pursuant to this section in the same manner as a judgment in a civil action. The order to pay all or part of the costs shall not be enforced by contempt.”
This record is not clear as to whether payment of a probation supervision fee was ordered as a condition of probation. The trial court’s order that defendant pay probation fees directly followed the imposition of other fees. Immediately thereafter, the court asked defendant: “Do you understand each of the conditions of your probation, sir?” The minute order does not clarify whether payment of probation costs and fees is one of defendant’s probation conditions. To the extent that the record can be interpreted as conditioning defendant’s probation upon payment of probation fees and costs, modification of the conditions of probation to strike those fees and costs is appropriate. Accordingly, we will modify the probation order by striking those conditions from the order granting probation; however, we will also affirm the order that defendant pay such costs. (People v. Hart, supra, 65 Cal.App.4th at p. 907.)
DISPOSITION
The conditions of probation are modified to delete the requirement that defendant pay probation supervision fees in the amount of $64 per month; however, the order that defendant pay such fees is affirmed. As modified, the judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.