Opinion
A110583
5-2-2007
THE PEOPLE, Plaintiff and Respondent, v. CLAUDE DANIEL JACKSON, Defendant and Appellant.
NOT TO BE PUBLISHED
Claude Daniel Jackson appeals from a judgment revoking his probation and imposing an upper-term state prison sentence based on his negotiated plea of no contest to the commission of a lewd act on a child. (Pen. Code, § 288, subd. (a).) Appellant claims the judgment must be reversed because (1) the condition of probation he was found to have violated—that he "not possess pornographic materials"—is constitutionally and otherwise invalid, and (2) the imposition of an upper term violated his constitutional rights under Cunningham v. California (Jan. 22, 2007) ___ U.S. ___, 2007 WL 135687 (Cunningham).
All statutory references are to the Penal Code.
In his opening brief, which was filed in this court on February 6, 2006, prior to the opinion in Cunningham, appellant relied on Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and conceded that this court was then bound to adhere to the ruling of our Supreme Court in People v. Black (2005) 35 Cal.4th 1238 that Blakely did not apply to our sentencing scheme, but correctly pointed out that the correctness of Black was then before the United States Supreme Court in Cunningham, and appellant was preserving his right "for federal court review." After Cunningham issued, we ordered the parties to brief its application to this case.
After finding that appellant did not waive his right to challenge the probation condition, and did not need to obtain a certificate of probable cause pursuant to section 1237.5 in order to challenge the condition, we shall conclude that the trial court that sentenced appellant four years ago failed to make the requisite case-specific exercise of discretion as to whether the condition is reasonably related to his offense or to his future criminality, rendering it unnecessary to determine the constitutionality of that condition. We shall also determine that though appellant did not waive his right to challenge the no pornography condition, he did waive his right to challenge the constitutionality of his sentence and failed to seek and obtain a certificate of probable cause, which is a necessary precondition to that challenge. Accordingly, we shall reverse the revocation of probation and order the no pornography condition stricken.
FACTS AND PROCEEDINGS BELOW
By a two-count information filed by the Solano County District Attorney on January 25, 2002, appellant was charged with aggravated sexual assault of a child under the age of 14 and more than 10 years younger than him (§§ 261, subd. (a)(2); 269, subd. (a)(1)-count 1) and lewd act upon a child under the age of 14 (§ 288, subd. (a)-count 2).
The facts are taken from the preliminary hearing held on January 18, 2002, and the reports submitted by the probation department and Kathleen OMeara, Ph.D., who evaluated appellant by order of the court pursuant to section 288.1.
Section 288.1 provides that a person convicted of committing any lewd or lascivious act upon a child under the age of 14 "shall not have his or her sentence suspended until the court obtains a report from a reputable psychiatrist [or] from a reputable psychologist who meets the standards set forth in Section 1027 . . . as to the mental condition of that person."
The probation report states that during the summer of 2001, seven-year-old Naja M., whose "mother" was then in jail, was living with her grandmother. Appellant, "a distant family relation" of Naja, also resided in the house, as did numerous others. After Naja complained of a burning sensation when she urinated, church officials discovered a white discharge from her vagina. Suspicion focused on appellant after "mother" informed the police that the grandmother was an alcoholic and suggested that during states of grandmothers intoxication appellant "might have access to the child." When asked if anyone had touched her " `down there, " Naja said, " `yeah. B.J. did, " referring to appellant. Naja stated that appellant "did it to her," (i.e., "humped her") some time between May 15 and June 9, 2001. The assault occurred in the living room when the grandmother was at the store. While he was laying on the couch, appellant assertedly called Naja to him, pulled down her pants, and picked her up and placed her on top of him, telling her to "go up and down" while "his thing was going into her thing." Naja said appellant admonished her not to tell anyone.
Appellants briefs variously refer to the victim as "Maya" and "Maja." However, at the preliminary hearing the victim was identified by the Suisun police investigator, William Clark, as Naja.
During the course of the police investigation it was learned that the informant was not actually Najas mother, but the mothers step sister.
Appellant insisted he was falsely accused and " `railroaded "and intended to "fight the case when he obtains enough money for an attorney." Appellant told the probation officer "he was never left alone with the child, and that there is no way he could have committed the crime, and called the victim a liar." Appellant claimed other males were in the house, and Naja was probably molested by her cousin Dion. The family blamed him because they disliked him and wanted to shield Dion. Asked how he knew Dion had molested Naja, appellant told Dr. OMeara that "Dion is now in CYA for sexually molesting Naja and other children." Asked why Naja would accuse him and not Dion, appellant said that other children in the house told her "not to accuse Dion because Dion was their cousin and they didnt want to get him in trouble."
There is some support for this claim in the record. At a hearing on in limine motions conducted on January 23, 2003, several days before trial was to commence, the district attorney mentioned that Naja said she was molested on other occasions by Dion, and the prosecutor allowed that Dion could have been the source of the vaginal disease that led to the investigation of appellants conduct.
Appellant also claimed that due to "medical problems" he was physically unable to engage in sexual intercourse and that "Viagra has not alleviated this problem." Appellant explained that "he pled to the offense because he wanted to get out of jail [in which, at the time of his plea, he had been confined for more than a year] and avoid more serious consequences which may have resulted [sic] from a jury trial."
At the time of the offense, appellant suffered diabetes, had high blood pressure for which he was taking medication, was blind in one eye, and had a kidney disease that requires him to be on dialysis for four hours three times a week. He was unemployed and receives disability based on his medical conditions.
The section 288.1 evaluation submitted by Dr. OMeara is consistent with the probation report but provides additional detail. Dr. OMeara describes appellant as "a 50-year-old man who appears quite a bit older than his age. He walks with a cane due to impaired equilibrium from various conditions," mentioning "high blood pressure, diabetes, blindness in the left eye caused by a cataract, and a significant kidney disease for which he receives dialysis three times a week. He wore dark glasses during the interview because the office lights bothered his eye." Appellant stated that he was arrested twice in the 1990s for selling cocaine, and following one of those arrests spent six months in jail. As to the instant offense, appellant "was quick to say he had been `railroaded. " Najas family was being supported by appellants brother, and he was living in the house because he was sick. There were a "multitude" of others in the household, including, in addition to Najas grandmother and an aunt, appellants brothers two sons and Najas cousin and another minor. "Thus, sometimes there were upwards of ten people living in the two bedroom Suisun house." Appellant "typically slept on the couch. Three times a week [he] had dialysis which is a four hour procedure. For physical reasons, and lack of opportunity, [appellant] hasnt had a sexual relationship in over a year. He is taking an average dose of high blood pressure medication which he reports interferes with his ability to get an erection (this is a common side-effect of blood pressure medicine.)"
In his interview with Dr. OMeara, appellant again maintained that "Dion is the actual culprit of this false accusation. The family has been trying to protect him by accusing [appellant]." When asked how he knew Dion molested Naja, appellant responded that "Dion is now in CYA for sexually molesting Naja and other children." Appellant said "he was never alone with the child, `I never could stand her. I didnt even like that whole family. They were my brothers business. The only thing I did wrong was stay in that house which I only did because I was sick at the time. " Asked why Naja would accuse him, appellant stated that other children in the house, including some Dion was also molesting, "told Naja not to accuse Dion because Dion was their cousin and they didnt want to get him in trouble." When asked about the specifics of Najas accusation—that he had " `humped " her after the grandmother left for the store—appellant said the grandmother and Naja always went to the store together and he was effectively impotent: "[h]e cant produce semen because he cant ejaculate. He cant even urinate thats why hes on dialysis." (Dr. OMeara noted that "[a] medical examination of the child revealed irregularities to her hymen, possibly related to natural causes and not indicative of deep penetration.") Appellant, who has never previously been charged with molesting a child or any sex offense, told Dr. OMeara that he "took a deal" to avoid the risk of a prison sentence. After exploring appellants "sexual history and sexual fantasy life," Dr. OMeara concluded that he "expressed a healthy interest in adult females," it "is unlikely that he is a pedophile," and he "can be safely managed on probation without presenting as a danger to others."
On January 30, 2003, appellant entered a negotiated plea agreement providing that, in return for his plea of no contest to count 2 and waiver of rights, including his right of appeal, he would receive a state prison sentence of no more than eight years, the upper term for the offense alleged in count 2. Appellant also acknowledged in the plea agreement that the only promises made to him or his family in order to induce his plea was that the district attorney would dismiss count 1, and not oppose a grant of probation with credit for time served. The prosecution agreed to probation notwithstanding appellants two prior felony convictions for sale (in 1992) and possession for sale (in 1997) of drugs, which would ordinarily make him ineligible for probation (§ 1203, subd. (e)(4).)
At the commencement of the March 21, 2003 sentencing hearing, defense counsel felt it necessary to declare that, despite his plea, appellant continues to deny he committed the offense to which he pled no contest. Nonetheless, as appellant fully acknowledged the consequences of his plea, counsel focused attention on six of the conditions of probation proposed by the district attorney: (1) the prohibition on use of the Internet; (2) the size of the proposed fines; (3) the requirement that appellant obtain employment or job training; (4) the prohibition on socializing with any person under the age of 18 without permission of the probation department; (5) the prohibition of possession of pornographic materials; and (6) submission to polygraph testing. With respect to the prohibition on possession of pornographic materials, appellant claimed that there was no nexus between the condition and his offense and that the condition was "overbroad."
The court did not impose the conditions requiring submission to polygraph testing and restricting use of the Internet, but it did impose all of the others. The court imposed the upper term of eight years, suspended execution of the sentence, placed appellant on five years of formal probation, with credit for 632 days of time served, and imposed all of the other conditions proposed by the prosecution, including, in addition to that prohibiting appellant from possessing pornographic materials, that he pay all applicable restitution fines; that he immediately report all arrests, citations and violations; that he not leave the state without permission; that he submit to warrantless search of his house and person at any time of the night or day; that he not be in the presence of any person under the age of 18 without consent of his probation officer; that he attend counseling, including sex offender treatment, as directed by the probation department; that he register as a sex offender; that he seek and obtain employment or vocational treatment within his ability (given his health condition); and that he have no contact with his victim.
A routine probation search of his house by the Vacaville police on March 16, 2005, approximately three years after appellant committed his offense, disclosed videotapes, DVDs, and magazines in appellants bedroom, all of which contained images of "nude women" performing "different sex acts."
The People filed a motion to revoke appellants probation on March 18, and the revocation hearing was held on April 12, 2005. Appellants probation officer testified that, when confronted after the search, appellant initially claimed he was not prohibited from having such materials, or if he was subject to such a restriction his sex-offense treatment provider told him he could have them. After his treatment provider denied this, appellant claimed the items belonged to his son and he was just storing them. The son confirmed this, testifying that he kept the items in appellants bedroom so his (the sons) girlfriend would not find them. The court found appellant in violation of probation, and set the sentencing hearing for June 14.
A supplemental probation report of the chief probation officer and a report by Dr. Mark R. Corey of the Solano County Health & Social Services Department, which was apparently ordered by the court, both recommended that—despite their concern with his "almost total denial regarding his offense"—appellant be placed back on probation, with modifications in his treatment program requiring that he participate in the FACT sex offender program and submit to polygraph tests if needed. The recommendations noted that appellant had no prior sexual offenses, was not considered a sexual predator, and had not previously violated any term or condition of probation. It appears that these recommendations were also influenced by appellants deteriorating medical condition, which was described at considerable length in the report of Dr. Corey, who stated that appellant is "weak, easily becomes dizzy, and fairly frequently gets too sick to carry out normal activities." Appellant was then living with his son, who he paid $500 monthly for rent, which came out of his monthly SSI check of approximately $700 per month, "leaving [appellant] with little money for anything else." In the probation departments supplemental report, it was noted that appellant was interviewed and acknowledged he was in violation of the condition and was willing to comply with it in the future.
The requirement of a polygraph test (which was among the conditions of probation proposed by the district attorney in 2003 but rejected by the court) was "brought up" by appellant after Dr. Corey suggested that this tool would be useful for purposes of treatment planning and oversight, and was not designed "to change his legal status or plea."
On June 14, 2005, approximately two months after the revocation hearing, the court revoked probation and sentenced appellant to eight years in state prison, the upper term imposed in 2003 but not executed. Appellant thereupon filed this timely notice of appeal.
DISCUSSION
Before addressing appellants challenges to the no pornography condition and the imposition of an upper term prison sentence, we must address the Peoples claims that this appeal must be dismissed because appellant waived his right to take such an appeal and, in any case, the appeal requires a certificate of probable cause pursuant to section 1237.5, which appellant failed to seek and obtain. Because the facts relevant to appellants attack on the probation condition are significantly different from those relating to his attack on the sentence, and involve different analyses, we shall discuss the two challenges separately even though the People claim both challenges are waived and subject to the certificate requirement. We shall find that appellant did not waive his right to challenge the probation condition and a certificate of probable cause is not required as to that aspect of this appeal, but that appellant did waive his right to challenge the upper term sentence, and the certificate requirement does apply to that aspect of this appeal.
I.
Appellant Has Not Waived the Right to Challenge the Probation Condition and a Certificate of Probable Cause is Unnecessary to that Challenge
A.
There Was No Waiver
The Peoples claim that, by his written plea agreement, appellant waived the right to appeal the conditions of his probation rests primarily on People v. Panizzon (1996) 13 Cal.4th 68 (Panizzon). The defendant in Panizzon pleaded no contest to several felony counts pursuant to a plea bargain that specifically provided for the imposition of certain prison time, and the court sentenced defendant in accordance with the bargain. He sought to appeal the sentences, arguing that it was disproportionate to the sentences imposed on codefendants, and violative of federal and state constitutional prohibitions against cruel and unusual punishment. The People sought to dismiss the appeal on the same grounds they assert here: that the defendant waived the right to appeal his sentence as part of the plea bargain, and in any case failed to obtain a certificate of probable cause as required by section 1237.5 and the California Rules of Court. The Court of Appeal denied the request to dismiss, but rejected the defendants appeal on the merits. The Supreme Court reversed, finding that the Court of Appeal erred in denying the Peoples request for dismissal. As the Supreme Court stated: "Although defendant purports not to contest the validity of the negotiated plea, he is in fact challenging the very sentence to which he agreed as part of the plea. Since the challenge attacks an integral part of the plea, it is, in substance, a challenge to the validity of the plea, which requires compliance with the probable cause certificate requirement of section 1237.5 and rule 31(d) [now rule 8.304(b)]." (Panizzon, at p. 73.)
Turning to the present case, the People claim that "[t]he scope of the waiver [of the right to appeal] here included the terms and conditions of probation and clearly stated (in bold, capital, underlined text) that appellant would have to comply with all the terms of his probation or the promise of probation would not be binding on the court. The validity of any of the probation conditions was at issue at the time they were imposed and appellant waived the right to appeal those conditions. For appellant to now claim he can question [the] validity of a probation condition merely because he violated the term and is suffering the consequences of that violation is contrary to the express terms of his waiver and plea." The People misrepresent the plea agreement. By signing the "Waiver of Constitutional Rights and Declaration in Support of Defendants Motion to Change Plea," appellant agreed that an eight-year state prison term is "[t]he maximum punishment which the court may impose based upon this plea," and additionally states that the only promises made to appellant by the prosecution in order to induce his plea were that the district attorney would dismiss count 1 and not oppose a grant of probation with credit for time served. The conditions of probation are not referred to or within the scope of the plea agreement. Indeed, nothing in the record suggest that any condition of probation (other than the size of fines) was ever discussed during plea negotiations, let alone that appellant agreed to any particular condition or waived his right to challenge the conditions that might be proposed by the district attorney at the time of sentencing. As earlier noted, appellant opposed the conditions of probation at the sentencing hearing, and the district attorney did not then claim that the plea agreement specified any conditions or waived the right to object to those proposed by the People.
The People rely on People v. Gardineer (2000) 79 Cal.App.4th 148 for the proposition that "the waiver doctrine applies to constitutional as well as others claims." Gardineer does stand for that proposition, but the opinion does not support waiver in the circumstances of this case, which are very different from those of Gardineer. As part of a negotiated plea agreement, the defendant in Gardineer pleaded guilty to assault with a deadly weapon. Imposition of judgment was suspended and he was placed on probation pursuant to the condition, among others, that he "observe good conduct." Probation was revoked when he violated a domestic violence restraining order; and his appeal from that order rested in part on the ground that the condition he violated was unconstitutionally vague. The court found any defect in the condition waived because the defendant "never objected to the condition when it was imposed." (Id. at p. 151.) As the court emphasized, "[a] defendant who contends a condition of probation is constitutionally flawed still has an obligation to object to the condition on that basis in the trial court in order to preserve the claim on appeal." (Ibid., citing In re Josue S. (1999) 72 Cal.App.4th 168, 170-171.) As the People acknowledge, appellant complied with this requirement by objecting at the 2003 sentencing hearing to the prohibition on pornographic material because it had no nexus to appellants offense and was overbroad.
It is clear that appellant, in writing, waived his statutory right to appeal. "However, `. . . general waiver of the right of appeal did not include error occurring after the waiver because it was not knowingly and intelligently made. Such a waiver of possible future error does not appear to be within defendants contemplation and knowledge at the time the waiver was made. " (People v. Sherrick (1993) 19 Cal.App.4th 657, 659, quoting People v. Vargas (1993) 13 Cal.App.4th 1653, 1662, italics added.) Accordingly, we conclude that appellants written waiver cannot be construed to cover imposition of a condition of probation that was not made a part of the plea negotiation, and appellant was free to later contest that condition, as he did at the sentencing hearing and does again here.
The People maintain that even if appellants appeal of the condition of probation is not barred by his written waiver, it is nevertheless now waived by appellants failure to attack the condition by direct appeal or by petition for writ of habeas corpus. The People rely on People v. Mitchell (1981) 125 Cal.App.3d 715 (Mitchell), but acknowledge that the later opinion in People v. Hackler (1993) 13 Cal.App.4th 1049 casts doubt on Mitchell.
The defendant in Mitchell, an alcoholic, was convicted of petty theft with a prior such conviction and sentenced to a three-year prison term. Probation conditions included his promise to abstain from alcohol. Upon being arrested for drunken driving, his probation was revoked. As material to this case, the court held that the defendant was precluded from claiming his probation may not be revoked for violating a condition his alleged alcoholic disease made him constitutionally unable to comply with. Preclusion was justified by the fact that, when he asked for probation, the defendant "knowingly agreed to accept the precise term of probation of which he now complains." (Mitchell, supra, 125 Cal.App.3d at p. 719.) There was no such knowing agreement in the present case.
In People v. Hackler, supra, 13 Cal.App.4th 1049, the defendant pled guilty to petty theft with a prior robbery conviction after he and another man took two 12-packs of beer from a store without paying for them. The trial court offered, and the defendant accepted, probation with certain conditions, one of which required him to wear a court-supplied T-shirt stating on the front, "My record plus two six-packs equals four years" and, on the back, "I am on felony probation for theft." The defendant was later charged with a parole violation for committing burglary and, as a result, also violating his probation. The trial court revoked probation for violating the T-shirt condition and on that basis sentenced him to prison. The Court of Appeal reversed the revocation of probation and the sentence, holding that the defendant had not waived the right to challenge the validity of the T-shirt condition by not raising the challenge at the revocation hearing. With respect to the defendants failure to attack the order granting probation by direct appeal or petition for writ of habeas corpus, the court criticized Mitchell: "The Mitchell court never referred to the defendants failure to appeal from the order granting probation as a ground for finding waiver. Neither did it engage in any analysis or reasoning supporting a conclusion that appellate challenges to probation conditions may be made only in a direct attack upon the order granting probation. Furthermore, the Mitchell `holding of waiver was equivocal, at best, because the appellate court went on to consider and discuss the validity of the challenged probation condition, concluding it had been improperly imposed. [Citation.] [¶] We are not aware of any case squarely holding that the validity of probation conditions may be raised only upon direct appeal upon the order granting probation. On the other hand, our research reveals that California appellate courts have frequently considered the validity of probation conditions, sometimes striking them, even in the absence of an appeal from the original probation order." (People v. Hackler, at pp. 1055-1057, fn. omitted, citing and discussing Mitchell, supra, 125 Cal.App.3d at pp. 719-720; People v. Dominguez (1967) 256 Cal.App.2d 623; People v. Goldberg (1975) 45 Cal.App.3d 601; and In re White (1979) 97 Cal.App.3d 141.)
The reasoning of Hackler, and the fact that, unlike the defendant in Mitchell, appellant never "knowingly agreed to accept the precise term of probation of which he now complains" (Mitchell, supra, 125 Cal.App.3d at p. 719), persuade us that appellant cannot be deemed to have waived the right to challenge the probation condition at issue due to his failure to attack the condition by direct appeal or writ.
For the foregoing reasons, we conclude that appellant has not waived his right to challenge the validity of the no pornography condition by this appeal.
B.
Appellants Challenge to the Probation Condition Does Not Require a Certificate of Probable Cause
The People maintain that, even if there is no waiver, appellants constitutional attack on the no pornography condition constitutes an attack on the validity of his plea, so that this appeal is barred by appellants failure to obtain a certificate of probable cause pursuant to section 1237.5. We disagree.
Section 1237.5 prohibits a defendant from taking an appeal from a judgment of conviction upon a plea of guilty or nolo contendere, except where "(a) The defendant has filed with the trial court a written statement, executed under oath of penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings," and "(b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court." Despite "the broad language of section 1237.5, it is settled that two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate of probable cause by the trial court: (1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. [Citations.]" (Panizzon, supra, 13 Cal.4th 68, 74-75, italics added.) This judicial exception to the certificate requirement is also incorporated in the California Rules of Court. Rule 8.304(b)(4) (formerly rule 30(b), and prior to that rule 31(d)) also provides that the requirement is inapplicable if the grounds of the appeal "arose after entry of the plea and do not affect the pleas validity." (Rule 8.304(b)(4)(B).)
Because the no pornography condition was not a part of appellants plea agreement, and the propriety of the condition was subsequently presented to and contested before the trial court at the time of sentencing, the grounds of the challenge arose after entry of the plea. Moreover, the validity of the plea does not depend on the validity of the imposition and subsequent execution of an upper term sentence, a separate issue we later address (see discussion, post, at pp. 17-20.) Accordingly, insofar as it presents a challenge to the postplea imposition of a condition of probation unrelated to the validity of the plea, the certificate requirement of section 1237.5 is inapplicable.
Having determined that appellant did not waive his right to attack the condition of probation, and a certificate of probable cause was not required in order to mount that attack, we turn to the merits of appellants challenge to the no pornography condition.
II.
The No Pornography Condition Was Imposed Without the Necessary Case-Specific Exercise of Discretion
The government may impose conditions of probation that qualify or impinge upon constitutional rights when circumstances inexorably so require, provided it is narrowly tailored to satisfy the need. Conditions of probation, like those related to parole, must be reasonably related to the compelling state interest of fostering a law-abiding lifestyle in the probationer. (In re White, supra, at pp. 145-146.) A condition is invalid if it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct that is not in itself unlawful, and (3) requires or forbids conduct that is not reasonably related to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486; In re Bushman (1970) 1 Cal.3d 767, 777; see also People v. Garcia (1993) 19 Cal.App.4th 97, 102; People v. Hackler, supra, 13 Cal.App.4th at pp. 1057-1058.) The condition barring possession of the pornography appellant was found to possess, which is indisputably not in itself unlawful conduct (Stanley v. Georgia (1969) 394 U.S. 597 [the right to possess adult pornography in the privacy of ones home is constitutionally protected]), imposed upon the district attorney the responsibility to respond to defense counsels claim at the sentencing hearing that the proposed no pornography condition had no "nexus" either to the crime to which appellant plead or his future criminality.
The district attorney did not respond to this objection by attempting to show that pornography was involved in appellants offense or to his future criminality, and nothing in the record bears upon those questions. Instead, the district attorney simply stated that such a restriction was a "very standard and very common" practice in Solano County in sex offense cases.
The People did not, at the 2003 sentencing hearing, claim that adult pornography of the sort found in appellants house in 2005 stimulated him to commit his offense years earlier or that his use of it would increase the likelihood he would commit a sexual offense in the future. Nor did the People even deem it necessary to produce any empirical evidence between child molestation and pornography involving "adult women" or a relationship between pornography and sexual aggression generally.
Like other courts, we have repeatedly questioned the imposition of "standard" or "routine" conditions applied in particular types of cases without individualized consideration of their application to the defendant. Most recently, in People v. Juarez (2004) 114 Cal.App.4th 1095 (Juarez), we stated that although " `[t]rial courts are granted broad discretion under . . . section 1203.1 to prescribe conditions of probation. [Citations.] . . . [A] ruling otherwise within the trial courts power will be set aside where it appears from the record that the trial court actually failed to exercise the discretion vested in it by law. [Citations.]" (Id. at p. 1103.) Juarez made clear that the exercise of such discretion must be demonstrated on the record, and that a trial court cannot "routinely" and without any "case-specific exercise of discretion" require a condition as a "standard" condition in a particular type of case. (Id. at pp. 1103-1104.)
Juarez relies upon our earlier opinion in People v. Penoli (1996) 46 Cal.App.4th 298. In that case the defendant, who pled guilty to possessing methamphetamine, was subjected to a "standard practice" in drug cases of imposing a condition of probation requiring a prospective waiver of credit for time spent in a residential drug rehabilitation program. We reversed the order insofar as it imposed the condition. As we stated, the " `standard practice represents not a case-specific application of sentencing discretion, but a preconceived determination applicable to all cases in which the question might arise. Adherence to this practice constituted an erroneous failure to exercise the discretion vested in the court by law. [Citations.]" (Id. at p. 303; see also Mark F. v. Superior Court (1987) 189 Cal.App.3d 206, 209-212 [probation department abused discretion by applying inflexible policy of denying probation to juveniles charged with drunk driving]; cf. People v. Preyer (1985) 164 Cal.App.3d 568, 574 [discretionary ruling must be assessed on particular facts of case, not statistics].)
The Attorney General defends the district attorneys position, and the trial courts imposition of the condition, by claiming that In re Stevens (2004) 119 Cal.App.4th 1228 justifies the imposition of a no pornography condition in a case such as this. However, Stevens does not address the propriety of imposing a condition on probation on the ground it is a "standard practice" and without individualized consideration; and nothing in the opinion may be seen as even impliedly approving the blanket use of a no pornography condition in all "sex offense cases." Indeed, the Stevens court disapproved the prohibition imposed by the trial court in that case, reasoning that its "broad prohibition on use of the computer and Internet bore no relation to Stevenss conviction for child molestation and imposed a greater restriction of his rights than was reasonably necessary to accomplish the states legitimate goal." (Id. at p. 1239) Stevens thus underscores the need for the individualized consideration wholly missing in this case.
Given the failure of the trial court to undertake the necessary case-specific exercise of discretion four years ago when it sentenced appellant and imposed the no pornography condition, and the absence in the record of any relevant evidence of the reasonableness of that condition in the context of this case, we have no basis upon which to conclude that the prohibition on possessing pornographic materials is reasonably related either to appellants offense or to his future criminality. We shall for that reason reverse the order insofar as it imposes that condition and revokes probation on the ground it was violated.
III.
Appellants Failures to Object to the Lawfulness of His Sentence During the Revocation Proceedings and to Seek and Obtain a Certificate of Probable Cause Bar Him from Raising that Objection on this Appeal
Relying on Cunningham, supra, ___ U.S. ___, 2007 WL 135687 and Blakely, supra, 542 U.S. 296, appellant claims the imposition of an upper term based on facts that were neither found by a jury nor admitted by him as part of his plea agreement or otherwise, violated his rights under the Sixth and Fourteenth Amendments. The People maintain we must reject appellants constitutional challenge because (1) he failed to raise the claim at the time probation was revoked and the sentence executed, which occurred after Blakely was decided, and therefore waived the issue; (2) he did not obtain a certificate of probable cause pursuant to section 1237.5; (3) the recidivism exception applies to this case; and (4) any Cunningham error was harmless. The Peoples first two contentions are correct and it is therefore unnecessary to address their remaining claims.
The aggravating factors the court relied upon were that the victim was particularly vulnerable, appellant took advantage of a position of trust and confidence, and the "conduct itself indicates a very serious danger to society," and that appellants prior convictions "are numerous and increasing in seriousness."
We have already determined that appellant did not waive his right to challenge the no pornography condition of probation and that the certificate of probable cause requirement does not apply to that challenge, because it rests on grounds that arose after entry of his plea and does not affect the validity of appellants plea, and those grounds were raised in the trial court. The different challenge we here address is whether the certificate requirement applies to that aspect of this appeal in which appellant challenges the constitutionality of his upper-term sentence.
The Peoples contention that the certificate requirement applies relies heavily on the analysis in People v. Bobbit (2006) 138 Cal.App.4th 445 (Bobbit). The defendant in Bobbit pleaded no contest to one count of sale of cocaine and one count of offering to sell cocaine pursuant to a plea agreement. The trial court sentenced him to the maximum term permitted under the plea agreement, which was the upper term sentence. The defendant appealed from all pretrial rulings and those made at the time of sentencing and the sentence itself; however, he did not seek and was not granted a certificate of probable cause, as required by section 1237.5. The Court of Appeal dismissed the appeal due to, among other things, the absence of such a certificate. As the opinion states, " `"[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself" and thus requires a certificate of probable cause. [Citation.] (People v. Shelton (2006) 37 Cal.4th 759, 766 (Shelton), quoting [Panizzon, supra,] 13 Cal.4th [at p.] 79.) `[T]he specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term. (Shelton, supra, at p. 768.) `[A] provision recognizing the defendants right to "argue for a lesser term" is generally understood to mean only that the defendant may urge the trial court to exercise its sentencing discretion in favor of imposing a punishment that is less severe than the maximum punishment authorized by law. (Ibid.) `Of course, a prosecutor and a defendant may enter into a negotiated disposition that expressly recognizes a dispute or uncertainty about the trial courts authority to impose a specified maximum sentence—because of Penal Code section 654s multiple punishment prohibition or for some other reason—and preserves the defendants right to raise that issue at sentencing and on appeal. (Shelton, supra, at p. 769, italics added.) To the extent some ambiguity exists regarding the meaning of the parties agreement, a court should `begin with the language of the plea agreement concerning sentencing, as the trial court recited it on the record (id. at p. 767), since `[a] negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] (Ibid.)" (Bobbit, at pp. 447-448.)
In the present case, the written plea agreement provided: "The maximum punishment which the court may impose based upon this plea is 8 years state prison." Thus, the parties contemplated that, though appellant was free to urge the court to impose a lesser term, the court could refuse to do so and lawfully impose the eight-year term, which is the upper term for the offense to which appellant pleaded nolo contendere.
Consistent with the plea agreement in Bobbit, defense counsel asked the court to impose a midterm sentence rather than the upper term—but counsel did not argue "that the court did not have the authority to impose an upper term sentence absent jury findings that one or more aggravating factors existed." (Bobbit, supra, 138 Cal.App.4th at p. 448.) The court emphasized that Blakely, supra, 542 U.S. 296 had been decided on June 24, 2004, the negotiated disposition was placed on the record on February 2, 2005, and sentencing took place on March 2, 2005, "both of which occurred well after the highly publicized decision [in Blakeley], which dispels any doubt that the issue was not preserved through the oversight of defense counsel." (Bobbit, at p. 448.) For that reason, the court concluded as a matter of law that the plea agreement did not preserve, either at sentencing or on appeal, the issue that the court lacked authority to impose an upper term sentence in the absence of a jury finding of one or more aggravating circumstances.
The analysis in Bobbit, supra, 138 Cal.App.4th 445, necessarily rejects appellants contention that Cunningham, supra, ___ U.S. ___, 2007 WL 135687 imposes a "jurisdictional" bar upon the imposition of an upper term sentence based on a guilty or no contest plea admitting only the elements of the charged offense. On that theory, the upper term sentence imposed in Bobbit (and here) would be jurisdictionally defective, and the defect could not be waived or cured by the absence of a certificate of probable cause, an analysis and result that cannot be reconciled with Bobbit. Appellant cites no authority for his jurisdictional argument.
As earlier discussed, appellants sentence was originally imposed in 2003, prior to the 2004 decision in Blakely, but no direct appeal was then taken from the judgment imposing that sentence. The appropriate sentence was considered anew in 2005, after appellants probation was revoked. The eight-year upper term sentence was again imposed on June 14, 2005, which was almost exactly one year after the issuance of Blakely on June 24, 2004 (and six days before our Supreme Courts opinion in People v. Black, supra, 35 Cal.4th 1238 on June 20, 2005). The fact that appellants 2003 plea agreement did not preserve the issue did not prevent him from then claiming that the court lacked authority to impose an upper term sentence in light of Blakely, because he cannot reasonably be required to have anticipated Blakely at the time he entered his plea. Appellant did not, however, raise a Blakely claim during the proceedings in 2005. In addition to the fact that the claim was not made during those proceedings, the notice of appeal from the 2005 judgment affirmatively indicated appellant was not challenging the sentence. In filling out the form notice of appeal, trial counsel checked the box representing that the appeal follows "[a] contested violation of probation" pursuant to Penal Code section 1237, subdivision (b) (which provides that an appeal may be taken by a defendant "[f]rom any order made after judgment, affecting the substantial rights of the party"). Counsel did not check the box indicating that "[t]his appeal is based on the sentence or other matters occurring after the plea." The Clerk of the Solano County Superior Court therefore did not check the box on the reverse side of the form indicating that the notice of appeal was "Inoperative," as required by California Rules of Court, rule 8.304(b)(3), in cases in which a certificate of probable cause is required but not obtained.
We do not inquire whether trial counsels failure to raise the Blakely issue in the trial court, or the manner in which she filled out the form notice of appeal, constitute ineffective assistance of counsel, because appellant has not advanced such a claim in this appeal or by means of a writ.
In short, the record obliges us to conclude as a matter of law that appellant has waived and failed to preserve for appeal a claim that the upper term sentence was unlawful due to the absence of a jury finding of any aggravating circumstances.
V.
DISPOSITION
The judgment revoking appellants probation is reversed, and the condition of probation that appellant not possess pornographic materials is stricken. The matter is remanded to the trial court for further proceedings consistent with this opinion.
We concur:
Haerle, J.
Lambden, J.