Opinion
E068120
08-31-2018
THE PEOPLE, Plaintiff and Respondent, v. ROXANA TALAMANTES, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI17000135) OPINION APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Roxana Talamantes appeals after the transfer of her mandatory supervision from Riverside County to San Bernardino County. Upon the transfer, the San Bernardino County Probation Department recommended additional terms and conditions of probation imposed by San Bernardino County in order to ensure officer safety and offender compliance. Defendant objected to some of the new conditions. On appeal, defendant argues the San Bernardino County Superior Court had no jurisdiction to modify the terms of her mandatory supervision because no change in circumstance existed to justify the modification. We reject this contention and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the probation officer's report.
On January 30, 2014, a Riverside County Sheriff's deputy stopped defendant's car for following another car too closely. After defendant consented to a search of her car, the deputy found 44.5 pounds of cocaine in the spare tire of the car.
On March 20, 2014, defendant pleaded guilty to possession of cocaine for sale (Health & Saf. Code, § 11351). Defendant also admitted that in the commission of the offense, she possessed cocaine for sale in an amount exceeding 10 kilograms (Health & Saf. Code, § 11370.4, subd. (a)(3)). In return, the remaining allegations were dismissed and defendant was sentenced to a total term of eight years in county jail and four years on mandatory supervision on various terms and conditions of supervision.
On January 11, 2017, the Riverside County Probation Department filed a notice and motion to transfer defendant's case to San Bernardino County. After the San Bernardino County Probation Department verified that defendant had permanently relocated to reside in San Bernardino, the Riverside County Superior Court granted the motion to transfer defendant's case to San Bernardino County.
On March 22, 2017, the San Bernardino County Probation Department filed a report requesting additional terms and conditions in San Bernardino County in order to ensure officer safety and offender compliance be added to defendant's mandatory supervisory terms and conditions. The proposed new terms and conditions were as follows:
"043A Carry at all times a valid California Department of Motor Vehicles Driver's License or identification card containing your true name, age and current address; display such identification upon request by any peace officer and not use any other name for any purpose without first notifying the Probation Officer.
"005 Cooperate and follow all reasonable directives of the Probation Officer. [¶] . . . [¶]
"011A Neither use nor possess any controlled substance unless prescribed to you by a medical professional. Medical documentation is to be given to the Probation Officer. [¶] . . . [¶]
"013 Not possess any type of drug paraphernalia, as defined in Health & Safety Code 11364.5[, subdivision] (d), including but not limited to, hypodermic needles, syringes, or any device used for sniffing or ingesting.
"017A Participate in rehabilitative programs as directed by the Probation Officer. [¶] . . . [¶]
"08F Permit visits and searches of places of residence by agents of the Probation Department and/or law enforcement for the purpose of ensuring compliance with the terms and conditions of probation; not do nothing to interfere with this requirement, or deter officers from fulfilling this requirement, such as erecting any locked fences/gates that would deny access to Probation Officers, or have any animals on the premises that would reasonably deter, threaten the safety of, or interfere with officers enforcing this term. [¶] . . . [¶]
"012AA Submit to a controlled substance test at the direction of the Probation Officer or any peace officer. Each test is subject to a fee, to be collected by Central Collections.
"042B Submit to a request by any peace officer to provide your true name, date of birth, supervision status, and search terms.
"010B . . . [¶] Submit to search and seizure by a government entity of any electronic device that you are an authorized possessor of pursuant to PC 1546.1[, subdivision] (c)(10)."
On April 12, 2017, the San Bernardino County Superior Court held a hearing on modifying of defendant's supervisory terms and conditions. At that time, defense counsel only objected to the addition of the drug testing condition (term No. 012AA) and the term requiring defendant to participate in any rehabilitative programs as directed by her probation officer (term No. 017A). Defense counsel pointed out that both terms were "clearly not indicated on the original" terms and conditions from Riverside County. The prosecutor responded that "although they may not have been included in the original plea," the modified terms "are related to the underlying offense" and they "support probation's rehabilitation goal." The San Bernardino County Superior Court agreed with the prosecutor and modified the terms of defendant's mandatory supervision. The court noted, "the terms are not overly cumbersome and do relate to [defendant's] underlying offenses and are reasonable in light of those circumstances."
On April 12, 2017, defendant filed a timely notice of appeal.
III
DISCUSSION
Defendant argues the court acted in excess of its jurisdiction by imposing the additional terms of defendant's mandatory supervision because the court's modification was not based on a change in defendant's circumstances. Specifically, defendant asserts that the transfer of supervision to San Bernardino County did not constitute a change in circumstances, and absent a change in circumstances, her mandatory supervision conditions could not be modified. Defendant believes that the additional conditions not previously imposed by the Riverside County Superior Court must be stricken. The People respond the court had jurisdiction to modify defendant's supervisory terms because a change in circumstances, namely defendant's move from Riverside County to San Bernardino County, justified the modification.
Preliminarily, we note that although defendant objected only to term Nos. 017A and 012AA in the court below and now challenges on appeal "every term and condition not previously imposed by the Riverside Superior Court," defendant's claim is not forfeited. Where a claim challenges an unauthorized sentence or a sentence entered in excess of a court's jurisdiction, the general forfeiture rule does not apply. (People v. Anderson (2010) 50 Cal.4th 19, 26.) Here, defendant does not claim that the newly imposed supervision terms were unreasonable. Rather, she argues the court lacked jurisdiction to impose the new terms because no change in circumstance had occurred. The People correctly agree defendant's claim is not forfeited. Accordingly, we address defendant's contention on its merits.
A trial court generally has discretion in setting the appropriate terms and conditions of probation, parole, or supervised release: "In general, the courts are given broad discretion in fashioning terms of supervised release, in order to foster the reformation and rehabilitation of the offender, while protecting public safety. [Citations.] Thus, the imposition of a particular condition of probation is subject to review for abuse of that discretion. 'As with any exercise of discretion, the court violates this standard when it imposes a condition of probation that is arbitrary, capricious or exceeds the bounds of reason under the circumstances. [Citation.]' [Citation.]" (People v. Martinez (2014) 226 Cal.App.4th 759, 764.)
Penal Code section 1203.9, subdivision (a)(1), governs the transfer of probation cases from one county to another and provides in pertinent part: "[W]henever a person is released on probation or mandatory supervision, the court, upon noticed motion, shall transfer the case to the superior court in any other county in which the person resides permanently, meaning with the stated intention to remain for the duration of probation or mandatory supervision, unless the transferring court determines that the transfer would be inappropriate and states its reasons on the record." Pursuant to subdivision (b) of Penal Code section 1203.9, "The court of the receiving county shall accept the entire jurisdiction over the case effective the date that the transferring court orders the transfer."
The procedure for transferring a case to another county is outlined in California Rules of Court, rule 4.530. (See Pen. Code, § 1203.9, subd. (f) ["Judicial Council shall promulgate rules of court [] procedures" for the transfer of probation cases].) Subdivision (h)(1)(B) of rule 4.530 provides "The receiving court and receiving county probation department may impose additional local fees and costs as authorized." Further, subdivision (g) of rule 4.530 entitled "Transfer" provides in subsection (6), "Upon transfer the probation officer of the transferring county must transmit, at a minimum, any court orders, probation or mandatory supervision reports, and case plans to the probation officer of the receiving county."
Neither Penal Code section 1203.9 nor the California Rules of Court, rule 4.530 specifically address whether probation conditions can be modified upon transfer to another county. Penal Code section 1203.3, subdivision (a), states "The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence." This section "broadly states the court's power to modify." (People v. Cookson (1991) 54 Cal.3d 1091, 1100 (Cookson).) A defendant is subject to notice, a hearing, and reasons for the modification to be placed on the record before the modification. (Pen. Code, § 1203.3, subd. (b).)
Any clarification as to whether a transfer to another county qualifies in itself as a change in circumstances that authorizes a change in probation conditions, like the ability of the receiving county to change the fees and costs, will have to come from the Legislature. --------
A court can modify a term of probation at any time before the expiration of that term and need not wait until a probation violation occurs. (Cookson, supra, 54 Cal.3d at p. 1098; see People v. Leiva (2013) 56 Cal.4th 498, 505 (Leiva).) In Cookson, the defendant was ordered to pay restitution for diverting construction funds at the time that his probation was granted, but the probation department set up an incorrect payment schedule resulting in insufficient funds being paid by defendant on the restitution when his probation term was set to expire. (Cookson, at p. 1094.) The superior court extended the time for probation in order for the defendant to be supervised while completing the payments on restitution. (Id. at pp. 1094-1095.)
The California Supreme Court noted that " 'An order modifying the terms of probation based upon the same facts as the original order granting probation is in excess of the jurisdiction of the court, for the reason that there is no factual basis to support it.' " (Cookson, supra, 54 Cal.3d at p.1095; see Leiva, supra, 56 Cal.4th at p. 505 [" 'A change in circumstances is required before a court has jurisdiction to extend or otherwise modify probation.' "]). Although the defendant had complied with all of the probation conditions, and the miscalculation of the monthly payments was solely the fault of the probation officer, our Supreme Court determined "the Court of Appeal correctly determined that a change in circumstance could be found in a fact 'not available at the time of the original order,' namely, 'that setting the pay schedule consistent with [the] defendant's ability to pay had resulted in defendant's inability to pay full restitution as contemplated within the original period of probation." (Cookson, at p. 1095.)
Here, the People assert the change in circumstances was that defendant moved her permanent place of residence from Riverside County to San Bernardino County. The San Bernardino County Probation Department justified the change in conditions in the probation report based on "[t]hese terms and conditions are commonly used in San Bernardino County in order to ensure officer safety and offender compliance." The prosecutor noted the additional terms were necessary to aid in defendant's rehabilitation and were reasonably related to defendant's underlying offense. The trial court explained at the hearing on the modification that the terms were "not overly cumbersome and do relate to [defendant's] underlying offenses."
In the present matter, the San Bernardino County Probation Department's suggested changes to the conditions were reasonably related to ensure officer safety and defendant's compliance and rehabilitation. The additional terms of mandatory supervision, as noted previously, certainly were aimed at ensuring officer safety in San Bernardino County, as well as defendant's rehabilitation. Defendant voluntarily moved to San Bernardino County and the San Bernardino County Probation Department stated specific reasons as to why the additional terms should be imposed in San Bernardino County. Contrary to defense counsel's claim during oral argument, San Bernardino County and Riverside County are not the same. First, San Bernardino County is a larger, spread-out county and different than Riverside County geographically. Second, San Bernardino County has its own set of procedures and conditions to properly supervise a probationer in that county. Third, once a defendant moves to another county, he or she is supervised by a different probation officer and a different court. Certainly, the court could modify the conditions based on these concerns. Although the San Bernardino County Probation Department noted the additional terms were "commonly used in San Bernardino County in order to ensure officer safety and offender compliance," the San Bernardino County Superior Court made specific findings to justify the additional terms. As the San Bernardino County Superior Court stated, the additional terms were "not overly cumbersome," related to defendant's "underlying offenses," and were "reasonable in light of those circumstances."
The San Bernardino County Superior Court was entitled to consider defendant's new circumstances when the case was transferred to San Bernardino County, and to apply conditions it had found appropriate in supervising San Bernardino County probationers. Accordingly, we disagree with defendant that there was nothing about the transfer of defendant's case from Riverside County to San Bernardino County "which changed the nature of [defendant's] crime or the level of supervision required by the probation department." Furthermore, defendant does not contend the additional conditions are unrelated to the crime for which she was convicted or are not reasonably related to preventing future criminality or not necessary in aiding defendant's rehabilitation. (See People v. Olguin (2008) 45 Cal.4th 375, 379-380 [test for valid probation conditions].) The additional conditions were reasonably related to the San Bernardino County Probation Department's ability to supervise and rehabilitate defendant. Term Nos. 017A and 012AA, requiring defendant to participate in a rehabilitation program and submit to drug testing, were clearly aimed at promoting defendant's rehabilitation given the fact that she was convicted of possessing a large amount of cocaine. Similarly, the other additional conditions (e.g., term Nos. 043A [carry a valid California driver's license or identification], 005 [cooperate with the probation officer], 011A [not use or possess controlled substances], 013 [not possess any drug paraphernalia], 08F [permit probation to visit and search residence], 042B [submit to search by any peace officer], and 010B [submit to search and seizure by a government entity of any electronic devices in probationer's possession]) promoted the San Bernardino County Probation Department's ability to identify, supervise, and rehabilitate defendant. In fact, condition Nos. 005, 011A, 013, 08F, 042B, and 010B were no different than the conditions imposed in Riverside County requiring defendant to obey all laws; submit to immediate search of person, home, and property by a law enforcement officer; and abide by all reasonable directives of the probation officer.
Based on the foregoing, the San Bernardino County Superior Court was justified in modifying the terms of defendant's mandatory supervision. The new additional conditions were reasonably related to the goal of maintaining supervision and safety of the officers, as well as defendant's crime and rehabilitation.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.