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People v. Alvarez

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Sep 11, 2019
No. D074252 (Cal. Ct. App. Sep. 11, 2019)

Opinion

D074252

09-11-2019

THE PEOPLE, Plaintiff and Respondent, v. GERARDO ALEX ALVAREZ, Defendant and Appellant.

Matthew R. Garcia, 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, Melissa Mandel, Tami Hennick, and Laura Baggett, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SDC275436) APPEAL from an order of the Superior Court of San Diego County, Desiree A. Bruce-Lyle, Judge. Reversed with directions. Matthew R. Garcia, 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, Melissa Mandel, Tami Hennick, and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Gerardo Alex Alvarez (Defendant) pled guilty to transporting cocaine for sale and admitted that the amount of cocaine was in excess of four kilograms. As part of his plea, Defendant agreed to "waive any right to appeal that [he] may have." Defendant's plea was conditioned on receiving, and in fact he did receive, a split sentence of 10 years in custody—four years in physical custody and six years on mandatory supervision.

At the time of the sentencing in August 2016, the trial court imposed certain conditions on Defendant's mandatory supervision, and in May 2018 the court modified them (May 2018 Order). On appeal, Defendant contends that the imposition of the modified conditions in May 2018 was in excess of the trial court's jurisdiction, since there was no showing of a change in circumstances to justify the modifications. The People acknowledge that "there was no change in circumstances," but argue either that the appeal should be dismissed or that the May 2018 order should be affirmed. According to the People, the appeal should be dismissed, because Defendant did not obtain a certificate of probable cause pursuant to Penal Code section 1237.5. Alternatively, the People contend the May 2018 Order should be affirmed, either because Defendant forfeited appellate review by failing to object to the modifications in the trial court or because the modifications are "simply restatements" of the original August 2016 conditions.

Defendant also argues that one specific modification, condition 12, is unreasonable under People v. Lent (1975) 15 Cal.3d 481, superseded on another ground by a voter-enacted proposition as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290-295 (Lent), but based on our resolution of the issue regarding the court's jurisdiction to modify any of the conditions, we will not reach the issue of the alleged unreasonableness of condition 12.

Subsequent unidentified statutory references are to the Penal Code.

As we will explain, we will reach the merits of the appeal. Because Defendant's plea agreement did not include a waiver of the right to appeal a modification of the conditions of his mandatory release, Defendant was not required to obtain a certificate of probable cause; and because the principal issue Defendant raises on appeal involves a pure question of law—i.e., not merely a claim of unreasonable supervision conditions—Defendant did not waive or forfeit the objection he raises on appeal. As we will further explain, because there was no showing of a change in circumstances, the superior court erred in modifying the conditions of the mandatory supervision originally ordered in August 2016. Accordingly, we will reverse the May 2018 Order with directions.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The People File a Complaint

In June 2016, Defendant transported four or more kilograms of cocaine for sale. By complaint filed June 30, 2016, the People charged Defendant with one count of violating Health and Safety Code section 11352, subdivision (a) (transportation and sale of controlled substances), and alleged a violation of Health and Safety Code section 11370.4, subdivision (a)(2) (enhancement based on weight of controlled substance). B. Defendant Waives His Rights and Pleads Guilty

Defendant pled guilty to the above-described charge and enhancement by initialing and signing a "Felony Plea Form" on August 18, 2016, in the Riverside County Superior Court.

The plea form contains a waiver of rights and an agreement, consisting of 30 separately labeled paragraphs, as follows: five numbered paragraphs under the heading "ADVISEMENT OF RIGHTS"; 12 numbered paragraphs under the heading "CONSEQUENCES OF PLEA"; six numbered paragraphs under the heading "DEFENDANT'S STATEMENT"; and eight numbered paragraphs under the heading "PLEA AGREEMENT." Defendant initialed all five advisements, 11 of 12 consequences, all six statements, and signed the agreement and form. Defendant also initialed an agreement containing a number of provisions under the heading "DEFENDANT'S STATEMENT," including as particularly relevant in this appeal: "As part of this plea, I . . . waive any right to appeal that I may have." (Italics added.) Defendant signed the form beneath the statements that he read and understood the document, that he waived and gave up all of the rights that he initialed, and that he accepted the plea agreement.

Defendant's attorney signed the form, which provides as follows immediately above his signature: He is Defendant's attorney; he is satisfied that Defendant understands both his constitutional rights and the waiver of these rights that will result from a guilty plea; Defendant has had an adequate opportunity to discuss his case with him (the attorney); Defendant understands the consequences of his guilty plea; and he (the attorney) joins in Defendant's decision to plead guilty.

The deputy district attorney signed the form, which provides immediately above his signature that the form correctly states the plea agreement reached between the parties.

Finally, the interpreter signed the form, which provides immediately above her signature that Defendant stated that he "fully understood the contents of the form prior to signing." C. The Riverside County Superior Court Accepts Defendant's Guilty Plea and Sentences Defendant

On August 18, 2016, the Riverside County Superior Court held a hearing at which Defendant filed his change of plea form (see pt. I.B., ante) and pled guilty in open court.

Prior to taking the change of plea, Defendant answered a number of questions relating to his understanding of the rights and obligations at issue—including, specifically, his "waiver of those rights or obligations"—on the change of plea form. After confirming the crime and enhancement to which Defendant was going to plead guilty, the court explained to Defendant not only that he "could be sentenced to serve a total of ten years in custody for a plea to this charge and admission to that allegation," but also that "this sentence will be pursuant to Penal Code [section] 1170[, subdivision ](h). So the way you're to serve this is four years in custody, and then six years out of custody on mandatory supervision."

"In 2011, the Legislature enacted the [Criminal Justice] Realignment Act [of 2011], creating section 1170, subdivision (h), and realigning housing for certain felony convictions from state prison to local custody. [(Stats. 1976, ch. 1139, § 273, p. 5140.)] Subdivision (h)(5) of section 1170 created the 'split sentence' which allows a defendant to serve a realigned sentence partially in local custody and partially on mandatory supervision by the probation department. . . . Under this subdivision, mandatory supervision is achieved by suspending execution of the concluding portion of the realigned sentence." (People v. Borynack (2015) 238 Cal.App.4th 958, 963, fn. & citation omitted.)
Section 1170 provides in relevant part: "(h)(1) . . . . [¶] (2) . . . [A] felony punishable pursuant to this subdivision shall be punishable by imprisonment in a county jail for the term described in the underlying offense. [¶] . . . [¶] (5)(A) Unless the court finds that, in the interests of justice, it is not appropriate in a particular case, the court, when imposing a sentence pursuant to paragraph . . . (2), shall suspend execution of a concluding portion of the term for a period selected at the court's discretion. [¶] (B) The portion of a defendant's sentenced term that is suspended pursuant to this paragraph shall be known as mandatory supervision, and, unless otherwise ordered by the court, shall commence upon release from physical custody or an alternative custody program, whichever is later. During the period of mandatory supervision, the defendant shall be supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation, for the remaining unserved portion of the sentence imposed by the court. The period of supervision shall be mandatory, and may not be earlier terminated except by court order. Any proceeding to . . . modify mandatory supervision under this subparagraph shall be conducted pursuant to . . . Section 1203.3. . . ." (§ 1170, subd. (h).) Subdivision (h)(5)(B) of section 1170 has not been amended since the version in effect at the time of Defendant's sentencing. (Compare Stats. 2015, ch. 378, § 1 with Stats. 2018 ch. 1001, § 1.)

Before accepting Defendant's guilty plea, the court and Defendant also discussed the mandatory supervision portion of the negotiated plea and sentence as follows:

"THE COURT: Once you're released from custody, you'll be placed on mandatory supervision on the terms and conditions that are on this two-page sentencing memorandum I'm holding up. [¶] Did you sign that form?
"THE DEFENDANT: Yes.
"THE COURT: Did you go over all the terms of mandatory supervision on that form with your attorney?
"THE DEFENDANT: Yes.
"THE COURT: Do you have any questions about those terms of mandatory supervision?
"THE DEFENDANT: No.
"THE COURT: Do you agree to obey those terms of mandatory supervision?
"THE DEFENDANT: Yes." (Italics added.)

The two-page "Sentencing Memorandum Mandatory Supervision" is a Riverside County Superior Court form that contains almost 100 separate "terms and conditions" for mandatory supervision—each with a box next to it, which the court can check if it is part of the court's order. Some of the "terms and conditions" are informational (e.g., charges, term in county jail, term for mandatory supervision, credits, etc.); some are mandatory based on the supervision (e.g., drug/search/test programs, association/residence/work terms, etc.); and some are orders not based on the supervision (e.g., fees). The form to which the court and Defendant referred as part of the court proceedings has approximately 37 boxes checked. The bottom of the second page of the form contains the preprinted statement "I have read, I understand, and I accept these terms and conditions of mandatory supervision on pages one and two" and the signatures of Defendant, Defendant's attorney, the deputy district attorney, and the interpreter—all followed by "IT IS SO ORDERED" and the judge's signature.

At the sentencing hearing, the court held up the two-page sentencing memorandum with the checked boxes and signatures. In response to the court's inquiry, Defendant confirmed that he discussed the conditions specified on the memorandum with his attorney, that they were part of the plea agreement, and that Defendant understood them.

The court then repeated the charges, Defendant pled guilty, and after additional questioning of Defendant the court found a factual basis for the guilty plea. The court further found that: Defendant understood the nature of the charges and the consequences of the plea; Defendant's plea was free and voluntary; and Defendant knowingly and intelligently waived his rights.

At that point, Defendant waived his right to a referral to the Probation Department for a recommendation on sentencing, and the court sentenced Defendant consistent with the plea agreement: "[P]robation is denied. You are sentenced to ten years. That is five years[,] the upper term on Count 1, then five addition years for your admission to the weight-enhancement allegation. This will be served pursuant to [section ]1170[, subdivision ](h): Four years in custody, six years out of custody on mandatory supervision." The August 18, 2016 minute order directs that Defendant's custody is to be served at the Riverside County Jail; and mostly consistent with sentencing memorandum, the minute order contains approximately 34 separate conditions for mandatory supervision to commence immediately upon release from custody. D. The Riverside County Superior Court Transfers Defendant's Mandatory Supervision to the San Diego County Superior Court, and the San Diego Court Modifies the Conditions of Mandatory Supervision

By order filed in February 2018, the Riverside County Superior Court granted the Riverside County Probation Department's motion to transfer Defendant's mandatory supervision to the San Diego County Superior Court. (§ 1203.9; Cal. Rules of Court, rule 4.530(g)(1); further unidentified rule references are to the California Rules of Court.) As a basis for the motion, a Riverside County senior probation officer testified that she had verified that, as of at least December 2017, Defendant's residence was in San Diego County. (Rule 4.530(f)(1).)

The record on appeal contains ex parte minutes from the San Diego County Superior Court dated March 6, 2018, which indicate that the court received the jurisdictional transfer of Defendant's case from the Riverside County Superior Court. Approximately a week later, the San Diego County Probation Department provided the court with a "Probation Officer[']s Supplemental Report—Ex Parte Matter." The stated reason for the report was "[t]o provide the parties with the defendant's translated probation conditions based on the jurisdictional transfer of the case pursuant to [section] 1203.9 from Riverside County Superior Court on 02/26/18."

Subsequent references to "the trial court" or "the court" are to the San Diego County Superior Court, unless expressly indicated otherwise.

The report included a "case print" from the Riverside County Superior Court proceedings (which is similar to a docket or a register of actions) and the San Diego County Probation Department's recommendation for Defendant's continued mandatory supervision. Like the Riverside County Superior Court's sentencing memorandum for mandatory supervision, the San Diego Superior Court uses a court form with almost 80 separate "terms and conditions" for mandatory supervision—each with a box next to it, which the court can check if the term or condition is part of the court's order. The Riverside form and the San Diego form are not the same. For its recommendation, the probation department filled out a proposed order, checking approximately 20 of the boxes.

In preparation for a May 17, 2018 hearing following the jurisdictional transfer for mandatory supervision, the San Diego County Probation Department submitted a "Mandatory Supervision Jurisdictional Transfer Report." The stated reasons for the report were: "The offender is before the Court for a Post-release Status Review Hearing to detail the offender's progress while in the community. Furthermore, this is the offender's first appearance before the Court since his Jurisdictional Transfer from Riverside County." The report contained information on a number of topics, as well as a recommendation that 13 conditions be added to Defendant's mandatory supervision.

These topics included: criminal history; substance abuse and treatment history; psychological and medical history; gang affiliation; employment history & job skills; military service; COMPAS risk and needs assessment; and case plan.

At the status review hearing—Defendant's first appearance following the transfer of his mandatory supervision to the San Diego Superior Court—his attorney objected to proposed conditions 6, 7, 10, and 12 on the basis there was no nexus between the conditions and either Defendant or the crime he committed. (See Lent, supra, 15 Cal.3d at p. 486 ["a condition of [mandatory supervision] 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"].) Following argument, the court sustained counsel's objections to proposed conditions 6, 7, and 10, and overruled the objection to proposed condition 12, thereby imposing conditions 1-5, 8-9, and 11-13 from the probation department's "Mandatory Supervision Jurisdictional Transfer Report" (at times, conditions 1-5, 8-9, 11-13) as part of Defendant's mandatory supervision. E. Defendant Appeals

In the court's written order, condition 12 is found at paragraph 5.b. and provides in full: "Do not knowingly use or possess alcohol if directed by the P.O."

Defendant timely appealed from the court's Order Granting Mandatory Supervision filed May 17, 2018 (previously identified as the May 2018 Order), which in part imposed conditions 1-5, 8-9, and 11-13 to Defendant's mandatory supervision. Page 1 of the notice of appeal contains a checked box indicating that "This appeal is based on the sentence or other matters occurring after the plea"; page 3 of the notice, entitled "Request for Certificate of Probable Cause," is blank; and the record on appeal does not contain a section 1237.5 certificate of probable cause.

Section 1237.5 provides in relevant part: "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty . . . , except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court."

II. DISCUSSION

On appeal, Defendant presents two major arguments: (1) The trial court erred in imposing conditions 1-5, 8-9, and 11-13, because there was no showing of a change in circumstances, which was required to modify the conditions of the mandatory supervision ordered by the Riverside County Superior Court; and (2) the trial court erred in imposing condition 12 as part of Defendant's mandatory supervision, because there is no nexus between the condition and Defendant's crime. In his appellate briefing, Defendant supports each of these arguments with procedural and substantive authority.

In response, in addition to opposing the merits of Defendant's arguments, the People also present two procedural objections: (1) The appeal should be dismissed because Defendant did not request, and thus did not obtain, the required section 1237.5 certificate of probable cause to appeal (see fn. 7, ante); and (2) the May 2018 Order should be affirmed because Defendant forfeited appellate review by not objecting to the challenged conditions, other than condition 12, in the trial court.

As we will explain, Defendant does not need a certificate of probable cause to appeal from the May 2018 Order; Defendant did not forfeit appellate review by failing to object to the reasonableness of the conditions in the trial court; and the court erred in modifying the conditions of Defendant's mandatory supervision without evidence of a change in circumstances. Because this error affected the court's authority to modify any of the conditions as a matter of law, we will reverse the May 2018 Order. A. Certificate of Probable Cause

1. Law

Where, as here, a defendant pleads guilty and includes as a term of a plea agreement the waiver of the right to appeal, two principles potentially limit the defendant's appellate rights: the requirement for a certificate of probable cause (§ 1237.5); and the scope of the waiver.

First, section 1237.5 precludes a defendant from appealing from a judgment of conviction following a guilty plea unless the defendant first applies for and obtains a certificate of probable cause indicating that there are "reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings." (See fn. 7, ante.) " 'The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas.' " (People v. Buttram (2003) 30 Cal.4th 773, 781 (Buttram), quoting People v. Panizzon (1996) 13 Cal.4th 68, 75 (Panizzon).) To this end, our Supreme Court has required that appealing defendants "strictly comply with section 1237.5." (Panizzon, at p. 89, fn. 15.)

The California Rules of Court establish an exception to the requirement for a certificate of probable cause if the defendant's appeal is based on "[g]rounds that arose after entry of the plea and do not affect the plea's validity." (Rule 8.304(b)(4)(B).) " 'In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: "the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made." ' " (Buttram, supra, 30 Cal.4th at p. 781, italics added, quoting Panizzon, supra, 13 Cal.4th at p. 76.)

Second, "a defendant [may] waive the right to appeal as part of the [plea] agreement," so long as the waiver is knowing, intelligent, and voluntary. (Panizzon, supra, 13 Cal.4th at p. 80.) For a valid waiver, the defendant must be made aware "of the constitutional rights that are being waived, as well as the direct consequences of the plea." (Ibid.) " 'A broad or general waiver of appeal rights ordinarily includes error occurring before but not after the waiver because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error. . . . Thus, a waiver of appeal rights does not apply to " 'possible future error' [that] is outside the defendant's contemplation and knowledge at the time the waiver is made." ' " (People v. Stamps (2019) 34 Cal.App.5th 117, 120, fn. 3.)

We are not writing on a clean slate. We have the benefit of established Supreme Court guidance (Buttram, supra, 30 Cal.4th 773; Panizzon, supra, 13 Cal.4th 68) and recent application of this guidance by our court (People v. Patton (2019) 37 Cal.App.5th 1062 (Patton)).

In Panizzon, supra, 13 Cal.4th 68, the plea agreement included a specified sentence, and the defendant's argument on appeal was that the sentence was cruel and unusual. (Id. at pp. 73-74.) There, the defendant was required to obtain a certificate of probable cause because what he sought on appeal was "appellate review of an integral element of the negotiated plea agreement, as opposed to a matter left open or unaddressed by the deal." (Id. at p. 86.) "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." (Id. at p. 73.)

By contrast, in Buttram, supra, 30 Cal.4th 773, the court ruled that a certificate of probable cause was not required because the plea agreement included only a specified maximum term. (Id. at pp. 790-791.) The court reasoned that, unlike the specified sentence in Panizzon, "by negotiating only a maximum term, the parties leave to judicial discretion the proper sentencing choice within the agreed limit." (Id. at p. 789.) Unless the plea agreement provides otherwise—by way of a waiver of appellate rights, for example—a probable cause certificate is not required to challenge the sentence since "appellate issues relating to this reserved discretion are . . . outside the plea bargain and cannot constitute an attack upon its validity." (Ibid.)

In Patton, supra, 37 Cal.App.5th 1062, the defendant pled guilty to a felony. (Id. at p. 1065.) As part of the negotiated plea agreement, he agreed to give up his right to appeal " 'any sentence stipulated herein.' " (Ibid.) The stipulated sentence included the defendant's express understanding that " 'I may be given up to a year in jail custody, plus the fine, and any other conditions deemed reasonable by the Court.' " (Ibid.) At the sentencing hearing two months later, the court imposed three years of formal probation under various conditions. (Id. at p. 1066.) Without requesting a certificate of probable cause, the defendant appealed the reasonableness of certain of the conditions of probation. (Ibid.)

Although Patton involved conditions of probation (Patton, supra, 37 Cal.App.5th at p. 1064 [three years of formal probation with conditions]) and the present appeal involves conditions of mandatory supervision, considerations of the conditions of the two punishments are treated the same for our purposes. During the mandatory supervision period of a split sentence under section 1170, subdivision (h), "the defendant shall be supervised by the county probation [department] in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation." (§ 1170, subd. (h)(5)(B), italics added; but see, e.g., People v. Martinez (2014) 226 Cal.App.4th 759, 762-763 [mandatory supervision is comparable to, but not the same as, probation].)

Based on these facts, the scope of the defendant's waiver was limited—i.e., "it did not encompass provisions (such as particular conditions of probation) that were yet to be determined in future proceedings." (Patton, supra, 37 Cal.App.5th at p. 1069.) That is because the conditions of probation " 'arose after entry of the plea' within the meaning of Rule 8.304[(b)(4)(B)]," and on appeal the defendant was challenging a ruling "that he had no knowledge of at the time he entered into the agreement." (Patton, at p. 1067.) Thus, we held that, because the defendant's appeal "in no way attacks the plea or affects its validity, . . . no certificate of probable cause was required" under rule 8.304(b)(4). (Id. at p. 1069; accord, People v. Becerra (2019) 32 Cal.App.5th 178, 188 [no certificate of probable cause required "[i]f the defendant's claim is not within the scope of an appellate waiver"].)

2. Analysis

Like the defendant in Patton, Defendant here is challenging a ruling "that he had no knowledge of at the time he entered into the agreement." (Patton, supra, 37 Cal.App.5th at p. 1067.) Like the waiver in Patton, the waiver here "did not encompass provisions (such as particular conditions of [mandatory supervision]) that were yet to be determined in future proceedings." (Id. at p. 1069.)

Thus, on at least two grounds, Defendant was not required to request a certificate of probable cause before appealing from the May 2018 Order modifying the conditions of Defendant's mandatory supervision: (1) Rule 8.304(b)(4)(B) expressly allows this appeal without a certificate of probable cause, since the modification, and thus Defendant's challenge to the modification, "arose after entry of the plea," thereby "not affect[ing] the plea's validity"; and (2) Defendant's waiver of "any right to appeal that I may have" (italics added) was in the present tense, limiting his waiver to a right that he had at that time (accord, Patton, at p. 1069 [the defendant waived only "his right to appeal 'any sentence stipulated herein' "]).

The People argue that People v. Espinoza (2018) 22 Cal.App.5th 794 requires a different outcome. We disagree. According to Espinoza, we are to review the waiver of the right to appeal—including both its scope and Defendant's knowing and voluntary agreement to it—and determine whether "the waiver's terms encompass the issue the defendant wishes to raise [on appeal]." (Espinoza, supra, 22 Cal.App.5th at p. 803.) If not, then the defendant is not required to obtain a section 1237.5 certificate of probable cause to appeal. (Ibid.; see Panizzon, supra, 13 Cal.4th at p. 86.)

Here, in August 2016, as part of his guilty plea, when Defendant waived "any right to appeal that [he] may have," Defendant agreed to a specific set of conditions for the term of mandatory supervision. Significantly, those are not the conditions that Defendant challenges in this appeal. Instead, he is appealing from an order entered almost two years later in which the court modified the August 2016 conditions of mandatory supervision. In this appeal, Defendant challenges only the May 2018 modification and only on the following two grounds: (1) Because there was no showing of a change in circumstances, the court lacked jurisdiction to modify any of the conditions of the August 2016 order; and (2) because one particular modification is unreasonable, it should be stricken.

For the foregoing reasons, Defendant's appeal does not attack the plea or affect its validity. Thus, Defendant was not required to obtain a section 1237.5 certificate of probable cause to appeal from the May 2018 Order. (Rule 8.304(b)(4)(B).) We now turn to the merits of Defendant's appeal. B. Jurisdiction to Modify the August 2016 Conditions of Mandatory Supervision

Defendant argues that, in May 2018, the court lacked the power to modify the conditions of the mandatory supervision ordered by the Riverside County Superior Court in August 2016. More specifically, Defendant contends that, because the trial court lacked evidence of a change in circumstances, it lacked jurisdiction to modify the conditions of mandatory supervision ordered in August 2016. Significantly, with regard to the merits, the People acknowledge that "there was no change in circumstances," arguing instead that certain of the challenged modifications (conditions 1-5, 8-9, and 13; not conditions 11 and 12) "were simply a restatement of previously imposed conditions, and therefore . . . do not constitute a modification of [the Riverside County Superior Court's] previous conditions." (Italics added.) In addition, as a preliminary matter, the People argue that Defendant forfeited appellate consideration of the jurisdictional issue by failing to object in the trial court.

As we explain, we disagree with the People's procedural objection; and because May 2018 Order modified, not restated, the August 2016 conditions of mandatory supervision without a showing of a change in circumstances, the court erred.

1. Defendant Did Not Forfeit His Argument That the Court Lacked Jurisdiction to Modify the August 2016 Conditions of Mandatory Supervision

According to the People, "[a]s a general rule, challenges to the reasonableness of a probation condition require an objection," citing People v. Welch (1993) 5 Cal.4th 228 (Welch). Indeed, Welch does hold that an adult defendant may not challenge the reasonableness of probation conditions for the first time on appeal. (Id. at p. 237 ["failure to timely challenge a probation condition on [reasonableness] grounds in the trial court waives the claim on appeal"].)

In the present appeal, however, Defendant is not challenging the reasonableness of the court's modified conditions 1-5, 8-9, 11, and 13—an issue that is reviewed for an abuse of discretion on appeal (Lent, supra, 15 Cal.3d at p. 486 [trial judges have "broad discretion" in determining the conditions of probation]). Rather, Defendant is challenging, as a matter of law, the court's May 2018 exercise of jurisdiction to modify any of the conditions of mandatory supervision ordered in August 2016—an issue that is reviewed de novo on appeal (see Welch, supra, 5 Cal.4th at pp. 235-236 [appellate arguments that a sentence is " 'unauthorized' " or in " 'excess of jurisdiction' . . . generally involve pure questions of law"]).

Apparently recognizing that Defendant did object in the trial court to the reasonableness of condition 12, the People do not argue that Defendant forfeited appellate review of the reasonableness of condition 12. As we previewed in the text ante, however, based on our resolution of the legal issue (whether the court had jurisdiction to modify the Aug. 2016 conditions of mandatory supervision), we will not reach the discretionary issue (whether the May 2018 modification of condition 12 was reasonable).

Defendant does not suggest that the court lacked fundamental jurisdiction to modify the conditions of mandatory supervision, only that the court "acted in excess of its jurisdiction." (Italics added.)

The People tell us that "[c]ourts have held that the waiver rule announced in Welch applies even when a defendant contends a probation condition is 'constitutionally flawed' "—citing In re Justin S. (2001) 93 Cal.App.4th 811, 814; People v. Gardineer (2000) 79 Cal.App.4th 148, 151 (Gardineer); In re S. B. (2004) 32 Cal.4th 1287, 1293; and In re S. J. (2008) 167 Cal.App.4th 953, 962. None of these cases supports the People's argument.

Indeed, In re Justin S., supra, 93 Cal.App.4th 811 supports exactly what we have discussed here. Although a defendant (or juvenile offender, as in Justin S.) must object to the reasonableness of a condition of probation in the trial court to preserve the issue for appellate review (id. at p. 814), no such objection is required for "constitutional claims [which] present 'pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court' " (id. at p. 815). Here we are presented with a " 'pure question[] of law,' " not the reasonableness of a condition based on the court's exercise of discretion.

In Gardineer, supra, 79 Cal.App.4th 148, without objecting in the trial court, on appeal the defendant challenged a condition of probation that he " 'observe good conduct.' " (Id. at p. 151.) Although the defendant argued that the condition was "unconstitutionally vague," the appellate court cited, quoted, and followed Welch, supra, 5 Cal.4th at pages 234-235—ruling that "Welch's [forfeiture] rule applies" to any " 'allegedly unreasonable condition' " even if the argument is that the "condition of probation is constitutionally flawed." (Gardineer, at pp. 151-152, quoting Welch, at p. 235.) Thus, where the consideration is the reasonableness of a condition of probation, even where the contention is that the condition is unreasonable because it is "constitutionally flawed," a defendant must object in the trial court to preserve the issue on appeal. Here, however, Defendant's jurisdictional argument does not focus on any specific condition or its reasonableness; the argument is that, as a matter of law, the court did not have the authority to modify any of the conditions.

In re S. B., supra, 32 Cal.4th 1287 does not involve a condition of probation or mandatory supervision; and the case does not mention, let alone discuss, Welch, supra, 5 Cal.4th 228, or constitutional flaws. In S. B., the juvenile court appointed legal guardians for the minor, S. B., and, without objection from the mother, modified child visitation by ordering that visitation between the mother and child be determined by the legal guardians. (S. B., at p. 1291.) In the mother's appeal, our Supreme Court ruled that, under the statute at issue, "a juvenile court is not precluded from delegating to the appointed guardian the determination whether visitation is to occur between the parent and the child." (Id. at p. 1296.) For these reasons, In re S. B. does not support the People's position.

In In re S. B., the Supreme Court stated that "a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court"; but the court emphasized, as relevant here, "application of the forfeiture rule is not automatic." (In re S. B., supra, 32 Cal.4th at p. 1293.) In fact, in S. B., the Supreme Court did not apply the forfeiture rule, expressly ruling that the Court of Appeal did not abuse its discretion in considering the merits of the appeal despite the mother's failure to object during the juvenile court proceedings. (In re S. B., supra, 32 Cal.4th at p. 1293.) In this regard, we find support for our decision here to reach the merits of a legal issue without an objection in the superior court to the issue raised on appeal.

Likewise, In re S. J., supra, 167 Cal.App.4th 953, does not involve either a condition of probation or mandatory supervision; Welch, supra, 5 Cal.4th 228; or constitutional flaws. As in In re S. B., supra, 34 Cal.4th 1287, a mother appealed the juvenile court's order that modified her visitation of the dependent children. (S. J., at p. 955.) As in In re S. B., the mother in S. J. did not object in the juvenile court on the basis that the court improperly delegated to the children's legal guardian whether she could visit the children. (S. J., at p. 955.) As in In re S. B., the appellate court considered the legal issue whether such delegation was statutorily authorized, despite the lack of an objection in the trial court. (S. J., at pp. 962-964.) Accordingly, like In re S. B., In re S. J. does not support the People's position.

Since the People have not presented any applicable authority that would support a forfeiture of Defendant's legal argument, we proceed to the merits of that argument.

2. The Trial Court Lacked Jurisdiction to Modify the August 2016 Conditions of Mandatory Supervision

As we introduced at part I.C., ante, the Riverside County Superior Court sentenced Defendant under section 1170, subdivision (h), to a split sentence that resulted in a term of six years of mandatory supervision with specified conditions. Accordingly, the modification proceedings in the San Diego County Superior Court were pursuant to section 1203.3. (§ 1170, subd. (h)(5)(B) ["Any proceeding to . . . modify mandatory supervision under this subparagraph shall be conducted pursuant to . . . Section 1203.3."].)

Section 1203.3 provides in part: "(a) 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. . . . The court shall also have the authority at any time during the term of mandatory supervision pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170 to revoke, modify, or change the conditions of the court's order suspending the execution of the concluding portion of the supervised person's term. [¶] (b) The exercise of the court's authority in subdivision (a) to revoke, modify, or change probation or mandatory supervision . . . is subject to the following: [¶] (1) Before any sentence or term or condition of probation or condition of mandatory supervision is modified, a hearing shall be held in open court before the judge. . . . [¶] (A) If the sentence or term or condition of probation or the term or any condition of mandatory supervision is modified pursuant to this section, the judge shall state the reasons for that modification on the record. . . ."
In this very last regard, Defendant argues on appeal that the trial court erred in not "stat[ing] the reasons . . . on the record" for the modifications. We do not reach or express an opinion on this issue because, as we stated ante, we are able to resolve this appeal on the jurisdictional issue.

" 'A change in circumstances is required before a court has jurisdiction to . . . modify probation. As we held in In re Clark (1959) 51 Cal.2d 838, "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." (Id. at p. 840, italics added.)' " (People v. Leiva (2013) 56 Cal.4th 498, 505 (Leiva) [appeal from order revoking probation], quoting People v. Cookson (1991) 54 Cal.3d 1091, 1095 (Cookson) [appeal from order extending probation].) In this context, a "change in circumstance" requires "a fact 'not available at the time of the original order.' " (Cookson, at p. 1095.)

These principles apply to mandatory supervision as well as to probation. (§ 1170, subd. (h)(5)(B) ["the terms, conditions, and procedures generally applicable to persons placed on probation" apply to a defendant serving the mandatory supervision portion of a split sentence under § 1170, subd. (h)].)

As we previewed ante, the People have acknowledged in their brief on appeal that "there was no change in circumstances" to support a modification of the August 2016 conditions of mandatory supervision. Thus, in modifying the August 2016, the court acted in excess of its jurisdiction under section 1203.3. (Leiva, supra, 56 Cal.4th at p. 505; Cookson, supra, 54 Cal.3d at p. 1095; In re Clark, supra, 51 Cal.2d at p. 840.)

Despite their concession of a lack of change in circumstances, the People argue that conditions 1-5, 8-9, and 13 (but not condition 11 or 12) "were simply a restatement of previously imposed conditions, and therefore these terms do not constitute a modification of [Defendant's] previous conditions." The People then describe what they contend to be the similarities between (modified) conditions 9 and 13 and (original) conditions in the August 2016 order and suggest there was no error. We disagree. While the topics in conditions 9 and 13 may be similar to conditions in the August 2016 order, "similarities" in an original and a modified condition of mandatory supervision are not a basis on which section 1203.3 authorizes a modification of mandatory supervision conditions. A change in circumstances is required, and—as the People acknowledge—here there was none. For this reason, the court acted in excess of its jurisdiction in modifying the August 2016 conditions. This includes condition 12 (see fn. 6, ante), which Defendant also argues is unreasonable under Lent, supra, 15 Cal.3d 481.

The People do not describe what they contend to be similarities between the August 2016 conditions and the May 2018 conditions 1-5 and 8.

Condition 9, incorporated into the May 2018 Order, provides: "Do not unlawfully use force, threats, or violence on another person." Without directing us to a specific provision of the August 2016 order, the People cite the entire order, telling us only that mandatory supervision was granted "under the guise [that Defendant] obey all laws, ordinances, and court orders."
Condition 13, incorporated into the May 2018 Order, provides: "Employment subject to the approval of the P[robation] O[fficer]." The August 2016 order includes as a condition: "Seek and maintain employment or attend a full time school or vocational program." These two conditions are not the same.

In deciding the legal (jurisdictional) issue, we do not reach or express an opinion on the court's exercise of discretion (reasonableness) related to condition 12.

III. DISPOSITION

The May 2018 Order is reversed. Upon issuance of the remittitur, the court shall enter a new order from the May 17, 2018 hearing that does not include the conditions of mandatory supervision that the court ordered based on recommended conditions 1-5, 8-9, or 11-13 on pages 4 and 5 of the "Mandatory Supervision Jurisdictional Transfer Report" prepared by the San Diego County Probation Department for the May 17, 2018 hearing.

IRION, J. WE CONCUR: McCONNELL, P. J. DATO, J.


Summaries of

People v. Alvarez

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Sep 11, 2019
No. D074252 (Cal. Ct. App. Sep. 11, 2019)
Case details for

People v. Alvarez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GERARDO ALEX ALVAREZ, Defendant…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Sep 11, 2019

Citations

No. D074252 (Cal. Ct. App. Sep. 11, 2019)