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The People v. Shiseop Kim

March 22, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
SHISEOP KIM, DEFENDANT AND APPELLANT.



Santa Clara County Super. Ct. No. EE907149

The opinion of the court was delivered by: Grover, J.*fn7

CERTIFIED FOR PUBLICATION

1. introduction

Defendant Shiseop Kim was charged by complaint with felony battery causing serious bodily injury (count 1; Pen. Code, §§ 242, 243, subd. (d), 1192.7),*fn1 kidnapping (count 2; § 207, subd. (a)), and attempted dissuasion of a witness by threat of force (count 3; § 136.1, subd. (c)(1)). By written plea agreement, defendant pleaded no contest to count 1 and admitted the personal infliction enhancement on condition that he would receive a grant of formal probation and the remaining charges would be dismissed. At sentencing the trial court suspended imposition of sentence for three years and placed defendant on formal probation with the following conditions, among others: "You're ordered to obey all laws." "You shall seek and maintain gainful employment; that is, get a job, and maintain academic and/or vocational training as directed by your probation officer." "You shall not own, possess, have within your custody or control any firearm or ammunition for the rest of your life under Section[s] 12021 and 12316 [subdivision] (b)(1) of the Penal Code." In addition to a restitution fine and victim restitution, the court imposed "a $30 court security fee under Penal Code Section 1465.8" and "a criminal conviction assessment of $30 under [section] 70373 of the Government Code." Without objecting, defendant agreed that he understood and accepted all terms and conditions of probation.

On appeal, defendant asserts that the employment condition is not sufficiently related to defendant and his offense; the fee and assessment should not be conditions of probation; and the firearm and ammunition condition is lacking a scienter requirement. For the reasons stated below, we will modify and affirm the judgment after concluding that defendant has forfeited his challenge to the employment condition; the fee and assessment should be imposed separately from conditions of probation; and the firearm and ammunition condition contains an implicit knowledge requirement.

2. sentencing

The facts giving rise to the charges do not appear in the record on appeal. Defendant's written plea agreement acknowledged that there was a factual basis for his plea in a police report that does not appear in the record on appeal. At the change of plea hearing, defense counsel waived referral of the case for an investigation and report by a probation officer. (§ 1203, subd. (b)(4).) A probation officer prepared a "waived referral" memorandum for sentencing that did not detail the offenses.

The probation memo recommended imposition of the following conditions, among others: "7. The defendant shall seek and maintain gainful employment and maintain academic and/or vocational training as directed by the Probation Officer." "9. The defendant shall not own, possess, or have within his/her custody or control any firearm or ammunition for the rest of his/her life pursuant to Sections 12021 and 12316 [subdivision] (b)(1) of the Penal Code." "12. A Court Security Fee of $30.00 be imposed pursuant to Section 1465.8 of the Penal Code." "14. A Criminal Conviction Assessment of $30.00 be imposed pursuant to Section 70373 of the Government Code."

At the sentencing hearing, defense counsel waived any irregularity in not receiving the probation memo five or nine days before the hearing. (§ 1203, subd. (b)(2)(E).) Defendant initialed many paragraphs of a written plea form, including, "I understand that the federal and state law prohibit [sic] a convicted felon from possessing firearms for life." Defense counsel did not object to any of the quoted probation conditions either before or after they were imposed.

3. the forfeiture rule

A probation condition that regulates conduct not itself criminal must reasonably relate to the underlying conviction or to future criminality. (People v. Welch (1993) 5 Cal.4th 228, 233-234.) To challenge the reasonableness of a probation condition on appeal, a defendant must first raise the issue in the trial court. (Id. at p. 237; see In re Sheena K. (2007) 40 Cal.4th 875, 882 (Sheena K.).)

Defendant argues that it was unreasonable under the circumstances of this case for the trial court to require defendant to seek and maintain employment because defendant was a student at the time of sentencing. Any challenge to the reasonableness of that probation condition was forfeited by defendant's failure to question it in the trial court. Defendant seeks to avoid forfeiture by describing this as a "pure issue of law," but whether it was reasonable to require defendant to seek and maintain employment depends on his particular circumstances, which are not in the appellate record. (Cf. People v. Hodgkin (1987) 194 Cal.App.3d 795, 808-811 [trial court should take probationer's circumstances into account in imposing such a condition].) Appellate counsel states that defendant "may have been in school full-time" and notes a "lack of clarity on this point." Counsel's speculation as to defendant's student status and his ability to work illustrates why defendant cannot challenge the condition's reasonableness on appeal without seeking its correction in the trial court.

While the forfeiture rule bars defendant's challenge to the employment condition, his other contentions fit within recognized exceptions. The forfeiture rule does not apply when a probation condition is challenged as unconstitutionally vague or overbroad on its face and the claim can be resolved on appeal as a pure question of law without reference to the sentencing record. (Sheena K., supra, 40 Cal.4th at pp. 888-889.) A defendant may also challenge for the first time on appeal the imposition of a fee as a probation condition when it is unauthorized as a matter of law and correctable without reference to factual findings. (People v. Pacheco (2010) 187 ...


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