IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Butte
June 28, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
CHARMAIN RENEE RIGGS, DEFENDANT AND APPELLANT.
Super. Ct. No. CM029875
The opinion of the court was delivered by: Hull ,j.
P. v. Riggs CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant entered a negotiated plea of no contest to one count of forgery (Pen. Code, § 470, subd. (a)) and was sentenced to the upper term of three years in state prison. Execution of sentence was suspended and defendant was placed on five years formal probation on the condition, among others, that she complete a substance abuse treatment program approved by the probation department.
Defendant failed to enter the required substance abuse program and was charged with a probation violation. The trial court revoked probation and reinstated the three-year sentence.
Defendant appeals, contending the trial court abused its discretion in revoking probation because the condition in question was unconstitutionally vague. We conclude defendant forfeited this challenge by failing to object to the probation condition at the time it was imposed and failing to appeal following her initial sentencing. We further conclude substantial evidence supports the finding of a probation violation and affirm the judgment.
Facts and Proceedings
Defendant was charged with two counts of forgery, one involving a personal check in the amount of $110 and the other a personal check in the amount of $225. On March 19, 2009, defendant entered a negotiated plea of no contest on one count in exchange for dismissal of the other.
On May 12, 2009, defendant was sentenced to the upper term of three years in state prison. Execution of sentence was suspended and defendant was placed on formal probation for five years. Special condition No. 1 of probation required defendant to serve 120 days in county jail, commencing May 26. Special condition No. 20 required her to complete a substance abuse treatment program. It read:
"You are to enter and complete a residential substance abuse treatment program FOR A MINIMUM OF 6 MONTHS (SALVATION ARMY) as specifically approved by your probation officer. Do not leave or otherwise terminate your participation in the program without the permission of program staff and your probation officer. While in the program, you are subject to warrantless search and drug/alcohol testing by program staff. You must follow all program rules as a condition of probation. Upon graduating from the program, you are to participate in any 'aftercare' program (to include a 12 Step or other approved self-help program) as recommended by program staff. Report in person to the Butte County Probation officer in Oroville at 1:00 p.m. on the first Tuesday after you leave the program for any reason. No custody time credits will accrue for participation in a residential treatment program, as a condition of probation."
Defendant failed to report for jail on May 26 as required. At a hearing on June 11 on defendant's motion to modify special condition No. 1, defendant explained she did not report for jail because she was in the hospital. The trial court denied the motion and remanded defendant to jail.
On December 4, 2009, defendant was released from custody. She reported to the probation department on December 18, at which time she was directed to report to a residential treatment program.
On December 23, 2009, defendant moved for modification of her probation conditions to eliminate special condition No. 20, claiming substance abuse treatment was no longer necessary. At the hearing on the motion, defendant informed the court she had applied for admission to "Maple House" and asked to use that as a substitute for substance abuse treatment. The court denied the motion.
On March 4, 2010, the probation department filed a petition for hearing on violation of probation, asserting defendant failed to comply with special condition No. 20. At the hearing on June 17, defendant's probation officer, Steve Knedler, testified that he spoke with defendant on February 4, 2010, and informed her he needed something the next day regarding her plans to enter a residential treatment program. Defendant did not call Knedler until February 10, at which time she told him she had contacted the Salvation Army about entering into their program. Knedler heard nothing further from defendant. On March 1, Knedler called the Salvation Army and was told defendant had contacted them but failed to follow up. Based on the foregoing evidence, the trial court found a violation of probation and revoked probation.
On July 15, 2010, the trial court denied further probation and reinstated defendant's sentence of three years in state prison. Defendant appeals from this July 15 judgment.
Defendant contends the trial court abused its discretion in revoking probation, because special condition No. 20 is unconstitutionally vague in failing to specify when she was required to enter and complete the substance abuse treatment program.
Defendant's vagueness challenge comes too late. The time to raise such a challenge was at the time the condition was imposed. (People v. Gardineer (2000) 79 Cal.App.4th 148, 151.) "A timely objection allows the court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case. . . . A rule foreclosing appellate review of claims not timely raised . . . helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis." (People v. Welch (1993) 5 Cal.4th 228, 235.)
Defendant contends there should be no forfeiture here, because she raised the issue in the trial court shortly after learning the probation department had specified a date within which she must enter the treatment program. However, that argument might have some currency if defendant were challenging the date imposed by the probation department as somehow contrary to the original probation condition or otherwise improper. But defendant's challenge is to special condition No. 20 as originally imposed. She argues the condition should have included a date or a time within which the condition must be satisfied. The time to raise that challenge was at the time the condition was imposed.
Defendant contends a challenge to a probation condition as unconstitutionally vague may be raised for the first time on appeal. She cites In re Sheena K. (2007) 40 Cal.4th 875, where the high court held an appellate claim that a probation condition is unconstitutionally vague, where it presents a pure question of law, is not forfeited by a failure to object in the trial court. (Id. at p. 879.)
Defendant's reliance on In re Sheena K. is misplaced. That case might be apt if defendant had appealed her original judgment granting probation and had raised the challenge to the probation condition at that time. Instead, she chose to wait until she violated the condition and a latter judgment was entered finding her in violation of the condition.
The only challenge defendant could raise at this time is to the substantiality of the evidence of a probation violation. In this regard, the alleged vagueness of the probation condition might be a relevant factor to consider. However, defendant does not make that argument.
At any rate, special condition No. 20 required defendant to enter and complete a residential substance abuse treatment program of at least six months conducted by the Salvation Army "as specifically approved by [defendant's] probation officer." Defendant repeatedly attempted to eliminate or modify this condition after it was imposed. Three months after her release from jail, defendant still had not entered a substance abuse treatment program despite having been directed to do so by her probation officer on December 18.
"Probation officers have wide discretion to enforce court-ordered conditions, and directives to the probationer will not require prior court approval if they are reasonably related to previously imposed terms." (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373.) A probation condition requiring the probationer to enter a program as approved by her probation officer affords reasonable discretion in that officer to decide when compliance must be completed. Three months was more than enough time for defendant to initiate treatment.
Trial courts have broad discretion in determining whether a probationer has violated probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) Proof need only be by a preponderance of the evidence. (Id. at p. 447.) Under the facts presented here, substantial evidence supports the trial court's finding of a probation violation.
The judgment is affirmed.
We concur: BLEASE , Acting P.J. MAURO ,J.
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