California Court of Appeals, Second District, Fourth Division
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from a judgment of the Superior Court of Los Angeles County, No. MA041187 Kathleen Blanchard, Judge.
[Copyrighted Material Omitted]
Renee Rich, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Jessica C. Owen, Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant to a plea agreement, defendant Robert G. Kendrick, represented by counsel, pled guilty to two counts of committing a lewd act upon a child (§ 288, subd. (a).) The trial court sentenced defendant to a 10-year state prison term but suspended execution of sentence and placed defendant on formal probation for five years. The probationary term included the condition that he not use the Internet without prior approval of his probation officer. Defendant did not object to this condition of probation. Three years later, the trial court found defendant in violation of probation because he had used the Internet without obtaining permission. The trial court revoked and terminated probation and lifted the stay of execution on the 10-year sentence.
In this appeal, defendant raises two contentions. The first is that the probation condition precluding access to the Internet without prior authorization is unconstitutional. In the published portion of this opinion, we find that this contention has been forfeited because it was not raised in the trial court. We therefore do not consider it on the merits. In the non-published portion of this opinion, we consider defendant’s second contention that the trial court abused its discretion in revoking and terminating his probation. We find no abuse of discretion and therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Plea and Initial Sentencing
In May 2008, the People filed a 28-count information alleging that defendant had engaged in unlawful sexual acts with two young teenage girls he had taught horseback riding.
In November 2009, the parties reached a negotiated settlement. Defendant, represented by counsel, was advised of and waived his constitutional rights and pled guilty to two counts of committing a lewd act upon a child (§ 288, subd. (a).) The parties stipulated that the preliminary hearing transcript and probation report contained the factual basis of the pleas.
The trial court sentenced defendant to a 10-year term but suspended execution of sentence. The court informed defendant that it was very reluctant “to go along with this plea agreement.” The court stated: “I’m very concerned with your conduct in this case. The probation officer does not feel that you are a suitable candidate for probation [but] should [instead] be sent to state prison. I’m going to give you a shot on probation, but let me make it very clear: If you violate your probation in any way, ... you will do ten years in state prison without question.... [Y]our attorney assures me that I will never see you again, that you’re going to go on the straight and narrow. I hope for your sake that’s true because you will go for the ten years. [¶] Do you understand that?” Defendant responded: “Yes, I do.”
The court placed defendant on a five-year formal probationary term that included multiple conditions. The court informed defendant that the conditions included, inter alia, the requirement that he not “subscribe to or have access to any form of Internet service without the approval of [his] probation officer.” The court asked defendant if he understood “all of the terms and conditions of [his] probation.” Defendant replied that he did. The court then asked him: “And do you accept all the terms and conditions of your probation?” Defendant replied: “Yes.” On the People’s motion, the court dismissed the remaining counts.
2. The First Probation Violation
Within six months of the sentencing hearing, defendant violated probation by being within 100 yards of a locale frequented by minors. In particular, defendant repeatedly loitered at a McDonalds inside of a Walmart, a location that gave him a ...