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People v. Malago

California Court of Appeals, Fourth District, First Division

February 27, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
FELIPE MALAGO, Defendant and Appellant.

         APPEAL from an order of the Superior Court of San Diego County No. SCS281872, Garry G. Haehnle, Judge. Affirmed.

          Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

          HUFFMAN, Acting P. J.

         Felipe Malago appeals certain mandatory supervision conditions related to alcohol consumption, alcohol testing, alcohol treatment, and substance abuse treatment. To this end, Malago contends the superior court abused its discretion when it did not rule on his objections to these conditions, but instead, deferred any rulings to the mandatory supervision judge. He also argues that the conditions are unreasonable and invalid because they are unrelated to Malago's current offense or future criminality.

         We agree that the superior court erred in failing to rule on Malago's objections to the mandatory supervision conditions. However, we conclude that Malago suffered no prejudice as the conditions are reasonable and valid. Thus, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         On January 5, 2016, Malago pled guilty to one count of importing a controlled substance (Health & Saf. Code, § 11352, subd. (a)). On February 18, 2016, the superior court sentenced Malago to a five-year split sentence composed of 30 months in county jail and 30 months of mandatory supervision. As part of the terms of mandatory supervision, the court ordered Malago: Not to knowingly use or possess alcohol if directed by the probation officer (condition 5b); to attend self-help meetings if directed by the probation officer (condition 5c); to submit to any chemical test of blood, breath, or urine to determine blood alcohol content (condition 5f); to surrender his driver's license to the court for forwarding to the DMV (condition 5g); not to drive a motor vehicle unless licensed and insured (condition 5i); to participate in, comply with, and bear all costs associated with a continuous alcohol monitoring device if directed by probation (condition 5j); and to complete a program of residential drug treatment and aftercare if directed by probation officer (condition 6a).[1]

         Malago's counsel objected to all the alcohol related conditions (referring to them as "Condition 5"), and condition 6a, contending there was no nexus between the conditions and the crime. The court noted the objections but did not rule on them, deferring any ruling on the objections to the "mandatory supervision judge." The challenged conditions were imposed in the order granting mandatory supervision.

         Malago timely appealed.

         DISCUSSION

         As a threshold matter, the People insist that Malago has forfeited his challenge to the mandatory supervision conditions in the instant matter. Although they acknowledge that Malago objected to these conditions below, the People claim that Malago forfeited the issue because he did not secure a ruling from the superior court on the objections. (See People v. Rowland (1992) 4 Cal.4th 238, 259 ["In other words, when, as here, the defendant does not secure a ruling, he does not preserve the point. That is the rule."].) Although we do not view the People's forfeiture argument as particularly persuasive on the record before us, we decline to address that contention and instead exercise our discretion to address the issues raised here on the merits. (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.)

         At Malago's sentencing hearing, Malago's counsel objected to several of the proposed conditions for Malago's mandatory supervision. Specifically, arguing no nexus between the condition and the crime, counsel objected to conditions 5b, 5c, 5f, 5g, 5i, 5j, and 6a.[2] The court responded that it was its "policy" not to rule on the objections, but instead, to note the objections and allow the mandatory supervision judge to rule on the objections at some point in the future. The court explained that it had "no idea what the[] goals are going to be" to keep Malago "in line" during his mandatory supervision. Despite not ruling on Malago's objections, the court's order granting mandatory supervision imposed conditions 5b, 5c, 5f, 5g, 5i, 5j, and 6a.

         We review a superior court's ruling regarding mandatory supervision and its terms and conditions under an abuse of discretion standard. (People v. Martinez (2014) 226 Cal.App.4th 759, 764 (Martinez).) Here, Malago argues the superior court abused its discretion by failing to rule on the objections. Alternatively stated, Malago asserts the court failed to exercise the discretion vested in it by law. (People v. Penoli (1996) 46 Cal.App.4th 298, 302.) In response, the People claim the court did not delegate its responsibilities, but merely left "these important decisions for a future judge who ...


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