P. v.
Filed 5/13/13 P. v. Anderson CA1/5
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
and Respondent,
and Appellant.
A134876
(
Super.
In
Napa County Superior Court, Carin Louise Paguio Anderson pleaded no contest to
charges of second degree burglary and
contributing to the delinquency of her minor daughter. When she was arrested for those offenses, the
Solano
County juvenile court removed Anderson’s
daughter from her custody, and Anderson
was ordered to participate in reunification services in the Solano
County juvenile dependency
case. In the Napa
County criminal case, Anderson
was granted probation. Over defense
counsel’s objection, the trial court included a condition of Anderson’s
probation requiring her to follow all orders entered in the Solano
County juvenile dependency
case. The trial court also imposed
certain fees on Anderson, although
it waived the imposition of other fees.
On
appeal, Anderson does not contest
the validity of her no contest plea.
Instead, she argues the condition of her probation requiring her to
follow all orders in the Solano County
juvenile dependency proceeding is
legally unauthorized and overbroad. She
also contends the issue of fees must be remanded for reconsideration. The Attorney General concedes the fee issue
must be remanded.
We
will accept the Attorney General’s concession and remand the matter to the
trial court for reconsideration of the fee issue. Because we can find no evidence that the
orders of the Solano County
juvenile court were presented to the court below at sentencing, we will also
direct the trial court to reconsider that condition on remand.
Factual and
Procedural Background
The
factual basis for Anderson’s no
contest plea was that at around 3:00 p.m.
on November 12, 2011,
she entered a Kohl’s store on First Street
in Napa with her eight-year-old
daughter. Anderson and her daughter both
selected items from the store and placed them in empty Kohl’s bags. They then left the store without paying. Anderson
had done this four times before without being caught.
On
January 24, 2012, the
Napa County District Attorney filed an information accusing Anderson
of five counts of second degree commercial burglary (Pen. Code, § 459),
five counts of petty theft (Pen. Code, § 484, subd. (a)), and one
count of contributing to the delinquency of a minor. (Pen. Code, § 272, subd. (a)(1).)
On
February 6, 2012, Anderson
pleaded no contest to two counts of second degree burglary and one count of
contributing to the delinquency of a minor.
The District Attorney dismissed the remaining counts with a
waiver. (See People v. Harvey (1979) 25 Cal.3d 754.)
According
to the probation officer’s presentence report, at the time of Anderson’s
arrest, her daughter was removed from her care, placed first in a foster home,
and then placed in the custody of her father.
The report stated Anderson
was subject to a reunification plan entered in a Welfare and Institutions Code
section 300 juvenile dependency proceeding pending in Solano
County. The probation officer’s report recommended
that probation be granted with a number of conditions. The 20th recommended probation condition
(Condition No. 20) required that Anderson
“[f]ollow all court orders presently in effect in Solano County Child
Protective Services Case.â€
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At
the March 6, 2012
sentencing hearing, defense counsel told the court Anderson
planned to comply with the terms of her reunification plan in the Solano
County juvenile dependency case,
explaining, “That’s her main priority.â€
Nevertheless, defense counsel objected to Condition No. 20 because
the Solano County
dependency orders were not before the sentencing court.
not determine whether the terms of the Solano
County orders were reasonably
related to Anderson’s
offenses. In addition, counsel contended
Anderson would not have notice of
the conditions of her probation.
Finally, defense counsel cited In
re Nolan W. (2009) 45 Cal.4th 1217 (Nolan
W.) for the proposition that a juvenile court cannot hold a parent in
contempt for failure to comply with a condition of a reunification case
plan. While recognizing that
defense counsel argued that the same principle applied in this case and that if
Anderson failed to comply with her
reunification plan, the consequence of failing to reunify with her child would
be punishment enough for that failure.
The prosecutor responded by saying Anderson
“already knows the terms and conditions that Solano
County has provided her.â€
The
trial court expressed concern about whether Anderson
would be in violation of probation if the Solano
County juvenile court determined
that termination of Anderson’s
parental rights was in the best interests of her child, noting that in some
cases parents agreed to termination of their rights. The prosecutor responded to the court’s
concern by noting that if there were a change in the Solano
County orders, the case “could be
put back on calendar to modify the terms of probation in this case to reflect
that there has been a change in the status in that case.â€
The
court suspended imposition of sentence and granted probation. With regard to Condition No. 20, the
trial court stated, “I’ll adopt it. I do
have some concerns about it. I’ll read
appropriate to require her to [comply with the terms of the reunification
plan]. They’re certainly reasonably
related to the facts of this case and the issues in this case, and therefore I
think appropriately can be imposed in this case.â€
The
trial court also imposed a $70 per-count fine representing the mandatory court
security fee of $40 and the $30 fee required by Government Code
section 70373, subdivision (a), for a total fine of $210. It also imposed a $240 restitution fine. (See Pen. Code, § 1202.4,
subd. (b)(1).) The court waived the
pre-sentence report fee and attorney’s fee but imposed an annual probation
supervision fee of $240. An unsigned
minute order for the sentencing hearing specifies a booking fee of $71, a court
security fee of $120, and criminal
conviction assessment fee of $90.
Anderson
filed an appeal from her sentence on March 7, 2012.
On
March 12, 2012, a clerk signed a form entitled “Napa County Superior Court
Promise to Appear/CSB Referral,†which appears to impose a number of fines and
fees on Anderson. The form listed an
unexplained fine of $330, a “Court Operations Assessment†fee of $120, a
probation supervision fee of $720 (three years of supervision at $240 per
year), a booking fee of $71, and an administrative fee of $35. Anderson was not present when the fine and
fees were imposed, and her signature does not appear on the form.
Discussion
Anderson
raises two issues on appeal. She
contends Condition No. 20, which requires her to obey the orders in the
Solano County juvenile dependency proceeding, is both legally unauthorized and
unconstitutionally vague. She also
argues that the fines purportedly imposed by the clerk on March 12, 2012
must be stricken, since they were not imposed by the court and are not
mandatory.
The
Attorney General urges us to uphold Condition No. 20. With regard to the issue of fines and fees,
however, she agrees that the matter should be remanded to clarify the
discrepancies between the trial court’s oral pronouncement, the unsigned minute
order, and the March 12, 2012 “Promise to Appear/CSB Referralâ€
document. The Attorney General also
contends the matter must be remanded so that the booking fee mandated by
Government Code section 29550 et seq. may be imposed.
Because
the parties are in partial agreement on the fee issue, we will address it
first.
I. The
Matter Must Be Remanded for Clarification of the Fees the Trial Court Intended
to Impose.
Anderson
contends this matter should be remanded so that the trial court can clarify
precisely which fees it intended to impose on her. The Attorney General concedes a remand is
required “to clarify the discrepancies between the court’s verbal
pronouncement, the unsigned minute order, and the ‘Promise to [Appear]’
document.†We will accept the Attorney
General’s concession and order the matter remanded for that purpose.
v. Eddards (2008) 162 Cal.App.4th 712, 717 [accepting Attorney General’s
concession regarding necessity of remand on issue of fines and fees].)
Although
the Attorney General agrees the matter must be remanded, she contends that the
trial court’s failure to impose the booking fee required by Government Code
section 29550 makes Anderson’s sentence illegal and that this fee must be
imposed on remand. Anderson
disagrees. She argues that the booking
fee may only be imposed “based on . . . her ability to pay†(Gov.
Code, § 29550, subd. (d)(2)) and that the trial court implicitly
determined she was not able to pay it when it failed to include the booking fee
in the list of fees it imposed. In
support of this argument, she points out that the court waived imposition of
$600 in attorney fees and the $560 fee for the pre-sentence report, presumably
because it found Anderson could not afford to pay them. Furthermore, Anderson notes that the
prosecutor did not object in the trial court to the failure to impose the
booking fee. She therefore asserts that
the issue has been forfeited.
We
agree with Anderson that the prosecution’s failure to object in the trial court
has forfeited this issue on appeal. (See
People v. Martinez (1998) 65
Cal.App.4th 1511, 1518-1519 [where prosecution did not object to trial court’s
failure to state reasons for not imposing drug program fee, the Attorney General
could not raise issue on appeal].) Even
if the issue has not been forfeited, it lacks merit. Anderson is correct that imposition of the
booking fee requires “a finding, whether express or implied, of the defendant’s
ability to pay.†(People v. Pacheco, supra, 187 Cal.App.4th at p. 1400.) Government Code section 29550 does not
require the trial court to state this finding on the record, and the trial
court in this case made no express finding.
However, where the record is silent, we may assume the trial court
exercised its discretion when it declined to impose the fee. (See People
v. Martinez, supra, 65 Cal.App.4th at pp. 1517-1518, & fn. 2
[court’s failure to impose mandatory drug program fee and other fees implied a
determination that court found defendant unable to pay].) Thus, contrary to the Attorney General’s
contention, the failure to impose the fee does not render Anderson’s sentence
illegal. (See id. at p. 1518 [judgment failing to impose drug program fee
“is not a legally unauthorized judgmentâ€].)
II. Because
the Solano County Juvenile Court’s Orders Were Not Before the Sentencing Court,
We Must Remand Condition No. 20 for Reconsideration.
Anderson
challenges Condition No. 20, which requires her to “[f]ollow all court
orders presently in effect in Solano County Child Protective Services
Case.†She does so on two grounds. First, she contends the condition is legally
unauthorized. Anderson argues that
probation may not be conditioned upon her compliance with a reunification plan
in a juvenile dependency proceeding, “because the child-focused and voluntary
statutory scheme around reunification is incompatible with the
defendant-focused and mandatory nature of probation conditions.†Second, she asserts that the condition is
unconstitutionally vague, because it is unclear whether it requires her only to
respect the custody decisions of the Solano County juvenile court or whether it
purports to compel her compliance with the otherwise voluntary components of a
reunification plan.
A.
“Generally,
‘[a] condition of probation will not be held invalid unless it “(1) has no
relationship to the crime of which the offender was convicted, (2) relates to
conduct which is not in itself criminal, and (3) requires or forbids conduct which
is not reasonably related to future criminality....†[Citation.]’
[Citation.] This test is
conjunctive—all three prongs must be satisfied before a reviewing court will
invalidate a probation term.
[Citations.] As such, even if a
condition of probation has no relationship to the crime of which a defendant
was convicted and involves conduct that is not itself criminal, the condition
is valid as long as the condition is reasonably related to preventing future
criminality. [Citation.]†(People
v. Olguin (2008) 45 Cal.4th 375, 379-380.)
B.
In
support of her claim that the challenged condition is legally unauthorized,
Anderson relies on Nolan W., supra,
45 Cal.4th 1217. In that case, the
California Supreme Court concluded that “the juvenile court may not use its
contempt power to incarcerate a parent solely for the failure to satisfy
aspects of a voluntary reunification case plan.†(Id.
at p. 1224.) In reaching this
conclusion, the Supreme Court explained that a parent’s participation in a
reunification plan is voluntary. (
sense, the court explained, because “[w]hile reunification is the preferred
outcome when it serves the interests of both parent and child, no interest is
well served by compelling inadequate parents to shoulder responsibilities they
are unwilling to accept or unable to discharge.†(Id.
at p. 1234.) Under the statutory
scheme governing juvenile dependency, “the Legislature envisions the punishment
for noncompliance with reunification services to be loss of those services and,
ultimately, loss of parental rights.†(
for “the notion that juvenile courts may force compliance with reunification
orders by punishing parental lapses with contempt proceedings and
incarceration.†(Id. at p. 1236.) It
noted that reunification plans often require parents to adhere to a visitation
schedule and that if juvenile courts could punish noncompliant parents with
contempt, a parent could be fined or incarcerated for such a violation, a
result “clearly inconsistent with the statutory scheme governing
reunification.†(Ibid., fn. omitted.)
Although
she recognizes the factual and legal distinctions between her case and
that the trial court could not legitimately condition its grant of probation on
compliance with a reunification plan.
She correctly notes that the juvenile court has jurisdiction over her
child, not her, and that her participation in reunification is entirely
voluntary. (Nolan W., supra, 45 Cal.4th at p. 1232 [“in dependency
proceedings, the juvenile court’s jurisdiction is over the minor: It is the abused or
neglected minor who becomes a ward of the court, not the deficient parentâ€];
see Welf. & Inst. Code, § 361.5, subd. (b)(14) [parent may advise
court she is not interested in receiving reunification services].) Anderson asserts that the juvenile court
could intervene to protect her daughter on grounds that would not appropriately
support a violation of probation. In her
reply brief, she points out the Attorney General’s failure to cite any
authority for the proposition “that allows a criminal court to simply delegate
its authority for setting the parameters of probation to a court that does not
have jurisdiction over the probationer.â€
The
Attorney General emphasizes the distinctions between Nolan W. and this case. In
particular, she observes that Nolan W.
differentiated between probation violation proceedings, in which the
probationer is under the criminal court’s jurisdiction, and summary contempt
proceedings, in which the penalty for failure to comply is denial of
reunification. The Attorney General
appears to argue that any violation of probation in this case would stem not
from the juvenile court’s actions, but rather “from the actions of the court
acting in appellant’s criminal case.†On
the substance of Condition No. 20, the Attorney General contends the trial
court could reasonably conclude that since Anderson involved her daughter in
the offenses, there “would be a need to insure, as a condition of probation,
that [Anderson] take steps that would present less risk of reoffending should
she regain custody [of her daughter], and that complying with orders of the
dependency court would lessen that risk.â€
At oral argument, the deputy attorney general asserted Anderson had
effectively volunteered to add the provisions of the reunification plan to her
conditions of probation when her trial counsel told the court Anderson intended
to comply with the terms of the Solano County juvenile court’s orders.
C.
Appellate Review.
The
parties have not cited to us any case in which a criminal court has conditioned
probation upon the probationer’s compliance with a reunification plan entered
in a juvenile dependency proceeding to which the probationer is a party, and
our own research has disclosed none. The
only cases we have found in which probation has been revoked based on violation
of an order in a separate proceeding are People
v. Hall (1990) 218 Cal.App.3d 1102 (Hall)
and People v. Ayub (1988) 202
Cal.App.3d 901 (Ayub). Neither of these cases offers much guidance.
we need not resolve the legal issues Anderson raises.
The
parties agree that the juvenile court’s orders were not made part of the
record. Indeed, insofar as we can
discern, it does not appear that at the sentencing hearing, the trial court was
presented with the orders entered in the Solano County juvenile dependency
case. In fact, in the court below,
Anderson’s counsel objected to inclusion of Condition No. 20 on the
specific ground that the Solano County juvenile court’s orders were not before
the sentencing court. Defense counsel
explained that the reason for her objection was “that this court must determine
that every term is reasonably related, and the court can’t determine that if
the court doesn’t have those terms before the court.â€
If,
as it appears from the record, the trial court did not know the terms of
Anderson’s reunification plan, it could not have determined whether those terms
are reasonably related to future criminality.
(Cf. In re Gonzales (1974) 43
Cal.App.3d 616, 620 [court’s exercise of discretion in probationary matters “is
a judicial power manifested through the judge’s personal examination of the
case before himâ€].) Likewise, because we
do not know the content of the orders, it is impossible for
reunification plan, we cannot say whether those terms have any relationship to
her offenses. (See People v. Olguin, supra, 45 Cal.4th at p. 379.) Nor can we determine whether they involve
conduct which is not itself criminal, although we note it is common for
reunification orders to govern conduct that is certainly not criminal, such as
visitation with the minor and attendance at parenting classes. (See Nolan
W., supra, 45 Cal.4th at p. 1236 [visitation].) Finally, although probation conditions may be
valid even if they have no relationship to the probationer’s crime and involve
conduct that is not itself criminal, such conditions must still be “reasonably
related to preventing future criminality.â€
(People v. Olguin, supra, 45
Cal.4th at p. 380.)
There
is no evidence in the record that Anderson’s reunification plan was put before
the trial court at sentencing. Because
the reunification plan is not part of the record on appeal, the record does not
permit informed appellate review. Since
we must remand the matter for clarification of the fees the trial court
intended to impose on Anderson, we will direct the trial court on remand to
reconsider Condition No. 20 after it has had the opportunity to review the
actual terms of the orders entered in the Solano County juvenile dependency
case.
Disposition
Probation
Condition No. 20 is vacated and the matter is remanded for reconsideration
of that condition, as well as for reconsideration of the fines and fees to be
imposed on Anderson. In all other
respects, the sentence is affirmed.
_________________________
Jones,
P.J.
We concur:
_________________________
Needham, J.
_________________________
Bruiniers, J.
Two final recommended conditions were handwritten at the end of the
report. These were that Anderson pay a
“$210 fine (criminal conviction assessments and court security fee)†and a
“$240 restitution fine.†It is unclear
if these handwritten recommendations were part of the original presentence
report submitted to the court or if they were added later. At sentencing, the trial court noted that the
probation report did not include these fines.
This factual discrepancy does not affect our disposition of this case.
The orders of the Solano County juvenile court are not part of the record on
appeal, and it does not appear that those orders were presented to the trial
court.
