Filed 7/21/26 P. v. Issa CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D086709
Plaintiff and Respondent, (Super. Ct. No. SCE428349)
v.
ARIET ISSA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Frank L. Birchak, Judge. Affirmed, as modified.
Morad Fakhimi and Anna M. Jauregui-Law, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General, Eric A.
Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Ariet Issa pled guilty to one count of assault with a semiautomatic
firearm after a confrontation over her attempts to drive while apparently
under the influence of drugs or alcohol. On appeal, she contends the trial
court erroneously delegated its judicial power to the probation officer, failed
to properly balance the mitigating and aggravating factors in imposing a high
term prison sentence, and improperly ordered Issa to pay the costs of mental
health treatment as a condition of probation. We modify the order of
probation to eliminate the provision that Issa pay the costs of treatment as a
condition of probation and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
N.G. attempted to stop Issa from driving while she appeared to be
under the influence of drugs or alcohol. In response, Issa threatened to run
over N.G., who was holding her three-year-old daughter. Issa drove toward
N.G. and her daughter but collided with a wall and other vehicles parked
nearby. Issa then exited the car and retrieved a firearm. She pointed it at
N.G. and her daughter and threatened to kill them. Police arrived on the
scene and arrested Issa.
Issa was charged with two counts of assault with a deadly weapon
(Pen. Code,1 § 245, subd. (a)(1)), two counts of assault with a semiautomatic
firearm (§ 245, subd. (b)), two counts of making a criminal threat (§ 422), one
count of attempted robbery (§§ 664, 211), one count of child endangerment
(§ 273a, subd. (a)), and one count of possession of an assault weapon (§ 30605,
subd. (a)). She pled guilty to one count of assault with a semiautomatic
firearm and admitted the aggravating sentencing factor that the crime
involved the threat of great bodily harm, in exchange for the People
dismissing the remaining charges.
The trial court sentenced Issa to the high term of nine years in prison,
suspended execution of the prison sentence, and placed her on formal
1 Further unspecified statutory references are to the Penal Code.
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probation for two years. As a condition of probation, the trial court ordered
Issa to serve 365 days custodial time, releasable to a residential treatment
program that she was required to complete. In addition, as relevant to this
appeal, the court’s written order of probation contains the following
conditions:
“7. TREATMENT, THERAPY, COUNSELING: [¶] . . .[¶]
d. Attend and successfully complete Psychiatric-IF[,] Individual-
IF[,] Group-IF[,] Dual Diagnosis-IF[,] and cognitive behavior-IF
counseling program[s] approved by the [probation officer], if
directed by the [probation officer]. . . . [A]ll costs to be borne by
defendant.
“[¶] . . .[¶]
“9. DRUG CONDITIONS: a. Complete a program of residential
treatment and aftercare as directed by the probation officer.
“[¶] . . .[¶]
“14. FURTHER CONDITIONS:
“[¶] . . .[¶]
“b. Enroll in & adhere to substance use treatment & recovery
services, as clinically indicated if directed by [the probation
officer].”
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DISCUSSION
I.
Condition 7(d) of the Order of Probation is not Unconstitutional
Issa first challenges condition 7(d) of her order of probation, arguing
the trial court unconstitutionally delegated its authority to the probation
officer by leaving to the officer’s discretion whether to require Issa to attend
residential treatment services or, in the alternative, by imposing a vague
condition. We review such constitutional challenges to conditions of
probation de novo. (People v. Smith (2022) 79 Cal.App.5th 897, 902 (Smith).)
“The powers of state government are legislative, executive, and judicial.
Persons charged with the exercise of one power may not exercise either of the
others except as permitted by this Constitution.” (Cal. Const., art. III, § 3.)
Trial courts have the authority to determine if a defendant is eligible for
probation and if so, which conditions would be appropriate under the
circumstances. (§ 1203, subd. (b)(3); People v. Olguin (2008) 45 Cal.4th 375,
379.) To this end, a court “ ‘may impose reasonable conditions that deprive
the offender of some freedoms enjoyed by law-abiding citizens.’ ” (People v.
Pirali (2013) 217 Cal.App.4th 1341, 1350.) In imposing such conditions, a
court may require a defendant to complete a residential treatment program.
(Smith, supra, 79 Cal.App.5th at p. 903.) A probation officer, however, may
only oversee and enforce the trial court’s orders. (People v. O’Neil (2008)
165 Cal.App.4th 1351, 1358 (O’Neil).) A probation officer “may not create
conditions not expressly authorized by the court.” (Ibid.)
In Smith, “the parties negotiated a disposition that would allow [the
defendant] to remain out of custody.” (Smith, supra, 79 Cal.App.5th at
p. 903.) In conformance with this disposition, the probation report did not
recommend, and the trial court did not order, residential treatment. (Ibid.)
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But when the trial court issued its probation order it imposed a condition
that the defendant “ ‘participate in any treatment/therapy/counseling
program, including residential, as directed by the probation officer.’ ” (Id. at
p. 902, italics added.) On appeal, the court held this condition was an
unconstitutional delegation of the trial court’s authority to the probation
officer because it allowed the officer to infringe the defendant’s liberty
interests by requiring participation in residential treatment. (Id. at p. 903.)
The court reasoned that, “[g]iven the significant liberty interests at stake,
a court—not a probation officer—must make the decision to require a
defendant to attend residential treatment.” (Ibid.)
Issa’s case is materially distinguishable from Smith. Condition 7(d) of
Issa’s probation order does not include express language delegating to the
probation officer the authority to order Issa to attend residential treatment.
In fact, it is silent as to whether the treatment ordered in condition 7(d) is to
be residential or outpatient. Without an express delegation by the court, the
probation officer did not have the authority to impose the additional restraint
on Issa’s liberty that would result from placement in residential treatment.
(O’Neil, supra, 165 Cal.App.4th at p. 1358 [probation officer “may not create
conditions not expressly authorized by the court”].) Under these
circumstances, we cannot find the trial court delegated to the probation
officer its authority to impose residential treatment.
In the alternative, in her reply brief, Issa argues condition 7(d)’s silence
as to whether the treatment would be residential or outpatient renders the
condition an unconstitutional delegation of authority because it is
impermissibly vague. She argues this is particularly true when
condition 7(d) is read in conjunction with condition 14(b), which requires her
enrollment in and adherence to “substance use treatment [and] recovery
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services, as clinically indicated if directed by [the probation officer].” Thus,
she requests we strike both conditions 7(d) and 14(b). Issa forfeited this
argument by not raising it earlier. (People v. Hart (2025) 113 Cal.App.5th
1099, 1106.)
II.
The Trial Court Properly Weighed the Mitigating and Aggravating Sentencing
Factors
As we explained, the trial court sentenced Issa to a high term sentence
of nine years in prison and suspended execution of the prison sentence
pending her successful completion of probation. Issa argues the trial court
did not properly weigh the mitigating factors against the single aggravating
factor when it imposed the upper term.2
Section 245, subdivision (b), provides a sentencing range of three, six,
or nine years in prison. Under section 1170, subdivision (b), “[w]hen a
judgment of imprisonment is to be imposed and the statute specifies three
possible terms . . . [t]he court may impose a sentence exceeding the middle
term only when there are circumstances in aggravation of the crime that
justify the imposition of a term of imprisonment exceeding the middle term
2 The Attorney General argues Issa forfeited this claim by failing to
object to the high term sentence in the trial court. Issa counters that her
counsel “verbally requested the court to consider mitigation to impose the
recommendation by probation . . . , identified mitigating factors for the court’s
consideration . . . [, and] requested the court to clarify its ruling on the upper
term sentence.” Issa argues counsel’s actions, collectively, are “tantamount
to an objection.” Because, as we shall explain, the claim is meritless, we
exercise our discretion to consider it notwithstanding the forfeiture issue.
(See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [“An appellate court
is generally not prohibited from reaching a question that has not been
preserved for review by a party.”].)
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and the facts underlying those circumstances have been stipulated to by the
defendant or have been found true beyond a reasonable doubt at trial by the
jury or by the judge in a court trial.” A court may impose an upper term
sentence “based on a single, properly proven aggravating circumstance if, in
the court’s discretion, that circumstance alone justifies a sentence exceeding
the middle term.” (People v. Lynch (2024) 16 Cal.5th 730, 764.) It must state
on the record the reasons for its sentencing choice. (§ 1170, subd. (c).)
“After a sufficient factual basis to support the circumstances in
aggravation or mitigation is found, the court enjoys broad discretion in its
sentencing determination” and we review the sentencing decision for an
abuse of that discretion. (People v. Hilburn (2023) 93 Cal.App.5th 189, 205–
206.) “That discretion must be exercised in a manner that is not arbitrary
and capricious, that is consistent with the letter and spirit of the law, and
that is based upon an individualized consideration of the offense, the
offender, and the public interest.” (Id. at p. 206 [cleaned up].)
Issa has not shown the trial court abused its discretion in imposing the
high term. At sentencing, the trial court recognized multiple mitigating
factors, including Issa’s young age and her mental health struggles. On the
other hand, it recognized a single aggravating factor for purposes of raising
the term of imprisonment above the middle-term, i.e., the stipulated fact that
the crime involved the threat of great bodily harm. The court then carefully
balanced these factors. In doing so, the court stated the mitigating factors
led it to impose the probationary sentence with a suspended prison term.
Specifically, the court explained, “I want everybody to be very, very clear, if it
were not for Ms. Issa’s young age, if it were not for the work that her attorney
did to bring the mitigating information to the court’s sentence, I would be
sentencing her to prison.” The court then continued its careful balancing of
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the mitigating and aggravating factors when determining the appropriate
term to impose for the suspended prison sentence, explaining it was
“wrestling with whether or not to impose the high term as opposed to the
midterm.” Ultimately, the court based its decision on how “incredibly
serious, incredibly risky, and incredibly dangerous” Issa’s behavior was.
Given the high risk of danger Issa created, the court found the single
aggravating factor warranted the upper term sentence.
The trial court’s decision, based on this careful consideration of the
relevant aggravating and mitigating circumstances, was a proper exercise of
discretion.
III.
Probation Condition 7(d) Must Be Modified
Finally, Issa argues the trial court erred by ordering her to pay, as a
condition of her probation, the costs of the treatment provided for in
condition 7(d), and, thus, the condition must be modified to delete this
provision. The Attorney General concedes that condition 7(d) should be
modified to delete the provision requiring Issa to bear the costs of treatment
as a condition of her probation. We agree.
A trial court may order a defendant who is granted probation to pay the
reasonable associated costs. (People v. Hall (2002) 103 Cal.App.4th 889, 892.)
To do so, “the court must make an inquiry and determination regarding [the
defendant’s] ability to pay, and issue a separate order for the payment of such
costs.” (Brown v. Superior Court (2002) 101Cal.App.4th 313, 322.) But the
payment of such costs cannot be made a condition of probation. (Id. at
pp. 321–322; People v. Hart (1998) 65 Cal.App.4th 902, 907.) Here,
condition 7(d) makes Issa’s payment of costs associated with treatment a
condition of her probation. In addition, the record before us does not show
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the court inquired into Issa’s ability to pay before including the provision that
she pay these costs, or that it issued a separate order for payment of these
costs. Accordingly, condition 7(d) must be modified to eliminate the
requirement that Issa pay the costs of treatment associated with this
condition. (People v. Flores (2008) 169 Cal.App.4th 568, 578–579 [modifying
probation order to eliminate requirement that defendant pay the costs of
probation as a condition of probation].)
DISPOSITION
Condition 7(d) of the trial court’s probation order is modified to
eliminate the requirement that Issa pay the costs of treatment associated
with this condition. As modified, the judgment is affirmed.
DO, Acting P. J.
WE CONCUR:
CASTILLO, J.
BERMÚDEZ, J.
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