Filed 2/28/18 P. v. Tye CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

MATTHEW TYE,

Defendant and Appellant.


G053403

(Super. Ct. No. 10HF2304)

O P I N I O N
Appeal from a postjudgment order of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed.
Matthew Tye, in pro. per., for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and, Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

* * *
Defendant Matthew Tye appeals from a postjudgment order denying his petition for court approval of his girlfriend to accompany him and to be his adult monitor, while in the presence of minors, as mandated by his probation conditions. Defendant primarily contends the court was required to approve his girlfriend. We disagree.
Defendant also raises a host of other contentions regarding the conduct of the hearing on the petition and the probation conditions at issue. These contentions are (a) moot, (b) meritless, (c) waived, or (d) not subject to review in this appeal. Thus, we will decline to address some of them, reject the others, and affirm the challenged order.
FACTS AND PROCEDURAL HISTORY
In December 2013 defendant pleaded guilty to five counts of oral copulation with a minor and three counts of sexual intercourse with a minor, all pursuant to a disposition negotiated with the prosecutor. As provided in the guilty plea form, the court suspended imposition of sentence and placed defendant on probation for five years.
The court imposed all the agreed upon terms and conditions of probation which were set out as item Nos. 1 through 31 in the guilty plea form, and each item was separately initialed by defendant. When the court asked defendant, “Did you understand every single term that you had to sign[,]” he replied, “Yes, your honor.”
Item No. 15 in the guilty plea form (Presence Condition) stated: “Do not be in the presence of children under the age of 18, unless accompanied by a responsible adult 21 years of age or older and approved in advance by your probation or mandatory supervision officer.”
However, the clerk’s minute order erroneously stated a different condition (Congregate Condition) as follows: “Do not associate with minors or frequent places where minors congregate, including but not limited to: schoolyards, parks, amusement parks, concerts, playgrounds, swimming pools and arcades, unless in the company of a responsible adult over the age of 21 who is approved by the probation officer or court, knows of your offense(s), and is willing to monitor your behavior.”
In February, 2016, defendant filed a “Petition To Modify Supervision” (Petition) which sought “court approval of a ‘responsible adult 21 years of age or older,’ also referred to by [the probation department] as a ‘monitor,’ for the purposes of the [Congregate Condition] currently being applied to [defendant] . . . .” The Petition asserted defendant’s supervising probation officer had improperly denied defendant’s request to approve his girlfriend for these purposes.
The Petition argued the court should grant approval because: (A) the probation department (Probation) abused its limited discretion under the Congregate Condition; (B) Probation unreasonably interpreted the “responsible adult” requirement; and (C) there was no reasonable basis to withhold approval. Alternatively, the Petition asked the court to strike as unconstitutional, either the words “approved by the probation officer or court,” or the entire Congregate Condition.
The Petition was set for hearing on March 24. On that date, the prosecutor requested a two week continuance, “to give probation an opportunity to write a progress report and to get more facts related to the denial.” Defendant did not oppose the request, and the court continued the hearing to April 8.
On April 5, Probation lodged a “Progress Report” (Progress Report) with the court, but did not serve a copy of it on defendant who was acting as his own attorney. The Progress Report summarized defendant’s sex offenses, and set out some of his probation conditions, including the Congregate Condition. It also described the process by which monitors are approved by Probation, and explained why defendant’s request to have his girlfriend approved was denied.
On the morning of the April 8 hearing, the court said it had read the Petition and the Progress Report. Defendant had not seen the Progress Report, so the court gave him a copy and several hours to read it. After the lunch recess the hearing resumed. Defendant objected to the Progress Report on various procedural grounds, some of which he asserted again in this appeal.
When the court asked defendant if he wanted time to prepare a written response to the Progress Report, he replied: “Well, the only thing that I don’t have at this point is the benefit of research and filing citations for authority. I can make my arguments, however. [¶] Some of the citations I know off the top of my head, at least the names of the cases. But as far as that goes, I’m prepared to move forward with that today. I don’t think a continuance is appropriate when it’s based on an opposition being filed basically on the day of the hearing.”
The court then heard the Petition on the merits. Neither side called any witnesses or offered any other evidence. Defendant argued, in part: “[T]he [approval] standard is set by the condition. The standard is not set by probation. . . . And probation cannot re-write conditions. Probation cannot add conditions. . . . [¶] . . . [¶] The condition says what it means and it says as long as these things are met, and it’s very basic, very minimal criteria, that this person – this probationer has a right to a monitor. [¶] Now, conditioning the approval of a monitor . . . is an unlawful modification of the condition by probation, a violation of separation of powers.”
The prosecutor argued, in response: “He’s asking for his girlfriend to be the monitor. And it is within the purview of probation to say who can and can not be one. [¶] As stated in the progress report, she has to go through certain qualifications and certain training by probation in order to be qualified as one. I don’t believe she’s done so in this case, your Honor. And so, to use defendant’s word, ‘to end-run it,’ he’s coming into court to ask the Court to do something that is in the purview of probation.” “She’s too close to him in order to execute the mission of being a monitor and she hasn’t gone through the training that’s required.”
At the end of the hearing the court denied the Petition. The court explained: “Mr. Tye, I’m sure your girlfriend is a very nice gal and she’s very responsible, but she’s not an approved monitor by probation. And unless she becomes one, she cannot be your monitor.” The court suggested, “Have her meet with probation, see if she can get approved as a monitor.” Defendant then asked, “So the Court is declining to exercise its jurisdiction to approve her as a monitor?” The court replied, “Correct, without approval of probation.”
DISCUSSION
Defendant contends: (1) this appeal is not moot; (2) his girlfriend “must be approved”; (3) the court’s “blind deference” to Probation was error; (4) Probation’s “basis for withholding approval” is unlawful; (5) Probation’s “scheme for . . . approval” is unlawful; (6) Probation’s “progress report” oppositions are unlawful; and (7) the Congregate Condition is facially unconstitutional. We will address each of these contentions in turn.
1. This Appeal is Moot as to the Congregate Condition but Not the Presence Condition.
The Petition, and all of defendant’s arguments at the hearing on the Petition, were directed at the Congregate Condition, not the Presence Condition. At one point during the hearing, defendant and the court discussed which condition applied. Defendant claimed Probation had taken the position he was subject to the Congregate Condition, based on the erroneous minute order noted above.
The court suggested defendant was subject to the Presence Condition, based on the guilty plea form. Defendant resisted. He said the discrepancy was the subject of a pending appeal, and “[a]ll we have today is to operate under the condition that I’m actually stuck with for the time being [i.e. the Congregate Condition].” In that appeal, People v. Tye (Sept. 27, 2016, G051003) [nonpub. opn.] (Tye 003), the parties agreed defendant was subject to the Presence Condition, not the Congregate Condition, and we instructed the clerk to correct the erroneous minute order.
Defendant contends none of the primary issues he raised in this appeal were resolved when the Congregate Condition was “swapped” for the Presence Condition. He claims these issues apply to both conditions, and we must decide them “to do complete justice.” Defendant concedes his challenge to the constitutionality of the Congregate Condition is moot, but still urges us to reach it, because it is an important issue capable of repetition and yet likely to evade review.
The People contend this appeal is moot, and ask us to dismiss it, because the Petition only challenged the Congregate Condition, and defendant is “no longer subject to the Congregate Condition.” The People argue we should not consider the constitutionality of the Congregate Condition, because even if it is an important issue capable of repetition, it is not likely to evade review. They note any probationer subject to that condition can challenge it and appeal any adverse decision.
We emphasize defendant was always subject to the Presence Condition, never the Congregate Condition, for two reasons. First, the Presence Condition (not the Congregate Condition) was set out in the guilty plea form, which is a type of enforceable contract. (People v. Shelton (2006) 37 Cal.4th 759, 767.) Second, when defendant pleaded guilty, the court orally imposed the terms of probation set out in the guilty plea form, including the Presence Condition, and the court’s oral pronouncement controls over the clerk’s erroneous minute order. (People v. Mitchell (2001) 26 Cal.4th 181, 185-187.)
Consequently, insofar as the Congregate Condition is concerned, the issues defendant has raised in this appeal, including his challenge to the constitutionality of the Congregate Condition itself, are moot. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) Further, we decline defendant’s invitation to exercise our discretion to consider the issue, even though it is moot. While it is an important issue which is capable of repetition, we agree with the People, it is not an issue that is, “yet likely to evade review.” (Great West Contractors, Inc. v. Irvine Unified School District (2010) 187 Cal.App.4th 1425, 1444.)
Insofar as the Presence Condition is concerned, we agree with defendant, this appeal is not moot. The crux of the matter pertains to the requirement that the monitor be approved by the probation officer. Although it is articulated in slightly different terms, the probation approval requirement is found in both the Presence Condition and the Congregate Condition. And defendant is right, the primary issues he raised vis-à-vis the probation approval requirement are equally applicable to both conditions. Therefore, we refuse the People’s request to dismiss this appeal.
2. Probation Was Not Required to Approve Defendant’s Girlfriend.
Defendant contends his girlfriend “must be approved.” He maintains the court, Probation, and district attorney improperly acted as though Probation had absolute discretion to deny any proposed monitor for any reason. He claims this was error, because this court has “already stricken two of [his] probation conditions as facially unconstitutional for exactly this reason . . . .” We are not persuaded.
This court has held two of defendant’s probation conditions facially unconstitutional. In People v. Tye (Sept. 27, 2016, G051627) [nonpub. opn.] (Tye 627), we examined the condition (Residence Condition) which required defendant to, “maintain residence as approved by your probation . . . officer.” Under the de novo review standard, we concluded it was unconstitutionally overbroad on its face, because it infringed upon defendant’s fundamental constitutional rights to travel and freedom of association. As a remedy, we ordered the Residence Condition narrowed (not stricken).
Similarly, in People v. Tye (Sept. 27, 2016, G052360) [nonpub. opn.] (Tye 360), we examined the condition (Association Condition) which forbade defendant from associating, “with persons known to you to be parolees, on post-release community supervision, convicted felons, users or seller of illegal drugs, or otherwise disapproved by probation . . . supervision.” Under the de novo review standard, we found it too was unconstitutionally overbroad, because it infringed upon defendant’s constitutional right to freedom of association. As a remedy, we modified the Association Condition.
But nothing in Tye 627 or Tye 360 means the monitor approval requirement of the Presence Condition is facially unconstitutional. To the extent it gives Probation discretion to approve the monitor, it does not directly implicate defendant’s constitutional rights to travel or freedom of association. Thus, we are not required to review it under the de novo standard. (People v. Stapleton (2017) 9 Cal.App.5th 989, 993 (Stapleton).)
Instead, “To be valid, a probation condition ‘must (1) . . . relate[ ] to the crime of which the defendant was convicted, or (2) relate to conduct that is criminal, or (3) require or forbid conduct that is reasonably related to future criminality.’ [Citation.]” (Stapleton, supra, 9 Cal.App.5th at pp. 992-993.) It is obvious the monitor approval requirement of the Presence Condition is valid under this standard.
Alternatively, the monitor approval requirement is valid even if it implicates defendant’s constitutional rights and the de novo review standard applies. It is important to recognize, “probation is a privilege and not a right, and that adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights . . . . [Citations.]” (People v. Olguin (2008) 45 Cal.4th 375, 384 (Olguin).) “If a defendant believes the conditions of probation are more onerous than the potential sentence, he or she may refuse probation and choose to serve the sentence. [Citations.]” (Id. at p. 379; Stapleton, supra, 9 Cal.App.5th at p. 997.)
Generally, “If a probation condition serves to rehabilitate and protect public safety, the condition may ‘impinge upon a constitutional right otherwise enjoyed by the probationer, who is “not entitled to the same degree of constitutional protection as other citizens.’” [Citation.]” (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355 (O’Neil).)
Even so, an otherwise valid condition that impinges upon constitutional rights must be carefully tailored. (Stapleton, supra, 9 Cal.App.5th at p. 993.) ‘“A restriction is unconstitutionally overbroad . . . if it (1) “impinge[s] on constitutional rights,” and (2) is not “tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.” [Citations.]” (Ibid.)
“Our inquiry does not take into account the individual facts pertaining to [defendant]—as would an ‘as applied’ challenge—but it must take into account the nature of the case and the goals and needs of probation in general. . . . This broad consideration of the nature of the case must inform all decisions about whether the condition has been ‘narrowly tailored,’ even where, as here, we do not reach the personal circumstances of [defendant].” (Stapleton, supra, 9 Cal.App.5th at pp. 993-994.)
Applying these principles, it is plain the monitor approval requirement of the Presence Condition is constitutional. Given the nature of this case—sex offenses against minors—Probation approval of the monitor to accompany defendant when minors are present is carefully tailored and reasonably related to the state’s compelling interests.
Finally, because defendant relies on Tye 627 here, we reconsider our holding there that the Residence Condition is unconstitutionally overbroad on its face. In Tye 627 we noted the constitutionality of conditions restricting probationer residences to those approved by probation officers was then being considered by our Supreme Court in People v. Schaeffer (2012) 208 Cal.App.4th 1, review granted October 31, 2012, S205260 (Schaeffer). Also, at that time the only reported case on point had found these restrictions unconstitutional. (People v. Bauer (1989) 211 Cal.App.3d 937, 943-945.)
But the legal landscape has dramatically changed since we decided Tye 627. Schaeffer was dismissed as moot on September 21, 2016. So, we received no guidance from our Supreme Court on the issue. Meanwhile, two reported Court of Appeal decisions, including one by a different panel of this court, have since upheld comparable residence restrictions. (Stapleton, supra, 9 Cal.App.5th at pp. 995-997; People v. Arevalo (2018) 19 Cal.App.5th 652.) We find the reasoning of those two cases persuasive and now adopt it as our own.
In short, the monitor approval requirement of the Presence Condition is not facially unconstitutional. We therefore reject defendant’s contention Probation was required to approve his girlfriend. Probation had discretion to approve or disapprove her.
3. The Court Properly Deferred to Probation for Approval in the First Instance.
Defendant contends the court erroneously gave “blind deference” to Probation. He argues: “Judge Cassidy made it clear he would not overturn Probation under any circumstances, by stating he would not approve her unless Probation approved her first. This makes the Superior Court superfluous and impotent, while Probation is all-powerful, lacking any legal check on its abuses. . . . [¶] . . . [¶] The Court of Appeal must admonish the Superior Court to do its job, consider the merits, and follow the law, rather than to blindly act as a rubber stamp for Probation.” Nonsense.
Defendant’s arguments are based on the terms of the Congregate Condition, which required the monitor to be approved by, “the probation officer or court . . . .” (Italics added.) They are not applicable to the Presence Condition, which did not specify court approval as an alternative in the first instance. Instead, it required the monitor to be approved by, “your probation . . . officer.” (Italics added.) Thus, the court’s role was relegated to reviewing the probation officer’s exercise of his discretion under the standards set out post. Thus, the court properly deferred to Probation for approval.
4. Probation’s Basis for Withholding Approval was Lawful.
Defendant contends Probation’s basis for withholding approval of his girlfriend was unlawful. He argues: “There can be no dispute that Probation violated the law and abused whatever discretion it had here. The idiotic standard fabricated in bad faith by Probation – that no one would be approved unless Probation believed the person would act as a surrogate probation officer – was a pretext . . . .” Not so.
As with any exercise of discretion, Probation only abuses its discretion when it takes an action that is arbitrary, capricious or exceeds the bounds of reason under the circumstances. (People v. Jungers (2005) 127 Cal.App.4th 698, 702.) Furthermore, we presume Probation did not act irrationally or capriciously in exercising its discretion. (Olguin, supra, 45 Cal.4th at p. 383; Stapleton, supra, 9 Cal.App.5th at p. 996.) Hence, the burden was on defendant to rebut that presumption.
Moreover, as the party seeking relief under the Petition, defendant had “the burden of proof as to each fact the existence or nonexistence of which [was] essential to the claim for relief or defense that he [was] asserting.” (Evid. Code, § 500; cf. People v. Sherow (2015) 239 Cal.App.4th 875, 879; Vance v. Bizek (2014) 228 Cal.App.4th 1155, 1163, fn. 3.) But he introduced no evidence at the hearing.
Consequently, defendant failed to sustain his burden of proof both in this court and in the court below. Many of the “facts” in defendant’s briefs are based on the allegations and arguments in his unverified Petition, or on the arguments of counsel at the hearing, none of which is evidence. The only other “facts” in his briefs are based on the Progress Report, which the court considered, but did not admit into evidence.
On this ground alone, we could reject defendant’s claim Probation abused its discretion by withholding approval of his girlfriend.
On the other hand, in the hearing on the Petition and in their briefs on appeal, the parties treated the Progress Report as though it was evidence. Defendant did not and does not dispute the veracity of its contents. More to the point, the court stated it had read and considered the Progress Report, and the court apparently relied on the Progress Report when it impliedly rejected defendant’s abuse of discretion claim and denied the Petition. For all these reasons, we too will consider the Progress Report for purposes of evaluating the merits of his abuse of discretion claim.
As noted, the Progress Report described the process by which proposed monitors are considered for approval by Probation. The proposed monitor first meets with the probationer’s sex specific therapist and discusses the probationer’s offenses. Then the therapist, if he or she deems the proposed monitor appropriate, will have the proposed monitor sign a contract outlining the responsibilities of a monitor. Item No. 22 in the monitor contract states: “Monitor has to agree to the terms of the agreement and shall immediately report any violations of the terms to the assigned probation officer and therapist/treatment provider.”
Also, the Progress Report noted, in 2014 defendant signed a “Definitions of No Contact With Minors” form, indicating he understood and agreed: “(a) ‘Monitor is a person who has been approved by the probation officer to supervise contact between a minor and a[n] offender. The approval must be prior to contact and in writing. The probation officer is the only person who can approve a monitor. The probationer’s therapist or attorney cannot. The monitors must complete the required treatment, know the details of the offense, and report violations to the probation officer.’”
The Progress Report said the reason why defendant’s request to have his girlfriend approved as a monitor was denied, “was a belief that she would not be willing to report any violation to the undersigned.” The probation officer believed defendant was attempting to have the court appoint a monitor who was only loyal to him.
The Progress Report explained: “Typically, monitors have been approved for probationers who have the ‘no contact with minors’ condition to attend family functions where minors may be present. Having a monitor in place also allows for probationers to attend events like weddings and family gatherings where minors may be present. In these cases, the probationer’s approved monitor contacts the probation officer to verify the event and to confirm that they will be with the probationer during the entire event and not leaving them alone with any minors. The safety plan includes a portion for listing minors the probationer is approved to have contact with, not blanket contact with any minors the probationer chooses. During an office visit . . . the undersigned asked the probationer ‘if his monitor was approved, what kinds of places he would like to attend?’ The probationer brought up hiking and then also brought up Disneyland . . . . Traditionally, monitors approved by the Probation Department are not used to attend places which are primarily places where large numbers of minors congregate. During the office visit . . . the undersigned discussed other responsible adults within his family that may be willing to act as a monitor for the probationer. The probationer has not presented anyone other than [his girlfriend] as a monitor.”
Defendant does not dispute any of the things said in the Probation Report. He makes no reasoned legal argument, and he cites no legal authority to support his hyperbolic and conclusory claim the stated grounds for disapproval were a “pretext,” and that Probation “abused whatever discretion it had here.” In sum, defendant has not shown Probation’s disapproval of his girlfriend was arbitrary, capricious or exceeded the bounds of reason. Under these circumstances, we perceive no abuse of discretion.
5. Probation’s Monitor Approval Process is Lawful.
Defendant contends Probation’s monitor approval process is unlawful. He claims: “The conditions at issue gave Probation an inch, and it took a mile. It concocted a ridiculous, absurdly illegal scheme, with a reach far beyond what was authorized in the condition.” He argues the power to impose, continue, modify, or revoke probation terms is a solely judicial function, which cannot be delegated, and Probation may not create conditions not expressly authorized by the court.
We have no quarrel with the rule that: “Although probation officers may be given ‘wide discretion to enforce court-ordered conditions’ [citation], they may not create conditions not expressly authorized by the court [citation].” (O’Neil, supra, 165 Cal.App.4th at p. 1358.) But the rule doesn’t apply in this circumstance, because Probation did not impose any new probation conditions. Probation’s monitor approval process was authorized by the court imposed probation conditions.
On this point, the current appeal is much like People v. Tye (Nov. 29, 2017, G053781) [nonpub. opn.] (Tye 781). In Tye 781 we held “the DRC Directive was expressly authorized under the Obey Condition and the Employment Condition . . . .” The same reasoning applies here. Again, the Obey Condition required defendant to: “Obey all orders, rules, regulations and directives of the Court, Probation Department, . . . and Jail.” The monitor approval process plainly involves rules, regulations and directives of the Probation Department as those terms are used in the Obey Condition. Defendant does not mention the Obey Condition. It is easy to see why.
The Obey Condition expressly and lawfully authorized Probation to establish a monitor approval process to ensure compliance with the Presence Condition. “Generally speaking, conditions of probation ‘are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large. [Citation.] These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed.’ [Citation.]” (Olguin, supra, 45 Cal.4th at p. 380.)
Defendant suggests a less burdensome and more carefully tailored process is required. He maintains Probation has no discretion to withhold approval, “When presented with a responsible adult over 21, who knows of a probationer’s offenses, and is willing to monitor his behavior . . . .” We disagree.
As the Progress Report explained, this alternative would undermine the effectiveness of the monitor: “The probationer defines ‘knows of your offense’ as the monitor being made aware of the charges against the probationer. However, part of the monitor process involves the monitor being made aware, both by the therapist and the probation officer, of factual details of the current offense. The proposed monitor in this case has been given knowledge of the offense by the probationer only. The probationer can minimize his actions to the potential monitor and not disclose parts of his offense possibly to put his monitor at ease and not have her take the duties of a monitor seriously . . . . The probationer attempts to minimize his offense [by arguing in the Petition]: ‘Consider the threat to the public: Probationer pled guilty to voluntary sex with a 17 3/4-year-old minor in May 2010.’ However, he fails to note his own age at the time of the offense, 31-years-old. The probationer was aware of the victim’s age as evidenced from conversations he had with the victim . . . . The police report includes a computer chat log between the probationer and victim. The following are messages that probationer sent to the victim: ‘DENY IT TO THE END,’ ‘let me tell you something’ ‘and delete this after’ ‘No one can do shit to me as long as you refuse to cooperate.’”
We share Probation’s concerns. Defendant’s sex specific therapist must be able to meet with the proposed monitor without any restriction, to discuss defendant’s offenses and to outline the monitor’s responsibilities, including the obligation to report any violations to Probation, all to ascertain whether defendant is complying with the terms of his probation. Besides, the relevant test is reasonableness, and defendant has not persuasively explained why the established monitor approval process is unreasonable. (Olguin, supra, 45 Cal.4th at pp. 383-384.)
6. The Progress Report Was Lawful.
Defendant contends the Progress Report was an unlawful “opposition” because: “[(A)] [T]here is only one time the law permits Probation to file a report: the Penal Code § 1203 pre-sentencing report”; “[(B)] Probation’s opposition is a criminal unauthorized practice of law”; “[(C)] Probation’s opposition is an unlawful ex parte communication”; and “[(D)] This illegality is rooted in a judicial culture that disregards the law in favor of expedients.” He also claims he was “ambushed” with the Progress Report at the hearing on the Petition. We do not agree.
Defendant was not ambushed with the Progress Report at the hearing on the Petition. Recall that on March 24, defendant agreed the hearing on the Petition could be continued to April 8, in order “to give probation an opportunity to write a progress report and to get more facts related to the denial.” (Italics added.) So, defendant had notice the Progress Report was being prepared for the April 8 hearing.
At the April 8 hearing, defendant waived his complaint he had not received the Progress Report in advance. That day, the court gave defendant several hours to read the Progress Report, and then asked him if he wanted a continuance so he could prepare a written response. He replied: “I’m prepared to move forward with that today. I don’t think a continuance is appropriate when it’s based on an opposition being filed basically on the day of the hearing.” (Italics added.)
On appeal, defendant forfeited his argument there is only one time the law permits Probation to file a report with the court, because he failed to provide any legal authority to support it. (Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948; see Cal. Rules of Court, rule 8.204(a)(1)(B).) The same is true of his argument the Progress Report is an unlawful ex parte communication.
Both these arguments also fail on the merits. When defendant filed the Petition, the court was required to refer it to Probation. (Pen. Code, § 1203.2, subd. (b)(1).) Probation was then required to prepare a written report for the court, and the court was required to read and consider the report before ruling on the Petition. (Ibid.) Too, by its own terms, the ex parte communication rule applies only to members of the California bar, not probation officers. (Rules Prof. Conduct, rule 5-300(B).)
Finally, to the extent defendant’s challenge to the Progress Report is coupled with an invitation to review the alleged illegality of the “judicial culture” in Orange County, we decline to do so. It is far beyond the scope of this appeal and concerns matters outside the record, and neither the Superior Court of Orange County nor the Orange County Probation Department are parties to this case.
DISPOSITION
The postjudgment order is affirmed.



THOMPSON, J.

WE CONCUR:



ARONSON, ACTING P. J.



IKOLA, J.