THE PEOPLE, Plaintiff and Respondent, v. KATHRYN MARIE WELCH, Defendant and Appellant.
No. S025387
Supreme Court of California
May 27, 1993.
5 Cal. 4th 228 | 19 Cal. Rptr. 2d 520 | 851 P.2d 802
Bruce Hudson Towne for Defendant and Appellant.
Fern M. Laethem, Public Defender, Ellen J. Eggers, Deputy Public Defender, and Madeline McDowell as Amici Curiae on behalf of Defendant and Appellant.
John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Richard B. Iglehart and George Williamson, Chief Assistant Attorneys General, Arnold O. Overoye and Robert R. Anderson, Assistant Attorneys General, Edmund D. McMurray and Jesse N. Witt, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BAXTER, J.—We limited review in this case to the question whether a criminal defendant‘s failure to challengе the “reasonableness” of a probation condition (
Such conditions are routinely imposed when the sentencing court determines, in an exercise of its discretion, that a defendant who is statutorily eligible for probation is also suitable to receive it. Under the pertinent statutory scheme, the court must first consider the probation officer‘s report and sentencing recommendation and hear any relevant argument and evidence proffered by the parties. It is fair and economical to impose a general requirement of objection at this stage to any proposed condition the defendant does not consider reasonably related to his or her safe release and rehabilitation.
FACTS
In late 1989, defendant Kathryn Marie Welch was charged with one felony count of obtaining public assistance by misrepresentation, i.e., welfare fraud. (
Following appointment of counsel and an informed and voluntary waiver of various constitutional and statutory rights, defendant pled “no contest” and was convicted of the charge. Statements by the court and counsel at the plea hearing suggested that defеndant‘s crime carried a maximum sentence of three years in prison plus substantial fines, but that probation was also available.2
Before sentencing, the case was referred to the county probation department for investigation and a recommendation. The report and attached psychiatric evaluations reveal the following basic facts: Defendant was 37 years old, divorced, and the mother of 2 teenage boys. She expressed remorse for the crime to investigators, and admitted using the money tо pay overdue bills and buy a new car. Although trained as a signmaker, defendant had persistent problems holding a job and maintaining a stable income and home life. Defendant attributed loss of her most recent job to industrial back strain and mental distress, but medical reports suggested she exaggerated the extent of her disability. One psychiatrist described her as a dependent, passive person who abused alcohol on an episodic but chronic basis. She had been arrested and convicted of at least one prior аlcohol-related misdemeanor.
The probation officer recommended that imposition of sentence be suspended and that defendant be placed on five years’ probation on numerous
At the start of the sentencing hearing in early 1990, the court said it had read and considered the probation report and was inclined to follow the recommended disposition from “A to Z.” Defense counsel urged the court to place defendant in an alcohol treatment program in lieu of the recommended jail time. Counsel also disputed the accuracy of several factual details contained in the report (e.g., number of prior arrests, mother‘s name). No other objеctions to the report or recommendations were made.
The sentence ultimately imposed by the court conformed to the probation officer‘s recommendation in all respects, i.e., five years’ probation under the terms and conditions set forth in the report.
On appeal from the judgment, defendant argued that conditions imposed in the eight categories listed above were “overbroad” and “unreasonable” under Lent, supra, 15 Cal.3d 481. Defendant conceded that similar conditions have been upheld in other cases, but insisted they could not be imposed on her because they had no bearing on factors contributing to the particular crime, the manner in which she committed it, or the likelihood she might commit a similar crime in the future.
The Court of Appeal affirmed the judgment on the ground that defendant waived such claims by not raising them at the sentencing hearing.
DISCUSSION
Defendant observes that courts and parties have long assumed that failure to object at the time of sentencing does not prevent a defendant from
Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. (
The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and what conditions should be imposed. (
We have said that probation conditions which regulate conduct “not itself criminal” must be “reasonably related to the crime of which the
The statutory scheme obviously contemplates that all issues relevant to the probation determination will be litigated in the sentencing court. Where, as here, the dеfendant has been convicted of a felony and is eligible for probation, the court is required to refer the matter to the probation department for a presentence investigation and report. (
Absent a contrary stipulation, the report must be made available to the court and parties within a specified time before sentencing. (
It is settled that failure to object and make an offer of proof at the sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal. (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 725 [135 Cal.Rptr. 392, 557 P.2d 976]; People v. Jarvis (1982) 135 Cal.App.3d 154, 157-158 [185 Cal.Rptr. 16]; People v. Medina (1978)
Defendant insists, however, that the type of error alleged here can be raised at any time. Defendant observes that reviewing courts have routinely corrected “unauthorized sentences” or sentences entered in “excess of jurisdiction” regardless of whether an objection or argument was raised in the trial and/or reviewing court. (See In re Ricky H. (1981) 30 Cal.3d 176, 191 [178 Cal.Rptr. 324, 636 P.2d 13]; In re Sandel (1966) 64 Cal.2d 412, 418 [50 Cal.Rptr. 462, 412 P.2d 806].) Defendant theorizes that since unreasonable probation conditions are impermissible, her claims should have been addressed on appeal even though no objection had been raised below.
Whatever precise meaning the “unauthorized sentence” and “excess of jurisdiction” concepts may have in determining whether claims are waivable on appeal or cognizable on habeas corpus, the authorities cited by defendant do not support her position. These cases generally involve pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court. (In re Ricky H., supra, 30 Cal.3d 176, 190-193 [failure to characterize offense and apply permissible term of confinement]; In re Sandel, supra, 64 Cal.2d 412, 418 [violation of statute mandating consecutive terms for escape]; People v. Irvin (1991) 230 Cal.App.3d 180, 192-193 [281 Cal.Rptr. 195] [failure to strike or impose enhancement]; People v. Skeirik (1991) 229 Cal.App.3d 444, 468 [280 Cal.Rptr. 175] [erroneous imposition of determinate terms]; People v. Baylor (1989) 207 Cal.App.3d 232, 235-236 [255 Cal.Rptr. 172] [erroneous stay of sentence]; People v. Levell (1988) 201 Cal.App.3d 749, 751 [247 Cal.Rptr. 489] [applicability of enhancement]; People v. White (1981) 117 Cal.App.3d 270, 278-279 [172 Cal.Rptr. 612] [alleged dual use of aggravating fact and nonuse of mitigating fact]; People v. Salazar (1980) 108 Cal.App.3d 992, 1000-1001 & fn. 4 [167 Cal.Rptr. 38]
Defendant‘s claim of “unreasonable” probation conditions presents far different considerations. Despite some attempt to cast her contentions in various per se, “jurisdictional,” and “fundamental” terms, she essentially argues only that the court exercised its otherwise lawful authority in an erroneous manner under the particular facts. As previously explained, probation conditions are rarely invalidated on this basis, and the appellate court is not best suited to determining how such an outcome might affect the defendant‘s suitability for probation. Traditional objection and waiver principles encourage development of the record and a prоper exercise of discretion in the trial court.
Defendant cites In re Bushman (1970) 1 Cal.3d 767 [83 Cal.Rptr. 375, 463 P.2d 727] (Bushman) for the proposition that probationers need not object to proposed conditions at the time of sentencing in order to later challenge their validity on appeal or habeas corpus. While the cases have indeed interpreted Bushman this way, they are mistaken. (See People v. Kiddoo, supra, 225 Cal.App.3d 922, 926; People v. Hernandez, supra, 226 Cal.App.3d 1374, 1377; People v. McDowell, supra, 59 Cal.App.3d 807, 814.)
The petitioner in Bushman, supra, 1 Cal.3d 767, was an attorney and licensed pilot whose protest before the local airport board led to a misdemeanor conviction for disturbing the peace. Petitioner argued on habeas corpus before this court that the trial court erred in ordering him to undergo psychiatric treatment as a condition of probation. Although the conviction was ultimately set aside on other grounds, we agreed there was no evidence suggesting defendant was mentally unstable or needed psychiatric care. Thus, the counseling condition was deemed invalid because it was not reasonably related to “the crime of which petitioner was convicted” or to his “future criminality.” (Id., at p. 777.)
The foregoing discussion in Bushman was preceded by boilerplate language saying that whether a defendant chooses to “refuse” or “accept” probation on terms proposed by the sentencing court, he may seek relief in the reviewing court. (1 Cal.3d at p. 776.) Although this language has evidently been interpreted as exempting probationers from an objection requirement, it was referring to another obvious notion—that the law does not force a defendant either to accept probation under conditions he deems
Defendant hypothesizes that an objection requirement in this context will impose intolerable practical risks on defendants seeking probation. She assumes that if a would-be probationer disputes an unreasonable condition at the sentencing hearing, the court may respond by imposing a harsher sentence, e.g., by refusing to grant probation altogether. Defendant makes a related claim that the administration of justice is harmed by a rule foreclosing appellate review of any invalid condition imposed under such circumstances.
We will not presume that sentencing courts respond to arguments and objections in an arbitrary and vindictive manner. On the other hand, we can conceive of cases in which the court, having legitimate concerns about the defendant‘s suitability, considers it necessary to condition the grant of probation on one or more terms the defendant finds unreasonable. Contrary to defendant‘s suggestion, we cannot reduce the risks of challenging such conditions in the sentencing court without unduly foreclosing the permissible exercise of discretion.
We therefore hold that failure to timely challenge a probation condition on ”Bushman/Lent” grounds in the trial court waives the claim on appeal. To the extent the following Court of Appeal decisions state or imply a contrary rule, they are disapproved. (People v. Patillo, supra, 4 Cal.App.4th 1576, 1579; In re Jason J., supra, 233 Cal.App.3d 710, 714; People v. Hernandez, supra, 226 Cal.App.3d 1374, 1377; People v. Kiddoo, supra, 225 Cal.App.3d 922, 925-927; People v. Keller, supra, 76 Cal.App.3d 827, 832-833, fn. 2; People v. McDowell, supra, 59 Cal.App.3d 807, 814; In re Mannino, supra, 14 Cal.App.3d 953, 958-959 & fn. 3.)
Defendant‘s finаl argument is that the Court of Appeal erred in barring consideration of her claims under an objection and waiver rule not in existence at the time of her sentencing hearing. Although defendant cites inapposite authority precluding retroactive expansion of criminal liability or punishment under the federal due process clause (see Bouie v. City of Columbia (1964) 378 U.S. 347 [12 L.Ed.2d 894, 84 S.Ct. 1697]), we agree that the rule announced herein should not be applied to her.
Reviewing courts have traditionally excused parties for failing to raise an issue at trial where аn objection would have been futile or wholly unsupported by substantive law then in existence. (People v. Turner (1990) 50
DISPOSITION
The judgment of the Court of Appeal is reversed and the matter is remanded to that court with directions to consider the merits of defendant‘s appeal.
Lucas, C. J., Mosk, J., Panelli, J., and George, J., concurred.
ARABIAN, J.—I concur in the rule of practicality formulated by the majority. I write separately to emphasize certain fundamental principles of due process implicit in its premise.
1. Procedural due process.
This case arises in the context of a felony conviction. As the majority explain, the statutory scheme governing imposition of felony probation is extensive and quite thorough, requiring a probation report as well as express notice of its recommendations and a hearing thereon. (
In significant contrast, the law does not mandate a comparably rigorous procedure for the imposition of misdemeanor probation. The applicable statute,
If fully implemented, the foregoing provisions would satisfy the due process mandate of notice and hearing in the misdemeanor context. However, the reality of busy municipal arraignment and master calendar courts, where defendants frequently plead guilty and receive summary probation without counsel, may not always conform to this ideal. (Cf. People v. Avol (1987) 192 Cal.App.3d Supp. 1 [238 Cal.Rptr. 45] [without notice to parties, trial court conducted ex parte inspection of slumlord‘s apartment building prior to modifying probation].) While the statutory scheme in felony cases incorporates numerous safeguards preserving the defendant‘s ability to contest an objectionable probationary condition in a timely manner, the less exacting provisions applicable to misdemeanors may as a practical matter reduce or eliminate any meaningful notice or opportunity to object. Since a finding of waiver presumes constitutionally sound procedures, the rule announced today should not preclude a challenge on appeal or collateral attack in the absence of such notice and opportunity. (Cf. People v. Walker (1991) 54 Cal.3d 1013, 1025 [waiver of right to withdraw guilty plea in conjunction with plea bargain necessitates compliance with procedures set forth in
2. Vindictiveness.
If the trial court determines in the proper exercise of its discretion that it cannot achieve the rehabilitative goals of probation without imposing an objectionable cоndition, then it will be fully justified in denying probation on that basis if the defendant declines to accept it. On rare occasion, however, the trial court may respond to a defendant‘s valid objection by improperly refusing to grant probation on the remaining, adequate terms and
Without necessarily anticipating impropriety, I think it salutary nevertheless to sound a cautionary note that any appearance of vindictiveness in this context is subject to scrutiny; and reviewing courts should not be reluctant to fashion appropriate remedies when warranted. (Cf. People v. Thornton (1971) 14 Cal.App.3d 324, 326-327 [92 Cal.Rptr. 327] [absent new facts, abuse of discretion to impose prison term on retrial if defendant originally granted probation; North Carolina v. Pearce (1969) 395 U.S. 711, 726 [23 L.Ed.2d 656, 670, 89 S.Ct. 2072] [more severe sentence on retrial following successful appeal “must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding“].)
3. Scope of waiver rule.
As the majority imply, in most instances the waiver rule will apply because the challenged probationary condition is simply unreasonable, not unlawful. (Maj. opn., ante, pp. 235-236.) Nevertheless, when legal error is demonstrable, countervailing considerations may perforce circumscribe the scope of the rule, and the absence of an objection may not always insulate the condition from appellate review or collateral attack.
For example, in People v. Dominguez (1967) 256 Cal.App.2d 623 [64 Cal.Rptr. 290], the trial court granted the defendant probation on the condition she not become pregnant unless she were married. (Id., at p. 625.) The Court of Appeal reversed an order revoking probation for violation of this condition, finding it bore no relation to the defendant‘s past crime or her future criminality. (Id., at p. 627.) It also clearly infringed her constitutional privacy interests to an unacceptable degree. (Cf. Roe v. Wade (1973) 410 U.S. 113 [35 L.Ed.2d 147, 93 S.Ct. 705]; Griswold v. Connecticut (1965) 381 U.S. 479 [14 L.Ed.2d 510, 85 S.Ct. 1678]; Skinner v. Oklahoma (1942) 316 U.S. 535 [86 L.Ed. 1655, 62 S.Ct. 1110].) In People v. Blakeman (1959) 170 Cal.App.2d 596 [339 P.2d 202], the trial court required the defendant to “absent himself from the county” as a condition of probation. (Id., at p. 597.) In overturning an order of revocation, the Court of Appeal recognized that “banishment is proscribed by the fundamental policy of not permitting one political subdivision to dump undesirable persons upon another.” (Ibid.)
Kennard, J., concurred.
Notes
No issue is raised or presented as to whether defendant was adequately informed of the consequences of her plea or whether there were any negotiated terms from which her sentence deviated. (Compare People v. Walker (1991) 54 Cal.3d 1013 [1 Cal.Rptr.2d 902, 819 P.2d 861] [appeal of mandatory restitution fine imposed after plea bargain].)
We note that amicus curiae briefs have been filed in support of defendant‘s petition for review by the California Public Defenders Association and the State Public Defender. For the most part, amicus arguments expand upon themes raised by defendant and will not be separately identified.