Lead Opinion
Opinion
We limited review in this case to the question whether a criminal defendant’s failure to challenge the “reasonableness” of a probation condition (Pen. Code, § 1203.1; People v. Lent (1975)
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, thе 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 Ms 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. (Welf. & Inst. Code, § 10980, subd. (c)(2).) The charge was based on defendant’s alleged failure to inform county welfare authorities several months earlier of a $7,400 state disability insurance payment, and her knowing receipt of $4,100 in welfare overpayments.
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 defendant’s crime carried a maximum sentence of three years in prison plus substantial fines, but that probation was also available.
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: Defеndant 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 to 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, рassive person who abused alcohol on an episodic but chronic basis. She had been arrested and convicted of at least one prior alcohol-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 rеcommended 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 objections 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 thаt conditions imposed in the eight categories listed above were “overbroad” and “unreasonable” under Lent, supra,
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 аnd promotes rehabilitation. (§§ 1191.1, 1202.7.) A defendant’s eligibility for probation is determined, by deductive reasoning, from statutes identifying the types of offenses or offenders who are ineligible to receive it. It is absolutely unavailable as a sentencing choice in many serious felony cases and presumptively unavailable in others unless “unusual” circumstances are present and the “interests of justice” are best served thereby. (See, e.g., §§ 1203, subd. (e), 1203.044-1203.046, 1203.048, 1203.06-1203.075,1203.08-1203.09; Cal. Rules of Court, rule 413; cf. § 1203a [misdemeanors].)
The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and what conditions should be imposed. (§ 1203, subd. (b); Cal. Rules of Court, rule 414; People v. Warner (1978)
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 defendant 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. (§ 1203, subd. (b); Cal. Rules of Court, rule 411; cf. §§ 1203, subd. (d) & 1203b [probation rеport discretionary in misdemeanor cases but probationer is entitled to notice and opportunity to present information on conditions].) The written report must include, among other things, the probation officer’s “recommendations as to the granting or denying of probation and the conditions of probation, if granted.” (§ 1203, subd. (b); see Cal. Rules of Court, rule 411.5.)
Absent a contrary stipulation, the report must be made available to the court and parties within a specified time before sentencing. (§ 1203, subd. (b).) A hearing on “the suitability of рrobation in the particular case" is required, and the court must take the probation officer’s report and recommendation into consideration. (Ibid.) Additional evidence may be introduced. (§ 1204; see, e.g., Lent, supra,
It is settled that failure to object and make an offer of proof at thе sentencing hearing concerning alleged errors or omissions in the probation report waives the claim on appeal. (People v. Chi Ko Wong (1976)
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)
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,
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 proper exercise of discretion in the trial court.
Defendant cites In re Bushman (1970)
The petitioner in Bushman, supra,
The foregoing discussion in Bushman was preceded by boilerplate language saying that whether a defendant chooses to “refiise” or “accept” probation on terms proposed by the sentencing court, he may seek relief in the reviewing court. (
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,
Defendant’s final argument is that the Court of Appeal erred in barring considerаtion of her claims under an objection and waiver rule notin 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)
Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsuppоrted 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.
Notes
All further statutory references are to the Penal Code unless otherwise indicated.
Absent a preliminary hearing or trial, the record is limited to plea proceedings in the municipal court and sentencing proceedings in the superior court, including the probation officer’s written report and supplement.
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)
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.
Other state courts have reached a similar conclusion. (State v. Bynes (1991)
In addition to the Court of Appeal cases disapproved above, the recent version of at least one practice guide states that “a defendant has an unwaivable right to challenge [the reasonableness of a probation condition] on appeal, regardless оf whether he or she accepted it at the time of sentencing." (5 Cal. Criminal Defense Practice, supra, § 90.04[2][a], p. 90-30.)
Concurrence Opinion
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. (Pen. Code, § 1203, subd. (b).) The contents of the probation report are also statutorily prescribed and specified in detail. {Ibid)
In significant contrast, the law does not mandate a comparably rigorous procedure for the imposition of misdemeanor probation. The applicable statute, Penal Code section 1203, subdivision (d), provides as follows: “In every case in which a person is convicted of a misdemeanor, the court may
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 reсeive summary probation without counsel, may not always conform to this ideal. (Cf. People v. Avol (1987)
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 condition, 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)
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 appеllate review or collateral attack.
For example, in People v. Dominguez (1967)
Kennard, J., concurred.