In re Eric G., A119782 (Cal. App. 6/26/2008)

• Decision Date: 26 June 2008
• Docket Number: A119782
• Court: California Court of Appeals Court of Appeals
• Parties: In re ERIC G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ERIC G., Defendant and Appellant.

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In re ERIC G., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. ERIC G., Defendant and Appellant.

A119782

Court of Appeal of California, First Appellate District, Division One

June 26, 2008

Not to be Published

Appeal from the Alameda County, Super. Ct. No. SJ07-007922.

SWAGER, J.

This appeal comes before us following findings by the juvenile court that defendant committed the offenses of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), and unlawful use of force on a cohabitant (Pen. Code, § 243, subd. (e)(1)).¹ Defendant was adjudged a ward of the court and placed in his parents' home under the supervision of the probation department. In this appeal defendant complains of the imposition of specified probation conditions in the minute order that were not stated by the court at the disposition hearing. We conclude that the minute order is inconsistent with the oral pronouncement of judgment, and the added probation conditions must therefore be stricken.

STATEMENT OF FACTS²

Following the findings at the conclusion of the jurisdictional hearing, the dispositional report of the probation officer was filed on November 9, 2007. The report expressed concern with defendant's "gang affiliation," prior marijuana use and poor relationship with his father. Defendant stated to the probationer officer that he is neither "in a gang" nor associates with gang members, "although he `hangs around' and `is cool' with Border Brothers and Nortenos." The report recommended that defendant reside in the home of his parents "under the standard probation conditions." The probation conditions specified in the report included: compliance with a curfew; refrain from association with anyone known to possess or deal drugs; a prohibition against use, display or possession of any insignia or article of clothing which is evidence of street gang affiliation.

At the dispositional hearing on November 9, 2007, respondent expressed agreement with the probation officer's recommendations. The court declared defendant a ward of the juvenile court under the supervision of the probation department, and recited conditions of defendant's probation: obey his parents; attend school and perform well; cooperate with counseling and therapy programs devised by the probation department; comply with a curfew of 8:00 p.m.; no overnight visitation or leaving the county without permission; no contact with the victim; no use or possession of drugs, alcohol, or weapons; submit to drug or alcohol testing; warrantless searches of his person, car, or residence; "not to be in any gang or wear gang" colors, signs, emblems or clothing. The court also advised defendant that he must "comply with other gang conditions that you'll be given later."

Additional terms and conditions of probation appear in the minute order of the dispositional hearing: "Do not associate with anyone who uses or possesses dangerous [or] deadly weapons [or] explosive devices [or] remain in any vehicle where such weapons are present;" "Do not contact any individuals whom you have first met while you or they were a detainee in any County Camp, facility or program;" "Do not use, possess or remain in the presence of anyone possessing master keys; lock picks, . . . or other device you know to be an auto theft or burglary tool;" "Do not remain in any vehicle without intact windows, locks and ignition nor in any vehicle you suspect to be stolen;" and, "Do not under any circumstances, associate with anyone you know to use, deal or possess illegal drugs."

DISCUSSION

Defendant challenges the imposition in the minute order of conditions of probation that were not articulated by the juvenile court at the dispositional hearing. He argues that the conditions added to his probation in the minute order "must be stricken," as "they do not reflect the probation terms the court pronounced and they were not later lawfully imposed." He further complains that three of the added conditions must be stricken for the additional reason that they do not have the requisite knowledge element.

The Attorney General acknowledges that the five conditions challenged by defendant in this appeal were not mentioned by the juvenile court at the dispositional hearing. As a result, those conditions run afoul of the fundamental rule that, "An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize." (People v. Mitchell (2001) 26 Cal.4th 181, 185.) "Entering a judgment of the trial court in the minutes is a clerical function. Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error. Thus, the oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes." (People v. Price (2004) 120 Cal.App.4th 224, 242.) "Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.)

I. The Claim of Forfeiture.

The Attorney General nevertheless argues that defendant "waived" his claim of error by failing to object to the juvenile court's express "reservation" of authority to impose "other gang conditions that you'll be given later." "In general, the forfeiture rule applies in the context of sentencing as in other areas of criminal law. As a general rule neither party may initiate on appeal a claim that the trial court failed to make or articulate a ` "discretionary sentencing choice[ ]." ' [Citations.]" (In re Sheena K. (2007) 40 Cal.4th 875, 881.) " `A timely objection allows the [sentencing] court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case. . . . A rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis.' " (People v. Jungers (2005) 127 Cal.App.4th 698, 702, quoting from People v. Welch (1993) 5 Cal.4th 228, 235.)

"Applying the rule to appellate claims involving discretionary sentencing choices or unreasonable probation conditions is appropriate, because characteristically the trial court is in a considerably better position than the Court of Appeal to review and modify a sentence option or probation condition that is premised upon the facts and circumstances of the individual case. Generally, application of the forfeiture rule to such claims promotes greater procedural efficiency because of the likelihood that the case would have to be remanded to the trial court for resentencing or reconsideration of probation conditions. [¶] In contrast, an appellate claim-amounting to a `facial challenge'-that . . . does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts-a task that is well suited to the role of an appellate court. Consideration and possible modification of a challenged condition of probation, undertaken by the appellate court, may save the time and government resources that otherwise would be expended in attempting to enforce a condition that is invalid as a matter of law." (In re Sheena K., supra, 40 Cal.4th 875, 885.) Claims that "present `pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court' " are not foreclosed by the "failure to object in the juvenile court." (In re Justin S. (2001) 93 Cal.App.4th 811, 815; see also id. at pp. 813-814; People v. Welch, supra, 5 Cal.4th 228, 234-235; People v. Wills (2008) 160 Cal.App.4th 728, 736.) "In sum, forfeited challenges are those that `involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.' [Citation.]" (People v. Ayala (2007) 155 Cal.App.4th 604, 613.)

Defendant's challenge in the present case is one that we may resolve as a matter of law without resort to the particular evidence in the record below. Further, if the minute order impermissibly added conditions of probation that were not articulated by the juvenile court, the disposition is unauthorized. Finally, defendant was placed in an untenable position by the court's pronouncement of some conditions on the record, followed by the subsequent addition of conditions in the minute order. The defense had no notice of the contemplated additional but undefined conditions, and thus no reason or basis to object to them at the dispositional hearing.³ Under the circumstances, we find that defendant's claim in this appeal of improper inclusion of probation conditions in the minute order was not forfeited by the failure to raise it in juvenile court. (In re Sheena K., supra, 40 Cal.4th 875, 885-889; In re Justin S., supra, 93 Cal.App.4th 811, 813-815.)

II. The Addition of Probation Conditions in the Minute Order.

We proceed to the merits of the issue. We must consider the trial court's oral pronouncement of judgment controlling to the extent it differs...