People v. Gonzalez

• Citation: 57 Cal.App.5th 960,271 Cal.Rptr.3d 846
• Decision Date: 24 November 2020
• Docket Number: D077208
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. George GONZALEZ, Defendant and Appellant.

57 Cal.App.5th 960

271 Cal.Rptr.3d 846

The PEOPLE, Plaintiff and Respondent,

v.George GONZALEZ, Defendant and Appellant.

D077208

Court of Appeal, Fourth District, Division 1, California.

Filed November 24, 2020

Law Office of Matthew S. Koken and Matthew S. Koken, San Diego, for Defendant and Appellant.

Mara W. Elliott, City Attorney, John C. Hemmerling, Assistant City Attorney, and Steven K. Hansen, Deputy City Attorney, for Plaintiff and Respondent.

AARON, J.

I.INTRODUCTION

In May 2014, George Gonzalez pled guilty to two misdemeanor counts of using his premises without a permit or variance (San Diego Mun. Code, § 121.0302, subd. (a); counts 1, 4) and one count of maintaining an unauthorized encroachment (San Diego Mun. Code, § 54.0110, subd. (a); count 6).¹ The trial court placed Gonzalez on probation for three years, subject to various stipulated conditions, including that he "must bring all San Diego Municipal Code violations at all properties owned by or through the Defendant in the City of San Diego (City) into compliance with the San Diego Municipal Code, and take any and all actions to bring such properties into compliance as required by [agencies of the City]."

On five separate occasions thereafter, Gonzalez violated probation. On each occasion, the court revoked and then reinstated Gonzalez's probation, with terms to which Gonzalez expressly agreed, including stayed terms of custody of increasing lengths. During a hearing on the third of these violations, Gonzalez agreed to additional specific probation conditions relating to property that he owned on Aldine Drive (Aldine Property). Gonzalez specifically agreed to a probation condition that required that he sell the Aldine Property for fair market value if he failed to comply with various probation conditions mandating that he undertake specified corrective work on the property. In March 2017, after admitting a fourth probation violation, Gonzalez agreed to an extension of the probationary period to February 2020 and to modify the stayed term of custody to 90 days.

In November 2017, after holding an evidentiary hearing concerning the conditions at the Aldine Property, the trial court found Gonzalez in violation of probation for a fifth time. Gonzalez was again given an opportunity to cure the violations prior to the next hearing in May 2018. When Gonzalez failed to cure the violations by that date, the court again found Gonzalez in violation of probation and ordered Gonzalez to sell the Aldine Property. The trial court also lifted the stay of the 90 days in custody.

On appeal, Gonzalez challenges the order to sell the Aldine Property. In his opening brief, Gonzalez claims that the order to sell the Aldine Property is invalid because it was entered after the expiration of the maximum three-year probation period ( Pen. Code, § 1203a )² authorized by his May 2014 guilty plea. Gonzalez further argues that the order is invalid because an order directing the sale of real property is not specified as a potential punishment for municipal code violations in the San Diego Municipal Code. Gonzalez also maintains that the order to sell amounts to an unconstitutional taking under the state and federal constitutions. In his reply brief, Gonzalez contends that the order to sell the Aldine Property is an invalid probation condition under People v. Lent (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545 ( Lent ).

We conclude that Gonzalez is estopped from challenging the expiration of the probationary term. (See People v. Jackson (2005) 134 Cal.App.4th 929, 36 Cal.Rptr.3d 477 ( Jackson ) [concluding appellant who agreed to extension of probation beyond maximum statutory period in the trial court is estopped from challenging extension on appeal].) We also conclude that the order to sell the Aldine Property is a condition of probation, not a punishment and, as a result, the fact that the San Diego Municipal Code does not provide for the sale of real property as a punishment is irrelevant in determining the validity of the order. We further conclude that Gonzalez's takings claim is without merit. Finally, we conclude that Gonzalez forfeited any challenge to the reasonableness of the probation condition under Lent by failing to raise such a challenge in the trial court or in his opening brief on appeal. Accordingly, we affirm the trial court's order directing the sale of the Aldine Property.³

II.FACTUAL AND PROCEDURAL BACKGROUND

A. The complaint

In October 2013, the People filed a misdemeanor complaint charging Gonzalez with six counts of using a premises without a permit or variance in violation of San Diego Municipal Code section 121.0302, subdivision (a) (counts 1–5, 7) and one count of maintaining an unauthorized encroachment in violation of San Diego Municipal Code section 54.0110.⁴

B. Gonzalez's guilty plea

In May 2014, Gonzalez pled guilty to two counts of using a premises without a permit or variance (San Diego Mun. Code, § 121.0302, subd. (a); counts 1, 4) and one count of maintaining an unauthorized encroachment (San Diego Mun. Code, § 54.0110; count 6). The plea agreement specified that Gonzalez was subject to a maximum sentence of one year six months in jail.

C. The trial court's initial grant of probation

The trial court suspended imposition of sentence and placed Gonzalez on probation subject to various stipulated terms and conditions. While the bulk of the conditions mandated that Gonzalez undertake specific clean up and remediation efforts on the Newtown Property, paragraph No. 13 required that Gonzalez bring all of the properties that he owned within the City into compliance with the municipal code, and paragraph No. 14 required that Gonzalez permit inspectors to access all property owned by Gonzalez within the City upon 24 hours' notice.

D. Gonzalez's first probation violation

In August 2014, Gonzalez admitted violating probation. The trial court revoked and reinstated probation with the same terms and conditions.

E. Gonzalez's second probation violation

In May 2015, Gonzalez again admitted violating probation. The trial court revoked and reinstated probation with modified stipulated conditions, including the imposition of 30 days of custody, stayed.

F. Gonzalez's third probation violation and agreement to undertake corrective work on the Aldine Property and to place the Aldine Property for sale if he failed to perform the work

In September 2015, Gonzalez admitted violating probation for a third time. The trial court revoked and reinstated probation with modified stipulated conditions. The modified stipulated conditions provided, "[Gonzalez] admits violating probation and accepts all of the following terms and conditions of probation to be included with all of his previous terms and conditions of probation," including the imposition of an additional 30 days of stayed custody. The conditions outlined a series of requirements pertaining to the Aldine Property, including removing improperly stored items, removing inoperable vehicles from the yard, obtaining appropriate building permits, and completing corrective work on the property. In addition, the conditions provided:

"If [Gonzalez] does not obtain all final inspections and approval from [a City agency] for the corrective work required under paragraph 17.g.⁵ within 180 days of the date any required permits are issued, [Gonzalez] must place [the] Aldine [Property] for sale to the public within 30 days of that date at a sale price reflecting market value as determined by a licensed appraiser."

Gonzalez and his counsel both signed the document setting forth the stipulated conditions.

G. Gonzalez's fourth probation violation and agreement to extend the probationary period to February 2020

In February 2017, the trial court held an evidentiary hearing pertaining to allegations that Gonzalez failed to comply with probation conditions pertaining to the Aldine Property. At the hearing, a City employee testified concerning Gonzalez's failure to timely and appropriately respond to corrections of Gonzalez's applications for building permits pertaining to the Aldine Property. A second City employee testified concerning the condition of the exterior of the Aldine Property as of February 8, 2017. The employee testified that the exterior of the property contained the following items:

"A portable toilet porta potty, refrigerator, microwave, large spool of rubber hose or some stuff like that. Metal fencing, old sinks, vacuum cleaner, a bunch of items that are non-incidental to the property."⁶

The City employee also testified that photographs of the exterior of the Aldine Property taken at various times prior to February 2017 depicted improperly stored items on the exterior of the property. A long-time neighbor testified that the exterior of the Aldine Property appeared "disheveled and incomplete." The neighbor also described a video of the exterior of the Aldine Property taken in September 2016.⁷ Among other conditions, the neighbor stated that the video depicted "debris and old building materials," an "unfinished deck," "rusted containers," and an "old abandoned bike." On cross-examination, the neighbor acknowledged that she had been attempting to resolve the issue of the condition of the Aldine Property with the City for four to five years.

Prior to the resolution of the hearing, the parties reached an agreement pursuant to which Gonzalez would admit to violating probation and the court would reinstate probation with modified conditions. In accordance with the parties' agreement, Gonzalez admitted violating paragraph Nos. 18a, 20, and 26 of the conditions of probation, all of which pertained to the Aldine Property. Paragraph No. 18a required that Gonzalez remove improperly stored items from the outside of the property, paragraph No. 20 required that Gonzalez make timely corrections to applications for building permits, and paragraph 26 required timely inspections to ensure "substantial ... compliance" toward completing the...