People v. Kim

• Decision Date: 22 March 2011
• Docket Number: No. H035561.,H035561.
• Citation: 193 Cal.App.4th 836,122 Cal.Rptr.3d 599,2011 Daily Journal D.A.R. 4152,11 Cal. Daily Op. Serv. 3490
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. SHISEOP KIM, Defendant and Appellant.

193 Cal.App.4th 836

122 Cal.Rptr.3d 599

11 Cal. Daily Op. Serv. 3490

2011 Daily Journal D.A.R. 4152

The PEOPLE, Plaintiff and Respondent,

v.SHISEOP KIM, Defendant and Appellant.

No. H035561.

Court of Appeal, Sixth District, California.

March 22, 2011.

Michael Mehr, Santa Cruz, under appointment by the Court of Appeal for Appellant, Shiseop Kim.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Eric D. Share, Deputy Attorney General, Jeffrey M. Bryant, Deputy Attorney General, for Plaintiff and Respondent, The People.

GROVER, J.^*

1. INTRODUCTION

Defendant Shiseop Kim was charged by complaint with felony battery causing serious bodily injury (count 1; Pen.Code, §§ 242, 243, subd. (d), 1192.7),¹ kidnapping (count 2; § 207, subd. (a)), and attempted dissuasion of a witness by threat of force (count 3; § 136.1, subd. (c)(1)). By written plea agreement, defendant pleaded no contest to count 1 and admitted the personal infliction enhancement on condition that he would receive a grant of formal probation and the remaining charges would be dismissed. At sentencing the trial court suspended imposition of sentence for three years and placed defendant on formal probation with the following conditions, among others: “You're ordered to obey all laws.” “You shall seek and maintain gainful employment; that is, get a job, and maintain academic and/or vocational training as directed by your probation officer.” “You shall not own, possess, have within your custody or control any firearm or ammunition for the rest of your life under Section[ s] 12021 and 12316 [subdivision] (b)(1) of the Penal Code.” In addition to a restitution fine and victim restitution, the court imposed “a $30 court security fee under Penal Code Section 1465.8” and “a criminal conviction assessment of $30 under [section] [122 Cal.Rptr.3d 602]70373 of the Government Code.” Without objecting, defendant agreed that he understood and accepted all terms and conditions of probation.

On appeal, defendant asserts that the employment condition is not sufficiently related to defendant and his offense; the fee and assessment should not be conditions of probation; and the firearm and ammunition condition is lacking a scienter requirement. For the reasons stated below, we will modify and affirm the judgment after concluding that defendant has forfeited his challenge to the employment condition; the fee and assessment should be imposed separately from conditions of probation; and the firearm and ammunition condition contains an implicit knowledge requirement.

2. SENTENCING

The facts giving rise to the charges do not appear in the record on appeal. Defendant's written plea agreement acknowledged that there was a factual basis for his plea in a police report that does not appear in the record on appeal. At the change of plea hearing, defense counsel waived referral of the case for an investigation and report by a probation officer. (§ 1203, subd. (b)(4).) A probation officer prepared a “waived referral” memorandum for sentencing that did not detail the offenses.

The probation memo recommended imposition of the following conditions, among others: “7. The defendant shall seek and maintain gainful employment and maintain academic and/or vocational training as directed by the Probation Officer.” “9. The defendant shall not own, possess, or have within his/her custody or control any firearm or ammunition for the rest of his/her life pursuant to Sections 12021 and 12316 [subdivision] (b)(1) of the Penal Code.” “12. A Court Security Fee of $30.00 be imposed pursuant to Section 1465.8 of the Penal Code.” “14. A Criminal Conviction Assessment of $30.00 be imposed pursuant to Section 70373 of the Government Code.”

At the sentencing hearing, defense counsel waived any irregularity in not receiving the probation memo five or nine days before the hearing. (§ 1203, subd. (b)(2)(E).) Defendant initialed many paragraphs of a written plea form, including, “I understand that the federal and state law prohibit [ sic ] a convicted felon from possessing firearms for life.” Defense counsel did not object to any of the quoted probation conditions either before or after they were imposed.

3. THE FORFEITURE RULE

A probation condition that regulates conduct not itself criminal must reasonably relate to the underlying conviction or to future criminality. ( People v. Welch (1993) 5 Cal.4th 228, 233–234, 19 Cal.Rptr.2d 520, 851 P.2d 802.) To challenge the reasonableness of a probation condition on appeal, a defendant must first raise the issue in the trial court. ( Id. at p. 237, 19 Cal.Rptr.2d 520, 851 P.2d 802; see In re Sheena K. (2007) 40 Cal.4th 875, 882, 55 Cal.Rptr.3d 716, 153 P.3d 282( Sheena K.).)

Defendant argues that it was unreasonable under the circumstances of this case for the trial court to require defendant to seek and maintain employment because defendant was a student at the time of sentencing. Any challenge to the reasonableness of that probation condition was forfeited by defendant's failure to question it in the trial court. Defendant seeks to avoid forfeiture by describing this as a “pure issue of law,” but whether it was reasonable to require defendant to seek and maintain employment depends on his particular circumstances, which are not in the appellate record. (Cf. People v. Hodgkin (1987) 194 Cal.App.3d 795, 808–811, 239 Cal.Rptr. 831 [trial court should take probationer's circumstances into accountin imposing such a condition].) Appellate counsel states that defendant “may have been in school full-time” and notes a “lack of clarity on this point.” Counsel's speculation as to defendant's student status and his ability to work illustrates why defendant cannot challenge the condition's reasonableness on appeal without seeking its correction in the trial court.

While the forfeiture rule bars defendant's challenge to the employment condition, his other contentions fit within recognized exceptions. The forfeiture rule does not apply when a probation condition is challenged as unconstitutionally vague or overbroad on its face and the claim can be resolved on appeal as a pure question of law without reference to the sentencing record. ( Sheena K., supra, 40 Cal.4th at pp. 888–889, 55 Cal.Rptr.3d 716, 153 P.3d 282.) A defendant may also challenge for the first time on appeal the imposition of a fee as a probation condition when it is unauthorized as a matter of law and correctable without reference to factual findings. ( People v. Pacheco (2010) 187 Cal.App.4th 1392, 1402, 115 Cal.Rptr.3d 220( Pacheco );People v. Anderson (2010) 50 Cal.4th 19, 26, 112 Cal.Rptr.3d 685, 235 P.3d 11; see Sheena K., supra, at p. 887, 55 Cal.Rptr.3d 716, 153 P.3d 282.) Accordingly we reach the merits of defendant's other claims.

4. FEES AND ASSESSMENTS AS PROBATION CONDITIONS

Section 1465.8, subdivision (a), requires the court to impose a fee on every conviction “[t]o ensure and maintain adequate funding for court security.” Government Code section 70373, subdivision (a)(1) requires the court to impose an assessment on every felony conviction “[t]o ensure and maintain adequate funding for court facilities.” ² Neither the fee nor the assessment challenged here is subject to automatic penalty assessments. ( § 1465.8, subd. (b); Gov.Code, § 70373, subd. (b).) Neither statute provides for considering a defendant's ability to pay, nor do they provide for imposing the fee or assessment as a probation condition. (Compare, e.g., § 1202.4, subd. (m) [restitution fine].)

In Pacheco, supra, 187 Cal.App.4th 1392, 115 Cal.Rptr.3d 220, this court recently determined that payment of a court security fee should not be imposed as a probation condition. ( Id. at p. 1403, 115 Cal.Rptr.3d 220.) Such a fee, like the cost of probation supervision, is “collateral” to a defendant's crime and punishment. ( Id. at p. 1402, 115 Cal.Rptr.3d 220.) It is not oriented toward a defendant's rehabilitation but toward raising revenue for court operations. ( Id. at p. 1403, 115 Cal.Rptr.3d 220.) “[A] defendant may be imprisoned for violating a probation condition, but not for violating an order to pay costs and fees.” ( Ibid.) In light of Pacheco, the Attorney General reasonably agrees that the security fee should be separately imposed and not made a condition of probation.

While Pacheco did not involve imposing a court facilities assessment under Government Code section 70373, in light of the parallel language of the statutes, the same result follows that the assessment should be separately imposed and not made a condition of probation.

5. THE FIREARM AND AMMUNITION CONDITION

Defendant asserts that “[t]he no-firearms condition the trial court imposed here does not satisfy the due process concept of fair warning. The absence of a knowledge requirement subjects him to unfair risk that his probation could be revoked for unknowingly transporting a gun or ammunition by driving a car in which a friend has ammunition in a bag or purse, unbeknownst to [defendant].”

Certainly, “[a] probation condition ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,’ if it is to withstand a [constitutional] challenge on the ground of vagueness. [Citation.] A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as constitutionally overbroad.” ( Sheena K., supra, 40 Cal.4th at p. 890, 55 Cal.Rptr.3d 716, 153 P.3d 282.) However, where a probation condition implements statutory provisions that apply to the probationer independent of the condition and does not infringe on a constitutional right, it is not necessary to include in the condition an express scienter requirement which is necessarily implied in the statute.

In a variety of...