People v. Welch

Decision Date27 May 1993
Docket NumberNo. S025387,S025387
Citation19 Cal.Rptr.2d 520,851 P.2d 802,5 Cal.4th 228
CourtCalifornia Supreme Court
Parties, 851 P.2d 802 The PEOPLE, Plaintiff and Respondent, v. Kathryn Marie WELCH, Defendant and Appellant.

Fern M. Laethem, State Public Defender, Ellen J. Eggers, Deputy State Public Defender, and Madeline McDowell as amici curiae on behalf of defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart and George Williamson, Chief Asst. Attys. Gen., Arnold O. Overoye and Robert R. Anderson, Asst. Attys. Gen., Edmund D. McMurray and Jesse N. Witt, Deputy Attys. Gen., for plaintiff and respondent.

BAXTER, Justice.

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) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545 (Lent ) ) proposed at the probation and sentencing hearing constitutes a waiver of the claim on appeal. 1 We conclude that it does.

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.

Here, the Court of Appeal correctly reached the same conclusions, but appears to have been the first to do so. It declined to follow an established line of appellate cases that had assumed, in the absence of a clear statement to the contrary by this court, that trial court objections under Lent were unnecessary. Under the circumstances, the Court of Appeal should not have penalized defendant for her failure to object. We will therefore reverse the judgment and remand the matter to the Court of Appeal with directions to consider the merits of defendant's claims.


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. 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 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, passive 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 terms and conditions, including ninety days in jail and restitution. Pertinent here are other recommended conditions requiring defendant to (1) seek and maintain vocational training and employment as directed by the probation officer, and change employment only with his approval, (2) maintain and change residences only as approved by the probation officer, (3) avoid associating with any person on probation or parole and (except as approved by the probation officer) with any person who has been convicted of a narcotics violation, (4) avoid writing or possessing any checks (other than her own payroll checks) or holding a bank account upon which checks can be drawn, (5) avoid using or possessing alcoholic beverages or entering any business devoted primarily to their sale, participate in Alcoholics Anonymous as directed or approved by the probation officer, and submit to alcohol and narcotics testing, (6) avoid possession or ownership of a firearm or other deadly weapon, (7) submit to an official search of her person and property at any time, even without probable cause, for the purpose of determining compliance with probation, and (8) authorize release of any psychiatric or counseling reports to the probation department, district attorney, and the court.

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 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 that conditions imposed in the eight categories listed above were "overbroad" and "unreasonable" under Lent, supra, 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545. 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.


Defendant observes that courts and parties have long assumed that failure to object at the time of sentencing does not prevent a defendant from challenging the reasonableness of a probation condition on appeal. (People v. Patillo (1992) 4 Cal.App.4th 1576, 1579, 6 Cal.Rptr.2d 456; In re Jason J. (1991) 233 Cal.App.3d 710, 714, 284 Cal.Rptr. 673; People v. Hernandez (1991) 226 Cal.App.3d 1374, 1377, 277 Cal.Rptr. 444; People v. Kiddoo (1990) 225 Cal.App.3d 922, 925-927, 275 Cal.Rptr. 298; People v. Keller (1978) 76 Cal.App.3d 827, 832-833, fn. 2, 143 Cal.Rptr. 184; People v. McDowell (1976) 59 Cal.App.3d 807, 814, 130 Cal.Rptr. 839; In re Mannino (1971) 14 Cal.App.3d 953, 958-959 & fn. 3, 92 Cal.Rptr. 880.) For reasons we will explain, the Court of Appeal in this case correctly adopted a contrary rule. 3

Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and 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) 20 Cal.3d 678, 682-683, 143 Cal.Rptr. 885, 574 P.2d 1237.) Some probation conditions--particularly those involving confinement in county jail or payment of restitution and other fines and costs--are statutorily mandated or recommended in certain cases. (See, e.g., §§ 1203.04, 1203.047, 1203.055, 1203.076, 1203.095, 1203.1, 1203.1ab-1203.1j.) Most conditions, however, stem from the sentencing court's general authority to impose any "reasonable" condition that it "may determine" is "fitting and proper to the end that justice may be done...." (§ 1203.1.)

We have said that probation conditions which regulate conduct "not itself criminal" must be "reasonably related to the crime of which the defendant was convicted or to future criminality." (Lent, supra, 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545.) As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or " 'exceeds the bounds of reason, all of the circumstances being considered.' " (People v. Warner, supra, 20 Cal.3d 678, 683, 143 Cal.Rptr. 885, 574 P.2d 1237, quoting People v. Giminez (1975) 14 Cal.3d 68, 72, 120 Cal.Rptr. 577, 534 P.2d 65.) Probation conditions similar to those challenged here have been upheld or approved for use in appropriate cases. (See Erwin et al., 5 Cal.Criminal Defense Practice (1992) Probation, § 90.04, pp. 90-30--90-34.12; 3 Witkin &...

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