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P. v. Bannerman

Filed 9/11/06 P. v. Bannerman CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Roger W. Kraul and Frank A. Brown, Judges. Affirmed in part; remanded in part.

Daniel E. Bannerman entered a guilty plea to an information charging him with possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and possession of paraphernalia used for narcotics (id., § 11364), and he admitted four prison priors. The trial court granted probation to Bannerman pursuant to Penal Code section 1210.1.^[1] The trial court did not orally pronounce conditions of probation at the sentencing hearing. Instead, a minute order issued after the hearing specified the conditions of probation. Bannerman presents two issues on appeal.

First, Bannerman challenges the trial court's denial of the motion to suppress evidence of the rock cocaine and drug paraphernalia found in his pockets during a search by a police officer. He argues that the search was illegal because the police officer did not have reasonable suspicion of criminal activity and did not verify before the search that Bannerman was a parolee subject to warrantless searches as a condition of parole. As we will explain, we conclude that Bannerman's argument lacks merit because substantial evidence supports a finding that the police officer was aware that Bannerman was a parolee subject to warrantless and suspicionless searches as a condition of parole.

Second, Bannerman argues that we should strike several of the conditions of probation set forth in the minute order. In support of his contention he argues: (1) the conditions of probation imposed in the minute order are not reflected in the conditions of probation as orally pronounced by the trial court; (2) the trial court impermissibly required, as a condition of probation, that Bannerman pay probation costs and attorney fees associated with the provision of appointed counsel; and (3) the trial court impermissibly imposed those costs without notice or a hearing regarding Bannerman's ability to pay. We determine that the probation conditions were properly imposed, with two exceptions: (1) the condition concerning the payment of probation costs is valid only when construed, as we hereby direct, as an order entered at judgment, rather than as a condition of probation; and (2) the requirement that Bannerman pay $570 in attorney fees is invalid because it was imposed without notice or a hearing regarding Bannerman's ability to pay. We remand for the trial court to conduct the appropriate hearing regarding Bannerman's ability to pay attorney fees.

I

FACTUAL AND PROCEDURAL BACKGROUND

Just before midnight on June 19, 2005, San Diego Police Officer Eric Pollom saw Bannerman in the doorway of a downtown pizza restaurant, which was known as a location for narcotics activity.

Bannerman was on parole at the time, having been released from prison pursuant to parole conditions that required him to submit to warrantless searches. Officer Pollom knew that Bannerman was on parole because he had encountered Bannerman approximately three weeks before, on May 28, 2005. During the May encounter, Officer Pollom asked Bannerman if he was on parole and, after receiving an affirmative response, searched Bannerman and found rock cocaine. Officer Pollom also knew, based on his training, that parolees in California are always subject to a warrantless search condition.^[2]

Accordingly, on June 19 when he saw Bannerman in the doorway of the pizza restaurant, Officer Pollom told Bannerman that he knew he was on parole because of their prior interaction and informed Bannerman that he was going to search him. Bannerman did not refute Officer Pollom's statement that he was on parole and did not object to the search.

As Officer Pollom conducted the search, Bannerman stated that he had rock cocaine and a glass pipe used to smoke it. During the search, Officer Pollom located the pipe and rock cocaine in Bannerman's pockets and then arrested Bannerman. Bannerman was charged with possession of a controlled substance and possession of narcotics paraphernalia.

Bannerman filed a motion with the trial court, pursuant to section 1538.5, to suppress all evidence obtained as a result of the search, including the discovery of the rock cocaine and the pipe and his admission to possessing them.

The trial court denied the motion to suppress after hearing testimony from Officer Pollom. The trial court explained, "The officer was operating on the belief that there was a [Fourth Amendment] waiver. [¶] The evidence was that there was an opportunity [for Bannerman] to admit or deny that he was on parole or had a [Fourth Amendment] waiver. The evidence was that the officer announced, 'I intend to search you based upon your parole status and your [Fourth Amendment] waiver' as opposed to just moving in immediately and conducting a search and saying nothing. [¶] [I]t was reasonable for the officer to proceed based on his reasonable belief that there was a [Fourth Amendment] waiver, based upon the officer's conduct and most recent experience with the defendant."

Bannerman then entered a guilty plea, and the trial court granted probation pursuant to sections 1210 and 1210.1, which were adopted by California voters in the November 2000 election as part of Proposition 36 (Proposition 36).

Proposition 36 requires, subject to certain exceptions, that any person convicted of a nonviolent drug possession offense shall receive probation, with the requirement that the offender participate in and complete an appropriate drug treatment program. (§ 1210.1, subd. (a).) Proposition 36 also provides that except for the drug treatment requirement and a prohibition against the imposition of incarceration as a probation condition, "the trial court is not otherwise limited in the type of probation conditions it may impose." (§ 1210.1, subd. (a).)

At the sentencing hearing, the trial court stated, ". . . I am going to put him on Prop. 36, with the 1210 requirements. [¶] You understand those and are willing to comply with those?" Bannerman replied, "Yes." The trial court then granted probation, stating, "So, you're put on three years' probation. Keep your probation officer happy, stay out of trouble, complete the program, and you're going to be happy."

During the hearing, the trial court did not specify which probation conditions would be imposed on Bannerman. Instead, those conditions were set forth in a minute order issued after the hearing, which appeared on a preprinted form with boxes to be checked by the trial court to reflect the conditions of probation imposed. As stated in the minute order, the probation conditions included participating in and successfully completing a drug treatment program; attending self-help groups as directed by the probation officer; abstaining from drinking alcoholic beverages; abstaining from using or possessing any controlled substance; submitting to alcohol and drug testing; seeking and maintaining full-time employment, schooling or family counseling; completing an AIDS education course as directed by the probation officer; not possessing firearms; obtaining probation officer consent before leaving the county and court consent before leaving the state; submitting to DNA testing pursuant to section 296; and payment of (i) attorney fees in the amount of $570, (ii) unspecified probation costs, (iii) restitution fines, (iv) a court security fee, and (v) fines, which included a criminal lab analysis fee. Handwritten in the margin, the minute order indicated that the "fines" were "satisfied by time served in custody per court."^[3]

II

DISCUSSION

A. Bannerman's Challenge to the Trial Court's Ruling on the Motion to Suppress

We first address Bannerman's argument that the trial court erred in denying the motion to suppress evidence obtained as a result of Officer Pollom's search.

In reviewing the ruling on the motion to suppress, "we defer to the superior court's express and implied factual findings if they are supported by substantial evidence," and "we exercise our independent judgment in determining the legality of a search on the facts so found." (People v. Woods (1999) 21 Cal.4th 668, 673-674.)

Bannerman argues that Officer Pollom's search was illegal because, although he believed that Bannerman was on parole and therefore subject to a warrantless search condition, Officer Pollom did not verify, before conducting the search, that Bannerman was still on parole.

We begin our analysis with an overview of the rules governing parole searches. As recently established by the United States Supreme Court, neither reasonable suspicion nor a warrant is required for the search of a parolee, with the limitation that the search may not be arbitrary, capricious or harassing. (Samson v. California (2006) ___ U.S. ___, 126 S.Ct. 2193.) California courts have followed this rule since our Supreme Court decided People v. Reyes (1998) 19 Cal.4th 743, 753 (Reyes) (holding that "a parole search may be reasonable despite the absence of particularized suspicion"). A suspicionless parole search is constitutionally permissible because the parolee lacks a legitimate expectation of privacy, and the state has a substantial interest in supervising parolees and reducing recidivism. (Samson, supra, 126 S.Ct. at pp. 2199, 2200.)

However, a warrantless and suspicionless parole search is not legal unless the officer conducting the search is aware that the subject is on parole. "[O]fficers must know of a defendant's parole search condition to justify a warrantless search under that exception." (People v. Moore (2006) 39 Cal.4th 168, 172, citing People v. Sanders (2003) 31 Cal.4th 318 (Sanders).) "[A]n otherwise unlawful search of the residence of an adult parolee may not be justified by the circumstance that the suspect was subject to a search condition of which the law enforcement officers were unaware when the search was conducted." (Sanders, at p. 335, italics added.) This rule exists because, "although an adult parolee has a diminished expectation of privacy, a warrantless search of the parolee by officers unaware of his parole search condition 'cannot be justified as a parole search, because the officer is not acting pursuant to the conditions of parole.' " (Moore, at p. 173, italics added.)

In analyzing whether the search in this case was permissible under these rules, we rely on the following facts: (1) Bannerman was on parole at the time of the search; (2) Officer Pollom had learned three weeks before the search that Bannerman was on parole, when Bannerman informed him of that fact during an earlier search; and (3) immediately before the search at issue here, Bannerman made no attempt to correct Officer Pollom's statement that he "knew" Bannerman was on parole. Based on these facts, we conclude that substantial evidence supports a finding that Officer Pollom was aware that Bannerman was on parole at the time of the search and thus subject to the warrantless search condition imposed on every parolee in California. Accordingly, the search was permissible as a warrantless parole search.

Bannerman argues that the Fourth Amendment required Officer Pollom to take the additional step of verifying that Bannerman was on parole.^[4] Bannerman argues that without a verification requirement, there would be " 'no perceived boundaries, limitations, or justification' " on parole searches, as proscribed by Sanders, with " 'a significant potential for abuse.' " (Sanders, supra, 31 Cal.4th at p. 330.)

We disagree. We find no support in the case law for a rule that in every case, a police officer must independently and contemporaneously verify a subject's parole status. Instead, as discussed above, the inquiry is simply whether, under the circumstances unique to each case, the facts support a finding that the officer was aware that the subject of the search was on parole. The requirement that an officer be aware of the subject's parole status plainly provides meaningful limitations on officer discretion and curbs the potential for abuse.

We stress, however, that each set of facts is unique. In some cases the Fourth Amendment may require that an officer take steps to verify that a subject encountered in the past remains on parole before the officer can be said to be aware of the subject's current parole status. Here, however, Bannerman had very recently informed Officer Pollom of his parole status immediately before a previous search. Moreover, before conducting the search at issue here, Officer Pollom gave Bannerman a chance to offer information about a change in his parole status, but Bannerman did not do so. As we have concluded, the minimal amount of verification provided by Bannerman's lack of response when Officer Pollom stated that Bannerman was on parole, coupled with Officer Pollom's recent experience with Bannerman, were sufficient to support a finding that Officer Pollom was aware that Bannerman was on parole at the time of the search.

Bannerman also argues that the search was illegal because "the record fails to show [that Officer Pollom] reasonably suspected [Bannerman] of having committed a crime." This argument fails because an officer need not have reasonable suspicion of criminal activity to conduct a parole search. On the contrary, as established by Reyes, supra, 19 Cal.4th at page 753, and confirmed in Samson, supra, 126 S.Ct. 2193, the Fourth Amendment permits law enforcement officials to conduct suspicionless parole searches.

B. Bannerman's Challenge to the Conditions of Probation Set Forth in the Amended Minute Order

We next address Bannerman's argument that we should strike certain conditions of probation imposed by the trial court.

As we have explained, the trial court did not list specific conditions of probation at the sentencing hearing. Instead, it merely stated, "I am going to put him on Prop. 36, with the 1210 requirements" and then later issued a minute order on a preprinted form indicating a number of probation conditions. Bannerman presents three different arguments in support of his request that we strike certain conditions of probation.

1. There is no merit to Bannerman's contention that the conditions of probation in the minute order should be stricken because they differ from those specified in the trial court's oral pronouncement.

Bannerman first argues that we should strike from the amended minutes all of the conditions of probation except for those pertaining to the drug treatment program, the lab analysis fee, and the court security fee. He argues that none of the conditions of probation that he seeks to have stricken were specifically mentioned by the trial court at the sentencing hearing, and "[w]hen the oral pronouncement rendering judgment differs from the minute order, the oral pronouncement controls." Referring to the trial court's statements during the sentencing hearing that "I am going to put him on Prop. 36, with the 1210 requirements"^[5] and Bannerman should "keep [his] probation officer happy, stay out of trouble, [and] complete the program," Bannerman argues that the drug treatment requirement was the only probation condition orally imposed by the trial court because the trial court referred to Proposition 36 and "the program."

To address this argument, we begin by observing that the trial court was not required to orally pronounce the conditions of probation at the sentencing hearing. The existence of probation conditions is implied. "The fact a person is granted probation, rather than a pardon, gives rise to the implication there are conditions. These conditions need not be spelled out in great detail in court as long as the defendant knows what they are; to require recital in court is unnecessary in view of the fact the probation conditions are spelled out in detail on the probation order and the probationer has a probation officer who can explain to him the contents of the order." (People v. Thrash (1978) 80 Cal.App.3d 898, 901-902; see also In re Frankie J. (1988) 198 Cal.App.3d 1149, 1154-1155 [quoting and following Thrash]; In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373 ["the court need not orally pronounce probation conditions as long as the defendant knows what is required"].) Here, the probation conditions are spelled out in detail in the minute order, and the record reflects that a copy of the minute order was sent to Bannerman. Bannerman does not contend that he was not informed of the conditions of probation, either through the minute order, his counsel or his probation officer. Thus, the conditions were validly imposed even though they were not orally pronounced.

Bannerman argues that we should strike the conditions of probation in the minute order because they "differ" from the oral pronouncement at the sentencing hearing. He cites case law holding that a trial court's oral pronouncement of judgment controls over the written record, such as a clerk's minute order or an abstract of judgment. (See, e.g. People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [minute order]; People v. Mesa (1975) 14 Cal.3d 466, 471 [abstract of judgment].) We reject this argument because its factual premise is flawed.

The conditions of probation as reflected in the minute order did not differ from those set forth in the oral pronouncement. The trial court's reference to Proposition 36 and the vague statement that Bannerman should "keep [his] probation officer happy, stay out of trouble, [and] complete the program" do not communicate any specific probation conditions. We cannot reasonably interpret the trial court's statements at the sentencing hearing to mean, as Bannerman advocates, that the only condition to be imposed was that Bannerman attend and successfully complete the drug treatment program required by Proposition 36. Indeed, the trial court did not even expressly impose drug treatment as a condition of probation in its oral pronouncement. That condition must be implied from the reference to Proposition 36 and the statement that Bannerman should "complete the program."^[6] Because no specific probation conditions were orally pronounced, there is no merit to Bannerman's attempt to attack them as differing from the trial court's oral pronouncement.

2. The trial court improperly imposed the payment of attorney fees and probation costs as a condition of probation, but we may construe them as non‑conditions entered at judgment.

Bannerman argues that the attorney fees and probation costs were improperly listed as conditions of probation in the minute order. We agree, as does the Attorney General.

According to the preprinted form used for the minute order, the language regarding attorney fees and probation costs appears on the form two lines after the statement that "FORMAL PROBATION is GRANTED pursuant to [section] 1210 on the following conditions: . . ." The placement of these items implies that the trial court intended payment of the fees and costs as one of the conditions of probation.

It is clear that the payment of attorney fees and probation costs may not be imposed as a condition of probation. (See People v. Hart (1998) 65 Cal.App.4th 902, 906-907 (Hart) ["Defendant contends the orders to pay attorney fees and the costs of probation may not be made conditions of his probation. [¶] He is correct. . . . Courts that have considered the questions have held probation may not be conditioned upon the payment of either sum"]; People v. Flores (2003) 30 Cal.4th 1059, 1067, fn. 5 (Flores) [citing case law holding that " '[i]mposing reimbursement of attorney fees as a condition of probation is absolutely prohibited in California courts' "].) Accordingly, "the trial court may order defendant to pay for costs of probation and attorney fees, but may not condition defendant's grant of probation upon payment thereof." (Hart, at p. 907, italics added.)

The appropriate remedy, however, is not to strike the order to pay attorney fees and probation costs. Instead, the imposition of attorney fees and probation costs as a condition of probation may simply be modified to be treated as "an order entered at judgment" and to be "enforced as permitted in the relevant statutes." (Hart, supra, 65 Cal.App.4th at p. 907; see also People v. Hall (2002) 103 Cal.App.4th 889, 892 ["We simply deem the requirement [to pay probation costs] an order, not a condition [of probation], and proceed to consider other aspects of the court's order"].) We will thus direct that the order to pay attorney fees and probation costs be construed as an order entered at judgment.

3. The trial court erred in requiring Bannerman to pay attorney fees and probation costs without following procedures to determine Bannerman's ability to pay.

Having construed the order to pay attorney fees and probation costs as an order entered at judgment, we must next consider Bannerman's remaining challenge to that order. Bannerman contends that the order to pay attorney fees and probation costs is invalid because the trial court did not assess Bannerman's ability to pay. As we will explain, we agree with respect to the attorney fees, but not as to the probation costs.

a. Payment of Attorney Fees

The authority for ordering Bannerman to pay attorney fees appears in section 987.8, subdivision (b), which provides in relevant part: "In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court, or upon the withdrawal of the public defender or appointed private counsel, the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof." (Italics added.)

In this case, the record contains no indication that Bannerman was provided notice or a hearing on his present ability to pay. Accordingly, the trial court imposed the attorney fee provision in violation of the required statutory procedure, and the trial court's order was invalid. (See People v. Turner (1993) 15 Cal.App.4th 1690, 1695 [trial court improperly ordered payment of attorney fees under section 987.8, subdivision (b), because it did not hold a hearing on the defendant's present ability to pay], disapproved on another ground in Flores, supra, 30 Cal.4th at p. 1068.)

Our Supreme Court has indicated that in such a circumstance we may remand to the trial court to hold a hearing on the defendant's ability to pay. (Flores, supra, 30 Cal.4th at p. 1061 [deciding that because "[u]nder section 1260, appellate courts have the power to remand a cause to a trial court 'for such further proceedings as may be just under the circumstances,' " when confronted with an order to pay attorney fees under section 987.8 that was entered without the required hearing, the appellate court may remand with directions for the trial court to hold a hearing to determine the defendant's ability to pay].) We will accordingly remand for the trial court to provide notice and hold the appropriate hearing.

b. Payment of Probation Costs

The authority for ordering Bannerman to pay probation costs appears in section 1203.1b. According to that provision, "in any case in which a defendant is granted probation or given a conditional sentence, the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision," and other similar enumerated costs. (§ 1203.1b, subd. (a).) This process is triggered by an order of the trial court, pursuant to the statutory provision that "[t]he court shall order the defendant to appear before the probation officer, or his or her authorized representative, to make an inquiry into the ability of the defendant to pay all or a portion of these costs. The probation officer, or his or her authorized representative, shall determine the amount of payment and the manner in which the payments shall be made to the county, based upon the defendant's ability to pay." (Ibid.) According to the statute, "[t]he probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant's ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver." (Ibid.)

The trial court is required to hold a hearing on the defendant's ability to pay probation costs only when the defendant fails to waive his right to a court determination. Specifically, the statute provides: "When the defendant fails to waive the right provided in subdivision (a) to a determination by the court of his or her ability to pay and the payment amount, the probation officer shall refer the matter to the court for the scheduling of a hearing to determine the amount of payment and the manner in which the payments shall be made. The court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs based on the report of the probation officer, or his or her authorized representative. . . ." (§ 1203.1b, subd. (b).)

Bannerman argues that the order to pay costs of probation supervision was improper because the trial court did not order Bannerman to appear before the probation officer to allow the officer to inquire about Bannerman's ability to pay. We reject this argument. The only way for us to reasonably construe the minute order is to read it as commencing the mandatory process outlined in section 1203.1b, leading to Bannerman's appearance before the probation officer for an inquiry into his ability to pay.^[7]

It is thus evident that by checking the box in front of the words "Probation costs" on the preprinted form, the trial court was merely confirming that the mandatory steps provided in section 1203.1b would commence. Because the procedure ordered by the trial court was consistent with the mandatory statutory procedures, there is no merit to Bannerman's argument that the order regarding probation costs should be stricken as imposed in violation of the applicable statutory requirements.

DISPOSITION

We remand for notice and hearing under section 987.8, subdivision (b) concerning Bannerman's ability to pay the $570 of attorney fees indicated in the minute order. Any attorney fee payment ordered upon remand shall be imposed as an order entered upon judgment, not as a condition of probation. We further direct that the reference to the

payment of probation costs in the minute order be construed as an order entered upon judgment, not as a condition of probation. In all other respects we affirm the judgment.

IRION, J.

WE CONCUR:

McDONALD, Acting P. J.

O'ROURKE, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] Parolees are necessarily subject to warrantless searches as a condition of their parole based on the applicable regulations. (Cal. Code Regs., tit. 15, §§ 2511, 2512.) Further, pursuant to statute, "inmates who are otherwise eligible for parole yet refuse to agree to the mandatory search condition will remain imprisoned while losing their accumulated worktime credits on a daily basis until either (1) the inmate agrees to the search condition and is otherwise eligible for parole, or (2) has lost all worktime credits and is eligible for release after having served the balance of his/her sentence." (People v. Middleton (2005) 131 Cal.App.4th 732, 739-740 [citing § 3067].)

^[3] The probation conditions in the minute order also included a requirement that Bannerman surrender his driver's license. In a subsequent minute order, the trial court indicated that the clerk had checked that box on the form in error, and it deleted the surrendering of Bannerman's driver's license as a condition of probation. In that same subsequent minute order, the trial court also added to the conditions of probation the requirement that Bannerman "obey all laws."

^[4] Bannerman does not discuss how this verification should have been accomplished, but we assume that such verification could be accomplished by asking the subject whether he is on parole or by running a computer check.

^[5] The trial court was apparently referring to the portion of Proposition 36 set forth at sections 1210 and 1210.1. Section 1210 contains definitions. Section 1210.1 contains the substantive requirements, including the requirement that eligible defendants be granted probation with the condition that they complete a drug treatment program.

^[6] We further note that the trial court's statement that Bannerman should "keep [his] probation officer happy," although extremely vague, implies that certain unspecified probation conditions would be imposed and that Bannerman's compliance with the conditions would be monitored by his probation officer. In our view, trial courts should avoid such vague and truncated language when granting probation. The better practice would be to clearly advise a defendant that certain probation conditions will be spelled out in a written order and that the defendant's probation officer will be available to explain them.

^[7] Our view is confirmed by the information printed on the back of the preprinted form on which the minute order appears. Although the photocopy of the minute order in the clerk's transcript does not contain the back of the form, we have reviewed the original minute order in the superior court file. Tied by two asterisks to the "Probation costs" section on the front of the form, the back of the form specifies in relevant part: "You are ordered to cooperate with the Probation Officer or authorized representative as directed in the preparation of financial evaluations. If it is determined that you have present ability to repay the county for costs of probation supervision, and you do not agree with such determination, you have a right to a hearing before the court to determine your present ability."