Filed 1/9/18 P. v. Barden CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
SHANNON LOUIS BARDEN,
Defendant and Appellant.

A148983

(Mendocino County
Super. Ct. No. SCUKCRCR 1477290)


After two trials, the first of which ended in a hung jury, Shannon Louis Barden was convicted on a felony charge of resisting an officer with force or violence in violation of Penal Code section 69. Prior to the second jury trial, Barden pled no contest to misdemeanor violations of using a controlled substance in violation of section 11550, subdivision (a) of the Health and Safety Code and driving with a suspended license in violation of section 14601.1, subdivision (a) of the Vehicle Code. After the trial, Barden failed to appear for his sentencing hearing and ultimately pled guilty to a felony violation of section 1320, subdivision (b) for that failure to appear, and to additional misdemeanor charges of possession of methamphetamine, petty theft and driving on a suspended license.
At a consolidated sentencing hearing, the trial court sentenced Barden to a total of three years and eight months, to be served as a split-sentence under section 1170, subdivision (h)(5), with two years to be served in county jail and the remaining year and eight months to be served as mandatory supervision with various terms and conditions.
The two mandatory supervision conditions Barden now challenges, which appear to be part of a form Mandatory Supervision order used by the Mendocino County Superior Court, require as follows:
“15. You shall cooperate fully with any form of rehabilitation as directed by your Probation Officer, and remain working constructively within that program for the length of time felt to be necessary by your Probation Officer. Also, you shall submit proof of enrollment, payment, and program completion to your Probation Officer.”
“45. You shall cooperate fully with evidence based practices as directed by your Probation Officer, and remain working constructively within that program for the length of time deemed necessary by your Probation Officer.”
Other conditions imposed on Barden required him to abstain from possessing and consuming marijuana, narcotics or other illegal, restricted drugs, test for drugs and alcohol when ordered by any peace officer, participate in and complete a substance abuse treatment, education and counseling program and attend Alcoholics/Narcotics Anonymous meetings as directed by his probation officer.
Barden did not object or raise any questions in the trial court regarding any of the conditions it imposed as part of his mandatory supervision. He signed a statement at the conclusion of the mandatory supervision order affirming, “I have read and fully understand all the foregoing requirements and agree to abide by and obey all the conditions and requirements in this Order of Mandatory Supervision.”
DISCUSSION
Barden contends that the trial court abdicated its role by imposing conditions 15 and 45, which “simply left it to probation to decide, define and direct” what the very broad language “ ‘any rehabilitation’ ” and “ ‘evidence based practices’ ” included. In other words, these conditions served as a catch-all that could extend to a wide array of programs addressing any number of topics, from mental health counseling to vocational training to domestic violence or anger management, any of which the probation officer could require without the court’s involvement. Barden also argues these conditions are, for similar reasons, unconstitutionally vague and overbroad.
The People disagree on both counts, arguing these conditions, considered in light of the other probation conditions, were designed to enable the probation department to “further appellant’s rehabilitation were he to fail or be rejected from the programs specified in conditions 20 and 25,” one of which requires Barden to be “evaluated for, . . . participate in and complete a program of substance abuse treatment, education, and counseling as directed by the program and the Probation Officer,” and the other of which requires him to “attend Alcoholics/Narcotics Anonymous meetings as directed by the Probation Department.” This court “ ‘is not limited to the condition’s text,’ ” the People argue, and “may apply ‘any reasonable and practical construction’ ” to the two conditions to make them “ ‘sufficiently definite.’ ”
The People also preface these arguments with the contention that we need not decide these issues because Barden “forfeited [them] because he did not raise any objection to conditions 15 and 45 when they were imposed at sentencing.” Forfeiture should apply because the two challenged conditions “cannot be evaluated without consideration of the record as a whole, which includes appellant’s admitted history of drug addiction . . . and the current violent assault while under the influence of methamphetamine.”
We will address the forfeiture argument first. In People v. Welch (1993) 5 Cal.4th 228, our Supreme Court held that failure to object to the reasonableness of a probation condition precludes the defendant from raising such a challenge on appeal. (Id. at pp. 232–237.) Welch addressed the “failure to timely challenge a probation condition on ‘Bushman/Lent’ grounds.” (Id. at p. 237.) In re Bushman (1970) 1 Cal.3d 767 invalidated a condition of probation because it was “not reasonably related to ‘the crime of which petitioner was convicted’ or to his ‘future criminality.’ ” (Welch, at p. 236, quoting Bushman, at p. 777.) People v. Lent (1975) 15 Cal.3d 481 similarly addressed the reasonableness of probation conditions, and is widely cited for the rule that a condition of probation will be upheld unless it “ ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .’ ” (Lent, at p. 486.)
In In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.), the court held a constitutional challenge to a probation condition based on vagueness or overbreadth may be reviewed on appeal if it presents an error that is “a pure question of law, easily remediable on appeal by modification of the condition.” (Id. at pp. 888–889.) The court also noted, “In general, forfeiture of a claim not raised in the trial court by a party has not precluded review of the claim by an appellate court in the exercise of that court’s discretion,” and that “[t]he appellate courts typically have engaged in discretionary review only when a forfeited claim involves an important issue of a constitutional law or a substantial right” or when “the defendant did not have a meaningful opportunity to object at trial.” (Sheena K., at p. 887, fn. 7.)
Barden invokes Sheena K., arguing about his abdication argument that he “is not asking this Court to evaluate the factual record—in fact he is asking the Court to remand the issue so the trial court may properly exercise its authority in light of its presumed familiarity with Mr. Barden’s particular history and the current offense.” Further, he contends, his vagueness challenge “ ‘present[s] a pure question of law,’ ” and that this court has “inherent authority to strike the conditions altogether.”
Here, Barden’s challenge is to generic conditions that appear in a form document apparently used by the Mendocino County Superior Court and/or the Mendocino Probation Department. As such, they are issues that may affect some or all of those convicted felons who are under mandatory supervision in Mendocino County and these issues are likely to recur. However, Barden misses the point of Sheena K. in suggesting we should invoke discretionary review. By arguing that we should remand the case to the trial court so that it “may properly exercise its authority in light of its presumed familiarity with Mr. Barden’s particular history and the current offense,” he effectively concedes that the claimed errors here do not present “pure question[s] of law, easily remediable on appeal by modification of the condition[s].” (Sheena K., supra, 40 Cal.4th at p. 888, italics added.) In “ ‘circumstances that do not present “pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court,” ’ ” the Sheena K. court stated, “ ‘ “[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court.” ’ ” (Id. at p. 889, quoting In re Justin S. (2001) 93 Cal.App.4th 811, 815, fn. 2.) Here, if Barden had contended in the trial court that the “any rehabilitation” and “evidence based practices” were vague, overbroad and conferred too much discretion on the probation department, the trial court would have had the opportunity to narrow or otherwise modify those conditions in a manner that made clearer what kinds of programs or practices it had in mind and how those related to Barden’s rehabilitation. Application of the forfeiture rule in the circumstances before us serves that rule’s purpose of “promot[ing] greater procedural efficiency” by avoiding unnecessary appeals and “remand[s] to the trial court for resentencing or reconsideration of probation conditions.” (See Sheena K., at p. 885.)
DISPOSITION
We conclude that Barden has forfeited his challenges to the terms of his mandatory supervision by failing to raise them in the trial court. We decline to exercise our discretion to excuse him from that forfeiture by addressing those issues for the first time on appeal. The ruling appealed from is affirmed.






STEWART, J.



We concur.




KLINE, P.J.




RICHMAN, J.