P. v. Mendoza

Filed 10/26/07 P. v. Mendoza CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

Defendant pleaded guilty to felony possession of a stolen vehicle (Pen. Code,  496d, subd. (a)), imposition of sentence was suspended, and he was placed on probation for three years. He maintains that the community service condition of probation must be stricken because the condition is unreasonable or because it violated the plea agreement. We disagree and affirm the probation order.

I.

The circumstances of the offense are irrelevant to the appeal and need not be recounted.

Defendant signed a waiver of rights form that provided for an 8 month lid (top) on [the] jail sentence condition of probation, and for imposition of gang probation conditions. The form stated that defendant had a pending INS hold, and that he faced deportation and exclusion from citizenship by virtue of his plea.

Before accepting defendants plea, the court asked what agreements had been made, and the prosecutor answered, Your honor, theyre all indicated on the Tahl waiver. [] [N]o initial state prison. [] [8] month maximum jail sentence. [] [G]ang conditions imposed. And I believe thats the extent of the agreement. Defendant also confirmed this understanding of the agreement.

The probation report recommended that defendant be required as a condition of probation to perform 40 hours of community service work through the Sonoma County Volunteer Center. At the sentencing hearing, defense counsel objected to this condition as follows: Probation is recommending he do 40 hours of community service work, but he has an immigration hold. So it would seem . . . pointless to order him to do the volunteer hours. The court responded, Why? When he gets back, he can do the volunteer hours. I dont have a problem with that. When it imposed the community service condition, the court stated, Once again if you were to be out of the country, I know you cant do that. When you return, then youre to do that.

II.

Defendant argues that it was an abuse of discretion for the court to condition his probation on performance of community service because the condition is unreasonable given his immigration status. (See generally People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121 [sentencing court has broad discretion to determine probation conditions, but conditions cannot    exceed[] the bounds of reason, all of the circumstances being considered.  [Citations.] ].)[1] He notes that he cannot perform the community service while he is serving his probation jail sentence, or when he is out of the country after being deported. He states that he cannot legally reenter the country if he is deported, and submits as a consequence that he is being required to break federal law insofar as it is contemplated that he can perform the community service when he returns. He anticipates that if he reported for community service upon returning, the agency would report him to the immigration authorities. The net result, he reasons, is that he can never comply with the community service condition.

Defendants argument does not give the community service condition the  . . . [r]easonable and practical construction . . .   the law requires. (People v. Lopez (1998) 66 Cal.App.4th 615, 630.) The court recognized that defendant could not be expected to satisfy the community service condition while in another country following deportation, and it went without saying that he could not be expected to satisfy the condition while in custody. Defendant acknowledges that the Attorney General has nonreviewable discretion to defer action on any deportation. Thus, even though defendant faces deportation, there may be an interval of time after he completes his probation jail sentence or returns to the country following deportation within which he could perform the community service, and the condition is not pointless or impossible to fulfill as he has argued. Nor can the condition be reasonably interpreted to require that defendant return to the country illegally if he is deported; it only requires his community service if he returnslegally or illegallyafter being deported.

Defendants other argument against the community service condition is that it violated the plea agreement. Insofar as it appears from the record, no understanding was reached, one way or the other, when the agreement was made as to whether community service would be required. A standard condition, or one that is not  significant in the context of the plea bargain as a whole . . . may be imposed whether or not it was part of the express negotiations. (People v. Walker (1991) 54 Cal.3d 1013, 1024.) In our view, community service qualifies as a standard condition of probation that can be imposed without prior negotiation. Even if it were not a standard condition, 40 such hours of service is not substantial punishment constituting a significant deviation from the plea agreement. (See People v. Collins (2003) 111 Cal.App.4th 726, 732-733 [significance of deviation is determined from the totality of the circumstances, including the punishment imposed].)

III.

The order granting probation is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Stein, J.

______________________

Margulies, J.

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[1] Defendant also argues in passing and for the first time on appeal that the condition is untenable under the standards of People v. Lent (1975) 15 Cal.3d 481, 486, because it  (1) has no relationship to the crime of which [defendant] 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 . . . . Defendant waived this argument by failing to raise it below (People v. Welch (1993) 5 Cal.4th 228, 237), and the argument lacks merit in any event (see Pen. Code,  1203.1, subds. (g)(1), (g)(2), (h), (j) [community service may be required]).