Filed 5/2/07 P. v. Winget CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Larry S. Knupp, Judge. Affirmed with modifications.

Tara K. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.

_________________

Defendant Mark Steven Winget appeals from a judgment after a jury found him guilty of grand theft by use of an access card, in violation of Penal Code section 484g. Defendant was placed on probation for three years.

CONTENTIONS

Defendant contends that: (1) the trial court erred in imposing an unreasonable and overbroad probation condition ordering him not to possess or apply for any credit or ATM card; and (2) the trial court must modify the probation condition that defendant possess no blank checks, not write checks, and not have a bank account upon which checks may be drawn.

FACTS AND PROCEDURAL HISTORY

Viewing the whole record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following.

On October 9, 2005, defendant attempted to obtain a check in the amount of $500 from the window of jackpot cashier Anabel Patlan (Patlan) at the Bicycle Casino. Typically, a customer makes a transaction with a credit card at an ATM machine and takes the receipt to the cashier who verifies the customers identification and the card. The cashier then generates a check which the customer signs and exchanges for cash.

Defendant produced a California identification card and a credit card from Orchard Bank. Patlan thought that the numbers on the back of the credit card looked suspicious because they were thick and not embossed. When she scratched them in a test to determine whether the card was legitimate, the numbers came off. Patlan called her supervisor, Gilbert Solis (Solis), who called the number on the back of the credit card, as well as the casinos security department. Solis informed defendant that the card was possibly fraudulent. Upon further investigation, Solis found defendant had cashed seven other checks at the Bicycle Casino that day using the same fraudulent card. Those checks totaled $1,500.

Ambrose Jimenez, a regional investigator for HSB Bank, investigated the matter and determined that defendants Orchard Bank credit card did not have a valid account number at Orchard Bank, but instead contained a prefix for another bank.

In his defense, defendant testified that he filled out an application for a credit card, which was processed by a man named Archuck. Archuck explained that his company would be issued the credit card, but defendant would receive the user card, which could be used just like a credit card. On October 9, 2005, Archuck gave defendant a credit card bearing defendants name. Archuck gave the card to defendant and told him he could use the card, while Archuck left to get the contract that defendant had signed.

After defendant was convicted of grand theft by use of an access card, the trial court granted probation and ordered him to pay a restitution fine and to obey the following conditions of probation: (1) stay away from the Bicycle Casino; (2) seek and maintain training, schooling, or employment as approved by the probation officer; (3) maintain residence as approved by the probation officer; (4) submit person and property to search at any time of the day or night by any law enforcement officer or probation officer with or without a warrant of probable cause; (5) obey all laws and orders of the court; (6) obey all rules and regulations of the probation department; (7) report to the probation officer within 24 hours after release from custody; (8) not possess or use or apply for credit or ATM cards; and (9) possess no blank checks, not write any portion of any checks, and not have a bank account upon which checks may be drawn.

DISCUSSION

I. Whether the trial court erred in imposing the probation condition that defendant not use, possess, or apply for any credit or ATM card

A.Defendant forfeited the issue by failing to object before the trial court

Defendant urges that the trial court erred in imposing a constitutionally overbroad probation condition requiring defendant not to use or possess or apply for any credit or ATM card because it unreasonably restricts his ability to pay bills, rent a car, or conduct other routine economic activities. We conclude, however, that defendant forfeited the issue by failing to raise it before the trial court.

The trial court can regulate or prohibit noncriminal conduct in appropriate circumstances and can fashion conditions of probation that impinge on a defendants constitutional rights. (People v. Bianco (2001) 93 Cal.App.4th 748, 752.) Generally, a condition of probation will not be invalidated 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. [Citation.] (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent) [superseded on another ground as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290-295].)

A defendant forfeits his or her claim on appeal that probation conditions are unreasonable under Lent if he or she fails to object on that ground in the trial court. (People v.Welch (1993) 5 Cal.4th 228, 234-238 (Welch).) An exception to the forfeiture rule exists for claims involving pure questions of law which can be resolved without reference to the particular sentencing record developed in the trial court. (Id. at p. 235.) Such claims include the imposition of an unauthorized sentence or sentences entered in excess of jurisdiction. (Ibid.) In Welch, the defendant pled no contest to a felony count of obtaining public assistance by misrepresentation based on her failure to inform welfare authorities of a state disability insurance payment, and her receipt of welfare overpayments. (Id. at p. 231.) The trial court imposed probation conditions including avoiding writing or possessing any checks (other than her own payroll checks) or holding a bank account upon which checks can be drawn. (Id. at p. 232.) Our Supreme Court held that the defendants claim that the conditions imposed were overbroad and unreasonable was not a pure question of law that could be resolved without reference to the particular sentencing record developed in the trial court, but was an argument that the court exercised its otherwise lawful authority in an erroneous manner under the particular facts. (Welch, supra, 5 Cal.4th at p. 236.) Noting that [t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court, our Supreme Court held that failure to timely challenge a probation condition on Lent grounds in the trial court waives the claim on appeal. (Welch, supra, at p. 236.)

Here, the challenge to the probation condition raised by defendant is similar to that raised in Welch. Defendant argues that the condition is overbroad and unreasonable because it unreasonably restricts his ability to pay bills, rent a car or hotel room or a myriad of other routine economic activities. Defendant contends that the probation condition is unreasonable under Lent because it includes activities that are unrelated to future criminality. That is, defendant attacks the trial courts exercise of discretion in fashioning the probation condition. We conclude that under Welch, defendant has forfeited his claim on appeal.

B. Defendant does not raise a constitutional issue that is an exception to the forfeiture rule

Defendant also urges that the forfeiture rule should not apply because a constitutional challenge to the vagueness or overbreadth of a probation condition is not waived where the objection presents a pure question of law. We disagree that defendant has raised a constitutional challenge that is a pure question of law.

Our Supreme Court has recently held that failure to object to a probation condition on the constitutional grounds of vagueness and overbreadth does not forfeit the claim if the claim involves a pure question of law that does not require reference to the particular sentencing record developed in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 886-889 (Sheena).) In Sheena, the defendant, who was convicted of misdemeanor battery, challenged the probation condition that she not associate with anyone disapproved of by probation on grounds that it was constitutionally overbroad and vague. Our Supreme Court held that the defendants constitutional claim was a pure question of law, easily remedied by modification of the condition, and that the defendant did not forfeit her claim by failing to object in the trial court. (Sheena, supra, at p. 886.)

Here, on the other hand, defendant makes a vague reference to his constitutional right to enjoy a significant degree of privacy and liberty. But, the main thrust of his argument is that the probation condition is not reasonably related to any criminality in the future. Thus, this is not a matter of facial constitutional invalidity, but requires our examination of whether the trial court exercised its otherwise lawful authority in an erroneous manner under the particular facts. Hence, defendants claim is forfeited.

II. Whether the trial court must modify a probation condition to be consistent with the reporters transcript

Defendant contends, and the People concede, that the trial court should be ordered to modify the order of probation to confirm with oral pronouncement of judgment. An oral pronouncement of judgment controls over the clerks minute order. (People v.Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mitchell (2001) 26 Cal.4th 181, 183, 185-188.)

In the instant matter, the People requested that the trial court impose the probation condition that defendant not have any checks or financial instruments in any name other than his true name, Mark Steven Winget. The trial court stated, So ordered. But the clerks transcript reflects the order as that defendant possess no blank checks, not write any portion of any checks and not have a bank account upon which checks may be drawn.

Accordingly, we order the trial court to modify the judgment to reflect the oral pronouncement of judgment.

DISPOSITION

The trial court is ordered to modify the probation condition in the judgment that defendant possess no blank checks, not write any portion of any checks and not have a bank account upon which checks may be drawn to read as follows: Possess no blank checks, not write any portion of any checks, not have a bank account upon which checks may be drawn, in any name other than his true name, Mark Steven Winget. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

ASHMANN-GERST

We concur:

____________________, Acting P. J.

DOI TODD

____________________, J.

CHAVEZ

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