In re Eric G.

Filed 6/26/08 In re Eric G. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

This appeal comes before us following findings by the juvenile court that defendant committed the offenses of assault by means of force likely to produce great bodily injury (Pen. Code,  245, subd. (a)(1)), and unlawful use of force on a cohabitant (Pen. Code,  243, subd. (e)(1)).[1] Defendant was adjudged a ward of the court and placed in his parents home under the supervision of the probation department. In this appeal defendant complains of the imposition of specified probation conditions in the minute order that were not stated by the court at the disposition hearing. We conclude that the minute order is inconsistent with the oral pronouncement of judgment, and the added probation conditions must therefore be stricken.

STATEMENT OF FACTS[2]

Following the findings at the conclusion of the jurisdictional hearing, the dispositional report of the probation officer was filed on November 9, 2007. The report expressed concern with defendants gang affiliation, prior marijuana use and poor relationship with his father. Defendant stated to the probationer officer that he is neither in a gang nor associates with gang members, although he hangs around and is cool with Border Brothers and Nortenos. The report recommended that defendant reside in the home of his parents under the standard probation conditions. The probation conditions specified in the report included: compliance with a curfew; refrain from association with anyone known to possess or deal drugs; a prohibition against use, display or possession of any insignia or article of clothing which is evidence of street gang affiliation.

At the dispositional hearing on November 9, 2007, respondent expressed agreement with the probation officers recommendations. The court declared defendant a ward of the juvenile court under the supervision of the probation department, and recited conditions of defendants probation: obey his parents; attend school and perform well; cooperate with counseling and therapy programs devised by the probation department; comply with a curfew of 8:00 p.m.; no overnight visitation or leaving the county without permission; no contact with the victim; no use or possession of drugs, alcohol, or weapons; submit to drug or alcohol testing; warrantless searches of his person, car, or residence; not to be in any gang or wear gang colors, signs, emblems or clothing. The court also advised defendant that he must comply with other gang conditions that youll be given later.

Additional terms and conditions of probation appear in the minute order of the dispositional hearing: Do not associate with anyone who uses or possesses dangerous [or] deadly weapons [or] explosive devices [or] remain in any vehicle where such weapons are present; Do not contact any individuals whom you have first met while you or they were a detainee in any County Camp, facility or program; Do not use, possess or remain in the presence of anyone possessing master keys; lock picks, . . . or other device you know to be an auto theft or burglary tool; Do not remain in any vehicle without intact windows, locks and ignition nor in any vehicle you suspect to be stolen; and, Do not under any circumstances, associate with anyone you know to use, deal or possess illegal drugs.

DISCUSSION

Defendant challenges the imposition in the minute order of conditions of probation that were not articulated by the juvenile court at the dispositional hearing. He argues that the conditions added to his probation in the minute order must be stricken, as they do not reflect the probation terms the court pronounced and they were not later lawfully imposed. He further complains that three of the added conditions must be stricken for the additional reason that they do not have the requisite knowledge element.

The Attorney General acknowledges that the five conditions challenged by defendant in this appeal were not mentioned by the juvenile court at the dispositional hearing. As a result, those conditions run afoul of the fundamental rule that, An abstract of judgment is not the judgment of conviction; it does not control if different from the trial courts oral judgment and may not add to or modify the judgment it purports to digest or summarize. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Entering a judgment of the trial court in the minutes is a clerical function. Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error. Thus, the oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes. (People v. Price (2004) 120 Cal.App.4th 224, 242.) Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.)

I. The Claim of Forfeiture.

The Attorney General nevertheless argues that defendant waived his claim of error by failing to object to the juvenile courts express reservation of authority to impose other gang conditions that youll be given later. In general, the forfeiture rule applies in the context of sentencing as in other areas of criminal law. As a general rule neither party may initiate on appeal a claim that the trial court failed to make or articulate a  discretionary sentencing choice[ ].  [Citations.] (In re Sheena K. (2007) 40 Cal.4th 875, 881.)  A timely objection allows the [sentencing] court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case. . . . A rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis.  (People v. Jungers (2005) 127 Cal.App.4th 698, 702, quoting from People v. Welch (1993) 5 Cal.4th 228, 235.)

Applying the rule to appellate claims involving discretionary sentencing choices or unreasonable probation conditions is appropriate, because characteristically the trial court is in a considerably better position than the Court of Appeal to review and modify a sentence option or probation condition that is premised upon the facts and circumstances of the individual case. Generally, application of the forfeiture rule to such claims promotes greater procedural efficiency because of the likelihood that the case would have to be remanded to the trial court for resentencing or reconsideration of probation conditions. [] In contrast, an appellate claimamounting to a facial challengethat . . . does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal conceptsa task that is well suited to the role of an appellate court. Consideration and possible modification of a challenged condition of probation, undertaken by the appellate court, may save the time and government resources that otherwise would be expended in attempting to enforce a condition that is invalid as a matter of law. (In re Sheena K., supra, 40 Cal.4th 875, 885.) Claims that present pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court  are not foreclosed by the failure to object in the juvenile court. (In re Justin S. (2001) 93 Cal.App.4th 811, 815; see also id. at pp. 813814; People v. Welch, supra, 5 Cal.4th 228, 234235; People v. Wills (2008) 160 Cal.App.4th 728, 736.) In sum, forfeited challenges are those that involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner. [Citation.] (People v. Ayala (2007) 155 Cal.App.4th 604, 613.)

Defendants challenge in the present case is one that we may resolve as a matter of law without resort to the particular evidence in the record below. Further, if the minute order impermissibly added conditions of probation that were not articulated by the juvenile court, the disposition is unauthorized. Finally, defendant was placed in an untenable position by the courts pronouncement of some conditions on the record, followed by the subsequent addition of conditions in the minute order. The defense had no notice of the contemplated additional but undefined conditions, and thus no reason or basis to object to them at the dispositional hearing.[3] Under the circumstances, we find that defendants claim in this appeal of improper inclusion of probation conditions in the minute order was not forfeited by the failure to raise it in juvenile court. (In re Sheena K., supra, 40 Cal.4th 875, 885889; In re Justin S., supra, 93 Cal.App.4th 811, 813815.)

II. The Addition of Probation Conditions in the Minute Order.

We proceed to the merits of the issue. We must consider the trial courts oral pronouncement of judgment controlling to the extent it differs from the minute order. (People v. Mitchell, supra, 26 Cal.4th 181, 185.) [T]he clerks minutes must accurately reflect what occurred at the hearing. (People v. Zackery, supra, 147 Cal.App.4th 380, 388.) Here, none of the conditions challenged by defendant was either recommended in the dispositional report or imposed by the juvenile court at the hearing.

We realize that conditions may be included in an order of probation that were not orally communicated to the defendant personally by the court. [P]robation is an act of clemency which imposes no penalties unless the conditions of probation are broken [citation]. The fact a person is granted probation, rather than a pardon, gives rise to the implication there are conditions. (People v. Thrash (1978) 80 Cal.App.3d 898, 901.) Thus,  conditions [of probation] 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. [Citation.] (In re Frankie J. (1988) 198 Cal.App.3d 1149, 1155; see also In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373.) Further, where the court is required by law to impose a certain minimum term or fee as punishment for a criminal offense but fails to do so, the abstract of judgment or minute order may be amended or corrected to add that provision. (See People v. Sanchez (1998) 64 Cal.App.4th 1329, 13311332; People v. Hong (1998) 64 Cal.App.4th 1071, 10741076; People v. Barriga (1997) 54 Cal.App.4th 67, 6970.)

But in the case before us, the added probation conditions were neither mandatory nor were they enumerated in the probation report. They were also not the  usual terms and conditions of probation that would have been imparted to defendant on a preprinted form or by counsel. (In re Frankie J., supra, 198 Cal.App.3d 1149, 11541155.) Nothing in the record indicates to us that defendant was in any way aware of the restrictions specifically designed to apply to his case, but which were not mentioned by the juvenile court. Further, the added conditions were not gang conditions that, according to the juvenile courts express admonishment, defendant would be given later. They were entirely new, discretionary conditions that were unilaterally imposed in the minute order. (In re Pedro Q., supra, 209 Cal.App.3d 1368, 1373.) Finally, the omission of the conditions cannot be considered a clerical error that was subject to correction or alteration in the probation order. (Cf. People v. Sanchez, supra, 64 Cal.App.4th 1329, 13311332; People v. Hong, supra, 64 Cal.App.4th 1071, 10751076; People v. Barriga, supra, 54 Cal.App.4th 67, 6970; People v. Beck (1993) 17 Cal.App.4th 209, 214.)

Absent any reference to the conditions in the oral pronouncement of judgment, the discretionary addition of those provisions to the minute order was invalid. (See People v. Karaman (1992) 4 Cal.4th 335, 348349; People v. Mesa (1975) 14 Cal.3d 466, 471472; In re Candelario (1970) 3 Cal.3d 702, 705706.) Accordingly, the imposition of the five challenged conditions must be stricken as inconsistent with the oral pronouncement of judgment. (People v. Zackery, supra, 147 Cal.App.4th 380, 389.)[4]

DISPOSITION

The judgment is modified to strike the five juvenile probation conditions added to the minute order. The cause is remanded to the juvenile court with directions to so correct the order. The judgment is affirmed in all other respects.

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[1] The court made no findings on four additional counts charged against defendant.

[2] In light of the issues raised in this appeal which relate only to the imposition upon defendant of various probation conditions, our recitation of the facts that relate to the underlying offenses is unnecessary. We note only that defendant seems to be inclined to beat up his girlfriend.

[3] For instance, defendant was not able to determine if the conditions were properly tailored specifically to meet his needs as a juvenile. (See In re Tyrell J. (1994) 8 Cal.4th 68, 83.)

[4] In light of our conclusion we need not confront defendants contention that the lack of a knowledge element rendered three of the added conditions invalid.