Filed 7/15/13 P. v. Inscore CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D062644

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCE321377)

TARA PAIGE INSCORE,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, John M.

Thompson, Judge. Affirmed as modified.



         Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H.

Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
       Tara Paige Inscore entered into a plea agreement that included two years of local

custody followed by two years of mandatory supervision. She objects to one of the

conditions of her supervision, namely that she obtain her probation officer's approval as

to her choice of residence. Inscore argues the condition is overly broad and thus violates

her constitutional right to travel and freedom of association.1 We agree that the

condition is not tailored narrowly enough to protect Inscore's constitutional rights and

strike it from the order. She further contends that imposing a booking fee under

Government Code section 29550.1 without a finding that she has the ability to pay is

error under equal protection principles. Inscore, however, forfeited any challenge to the

booking fee by not making it at the sentencing hearing. We affirm the order as modified.

                                          FACTS

       In April 2012 Inscore had an altercation with another woman in a parking lot.

Inscore abandoned the car she was driving and fled the scene on foot before police

officers arrived. Officers discovered the car was stolen and found drug paraphernalia

inside. Inscore was later identified because she had left her cell phone at the scene. On

July 23, 2012, Inscore pleaded guilty to the unlawful taking or driving of a vehicle

(Veh. Code, § 10851, subd.(a)) and admitted two prison prior convictions within the

meaning of Penal Code sections 667.5, subdivision (b) and 668. As a part of the plea

agreement, remaining counts and allegations were dismissed. In an interview on


1     A substantially similar issue is currently before the California Supreme Court.
(People v. Schaeffer (2012) 208 Cal.App.4th 1, review granted October 31, 2012,
S205260.)

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August 6, 2012, Inscore admitted she was using methamphetamine about every day at the

time of the offense and that it likely affected her judgment.

       On August 22, 2012, the court imposed the agreed-upon split sentence of two

years of local custody, followed by two years of mandatory supervision.2 In addition, the

court ordered an $800 restitution fine, $1,512.24 in restitution to the victim,3 a $154

criminal justice administration fee (booking fee), a $40 court operations assessment, and

a $30 criminal conviction assessment. Inscore indicated that she had an opportunity to

review, with her counsel, all of the terms of the mandatory supervision. She told the

court that she understood them and agreed to be bound by them. She made no objections

at the sentencing hearing.

                                      DISCUSSION

                                              I

                                    Choice of Residence

       In April 2011 the Governor signed the Criminal Justice Realignment Act

(Realignment), which, among other things, drastically changed the sentencing options

available to trial courts. (Stats. 2011, ch. 15, § 1.) Realignment allows the courts to

sentence defendants convicted of certain felonies, including the crimes Inscore

committed, to serve their time in county jail rather than state prison. (Pen. Code, § 1170,

subd. (h).) The Legislature intended to foster community-based corrections programs



2      The court found Inscore was not a suitable candidate for probation.

3      Inscore stipulated to the amount of victim restitution.
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and facilitate felons' reintegration into society. (Pen. Code, § 17.5, subd. (a)(3)-(5).)

Realignment gives courts the discretion to split a defendant's sentence so that part will be

served under the mandatory supervision of a probation officer rather than in the county

jail. (Pen. Code, § 1170, subd. (h)(5).) As noted ante, Inscore received such a sentence.

       While mandatory supervision is not the same as probation, the applicable code

section provides, "defendant shall be supervised by the county probation officer in

accordance with the terms, conditions, and procedures generally applicable to persons

placed on probation." (Pen. Code, § 1170, subd. (h)(5)(B)(i).) Thus, we look to

established law on probation conditions to address Inscore's challenge.

       A defendant's constitutional challenge to his or her probation condition is not

forfeited despite his or her failure to object at the time the condition was imposed. (In re

Sheena K. (2007) 40 Cal.4th 875, 879.) We review constitutional challenges to probation

conditions de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) A probation

condition is invalid if 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." ' " (People v. Olguin

(2008) 45 Cal.4th 375, 379, quoting People v. Lent (1975) 15 Cal.3d 481, 486.) All three

parts of this test must be satisfied before a reviewing court will invalidate a condition of

probation. (Olguin, supra, at p. 379.)

       The first two prongs are easily met: nothing in the record indicates Inscore's

residence was related to her crime; and choosing a residence is not in itself criminal

conduct. As to the third prong, the People assert oversight of Inscore's residence will

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help rehabilitate her by ensuring she is not living in a place frequented by drug users.

There is evidence in the record that Inscore struggles with drug abuse and it adversely

affects her judgment. Any connection, however, between her choice of residence and her

potential for future criminality is too attenuated to pass constitutional muster.

       When a probation condition imposes limitations on a person's constitutional rights,

it must be closely tailored to avoid being invalidated as unconstitutionally overbroad.

(People v. Olguin, supra, 45 Cal.4th at p. 384, quoting In re Sheena K., supra, 40 Cal.4th

at p. 890.) A condition that Inscore not knowingly associate with people who are using

or selling narcotics would have been a much more narrowly tailored condition to affect

the People's proffered purpose. We also note that the "ORDER GRANTING

MANDATORY SUPERVISION" form lists the residence condition in the section titled

"VIOLENCE AND SEX CONDITIONS," which does not apply here. While the

probation officer presumably would not act capriciously, that alone does not permit the

court to unnecessarily limit Inscore's rights. We conclude the condition requiring Inscore

to obtain her probation officer's approval as to her residence was overly broad, and we

strike the condition from the order.

                                              II

                                        Booking Fee

       It is now settled law that "a defendant who fails to contest the booking fee when

the court imposes it forfeits the right to challenge it on appeal." (People v. McCullough

(2013) 56 Cal.4th 589, 591.) Inscore contends that at the time of her sentencing her

attorney had no reason to object because McCullough had not yet been decided. At that

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time, however, there were opinions holding an objection was required. (See, e.g., People

v. Hodges (1999) 70 Cal.App.4th 1348, 1357 [forfeiture doctrine applicable] and cases

cited therein.) As our Supreme Court has held, "all 'claims involving the trial court's

failure to properly make or articulate its discretionary sentencing choices' raised for the

first time on appeal are not subject to review." (People v. Smith (2001) 24 Cal.4th 849,

852, citing People v. Scott (1994) 9 Cal.4th 331, 353.) This forfeiture rule exists "to

reduce the number of errors committed in the first instance" (Scott, at p. 353), and " 'the

number of costly appeals brought on that basis.' " (Smith, supra, at p. 852, quoting

People v. Welch (1993) 5 Cal.4th 228, 235.) Inscore was represented at sentencing,

stipulated to victim restitution almost 10 times higher than the booking fee, and made no

objections to fees. We conclude this discretionary sentencing choice is therefore not

subject to review on appeal.

                                       DISPOSITION

       The trial court is directed to modify the judgment granting mandatory supervision

so that condition 7g is stricken. In all other respects, the order is affirmed.




                                                                         MCCONNELL, P. J.

WE CONCUR:

NARES, J.

O'ROURKE, J.




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