Filed 10/14/15 P. v. Shoemaker CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                       (Tehama)
                                                            ----




THE PEOPLE,                                                                                  C078354

                   Plaintiff and Respondent,                                    (Super. Ct. Nos. NCR88105,
                                                                                  NCR89073, NCR89074)
         v.

ROBERT LEE SHOEMAKER, JR.,

                   Defendant and Appellant.




         Defendant Robert Lee Shoemaker, Jr., appeals from judgment entered January 21,
2015, following the trial court’s revocation of his probation.
         Defendant initially challenged the trial court’s finding that he had violated
probation by failing to conduct himself as a good citizen, contending the condition was
unconstitutional on its face and void for vagueness. We requested supplemental briefing,
asking whether we have jurisdiction to hear this claim, noting that the trial court had
imposed the probation condition at issue during defendant’s March 17, 2014 sentencing
hearing, from which he had not appealed.

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       The Attorney General responded that defendant’s appeal was untimely. Defendant
filed a supplemental letter brief purporting to clarify that his challenge to the probation
condition is “to some degree an as-applied constitutional challenge because he is arguing
the clause is vague as applied to [his] conduct which formed the basis for the revocation
of his probation.” As we will explain, we lack jurisdiction to hear his original facial
challenge and find his as-applied challenge forfeited due to his failure to object to the
probation condition’s constitutionality in the trial court. Accordingly, we shall affirm.
                                     BACKGROUND
       On February 18, 2014, defendant entered into a negotiated disposition wherein he
pled guilty to the following offenses: making criminal threats and false imprisonment
(case No. NCR89074); failure to appear at a court hearing while released on bail (case
No. NCR89073); and possession of a controlled substance and being a felon in
possession of ammunition (case No. NCR88105). In exchange for his plea, it was agreed
he would receive a suspended prison sentence of seven years eight months and a grant of
probation.
       On March 17, 2014, the trial court sentenced defendant to an aggregate term of
seven years eight months, suspended execution of sentence, and placed defendant on
formal probation for five years. One of the conditions of defendant’s probation was that
he “obey all laws and conduct himself as a good citizen.” Defendant waived formal
reading of the terms and conditions of probation and later signed the probation order.
Defendant did not object to the condition at issue and did not appeal his sentence.
       On October 22, 2014, petitions for revocation of probation were filed, alleging
defendant had violated the order of probation, in that “Term 3 requires the defendant
shall obey all laws and conduct himself as a good citizen. [¶] On September 5, 2014, the
defendant admitted slapping his live-in girlfriend, and breaking her lattice fence.” The
court held a probation revocation hearing on November 18, 2014, at which defendant’s
girlfriend, the responding deputy, and defendant’s probation officer testified. The deputy

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testified that he responded to a call and learned that defendant and his girlfriend had an
argument that had turned physical. Defendant told the deputy that he had destroyed some
lattice in the backyard, his girlfriend became angry, hit him with a piece of lattice, and he
responded by slapping her. Defendant’s probation officer testified that she spoke with
defendant after the incident and defendant told her that his girlfriend had attacked him
with the lattice fence and he “smacked” her. Defendant’s girlfriend testified that she has
a temper problem and had thrown a piece of lattice at defendant. She said defendant did
not hit her and she did not tell the deputy that he did.
       The trial court made the following finding: “I am convinced that, indeed, he did
slap her. I question the credibility of Mrs. Shoemaker even though she tries to give us a
set of facts that are different from what I have heard from the other witnesses. The Court
is convinced by preponderance of the evidence that, indeed, the allegation is true, that the
defendant is in violation of probation by failing to conduct himself as a good citizen, and
the substance of that allegation is that he did, in fact, slap her, and I don’t know that it
matters he broke the lattice fence or who broke it. Quite frankly, the slapping is
sufficient. So I do find the defendant to be in violation of probation in all three cases.”
The trial court revoked defendant’s probation and sentenced him to state prison.
Defendant did not object to the constitutionality of the allegation or corresponding
probation condition at any time before, during, or after the hearing or at the subsequent
sentencing hearing. Defendant timely appealed.
                                        DISCUSSION
       As we described ante, defendant’s challenge is to the condition of probation
requiring that he conduct himself as a good citizen. In his opening briefing, he couched
his challenge to the condition as a facial challenge, arguing that because his challenge
raised “a pure issue of law” it was not forfeited on appeal by his admitted failure to object
to the condition in the trial court at the time of his probation revocation and sentencing.
After we questioned whether we had jurisdiction to hear this claim, given defendant’s

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failure to appeal the terms and conditions of his probation within 60 days of issuance of
the order of probation, he purported to clarify that his challenge to the probation
condition was also an as-applied challenge.
       We first discuss and find untimely defendant’s original claim that the condition is
unconstitutional on its face.
       An order granting probation is an appealable order. (Pen. Code, § 1237, subd. (a);
People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421; People v. Howard (1965)
239 Cal.App.2d 75, 75-77.) “In general, an appealable order that is not appealed
becomes final and binding and may not subsequently be attacked on an appeal from a
later appealable order or judgment. [Citations.] Thus, a defendant who elects not to
appeal an order granting or modifying probation cannot raise claims of error with respect
to the grant or modification of probation in a later appeal from a judgment following
revocation of probation. [Citations.]” (Ramirez, at p. 1421; People v. Vest (1974)
43 Cal.App.3d 728, 731; People v. Glaser (1965) 238 Cal.App.2d 819, 824 [if no appeal
taken from order granting probation, a later appeal from judgment entered after
revocation can only review fundamental jurisdictional defects].)
       Here, the trial court imposed the challenged probation condition at defendant’s
initial sentencing in March 2014. Although defendant could have appealed and
challenged the condition within 60 days after it was imposed (Cal. Rules of Court,
rule 8.406(a)(1)), he did not do so. Thus, his facial challenge to the probation condition
is untimely. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1138.) A timely notice of
appeal is “ ‘ “essential to appellate jurisdiction.” ’ ” (Ibid.) Without it, we cannot
consider the issue. “If a party fails to appeal an appealable order within the prescribed
time, this court is without jurisdiction to review that order on a subsequent appeal.”
(In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219.)
       We now turn to defendant’s newly modified constitutional argument, challenging
the condition at issue as applied. As we have noted, defendant did not object to the good

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citizen condition at any point during the revocation or subsequent sentencing hearings.
As a general rule, a defendant must first raise the issue in the trial court in order to
challenge a probation condition on appeal. (People v. Quiroz (2011) 199 Cal.App.4th
1123, 1127.) The exception to this forfeiture rule is where the challenge is to a “facial
constitutional defect in the relevant probation condition” and is “capable of correction
without reference to the particular sentencing record developed in the trial court” and is
not applicable to an as-applied challenge where the constitutional defects are correctable
only by examining factual findings in the record or remanding to the trial court for further
findings. (In re Sheena K. (2007) 40 Cal.4th 875, 887.)
       Here, the condition at issue also included the requirement that defendant obey all
laws, but the trial court relied instead on the good citizen requirement. Although the trial
court opined that the evidence of criminal battery may have been insufficient (suggesting
in error that the corpus delecti rule applied to preclude reliance on defendant’s
admissions to find criminal conduct), had defendant objected to the good citizen
requirement, the court would have been alerted to the need to consider further whether
defendant’s conduct was law abiding. Instead, it confined its analysis to whether
defendant’s slapping of his girlfriend in the face was good citizenship, and concluded it
was not. The court had no occasion to decide whether defendant’s admitted destruction
of property and domestic violence was criminal in nature.
       The rule of forfeiture applies to defendant’s as-applied challenge and he cannot
raise it for the first time on appeal. (In re Sheena K., supra, 40 Cal.4th at p. 889.)




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                                 DISPOSITION
     The judgment is affirmed.



                                                 /s/      , J.
                                             DUARTE, J.

We concur:



    /s/                 , Acting P. J.
BLEASE, J.



   /s/                  , J.
MAURO, J.




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