Filed 4/22/15 P. v. Young CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065404

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD250031)

JAMES EDWARD YOUNG III,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Louis R.

Hanoian, Judge. Affirmed.

         Thomas Jefferson School of Law and Alex David Kreit, under appointment by the

Court of Appeal, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Charles C. Ragland and Stacy Alicia Tyler, Deputy Attorneys General, for Plaintiff and

Respondent.
       James Edward Young III appeals from a judgment following his jury conviction of

felony vandalism under Penal Code1 section 594, subdivisions (a) and (b)(1), and

resisting a peace officer under section 148, subdivision (a)(1). Young contends the court

abused its sentencing discretion by including a stayed 365-day commitment as a term of

his probation based on its mistaken understanding of the effect of giving him a lesser

custody term. The People respond that Young forfeited the claim by failing to object to

the court's imposition of the probation condition. We agree Young's silence resulted in a

forfeiture. Because his sentence is not unauthorized, we affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

       The facts of the underlying case are not materially disputed. Two eyewitnesses

observed Young breaking the windows of a furniture store and reported it to the police.

After police arrived on the scene, Young "stiffened up his muscles [and] he braced his

body" as the police tried to place him in the back of the patrol car. Young was convicted

on both counts.

       Prior to sentencing, Young submitted a statement in mitigation requesting the

court declare his felony vandalism charge a misdemeanor. Thereafter, the probation

officer recommended Young be placed on felony probation to the court and sentenced to

180 days in local custody, stayed pending successful completion of probation.

       At his February 2014 sentencing hearing, Young renewed his request to reduce his

felony conviction to a misdemeanor pursuant to section 17, subdivision (b). The People



1      All statutory references are to the Penal Code.
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agreed with the probation officer's recommendation. The court declined to reduce the

felony conviction to a misdemeanor because Young had only paid a small portion of the

restitution he was ordered to pay and because he did not show any remorse for the

offense. The court observed that even after his conviction, Young maintained he did not

commit the crime. It granted felony probation to the court and suspended imposition of

the sentence for three years.

       As a term of probation, the People and the probation officer agreed that a stayed

180-day local custody sentence pending successful completion of probation was

appropriate. However, the trial court remarked "this isn't a borderline between a

misdemeanor and a felony vandalism. This is a flat-out felony . . . the $3,000 worth of

damage . . . is substantial." The court did not agree with the probation officer because

"that would suggest that somebody shouldn't give [Young] 365 days as a condition of

probation in the future if [he] violate[d] probation." It announced it would not so commit

Young to the sheriff and stay the time: "I don't do that because that would suggest that I

am somehow limited or somebody else would be limited in how much time you ought to

get if you violate the terms of probation. [¶] So I don't stay 180 days because that would

suggest that somebody shouldn't give you 365 days as a condition of probation in the

future if you violate probation, and I'm just going to leave that question open." The court

explained "if you're placed back on probation, it could be up to 365 days in county jail as

a condition of probation or you could be denied probation altogether and sent to prison."

Moments later, the court stated, "Oh, what the heck. I'll—in the event this is a mistake in

terms of if I don't declare a certain amount of custody stayed that that makes it a

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misdemeanor automatically, I'm going to commit you to the sheriff for 365 [days],

stayed." Young did not object during or after these remarks.

      The parties proceeded to discuss other terms of probation, during which defense

counsel asked for clarification about the need for an anger management condition. The

court responded it would not impose that condition.

      The following colloquy then occurred:

      "The Court: Did you go over all the conditions with [defense counsel]?

      "[Young]: Yes, sir, I did.

      "The Court: Do you understand all the terms and conditions?

'     "[Young]: Yes, sir.

      "The Court: Any questions you want to ask me about them?

      "[Defense counsel]: Not currently, no sir.

      "The Court: With the modifications that I made, do you accept probation under

those terms?

      "[Young]: Yes, sir, I do.

      "The Court: That's the court's order."

                                   DISCUSSION

      Young contends the court abused its discretion because it imposed a 365-day

commitment based solely on the mistaken belief that its failure to do so would convert




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Young's vandalism conviction to a misdemeanor.2 The People respond that Young

forfeited his challenge to the probation condition by failing to object to its imposition

during the sentencing hearing. They maintain that even if Young's claim was not

forfeited, Young is not entitled to reversal because there is no reasonable probability "that

the error affected the outcome."

       Probation is reserved for convicted criminals who pose minimal risk to public

safety and whose conditional release will promote rehabilitation and reformation.

(§ 1203.1, subd. (j); People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) The court will

routinely impose conditions of probation when it " 'determines, in an exercise of its

discretion, that a defendant who is statutorily eligible for probation is also suitable to

receive it.' " (Carbajal, at p. 1120, quoting People v. Welch (1993) 5 Cal.4th 228, 230

(Welch).) "In the granting of probation, the Legislature has declared the primary

considerations to be: 'the nature of the offense; the interests of justice, including

punishment, reintegration of the offender into the community, and enforcement of

conditions of probation; the loss to the victim; and the needs of the defendant.' "

(Carbajal, at p. 1120, quoting § 1202.7.)

       Courts have broad discretion to determine if and under what conditions probation

is appropriate, and to determine which conditions of probation will most effectuate



2      Young further contends the trial court's decision was "not an exercise of informed
discretion, and is subject to reversal even though there may be substantial evidence to
support that order." The case cited for this proposition—Mark T. v. Jamie Z. (2011) 194
Cal.App.4th 1115—is rooted in a child custody dispute with no corresponding criminal
law principle.
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rehabilitation of the criminal convicted and protect public safety. (§ 1203.1, subd. (b);

People v. Carbajal, supra, 10 Cal.4th at p. 1120; see generally Cal. Rules of Court, rule

4.414.) However, exercise of its sentencing discretion must not be arbitrary or capricious

and must be "consistent with the letter and spirit of the law, and . . . based on

'individualized consideration of the offense, the offender, and the public interest.' "

(People v. Sandoval (2007) 41 Cal.4th 825, 847, quoting People v. Superior Court

(Alvarez) (1997) 14 Cal.4th 968, 978, superseded by statute on other grounds as indicated

in People v. Lynall (2015) 233 Cal.App.4th 1102.) A court abuses its discretion where it

bases its decision on irrelevant circumstances or otherwise relies on an improper basis for

decision. (Sandoval, at p. 847.) And, a failure to exercise discretion in some

circumstances may be an abuse of discretion. (See People v. Benn (1972) 7 Cal.3d 530,

535 [new sentencing hearing granted where the "sentencing judge did not appreciate the

scope of [his] judicial discretion" and thus failed to exercise its discretion in accordance

with the applicable law in granting a motion to strike a prior conviction]; cf. People v.

Gillard (1997) 57 Cal.App.4th 136, 165 [remand appropriate where trial court's

comments suggested it might have imposed a lower sentence if aware of its discretion to

strike a prior strike conviction].)

       However, the right to challenge a condition of probation is not unrestricted.

Despite identifying an error, the defendant must also preserve the issue for appellate

review. (See People v. Scott (1994) 9 Cal.4th 331, 352, fn. 15 (Scott), citing People v.

Daly (1959) 168 Cal.App.2d 169, 173-174 ["Any error in permitting a particular



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judge . . . to impose a sentence is waived by the failure to object in the superior court"].)

"[L]ack of a timely and meaningful objection forfeits or waives the claim." (Scott, at

p. 351.) Thus, "[s]entences which, though otherwise permitted by law, were imposed in a

procedurally or factually flawed manner" are forfeited on appeal absent objection. (Id. at

p. 354.) Fairly so, "counsel is charged with understanding, advocating, and clarifying

permissible sentencing choices at the hearing. Routine defects in the court's statement of

reasons are easily prevented and corrected if called to the court's attention." (Id. at p.

353.) As such, forfeiture should apply where "the trial court[] fail[ed] to properly make

or articulate its discretionary sentencing choices. Included in this category are cases in

which the stated reasons allegedly do not apply to the particular case." (Ibid.)

       Within this principle is the forfeiture of claims against alleged errors or omissions

made at the time probation conditions are considered. (Welch, supra, 5 Cal.4th at pp.

234-235.) The California Supreme Court in Welch expressly rejected the notion that an

unauthorized sentence results where a court in imposing a probation condition "exercised

its otherwise lawful authority in an erroneous manner under the particular facts." (Welch,

at p. 236.) Rather, "[a] timely objection allows the court to modify or delete an allegedly

unreasonable condition or to explain why it is necessary in a 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." (Welch, supra, 5 Cal.4th at p. 235.) Applying the forfeiture rule

to claims involving discretionary sentencing choices is appropriate because

"characteristically, the trial court is in a considerably better position . . . to review and

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modify a sentence option or probation condition that is premised upon the facts and

circumstances of the individual case." (In re Sheena K. (2007) 40 Cal.4th 875, 885.)

       Responding to the People's assertion of forfeiture, Young contends the issue

presented is a pure question of law "that is 'obvious and correctable without reference to

any factual issues.' " This amounts to a claim that his sentence is " 'unauthorized,' " or

" 'in excess of jurisdiction,' " which is purely a question of law that "can be resolved

without reference to the particular sentencing record developed in the trial court."

(Welch, supra, 5 Cal.4th at pp. 235-236.) Young relies on People v. Smith (2001) 24

Cal.4th 849, 852. In Smith, the California Supreme Court held the erroneous imposition

of a parole revocation fine "present[ed] a pure question of law with only one answer."

(Id. at p. 853.) At issue was a rule under which a "trial court ha[d] no choice and must

impose a parole revocation fine equal to the restitution fine whenever the 'sentence

includes a period of parole.' " (Ibid., quoting § 1202.45.) The court had properly

imposed a $5,000 restitution fine under section 1202.4, but erroneously imposed a parole

revocation fine of $200, an amount different than the restitution fine, in violation of

section 1202.45. (Smith, 24 Cal.4th at p. 853.) Despite the People's failure to object, the

court reasoned this error could be corrected on appeal because the sentencing conditions

" 'could not lawfully be imposed under any circumstance in the particular case.' " (Smith,

at p. 852, quoting Scott, supra, 9 Cal.4th at p. 354.)

       Conversely, Young does not argue the stayed 365-day commitment in local

custody could not be imposed under any circumstance. Here, the one-year stayed

commitment is within the range of possible sentencing options available to the court, and

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subject to its discretion. (See § 1203.1.) At his sentencing hearing Young had each

condition of probation explained and was asked whether he understood and agreed to the

terms before the sentence was imposed. Young's attorney sought clarification about

conditions when she felt it was necessary. This shows defense counsel's opportunity and

ability to "understand[], advocat[e], and clarify[] permissible sentencing choices at the

hearing." (See Scott, supra, 9 Cal.4th at p. 353.) By failing to object, Young forfeited

the claim and cannot argue it for the first time on appeal. (Id. at p. 352, fn. 15.)

       Young asks us to exercise our discretion to review the issue "in the interest of

judicial economy." But "discretion to excuse forfeiture should be exercised rarely and

only in cases presenting an important legal issue." (In re S.B. (2004) 32 Cal.4th 1287,

1293.) We perceive no such circumstance here. Accordingly, we affirm the judgment.




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                                  DISPOSITION

      The judgment is affirmed.



                                                O'ROURKE, J.

WE CONCUR:


McDONALD, Acting P. J.


IRION, J.




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