Filed 9/23/20 P. v. Wilson CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A158078
v.
ROBERT KALEOALOHA (Napa County Super. Ct.
WILSON, No. CR184364)
Defendant and Appellant.
In June 2019, a jury convicted Appellant Robert Kaleoaloha Wilson
(Appellant) of possession of ammunition by a prohibited person (Pen. Code,
§ 30305, subd. (a)).1 In August, the trial court suspended imposition of
sentence and placed Appellant on three years of formal probation on the
condition that he serve 60 days in jail. The court also imposed various fines,
fees, and other probation conditions.
On appeal, Appellant contends three probation conditions are
improper. First, probation condition 17 requires Appellant to “Enroll in and
successfully complete the Community Corrections Service Center program if
required by the Probation Officer. Your Probation Officer has the discretion
to release you from jail to participate in the program, and also can return you
1 The underlying facts are not relevant to the issues on appeal.
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to jail to serve any or all of the remainder of your term. If you successfully
complete the program you will not have [to] serve the remainder of your
term.” Second, probation condition 18 states, “If ordered to participate in the
Community Corrections Service Center program, as part of the program
requirement, you must submit to chemical testing and not use, consume or
possess any non-prescribed or illegal substances, including medical
marijuana, unless specifically authorized by the court.” Third, probation
condition 22 requires Appellant to “[e]nroll in, pay for, and successfully
complete an outpatient treatment program or a residential treatment
program if required and as chosen by the Probation Officer. Abide by all the
rules and obligations of the program. Do not leave the program without the
permission of the Probation Officer.”
Appellant contends, and respondent concedes, that probation conditions
17 and 22 improperly delegate judicial authority to the probation department
to determine whether Appellant is required to participate in the Community
Corrections Service Center program and/or a treatment program as
conditions of probation. We agree. (See People v. O’Neil (2008) 165
Cal.App.4th 1351, 1359 [“It is for the court to determine the nature of the
prohibition placed on a defendant as a condition of probation . . . .”]; People v.
Cervantes (1984) 154 Cal.App.3d 353, 358 [improper to delegate to probation
officer “propriety, amount, and manner of payment of restitution”]; cf. People
v. Penoli (1996) 46 Cal.App.4th 298, 308 [not an unlawful delegation of
judicial authority for the trial court to leave the selection of a “particular
program” to probation officer].) We also agree with the parties that probation
condition 18 must be stricken if condition 17 is stricken, because condition 18
presupposes imposition of the Community Corrections Service Center
program requirement.
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Respondent suggests “remand is . . . required for the trial court to
reconsider the challenged probation conditions.” Appellant argues probation
conditions 17 and 18 must be stricken with no remand for reconsideration
because the Community Corrections Service Center program was an
alternative to his jail sentence and he has already served the 60-day jail
sentence imposed in August 2019. He argues probation condition 22 should
be stricken with no remand for reconsideration as well, because much of his
probation term will have been completed by the time of a decision on appeal.
In the alternative, he argues the three probation conditions should be
stricken as part of any remand for reconsideration.
We will strike all three probation conditions and remand for
reconsideration. (See People v. Cervantes, supra, 154 Cal.App.3d at p. 361
[“set[ing] aside” improper probation condition regarding restitution and
remanding to trial court for exercise of discretion]; In re Ricardo P. (2019) 7
Cal.5th 1113, 1129 [affirming court of appeal decision “striking” improper
juvenile probation condition].) On remand, the trial court should not impose
any condition relating to the Community Corrections Service Center program
as an alternative to jail if Appellant has already completed his jail sentence.
The trial court should exercise its discretion regarding whether to require
treatment as a condition of probation.
DISPOSITION
Probation conditions 17, 18, and 22 are stricken from the trial court’s
judgment, and the matter is remanded for reconsideration as directed in this
decision.
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SIMONS, J.
We concur.
JONES, P.J.
NEEDHAM, J.
(A158078)
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