California Court of Appeal Nov 5, 2024 No. E081852Unpublished
Filed 11/5/24 P. v. Ropele CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E081852
v. (Super.Ct.No. RIF2000780)
ANDREW HARRISON ROPELE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Timothy J. Hollenhorst,
Judge. Affirmed with directions.
Stephanie A. Lickel, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and
Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and Respondent.
1
After pleading guilty to vandalism and assault with a deadly weapon, Andrew
Harrison Ropele was placed on probation subject to various terms and conditions,
including that he “[p]articipate and complete at [his] expense any counseling,
rehabilitation/treatment, program deemed appropriate by [his] probation officer.” On
1 The People contend that Ropele forfeited this challenge by failing to raise it in the trial court. Ropele’s arguments are not forfeited, because it is a facial challenge that “does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts.” (In re Sheena K. (2007) 40 Cal.4th 875, 885.) 4
determinations are essentially judicial functions.” (Ibid.) “While the probation officer
may properly specify the details necessary to effectuate the court’s probation conditions,
it is the court’s duty to determine the nature of the requirements imposed on the
probationer. [Citations.]” (People v. Smith (2022) 79 Cal.App.5th 897, 902 (Smith).)
Ropele’s counseling condition does not identify the type of treatment that Ropele
is required to complete, and it instead delegates to Ropele’s probation officer unlimited
discretion to determine and implement both the type of treatment and the amount of
treatment appropriate for Ropele’s rehabilitation, not simply the details of treatment. The
trial court’s imposition of the counseling condition is therefore an improper delegation of
authority.
The People rely on Smith, arguing that the trial court’s imposition of the
counseling condition was not improper. In Smith, the probation condition at issue
required the defendant to “‘participate in any treatment/therapy/counseling program,
including residential, as directed by the probation officer.’” (Smith, supra, 79
Cal.App.5th at p. 902.) The People contend that the probation condition at issue in Smith
is essentially the same as the counseling condition in this case “with one exception: it
allowed the probation officer to decide whether the defendant would complete a
residential or outpatient program.” The People argue that because Smith otherwise
upheld the probation condition after reversing “the authorization for the probation officer
to determine whether residential treatment [was] required,” we should likewise uphold
Ropele’s counseling condition as a proper delegation of authority. (Id. at p. 903.)
5
The People’s argument misinterprets Smith, and the case actually supports Ropele.
In Smith, the defendant argued that the requirement that he “‘participate in any
treatment/therapy/counseling program, including residential, as directed by the probation
officer’” was vague, overbroad, and an improper delegation of authority. (Smith, supra,
79 Cal.App.5th at p. 902.) The Court of Appeal concluded that when interpreted in the
context of other conditions of the defendant’s probation, the challenged condition
required only “treatment for substance abuse” and left “the probation officer to oversee
the details” of that treatment. (Id. at p. 903.) So interpreted, the condition was not
unconstitutionally vague or overbroad. (Ibid.) But the court further concluded that, even
as narrowly interpreted to require only substance abuse treatment, the condition violated
the separation of powers doctrine because it delegated to the probation officer the
discretion to decide whether the defendant must attend a residential program, as opposed
to an outpatient program. (Ibid.)
Ropele’s counseling condition delegates far more authority to the probation officer
than the unconstitutional condition in Smith. Under the counseling condition, the
probation officer could require Ropele to complete any type or amount of treatment,
including residential or outpatient treatment for substance abuse or for anything else. The
People do not propose any way of saving the counseling condition by narrowly
interpreting it in light of other conditions, and we are aware of none. Smith therefore
compels the conclusion that the counseling condition constitutes an unconstitutional
delegation of authority.
6
DISPOSITION
The trial court is directed to modify the counseling condition by either specifically
identifying the type of treatment program(s) or striking the condition altogether. The
judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
RAMIREZ P. J.
McKINSTER J.
7
AI Brief
AI-generated · verify before citing
Holding. The court held that a probation condition requiring the defendant to participate in any counseling or treatment program deemed appropriate by a probation officer constitutes an unconstitutional delegation of judicial authority.
Issues
Whether a probation condition granting a probation officer discretion to select counseling or treatment programs constitutes an improper delegation of judicial authority.
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“We agree that the condition is an improper delegation of authority.”
“Ropele’s counseling condition does not identify the type of treatment that Ropele is required to complete, and it instead delegates to Ropele’s probation officer unlimited discretion to determine and implement both the type of treatment”