California Court of Appeal Mar 18, 2026 No. E084750Unpublished
Filed 3/18/26 P. v. Gormley 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E084750
v. (Super.Ct.No. BAF2200978)
BRIAN EDWARD GORMLEY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jorge C. Hernandez,
Judge. Affirmed as modified.
Matthew M. Johnson, 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, A. Natasha Cortina and Genevieve
Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
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I.
INTRODUCTION
A jury convicted defendant and appellant Brian Edward Gormley of felony
condition in an arbitrary way, the defendant can file a petition for modification of his
probation condition.].) Thus, the probation condition did not improperly delegate judicial
authority to the probation officer.
Defendant’s reliance on People v. Cervantes (1984) 154 Cal.App.3d 353 is
misplaced. There, the trial court improperly imposed a condition the defendant “ ‘pay
restitution in an amount and manner to be determined by the Probation Officer.’ ” (Id. at
p. 356.) The appellate court agreed the trial court impermissibly delegated away its
authority to set restitution to the probation department. (Id. at pp. 356-357, 358.) But
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here, the challenged condition did not delegate any court authority. It simply empowered
probation to supervise and enforce the substantive conditions imposed by the trial court.
Defendant’s reliance on In re Shawna M. (1993) 19 Cal.App.4th 1686 (Shawna
M.) and In re Moriah T. (1994) 23 Cal.App.4th 1367 (Moriah T.) is also misplaced. Both
of those cases involved parental visitation rights. Sole discretion in visitation decisions in
child custody cases cannot be delegated to social workers or the department of children’s
services. In Shawna M., the appellate court invalidated a visitation order that vested a
social worker sole discretion to determine whether a mother could visit her child, a ward
of the court. (Shawna M., supra, at pp. 1688-1691.)
In Moriah T., the Court of Appeal held that “[o]nly when a visitation order
delegates to [a third-party] the absolute discretion to determine whether any visitation
occurs does the order violate the [applicable] statutory scheme and separation of powers
doctrine.” (Moriah T., supra, 23 Cal.App.4th at p. 1374.) In fashioning a visitation
order, the court may delegate the responsibility of managing the details of visitation—
including time, place, and manner—but not the decision whether visitation will occur.
(Ibid.) In Moriah T., the appellate court upheld an order entered at an 18–month review
hearing for the father to visit “ ‘regularly’ ” with the children “ ‘consistent with the[ir]
well-being . . . and at the discretion of [the social services agency] as to the time, place,
and manner.’ ” (Id. at p. 1371.) Because the juvenile court’s order mandated regular
visitation, the social services agency was not given absolute discretion to decide whether
visits would occur. (Ibid.) The appellate court concluded it was not an improper
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delegation of authority to allow the social services agency to determine the frequency and
length of visits when the order provided for regular visitation. (Id. at pp. 1376-1377.)
However, in custody and dependency cases where parental rights have not been
terminated, the court is charged with preserving and strengthening the child’s family ties
whenever possible and reunifying the minor with his or her family. (Welf. & Inst.Code,
§ 202, subd. (a).) Minors under the jurisdiction of the juvenile court who are in need of
protective services “shall receive care, treatment, and guidance consistent with their best
interest and the best interest of the public.” (Welf. & Inst.Code, § 202, subd. (b).)
Here, we consider a condition affecting the terms of probation in a criminal case
involving felony vandalism. The court is not charged with attempting reunification or
insuring the best interests of the child or family. None of the parties in the present case is
a ward of the court. The policy considerations present in Shawna M. and Moriah T. are
not the same as in this case.
Defendant, in support of his contention that the probation condition improperly
delegates the trial court’s authority to the probation officer, also relies on Smith, supra, 79
Cal.App.5th 897. We are not persuaded by defendant’s reliance on Smith. In Smith, the
trial court imposed a probation condition requiring the defendant to “ ‘participate in any
treatment/therapy/counseling program, including residential, as directed by the probation
officer.’ ” (Id. at p. 901.) The appellate court first determined that the condition was not
an improper delegation of authority for failing to specify the nature of the treatment,
counseling, or therapy. (Id. at pp. 902-903.) Rather, when considering the probation
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condition “in context” with the record, including another probation condition and the
court’s oral comments, the appellate court concluded that “the condition passes muster.”
(Id. at pp. 902-903.) However, the appellate court nevertheless found an unconstitutional
delegation of authority because the probation condition “delegate[d] to the probation
officer the discretion to decide whether [the defendant] must attend a residential program,
as opposed to an outpatient program.” (Id. at p. 903.) The appellate court reached this
conclusion based on the fact that “[a] residential program can impose far greater burdens
on a person’s liberty interests than an outpatient program” and, “[g]iven the significant
liberty interests at stake, a court—not a probation officer—must make the decision to
require a defendant to attend residential treatment. [Citations.]” (Ibid.) Unlike the
probation condition at issue in Smith, which delegated to the probation officer the
authority to determine whether a residential program, as opposed to an outpatient
program, would be required, the probation condition in the instant case did not give the
probation officer any such authority.
In sum, in view of the record in this case, defendant fails to establish that the
challenged probation condition constituted an unconstitutional delegation of authority by
the trial court to the probation officer.
We, however, agree with the parties that the trial court erred when it ordered
defendant to pay the cost of any counseling or rehabilitation/treatment program, and thus,
the challenged probation condition must be modified.
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“[A] trial court may order a defendant to pay for reasonable costs of probation;
however, such costs are collateral and their payment cannot be made a condition of
probation.” (Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321 (Brown).)
Instead, the court must “issue a separate order for the payment of such costs.” (Id. at
p. 322.) “Moreover, before ordering a defendant to pay costs of probation, the court must
make an inquiry and determination of the defendant’s ability to pay and the amount of
payment.” (Ibid.; see § 1203.1b, subd. (a).)
Here, the challenged condition requires defendant to participate and complete “at
his own expense” in a counseling or a rehabilitation/treatment program. The requirement
that defendant pay for the counseling or rehabilitation/treatment program is an integral
part of the challenged condition. As such, payment of the costs and/or fees is not
collateral, but a condition of probation. (See Brown, supra, 101 Cal.App.4th at p. 321.)
The court must make an inquiry and determination regarding defendant’s ability to pay
and issue a separate order for the payment of such costs and/or fees. (Id. at p. 322.)
Accordingly, the challenged condition should be modified to delete the portion of
the condition requiring defendant to be responsible for paying costs and/or fees. (People
v. Flores (2008) 169 Cal.App.4th 568, 579 [modifying probation to eliminate any
requirement of payment of costs as a condition].)
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IV.
DISPOSITION
The challenged probation condition should be modified to delete the portion of the
condition requiring defendant to be responsible for the payment of the costs/fees of any
counseling or rehabilitation/treatment program. The court is directed to issue a separate
order for the payment of such costs and fees. Before the court may order defendant to
pay any or all costs associated with his probation, it must make an inquiry and
determination as to his ability to pay and determine the amount of payment. (§ 1203.1b,
subd. (a).) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J. We concur:
RAMIREZ P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a probation condition requiring a defendant to pay for counseling or treatment as a condition of probation is improper, as such costs must be addressed via a separate order following an ability-to-pay determination. The court otherwise affirmed the probation condition, finding it did not constitute an unconstitutional delegation of judicial authority to the probation officer.
Issues
Whether a probation condition requiring participation in counseling or treatment as directed by a probation officer violates the separation of powers doctrine.
Whether a probation condition requiring a defendant to pay for the costs of counseling or treatment as a condition of probation is legally permissible.
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“[A] trial court may order a defendant to pay for reasonable costs of probation; however, such costs are collateral and their payment cannot be made a condition of probation.”
“The challenged condition should be modified to delete the portion of the condition requiring defendant to be responsible for paying costs and/or fees.”