People v. GARDINEER

California Court of Appeal Mar 20, 2000 No. C032812Published

Before: Sims

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Holding. The court held that a defendant waives a challenge to a probation condition on appeal by failing to object to it at the time of imposition, and that restitution fines cannot be unlawfully increased upon revocation of probation.

Issues

Whether a probation condition requiring a defendant to 'observe good conduct' is unconstitutionally vague.
Whether a defendant waives a challenge to a probation condition by failing to object at the time of imposition.
Whether the trial court unlawfully increased the amount of restitution fines upon revocation of probation.

Disposition. Modified and affirmed

Quotations verified verbatim against the opinion

“defendant waived any defect in the contested condition of probation because he failed to object to it when it was imposed.”

“A defendant who contends a condition of probation is constitutionally flawed still has an obligation to object to the condition on that basis in the trial court in order to preserve the claim on appeal.”

“we shall accept the Attorney General’s concession that the amounts of defendant’s restitution fines were unlawfully increased.”

Synopsis

[Opinion certified for partial publication.*]

Opinion

SIMS, Acting P. J.

Defendant Michael Feeney Gardineer was sentenced to state prison after the trial court revoked his probation because he violated a domestic violence restraining order.

Defendant appeals, contending (1) the condition of probation that he violated, which required him to “observe good conduct,” is unconstitutionally vague; (2) there was insufficient evidence that he knew of the terms and

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conditions of the restraining order so that he could not have willfully violated it; and (3) the trial court unlawfully increased the amount of his restitution fine upon revocation of probation.

In the published portion of the opinion, we shall conclude defendant waived any defect in the contested condition of probation because he failed to object to it when it was imposed. In the unpublished portion, we shall conclude substantial evidence shows defendant knew of the restraining order, and we shall accept the Attorney General’s concession that the amounts of defendant’s restitution fines were unlawfully increased. We shall therefore modify the amounts of the restitution fines but otherwise affirm the judgment.

Facts and Procedural Background

On May 21, 1998, pursuant to a negotiated plea agreement, defendant pleaded guilty to a charge of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)).

On June 25, 1998, imposition of judgment was suspended, and defendant was placed on probation for a period of 60 months, pursuant to various terms and conditions, which included the following: (1) defendant was ordered to “observe good conduct,” and (2) defendant was ordered to pay a $200 restitution fine. Defendant did not object to these conditions.

On June 22, 1999, the Amador County Probation Department filed a request to revoke defendant’s probation on the ground he violated a domestic violence restraining order

(Ciner v. Gardineer

(Super. Ct. San Joaquin County, 1998, No. 303500)) by having contact with victim Liz Ciner. As relevant, the restraining order, issued April 9, 1998, restrained defendant from contacting Ciner.

People v. GARDINEER

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