People v. Leith CA3

Filed 4/28/15 P. v. Leith CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C074381

Plaintiff and Respondent, (Super. Ct. No. 09F06020)

v.

TRAVIS WADE LEITH,

Defendant and Appellant.

Defendant Travis Wade Leith was convicted of offenses requiring registration as a sex offender. The trial court granted probation, and defendant appealed the conviction. Among other things, defendant argued that the trial court abused its discretion by imposing GPS monitoring as a condition of probation. (People v. Leith (May 13, 2014, C068237 [nonpub. opn.].) Two years after the trial court granted probation and while the judgment was on appeal in this court, the trial court modified the conditions of defendant’s probation under the recently enacted Chelsea King Child Predator Prevention

1

Act of 2010 (Chelsea’s Law) requiring defendant to participate in a sex offender management program, participate in polygraph examinations, waive his privilege against self-incrimination, and waive his psychotherapist-patient privilege.1 After the trial court modified the conditions of probation, this court affirmed the judgment, which included the unmodified conditions of probation. On appeal from the modification of the conditions of probation, defendant contends that the trial court improperly modified the conditions of probation because the notice of appeal divested the trial court of jurisdiction. We agree and therefore reverse. Because we agree with the jurisdictional argument and reverse, we need not consider defendant’s remaining contentions.2 DISCUSSION Generally, in a criminal case, “[t]he filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur. [Citations.]” (People v. Perez (1979) 23 Cal.3d 545, 554

1 Chelsea’s Law, as enacted in Penal Code section 1203.067 (hereafter, section 1203.067), requires the trial court to impose conditions relating to a sexual offender management program when a defendant must register as a sexual offender and is granted probation. (Stats. 2010, ch. 219, §§ 1, 17.) 2 Defendant contends: (1) the trial court improperly modified the conditions of probation because there was no change of circumstances, (2) application of section 1203.067 to defendant violated the prohibition on ex post facto laws, (3) compelled waiver of his privilege against self-incrimination violates the Fifth Amendment, and (4) compelled waiver of his psychotherapist-patient privilege violates his due process rights. The California Supreme Court is currently reviewing the constitutionality of the section 1203.067 probation conditions in People v. Garcia (2014) 224 Cal.App.4th 1283, review granted July 16, 2014, S218197, People v. Friday (2014) 225 Cal.App.4th 8, review granted July 16, 2014, S218288, and People v. Klatt (2014) 225 Cal.App.4th 906, review granted July 16, 2014, S218755. We also need not consider whether section 1203.067 is retroactive, a matter concerning which we solicited supplemental briefing from the parties.