People v. Shoemaker CA3

Filed 10/14/15 P. v. Shoemaker CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Tehama) ----

THE PEOPLE, C078354

Plaintiff and Respondent, (Super. Ct. Nos. NCR88105, NCR89073, NCR89074) v.

ROBERT LEE SHOEMAKER, JR.,

Defendant and Appellant.

Defendant Robert Lee Shoemaker, Jr., appeals from judgment entered January 21, 2015, following the trial court’s revocation of his probation. Defendant initially challenged the trial court’s finding that he had violated probation by failing to conduct himself as a good citizen, contending the condition was unconstitutional on its face and void for vagueness. We requested supplemental briefing, asking whether we have jurisdiction to hear this claim, noting that the trial court had imposed the probation condition at issue during defendant’s March 17, 2014 sentencing hearing, from which he had not appealed.

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The Attorney General responded that defendant’s appeal was untimely. Defendant filed a supplemental letter brief purporting to clarify that his challenge to the probation condition is “to some degree an as-applied constitutional challenge because he is arguing the clause is vague as applied to [his] conduct which formed the basis for the revocation of his probation.” As we will explain, we lack jurisdiction to hear his original facial challenge and find his as-applied challenge forfeited due to his failure to object to the probation condition’s constitutionality in the trial court. Accordingly, we shall affirm. BACKGROUND On February 18, 2014, defendant entered into a negotiated disposition wherein he pled guilty to the following offenses: making criminal threats and false imprisonment (case No. NCR89074); failure to appear at a court hearing while released on bail (case No. NCR89073); and possession of a controlled substance and being a felon in possession of ammunition (case No. NCR88105). In exchange for his plea, it was agreed he would receive a suspended prison sentence of seven years eight months and a grant of probation. On March 17, 2014, the trial court sentenced defendant to an aggregate term of seven years eight months, suspended execution of sentence, and placed defendant on formal probation for five years. One of the conditions of defendant’s probation was that he “obey all laws and conduct himself as a good citizen.” Defendant waived formal reading of the terms and conditions of probation and later signed the probation order. Defendant did not object to the condition at issue and did not appeal his sentence. On October 22, 2014, petitions for revocation of probation were filed, alleging defendant had violated the order of probation, in that “Term 3 requires the defendant shall obey all laws and conduct himself as a good citizen. [¶] On September 5, 2014, the defendant admitted slapping his live-in girlfriend, and breaking her lattice fence.” The court held a probation revocation hearing on November 18, 2014, at which defendant’s girlfriend, the responding deputy, and defendant’s probation officer testified. The deputy