People v. Hope CA3

Filed 8/25/20 P. v. Hope CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (El Dorado) ----

THE PEOPLE,

Plaintiff and Respondent, C090484

v. (Super. Ct. No. S19CRF0070)

JEFFRY ALAN HOPE,

Defendant and Appellant.

Based on evidence that defendant Jeffry Alan Hope, while on probation, poured trash from a trash can all over a picnic table used by customers of a business in violation of a local code prohibiting littering, the trial court found that defendant violated the

1

condition of his probation that he obey all laws and sentenced him to two years in prison based on a previous stalking conviction. Defendant now contends (1) his littering offense was an infraction not contemplated by the “obey all laws” probation condition, and (2) in the alternative, if the littering infraction was a breach of the probation condition, his due process rights were violated because the condition did not provide fair warning that he could be sent to prison for committing an infraction.1 Finding no merit in defendant’s contentions, we will affirm the judgment. BACKGROUND In May 2019, defendant pleaded no contest to stalking. (Pen. Code, § 646.9, subd. (a).)2 The trial court placed him on formal probation for three years with various terms and conditions, including that he obey all laws. Approximately two months later, however, the People filed a petition to revoke defendant’s probation, alleging that he violated the “obey all laws” probation condition

1 Defendant also asserted in his opening brief that the trial court should have referred him to mental health diversion. But in a supplemental letter brief, he agreed with the People that the diversion contention is untimely. We agree that defendant’s failure to seek mental health diversion in the trial court, well after Penal Code section 1001.36’s effective date of June 27, 2018 (People v. Torres (2019) 39 Cal.App.5th 849, 855), is fatal to the claim on appeal. (See People v. Trujillo (2015) 60 Cal.4th 850, 856 [“a defendant generally must preserve claims of trial error by contemporaneous objection as a prerequisite to raising them on appeal”].) The question of Penal Code section 1001.36’s retroactivity to cases in which the judgment is not yet final -- recently addressed by our Supreme Court in People v. Frahs (2020) 9 Cal.5th 618 -- is not at issue here, because Penal Code section 1001.36 was effective months before defendant pleaded no contest. Because defendant concedes untimeliness, we do not address the issue further. (See People v. King (2000) 82 Cal.App.4th 1363, 1368, fn. 1 [not addressing further a contention that defendant conceded after filing his opening brief]; see also Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1403, fn. 8.) 2 Undesignated statutory references are to the Penal Code.