People v. Wilson CA1/5

Filed 9/23/20 P. v. Wilson CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A158078 v. ROBERT KALEOALOHA (Napa County Super. Ct. WILSON, No. CR184364) Defendant and Appellant.

In June 2019, a jury convicted Appellant Robert Kaleoaloha Wilson (Appellant) of possession of ammunition by a prohibited person (Pen. Code, § 30305, subd. (a)).1 In August, the trial court suspended imposition of sentence and placed Appellant on three years of formal probation on the condition that he serve 60 days in jail. The court also imposed various fines, fees, and other probation conditions. On appeal, Appellant contends three probation conditions are improper. First, probation condition 17 requires Appellant to “Enroll in and successfully complete the Community Corrections Service Center program if required by the Probation Officer. Your Probation Officer has the discretion to release you from jail to participate in the program, and also can return you

1 The underlying facts are not relevant to the issues on appeal.

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to jail to serve any or all of the remainder of your term. If you successfully complete the program you will not have [to] serve the remainder of your term.” Second, probation condition 18 states, “If ordered to participate in the Community Corrections Service Center program, as part of the program requirement, you must submit to chemical testing and not use, consume or possess any non-prescribed or illegal substances, including medical marijuana, unless specifically authorized by the court.” Third, probation condition 22 requires Appellant to “[e]nroll in, pay for, and successfully complete an outpatient treatment program or a residential treatment program if required and as chosen by the Probation Officer. Abide by all the rules and obligations of the program. Do not leave the program without the permission of the Probation Officer.” Appellant contends, and respondent concedes, that probation conditions 17 and 22 improperly delegate judicial authority to the probation department to determine whether Appellant is required to participate in the Community Corrections Service Center program and/or a treatment program as conditions of probation. We agree. (See People v. O’Neil (2008) 165 Cal.App.4th 1351, 1359 [“It is for the court to determine the nature of the prohibition placed on a defendant as a condition of probation . . . .”]; People v. Cervantes (1984) 154 Cal.App.3d 353, 358 [improper to delegate to probation officer “propriety, amount, and manner of payment of restitution”]; cf. People v. Penoli (1996) 46 Cal.App.4th 298, 308 [not an unlawful delegation of judicial authority for the trial court to leave the selection of a “particular program” to probation officer].) We also agree with the parties that probation condition 18 must be stricken if condition 17 is stricken, because condition 18 presupposes imposition of the Community Corrections Service Center program requirement.