California Court of Appeal Dec 22, 2021 No. E076952Unpublished
Filed 12/22/21 P. v. Silveira CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076952
v. (Super.Ct.No. FVI20003159)
JEREMIAH JACOB SILVEIRA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A.
Camber, Judge. Affirmed.
Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and A. Natasha
Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
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I
INTRODUCTION
Defendant and appellant Jeremiah Jacob Silveira was caught accessing and storing
child pornography. Pursuant to a plea agreement, defendant pleaded no contest to one
count of possession of child pornography (Pen. Code,1 § 311.11, subd. (a)). In return,
terms and conditions were conditional at that time. In other words, defendant’s grant of
probation and/or the terms of his probation were conditioned upon the Static-99 report.
Before the conclusion of the change of plea hearing, defendant was placed on
probation without the benefit of the probation department’s Static-99 report. The
probation department found a Static-99 report was not appropriate in this case because
defendant, although having committed a qualifying offense and subject to sex offender
registration, was nevertheless ineligible because the victims could not be identified. The
probation department, however, learned that “not all of the appropriate terms and
conditions were given, since the defendant will be supervised by the Sex Offender Unit.”
The probation department thus requested that additional conditions be added.
5 Section 1203, subdivision (b)(2)(C), provides: “If the person was convicted of an offense that requires that person to register as a sex offender pursuant to Sections 290 to 290.023, inclusive, or if the probation report recommends that registration be ordered at sentencing pursuant to Section 290.006, the probation officer’s report shall include the results of the State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO) administered pursuant to Sections 290.04 to 290.06, inclusive, if applicable.”
6 Section 1203, subdivision (b)(3), provides: “At a time fixed by the court, the court shall hear and determine the application, if one has been made, or, in any case, the suitability of probation in the particular case. At the hearing, the court shall consider any report of the probation officer, including the results of the SARATSO, if applicable, and shall make a statement that it has considered the report, which shall be filed with the clerk of the court as a record in the case. If the court determines that there are circumstances in mitigation of the punishment prescribed by law or that the ends of justice would be served by granting probation to the person, it may place the person on probation. If probation is denied, the clerk of the court shall immediately send a copy of the report to the Department of Corrections and Rehabilitation at the prison or other institution to which the person is delivered.”
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At the time defendant entered his plea and was placed on probation on March 3,
2021, there was no probation report or insight from the probation department that
defendant would be supervised by the Sex Offender Unit. Little or nothing was also
known about whether defendant was eligible “to be scored on the Static-99R under the
official coding rules of the Static-99R” at the time of the March 3 hearing. When the fact
that defendant would be supervised by the Sex Offender Unit and defendant’s
probationary terms and conditions failed to include sex-offender related terms, the
probation department requested that the additional terms and conditions be added.
Whether or not this information may have been available to the prosecution at the
time the parties waived a probation report is not relevant to this issue. Rather, what is
relevant is the fact that the trial court did not have information concerning what probation
unit would supervise defendant and whether defendant was eligible to be evaluated for a
Static-99 report at the time it originally granted probation. The trial court only learned of
this information on March 22, 2021, prior to the April 1 hearing which defendant agreed
to attend following his Static-99 evaluation. At the April 1 hearing, the court had new
information from which it could legally exercise its jurisdiction and its discretion to
modify the terms of defendant’s probation to include the sex-offender related terms and
conditions.
Indeed, under defendant’s interpretation of the trial court’s discretion to modify
the conditions of probation, a court would automatically lose the discretion to modify a
condition of probation in every case in which the parties failed to bring every relevant
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fact concerning a defendant which could have been known at the time of sentencing.
Such a rule would unduly limit the trial court’s broad authority to impose reasonable
probation conditions.
The court properly ordered conditions it found reasonably related to ensure
defendant’s compliance and rehabilitation. (See People v. Olguin (2008) 45 Cal.4th 375,
379; § 1203.1, subd. (j).) The trial court was justified in modifying the terms of
defendant’s probation by adding the sex-offender related terms.
IV
DISPOSITION
The trial court’s order modifying the conditions of defendant’s probation is