No. D070244.

THE PEOPLE, Plaintiff and Respondent, v. LILLIAN JOHNSON, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division One.

Attorney(s) appearing for the Case

Benjamin Kington , under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra , Attorney General, Gerald A. Engler , Chief Assistant Attorney General, Julie L. Garland , Assistant Attorney General, Annie Featherman Fraser and Kelley Johnson , Deputy Attorneys General, for Plaintiff and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



A jury convicted Lillian Johnson of theft from an elder (Pen. Code, § 368, subd. (e); count 1)1 and eight counts of burglary (§ 459; counts 2-9). With respect to the theft from an elder charge, the jury found true allegations that the total, aggregate losses to the victim from a common scheme and plan exceeded $65,000 (§ 12022.6, subds. (a)(1) & (b)). As to the burglary charges, the jury found true allegations that each burglary was of an inhabited dwelling house (§ 460, subd. (a)), and the victim was 65 years of age or older (§ 667.9, subd. (a)). Over the People's objection, the court granted Johnson five years of formal probation with specified terms and conditions.

On appeal, Johnson challenges three conditions of probation (conditions 6.r., 7.b., and 7.d.) requiring her to participate in assessment, treatment, therapy, or counseling programs, if directed by the probation officer. She contends the conditions improperly delegated authority to the probation officer and the conditions are unconstitutionally overbroad. We conclude Johnson forfeited these claims by failing to object at the time of sentencing and we affirm the judgment.



Johnson worked from 2007 until August 2014 as a caregiver to M.N., who was 72 years old at the time of trial. Johnson was responsible for assisting M.N. with financial matters. Johnson wrote checks on behalf of M.N. to pay M.N.'s caregivers including herself. Johnson calculated the amounts owed to the caregivers and wrote the checks. M.N. then signed the checks. Sometimes Johnson would not fill out the checks completely. She would tell M.N. what the check was for and then say she would fill out the rest after M.N. signed.

After Johnson's employment ended in August 2014, another caregiver took over responsibility for M.N.'s finances and discovered a discrepancy in M.N.'s bank statements. Bank records showed numerous checks made out to Johnson, sometimes under other names. The People presented evidence Johnson paid herself over $54,000 in 2014 whereas she should have earned approximately $15,600 per year based on 20 hours per week at a rate of $15 per hour for 52 weeks. Johnson cashed checks for herself in excess of $51,000 in 2011 and more than $64,000 in 2013. For each burglary conviction, Johnson had deposited a check corresponding to the date of the alleged offense.

In her defense, Johnson testified she earned more than other caregivers because she provided additional services to M.N. She stated the bank records reflected wages paid for her services.


After the jury convicted Johnson of all charges, the probation officer's report recommended the court deny formal probation and impose a prison term of 16 years and eight months. The People also requested prison time, although not as much as suggested by the probation officer. Johnson's counsel requested probation stating it would allow the court the opportunity to maintain jurisdiction to supervise her for a period of time.

After careful consideration, the court granted Johnson probation under the supervision of a probation officer for five years. The court reviewed the order granting formal probation in court and confirmed imposition of various conditions. These included condition 6.r. ("[p]articipate and comply with any assessment program if directed by the [probation officer]"), condition 7.b. ("[p]articipate in treatment, therapy, counseling, or other course of conduct as suggested by validated assessment tests"), and condition 7.d. ("[a]ttend and successfully complete [p]sychiatric, [i]ndividual, [g]roup, [s]ubstance abuse, [d]ual diagnosis, . . . CBT [cognitive behavioral therapy] counseling program . . . if directed by the [probation officer]"). Johnson's counsel did not object to these conditions. Johnson accepted probation under the terms and conditions imposed by the court.



General Principles

Trial courts enjoy wide discretion when determining the conditions and scope of probation. (§ 1203.1 et seq.) A trial court may impose any "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, . . ., and generally and specifically for the reformation and rehabilitation of the probationer. . . ." (§ 1203.1, subd. (j).) A condition will only be invalid if it is: (1) not reasonably related to the defendant's crime, (2) relates to conduct that is otherwise legal, and (3) requires or forbids conduct not reasonably related to preventing future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486.) A party seeking to invalidate a condition must show that each of the three prongs are satisfied. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).)

When a probation condition imposes limitations on a constitutional right, the limitations must be closely tailored to the purpose of the condition so as to avoid being unconstitutionally overbroad. (Olguin, supra, 45 Cal.4th at p. 384.) "The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re. E.O. (2010) 188 Cal.App.4th 1149, 1153.) "If a probation condition serves to rehabilitate and protect public safety, the condition may `impinge upon a constitutional right otherwise enjoyed by the probationer, who is "not entitled to the same degree of constitutional protection as other citizens."'" (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355.)

Probation is not an inherent right; it is an act of leniency. (People v. Wardlow (1991) 227 Cal.App.3d 360, 365.) The purpose of probation is to serve as a "period of genuine rehabilitation." (Griffin v. Wisconsin (1987) 483 U.S. 868, 875.) In California, probationers may consent to limit their constitutional rights in preference to incarceration. (Olguin, supra, 45 Cal.4th at p. 384.) If a condition appears too onerous, a defendant may choose to serve the prison sentence instead. (Id. at p. 379.)

Generally, we review conditions of probation for abuse of discretion. (Olguin, supra, 45 Cal.4th at p. 379.) However, when a probation condition is challenged on constitutional grounds, we review the condition de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)



Johnson challenges three probation conditions requiring her participation in assessments, treatment, therapy, counseling and other programs, if directed by probation, contending the court's order improperly delegated authority to the probation officer and the conditions are unconstitutionally overbroad. We conclude Johnson forfeited these challenges.

Challenges to probation conditions are generally forfeited if not raised when they are imposed (People v. Welch (1993) 5 Cal.4th 228, 234-235), unless they are facial constitutional challenges presenting pure questions of law. (In re Sheena K. (2007) 40 Cal.4th 875, 885.) However, couching a challenge as a constitutional challenge is not a "talisman to ward off forfeiture." (In re R.S. (2017) 11 Cal.App.5th 239, 244.) Not "`"all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present `pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court.' [Citation.] In those circumstances, `traditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court.' [Citation.]" [Citation.] . . . [G]enerally, given a meaningful opportunity, the probationer should object to a perceived facial constitutional flaw at the time a probation condition initially is imposed in order to permit the trial court to consider, and if appropriate in the exercise of its informed judgment, to effect a correction.'" (Ibid.; People v. Stapleton (2017) 9 Cal.App.5th 989, 994 (Stapleton) ["forfeiture doctrine does apply if the objection involves a discretionary sentencing choice or unreasonable probation conditions `premised upon the facts and circumstances of the individual case'"]; People v. Kendrick (2014) 226 Cal.App.4th 769, 777 [a constitutional challenge "that cannot be resolved `without reference to the particular sentencing record developed in the trial court" does not present a pure question of law].)

Johnson contends the probation conditions "leave the probation officer unfettered discretion to compel Johnson's participation in any type of assessment or counseling program whatsoever" and are unconstitutionally overbroad because they authorized the probation officer to require "any type of assessment or program—even those unrelated to Johnson's rehabilitation or crime of conviction." For the first time on appeal, Johnson suggests religion-based programs could violate her First Amendment rights. Assessment of these contentions require reference to the sentencing record and are not pure questions of law.

First, we note probation officers may only exercise lawful discretion, they may not act capriciously or impose irrational directives. (Olguin, supra, 45 Cal.4th at p. 383.) A condition cannot "grant a probation officer the power to issue arbitrary or capricious directives that the court itself could not order." (Stapleton, supra, 9 Cal.App.5th at pp. 996-997.)

Second, the jury in this case determined Johnson, using her role of caretaker, stole more than $65,000 from her elderly client over a span of three and a half years. The probation officer noted Johnson was previously diagnosed with depression and anxiety and received treatment in a mental health ward for approximately one week. She took medication for her condition for a period of time. Johnson admitted she currently took medical marijuana to help with depression and anxiety related to her legal problems. The COMPAS (Correctional Offender Management Profiling for Alternative Sanctions) assessment tool indicated her risk of recidivism would be reduced through programming to address factors such as "criminal thinking self[-]report," "criminal opportunity," and "criminal personality." (Capitalization omitted.) The court properly exercised its discretion in determining Johnson would benefit from a variety of assessments and programming to assist with her rehabilitation and to prevent future criminality. However, leaving the selection of programs to the discretion of the probation officer is appropriate because "[t]he trial court is poorly equipped to micromanage selection of a program." (People v. Penoli (1996) 46 Cal.App.4th 298, 308 (Penoli).) This is not a case like People v. Cervantes (1984) 154 Cal.App.3d 353, 356 where a statute prohibits delegation of calculation of restitution.

To the extent there was concern about the scope of the assessments and programming the probation officer could direct Johnson to undertake, Johnson should have objected and asked the trial court for clarification. Similarly, if there was concern the probation officer would direct her participation in a religion-based treatment program, she should have raised the objection. She did not do so. "`The purpose of [the forfeiture] rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.'" (In re R.S., supra, 11 Cal.App.5th at p. 246.) We conclude forfeiture is appropriate.

Even if we were to exercise our discretion to consider Johnson's claims, the conditions are reasonably related to Johnson's rehabilitation to prevent future criminality. The conditions themselves are sufficiently tailored to their purpose and Johnson has not raised a specific burden on her constitutional rights or harm stemming from the conditions to establish they are unconstitutionally overbroad. Johnson is not at the mercy of the probation department. "A defendant who is concerned about particular risks can bring those concerns to the court's attention at or prior to sentencing. . . . Failing that, the defendant can seek judicial intervention—by moving to modify the probation order, if nothing else—if and when the probation officer seeks to exercise the delegated authority. (See § 1203.3.) We decline to hold, on this record, that such remedies are insufficient or that the delegation of authority to select a program was otherwise erroneous." (Penoli, supra, 46 Cal.App.4th at p. 308.)


The judgment is affirmed.

NARES, J. and DATO, J., concurs.


1. Further statutory references are to the Penal Code unless otherwise stated.


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