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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Kathryn Marie WELCH, Defendant and Appellant.

No. C008740.

Decided: January 17, 1992

Bruce Hudson Towne, Davis, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edmund D. McMurray, Supervising Deputy Atty. Gen., and Jesse N. Witt, Deputy Atty. Gen., for plaintiff and respondent.

Defendant pled no contest to welfare fraud (Welf. & Inst.Code, § 10980, subd. (c)(2)) and was placed on probation.   On appeal, she contends that many of the conditions of probation imposed by the sentencing court are invalid.   We conclude defendant is prohibited from contesting these conditions on appeal because she did not object to them in the trial court despite the fact she had notice they might be imposed (the probation report recommended each of the challenged conditions).   By failing to bring the purported errors to the attention of the sentencing court so they could be avoided if necessary, defendant has waived her right to challenge the conditions on appeal.1


When convicted, defendant was unemployed and received welfare.   The probation report indicates she committed welfare fraud in order to pay off delinquent bills and because she did not have enough money to buy a new car.   Defendant indicated her crime was, in part, the product of her emotional problems and instability in her life.   Her history is replete with numerous changes of residence.   During the year prior to her offense, she had been evicted twice and was “unable to take care of herself․”  According to a psychiatrist who examined defendant, the instability in her life was associated with her chronic alcohol abuse.   In addition, defendant has a family history involving drug abuse, and one of the doctors who treated her for back pain denied defendant's request for certain pain medication “because of his fear of her overdosing.”   The psychiatrist opined that defendant is a passive, needy and dependent person who repeatedly has been abused by others.   Concluding that defendant suffers from a severe personality disorder, the psychiatrist emphasized defendant's problem with alcohol, her susceptibility to abuse by others, and the need for stability in her life.

Among other things, the probation department recommended as conditions of probation that defendant:  maintain a residence as approved by the probation department and not change her residence without prior written approval of the department;  refrain from associating with people who are on probation or who have been convicted of drug offenses, unless the probation officer has given her permission to do so;  not have a checking account;  authorize release to the probation department of all reports concerning psychiatric or psychological counseling she receives;  seek and maintain vocational training as approved by the probation department, pursue employment in accordance with directions of the department, and remain gainfully employed once attaining that status;  not change employment without written approval of the probation department;  refrain from the use or possession of alcohol and from frequenting businesses where alcohol is the primary item for sale;  participate in Alcoholics Anonymous and submit to testing to detect the presence of alcohol in her person;  not possess any firearm;  and submit to a search of her person, residence and property at any time, with or without a warrant, for the purpose of determining her compliance with the conditions of probation.

At the sentencing hearing, the court began by indicating it was “inclined to follow the recommendation of the Probation Department A to Z.”   Defense counsel asked that certain factual inaccuracies in the probation report be corrected but did not object to any of the recommended terms of probation.   The court then granted probation and imposed numerous conditions, including those we have listed.   Defendant stated that she had read and understood all of these conditions and that she accepted them.

Although she did not object to them in the trial court, defendant appeals, challenging the conditions of probation specified above.



 In response to defendant's claim that the sentencing court erred in imposing the aforesaid conditions of probation, the People contend defendant waived her right to contest these conditions by failing to object to them at the time of sentencing.   We agree.

“ ‘The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had.’ ”  (People v. Walker (1991) 54 Cal.3d 1013, 1023, 1 Cal.Rptr.2d 902, 819 P.2d 861, quoting People v. Melton (1990) 218 Cal.App.3d 1406, 1409, 267 Cal.Rptr. 640.)   The rule that contentions which are not raised in the trial court will not be considered on appeal is founded on considerations of (1) fairness to the opposite party and the court, and (2) the practical need for an orderly and efficient administration of the law.  (E.g., People v. Rogers (1978) 21 Cal.3d 542, 548, 146 Cal.Rptr. 732, 579 P.2d 1048;  California State Auto. Assn. Inter–Ins. Bureau v. Antonelli (1979) 94 Cal.App.3d 113, 122, 156 Cal.Rptr. 369 (hereinafter Antonelli );  5 Cal.Jur.3d, Appellate Review, § 480, pp. 117–118.)

As we shall explain, both considerations compel the conclusion that, by failing to object in the trial court to the conditions of probation she now contests, defendant waived her right to challenge the conditions on appeal.

It is well settled that trial courts have broad discretion in determining whether probation is appropriate and, if so, what conditions of probation will be imposed.  (Pen.Code, §§ 1203 et seq.;  People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545.)   A condition of probation is valid “unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality․’  [Citation.]   Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.”  (Lent, supra, at p. 486, 124 Cal.Rptr. 905, 541 P.2d 545;  italics added and footnote omitted.)

As is apparent from the foregoing test, the appropriateness of a condition of probation is fact specific.   Therefore, as a matter of fairness to the People, a defendant should not be permitted to contest for the first time on appeal a condition of probation which the defendant accepted without objection in the trial court.   Otherwise, the People would be deprived of the opportunity to cure the defect by presenting additional information to the trial court in support of the probation condition.  (Cf. People v. Poggi (1988) 45 Cal.3d 306, 324, 246 Cal.Rptr. 886, 753 P.2d 1082;  Rogers, supra, 21 Cal.3d at p. 548, 146 Cal.Rptr. 732, 579 P.2d 1048;  Coy v. Superior Court (1959) 51 Cal.2d 471, 473, 334 P.2d 569;  People v. Lyons (1970) 9 Cal.App.3d 58, 62, 87 Cal.Rptr. 799.)

Such is the case here.   Had defendant objected in the trial court to the conditions of probation she now contests, the People could have asked for the opportunity to present additional information which might demonstrate the wisdom and necessity of the conditions or to suggest modifications therein to overcome defendant's objections.   By depriving the People of that chance due to her acquiescence in the conditions without objection, defendant should be deemed to have waived her right to challenge the conditions on appeal.

We are aware of People v. Jones (1980) 111 Cal.App.3d 597, 169 Cal.Rptr. 28, which broadly asserts that the “unfairness” to the People rationale of the waiver doctrine is “inapplicable to sentencing procedures․”  (Id., at p. 605, 169 Cal.Rptr. 28.)   However, the situation presented in Jones does not support the unfortunate breadth of the appellate court's dictum.  Jones addressed a trial court's failure to state reasons for imposing an upper term of imprisonment.   Noting the defendant could gain no advantage over the People by failing to object to the lack of a statement of reasons, Jones held the defendant did not waive his claim of error by failing to object in the trial court.  (Id., at pp. 604–605, 169 Cal.Rptr. 28.)   While this may be the case with a failure to state reasons for imposing an upper term, the Jones court's reasoning does not extend to other sentencing matters, such as the imposition of conditions of probation, where the lack of an objection may deprive the People of the opportunity to correct error by supplying additional information to support the trial court's ruling.  (E.g. People v. Blankenship (1989) 213 Cal.App.3d 992, 997–998, 262 Cal.Rptr. 141 [waiver of right to complain about restitution order];  cf. Walker, supra, 54 Cal.3d at p. 1023, 1 Cal.Rptr.2d 902, 819 P.2d 861 [a defendant's failure to object at sentencing to the imposition of a restitution fine waives the right to complain that, at the time of defendant's plea of guilty, the trial court did not advise of the possibility of the fine];  People v. Keele (1986) 178 Cal.App.3d 701, 707–708, 224 Cal.Rptr. 32 [waiver of right to complain about referral of restitution matters to probation department].)

Aside from fairness to the People, the California Supreme Court recognized almost a century ago that, as a matter of fairness to the trial court, it is inappropriate to permit a party to allege on appeal errors which the trial court “was given no opportunity to correct by timely objection or exception.”  (Story v. Nidiffer (1905) 146 Cal. 549, 552–553, 80 P. 692.)   Therefore, as a general rule, a defendant “is bound to afford a judge an opportunity to correct any error ․,” and the failure to object should preclude reversal of the order on appeal.  (People v. Spinks (1961) 190 Cal.App.2d 366, 368, 11 Cal.Rptr. 923;  cf. People v. Lilienthal (1978) 22 Cal.3d 891, 896, 150 Cal.Rptr. 910, 587 P.2d 706;  Story, supra, 146 Cal. at pp. 552–553, 80 P. 692;  People v. Newlun (1991) 227 Cal.App.3d 1590, 1604, 278 Cal.Rptr. 550.)   This rule is consistent with that of the federal judiciary.   As the United States Supreme Court has noted:  “ ‘Federal courts, including the Supreme Court, have declined to notice [alleged] errors not objected to [in the trial court] even though such errors involve a criminal defendant's constitutional rights.  [Citation.]’  [¶] The reason for this rule is clear:  if the defendant has an objection, there is an obligation to call the matter to the court's attention so the trial judge will have an opportunity to remedy the situation.”  (Estelle v. Williams (1976) 425 U.S. 501, 508, 96 S.Ct. 1691, 1695, 48 L.Ed.2d 126.)

We see no reason not to apply this principle to the failure to object to conditions of probation.   There is nothing extraordinary about imposition of a condition of probation which should distinguish it from the multitude of trial court rulings which require an objection in order to preserve the issue for appeal.   Fundamental fairness entitles a trial court to the opportunity to delete or modify a challenged condition of probation or to obtain additional information to support its imposition, thereby averting a potential appellate court finding of error.   It follows that the failure to object to a condition of probation should constitute a waiver of the right to complain on appeal.

Equally important, the waiver doctrine is founded upon the need for orderly and efficient administration of the law, i.e., upon considerations of judicial economy.  (E.g., In re Richard S. (1991) 54 Cal.3d 857, 864, 866, 2 Cal.Rptr.2d 2, 819 P.2d 843;  Caminetti v. Pac. Mutual L. Ins. Co. (1943) 22 Cal.2d 386, 390–392, 139 P.2d 930;  People v. Oaxaca (1974) 39 Cal.App.3d 153, 164, 114 Cal.Rptr. 178;  Antonelli, supra, 94 Cal.App.3d at p. 122, 156 Cal.Rptr. 369.)  “In order to avoid the delay and expense incident to appeals, reversals, and new trials upon grounds which might have been corrected in the trial court if the question had been properly raised there, the appellate courts have developed and applied the rule that they will normally only consider questions which were raised and reserved in the [trial] court․”  (5 Am.Jur.2d, Appeal and Error, § 545, p. 29.)

In this regard, California courts have recognized that it would be “intolerable to permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.”  (Lindsay–Strathmore I. Dist. v. Superior Court (1920) 182 Cal. 315, 338, 187 P. 1056 (conc.opn. of Olney, J.);   cited with approval in Richard S., supra, 54 Cal.3d at p. 864, 2 Cal.Rptr.2d 2, 819 P.2d 843;  Caminetti, supra, 22 Cal.2d at p. 392, 139 P.2d 930.)

The need for an orderly and efficient administration of law and judicial economy as a basis for imposing the doctrine of waiver applies equally when a party's failure to object is not a deliberate effort to seek an advantageous result secure in the knowledge that the party may avoid an unfavorable one by asserting error on appeal.   Whether the failure to object is so calculated or not, the requirement of an objection to give the trial court an opportunity to correct error can avoid the necessity of further proceedings in the appellate courts and in the trial court if the error were sufficient to justify reversal of the judgment.  (United States v. Indiviglio (2d Cir.1965) 352 F.2d 276, 280;  cf. People v. Hull (1991) 1 Cal.4th 266, 2 Cal.Rptr.2d 526, 820 P.2d 1036 [Code of Civil Procedure section 170.3, which requires that review of an unsuccessful peremptory challenge to a trial judge must be by petition for writ of mandate rather than by appeal from an ensuing judgment, “ ‘fosters judicial economy by eliminating the waste of time and money which inheres if the litigation is permitted to continue unabated, only to be vacated on appeal because the subsequent rulings and judgment were declared “void” by virtue of the erroneously denied disqualification motion’ ”].)

Appellate courts routinely see challenges to probation conditions which were not objected to in the sentencing court.   In virtually every case, the probation report's recommendations put the defendant on notice that the conditions would be imposed.   Requiring the defendant to object to any condition he or she believes is invalid places no undue burden on the defendant and ensures that the sentencing court will have an opportunity to correct any mistake that might exist, thereby obviating the need for an appeal.   Conversely, allowing the defendant to belatedly challenge probation conditions in the absence of an objection in the sentencing court results in the undue consumption of scarce judicial resources and an unjustifiable expenditure of taxpayer monies.   It requires, in almost all cases, the appointment of counsel for the defendant at taxpayers' expense and the expenditure of time and resources by the Attorney General to respond to alleged errors which could have been corrected in the trial court had an objection been made.   Moreover, it adds to the already burgeoning caseloads of appellate courts and unnecessarily requires the costly depletion of appellate court resources to address purported errors which could have been rectified in the trial court had an objection been made.

This needless consumption of resources and taxpayer dollars is unacceptable.   In the interest of an orderly and efficient administration of law and judicial economy, failure to object in the trial court to a condition of probation should constitute a waiver of the right to complain thereof on appeal.

At oral argument, defendant's appellate counsel suggested there exists a reluctance to object to probation conditions out of fear that a trial court might respond by denying probation and sentencing the defendant to prison.   Such a fear is premised on the supposition that trial courts will flagrantly abuse their discretion when confronted with objections to conditions of probation and will retaliate by punishing the objector.   We cannot indulge in such unjustifiable speculation.   To the contrary, we must presume that trial courts will lawfully perform their official duty to respond to the objections on their merits.  (Evid.Code, § 664.)   Moreover, if a situation suggested by defendant were to occur, the record would clearly support a challenge to the trial court's action based on abuse of discretion.

Thus, we find nothing problematic in requiring a defendant to raise any objections in the sentencing court.   The defendant could simply inform the court that he or she will accept probation on any conditions the court chooses to impose but that the defendant believes certain conditions are invalid for reasons stated to the trial court.   By objecting to a condition of probation, the defendant preserves the claim of error for appeal even though he or she then accepts the disputed condition.  (See In re Bushman (1970) 1 Cal.3d 767, 776, 83 Cal.Rptr. 375, 463 P.2d 727.)

We acknowledge that People v. Hernandez (1991) 226 Cal.App.3d 1374, 277 Cal.Rptr. 444, decided by the Fifth District, as well as People v. Kiddoo (1990) 225 Cal.App.3d 922, 275 Cal.Rptr. 298 and In re Jason J. (1991) 233 Cal.App.3d 710, 284 Cal.Rptr. 673, decided by the Fourth District, hold that a failure to object to probation conditions does not waive the right to challenge them on appeal.   However, we respectfully decline to follow these cases.

In Hernandez, the defendant claimed a probation condition imposing joint and several liability for restitution was “unauthorized by law, unfair and unnecessary.”   The court rejected the People's waiver argument, stating:  “Although the People argue that defendant has waived this contention by failing to object, the challenge here is to the validity of the condition and requires no objection.  (In re Bushman (1970) 1 Cal.3d 767, 776 [83 Cal.Rptr. 375, 463 P.2d 727].)”  (226 Cal.App.3d at p. 1377, 277 Cal.Rptr. 444.)

Hernandez is unpersuasive because Bushman does not support Hernandez' s holding.  Bushman holds only that acceptance of probation on the conditions imposed (or refusal of probation and an election to undergo the sentence) does not preclude an assertion via appeal or petition for writ of habeas corpus that the trial court erred in imposing an invalid probation condition.  (1 Cal.3d at p. 776, 83 Cal.Rptr. 375, 463 P.2d 727, disapproved on other grounds in People v. Lent, supra, 15 Cal.3d at p. 486, 124 Cal.Rptr. 905, 541 P.2d 545.)   Nothing in Bushman suggests the defendant failed to object to the challenged condition of probation, and the court did not address the issue whether a failure to object constitutes a waiver.  Bushman is not authority for a proposition it did not consider.  (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 734–735, 257 Cal.Rptr. 708, 771 P.2d 406;  Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2, 39 Cal.Rptr. 377, 393 P.2d 689.)

In Kiddoo, the defendant claimed a probation condition regarding alcohol was overbroad and unrelated to his offense.   The People responded that the defendant had waived any objection to the condition by acknowledging in open court that he was aware of all the conditions of probation, explicitly stating his acceptance of them, and by failing to object to the condition being challenged on appeal.   The court rejected the People's argument, finding the error was not waivable under either of two theories.  (225 Cal.App.3d at p. 925, 275 Cal.Rptr. 298.)

Kiddoo's first theory is premised on Civil Code section 3513 which provides:  “Anyone may waive the advantage of a law intended solely for his benefit.   But a law established for a public reason cannot be contravened by a private agreement.”   This statute suggests that a defendant may consent to an invalid probation condition which infringes on an interest that is personal to the defendant, but may not consent to a probation condition which is invalid because it contravenes an overriding public interest.   An example of a waivable personal interest is addressed in People v. Ellis (1987) 195 Cal.App.3d 334, 240 Cal.Rptr. 708, which holds that a defendant who accepts the benefit of a plea bargain may be estopped to attack his or her erroneous admission that a prior conviction is a Penal Code section 667 serious felony.  (Id., at pp. 339–348, 240 Cal.Rptr. 708;  cf. People v. Johnson (1978) 82 Cal.App.3d 183, 185–188, 147 Cal.Rptr. 55 [upon revocation of probation, a probationer may waive the Penal Code section 2900.5 right to receive credit for time served so he or she may be returned to jail rather than sentenced to state prison].)   Examples of nonwaivable probation conditions which are void for reasons of public policy include banishment (People v. Blakeman (1959) 170 Cal.App.2d 596, 339 P.2d 202) and avoidance of nonmarital pregnancy (People v. Dominguez (1967) 256 Cal.App.2d 623, 64 Cal.Rptr. 290).

Kiddoo cites Dominguez but misperceives the nature of the public policy there at issue, namely, that the probation system may not be misused for the advancement of perceived social goals beyond the scope of the criminal law.  Kiddoo mistakenly reasons that Dominguez “implicitly held that the statutory scheme of permitting probation to be imposed on reasonable conditions was a law established to further a principle of fundamental public policy, and that therefore a defendant could not waive the right to be subjected only to reasonable conditions of probation.”  (Kiddoo, supra, 225 Cal.App.3d at p. 926, 275 Cal.Rptr. 298;  italics in original.)  Kiddoo's overbroad interpretation ignores the fact that, although some probation conditions such as banishment are unreasonable for reasons of public policy, most others, such as the requirement that defendant not maintain a checking account, have no public policy implications yet may be unreasonable with respect to an individual probationer.

Because the probation conditions contested by defendant on appeal do not implicate considerations of fundamental public policy and are limited to her purely personal interests, defendant's complaints are waivable and are not preserved by Civil Code section 3513.

Nor is there merit to Kiddoo's suggestion, unsupported by authority, that “the imposition of an unreasonable condition is an abuse of discretion, and a defendant's failure to object to such abuse [in the trial court] cannot operate as a waiver of the error on appeal.”  (225 Cal.App.3d at p. 926, 275 Cal.Rptr. 298.)   Trial courts routinely make rulings which are challenged on appeal on the ground they constituted an abuse of discretion.  (E.g., Evid.Code, § 352.)   The fact that discretion assertedly has been abused in no way obviates the need for a timely objection in the trial court.   (Evid.Code, § 353, subd. (a).)

Kiddoo's second theory is “premised on the notion that Penal Code section 1203.1 sets the statutory parameters [sic ] within which the sentencing court must operate, and that imposition of a condition of probation not authorized by the statute is an act outside of the court's power and hence an act in excess of jurisdiction.”  (225 Cal.App.3d at p. 926, 275 Cal.Rptr. 298.)   From this premise, Kiddoo wrongly reasons that “an act in excess of jurisdiction is void and cannot be ratified by waiver, consent, or estoppel.”   (Ibid.;  citing 2 Witkin, Cal. Procedure (3d ed. 1985) Jurisdiction, § 10, pp. 374–376.)   As the cited work makes clear, Kiddoo confuses an act taken in the absence of subject matter jurisdiction, which is void and cannot be waived, with an act in excess of jurisdiction which is voidable and may be waived if not properly brought to the attention of the reviewing court.   (Ellis, supra, 195 Cal.App.3d at pp. 342–343, 240 Cal.Rptr. 708;  People v. Garrett (1987) 192 Cal.App.3d 41, 49–50, 237 Cal.Rptr. 305;  compare 2 Witkin, op.cit. supra, §§ 9, 10, pp. 374–376, with § 220, pp. 607–610.)

“Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties․  [¶] But in its ordinary usage the phrase ‘lack of jurisdiction’ is not limited to these fundamental situations.   [The phrase] may be applied to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no ‘jurisdiction’ (or power) to act except in a particular manner, to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.”  (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288, 109 P.2d 942;  In re Jody R. (1990) 218 Cal.App.3d 1615, 1622, 267 Cal.Rptr. 746.)   In Kiddoo, the trial court did not lack jurisdiction of the subject matter or of the defendant's person, but merely had no power to act except as authorized by Penal Code section 1203.1.   Thus, its act in excess of jurisdiction, rather than in the absence of subject matter jurisdiction, was not void.   It merely was voidable upon proper presentation to an appellate court, i.e., if defendant had preserved the issue by objecting in the trial court.

Kiddoo also cites People v. Keller (1978) 76 Cal.App.3d 827, 143 Cal.Rptr. 184, which relies on Bushman for the undisputed proposition that a defendant does not waive his right to challenge a probation condition by accepting a grant of probation.   As noted, however, neither Keller nor Bushman stands for the proposition that a defendant need not raise any objections to probation conditions in the sentencing court.   It is a defendant's lack of objection in that forum, not the defendant's accepting a grant of probation, which constitutes the waiver.

For reasons already expressed, we also disagree with Jason J., supra, 233 Cal.App.3d 710, 284 Cal.Rptr. 673, which relies on Kiddoo and Hernandez for the proposition that the “failure to object to conditions of probation is not a waiver of a challenge to invalid conditions.”  (Id., at p. 714, 284 Cal.Rptr. 673.)

 As we have explained, principles of fairness to the People and the trial court and of the need for an orderly and efficient administration of law and judicial economy compel application of the doctrine of waiver to the failure to object to conditions of probation which infringe upon the defendant's personal interests but do not implicate considerations of public policy.   A “defendant may not complain of error when he himself had the opportunity and the ability to prevent any ensuing harm.”  (People v. Ashmus (1991) 54 Cal.3d 932, 965, fn. 8, 2 Cal.Rptr.2d 112, 820 P.2d 214;  accord Estelle v. Williams, supra, 425 U.S. at p. 508, 96 S.Ct. at p. 1695.)   Because the probation conditions defendant now challenges do not contravene fundamental public policy, defendant waived her right to contest them on appeal by failing to tender an objection in the trial court.

II **


The judgment is affirmed.


1.   In the unpublished portion of this opinion, we reject defendant's claim that the sentencing court erred in calculating her presentence custody credits.

FOOTNOTE.   See footnote *, ante.

SCOTLAND, Associate Justice.

PUGLIA, P.J., and NICHOLSON, J., concur.

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