Metropolitan News-Enterprise


Wednesday, August 1, 2018


Page 1


Court of Appeal

Probation Condition Improperly Impossed on U.S. Citizen

Rejects Contention by Office of Attorney General That Objection to Proviso That Permission Be Obtained To Remain in Country Was Forfeited by Not Having Been Raised in the Trial Court


By a MetNews Staff Writer


A condition of probation that the defendant not remain in United States nor return to it without authorization of federal officials must be stricken where the defendant is a U.S. citizen, the Fourth District Court of Appeal has held, rebuffing the contention of the state Office of Attorney General that the issue was forfeited by not raising it in the trial court.

Justice Carol D. Codrington of Div. Two said in an unpublished opinion, filed Monday:

“[D]efendant’s contention falls within the exception to the forfeiture doctrine for unauthorized sentences. In other words, we find no forfeiture because the challenged probation condition was unauthorized.”

Appellate Attorney’s Comment

Oakland attorney Michael S. McCormick, who was appointed by the court to represent Caleb Charlie Tabour Ponder on appeal, commented yesterday:

“The probation condition challenged in this case appears on a court form listing 29 possible conditions of probation. It seems intended only for a defendant who is not a citizen, so it probably was imposed in this case by inadvertence.”

The condition reads:

“Do not remain in or reenter the United States without proper written authorization by the Department of Homeland Security—Bureau of Citizenship and Immigration Services. Upon reentering the United States, report forthwith to the probation officer with written proof of said authorization.”

Attorney General’s Brief

The Office of Attorney General argued, in a brief signed by Deputy Attorney General Jennifer B. Truong:

“There is no legal defect in the probation condition. Rather, appellant claims the condition was inapplicable and should thus be stricken….This claim should have been raised and resolved in the superior court Appellant’s failure to object to it below forfeited his claim.”

Codrington said that under the California Supreme Court’s 2001 decision in People v. Smith, sentencing error may be corrected on appeal, even where objection was not made in the trial court, where a condition “could not lawfully be imposed under any circumstance in the particular case.”

Beyond State’s Power

McCormick remarked yesterday that he thinks the condition imposed on his client “is invalid even as to a noncitizen,” explaining:

“[A] state court cannot make an order that amounts to deportation; that power resides exclusively with the federal government under its immigration laws. That position is supported not only by decisions cited by the Court of Appeal in its opinion, but also by the more recent decision of the United States Supreme Court in Arizona v. United States.”

In that 2012, three provisions of an Arizona statute—including the criminalizing of an illegal alien seeking or holding a job in the state—were struck down as preempted by federal law.

Observation in Footnote

McCormick observed in a footnote in his opening brief:

“The trial court was not required to impose all the conditions of probation  orally….However, if  it had, the error probably would not have gone unnoticed.”

The appeal was limited to the issue of the enforceability of the probation condition. Ponder had pled no contest to a charge in San Bernardino Superior Court of assault by means likely to produce great bodily injury.

He was placed on formal probation for three years, a condition of which was spending one year in the county jail.

The case is People v. Ponder, E068918.


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