INTRODUCTION

Pursuant to a plea agreement, defendant and appellant Charles Rogers pled guilty

to inflicting corporal injury resulting in a traumatic condition. (Pen. Code1, § 273.5,

subd. (f)(1).) The trial court placed him on felony probation for a period of three years,

under specified conditions. He subsequently requested that his case be transferred from

the Riverside County to San Bernardino County, where he resided. The San Bernardino

County Probation Department filed a report recommending the imposition of additional

drug and alcohol-related probation conditions. At the transfer hearing, the San

Bernardino court added the recommended conditions.

On appeal, defendant contends: (1) the court lacked jurisdiction to modify his

probations conditions absent a change of circumstances; and (2) the added probation

conditions are invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent). We agree the

court lacked jurisdiction to modify defendant’s probation and strike the added conditions.

PROCEDURAL BACKGROUND

The Riverside County District Attorney charged defendant, by felony complaint,

with infliction of corporal injury resulting in a traumatic condition (§ 273.5, subd. (f)(1),

count 1), threatening a witness (§ 140, subd. (a), count 2), and vandalism (§ 594,

subd. (a), count 3).

On September 14, 2022, defendant entered a plea agreement and pled guilty to

count 1. At the same time, he also pled guilty in a separate case to misdemeanor driving

1 All further statutory references will be to the Penal Code unless otherwise indicated. 2 with a suspended license due to a prior conviction of driving under the influence (DUI).

(Veh. Code, § 14601.2, subd. (a).)

On October 3, 2022, the court sentenced defendant in the instant case, to 180 days

in county jail with a suspended sentence of four years in prison, in accordance with the

terms of the plea agreement. The court placed him on probation for a period of three

years, under specified conditions. On the misdemeanor case, the court denied probation

and sentenced defendant to 69 days in county jail, with credit for time served, which

resulted in a terminal disposition.

On April 21, 2023, the Riverside County Probation Department (the Riverside

probation department) filed a notice and motion to transfer defendant’s case to San

Bernardino County.

On June 23, 2023, the Riverside County Superior Court held a hearing, granted the

transfer to San Bernardino County, and ordered defendant to report to the San Bernardino

County Probation Department (the San Bernardino probation department, or the

probation department) within 30 days. The court did not order defendant’s probation

conditions modified or set a further hearing for modification.

On September 18, 2023, the San Bernardino probation department filed a

memorandum stating that, “[o]n June 23, 2023, the Court accepted jurisdiction over the

defendant and the matter was set for a probation modification hearing for today’s date

[September 26, 2023]. The defendant was ordered to appear. Appropriate terms and

conditions are attached for the Court’s review.”

3 The memorandum recommended that defendant’s probation be continued in San

Bernardino County, under probation conditions previously ordered in Riverside County,

as well as additional conditions. The added probation conditions included the following

terms (collectively, the drug and alcohol-related conditions):

“077 Attend NA/AA2 as directed and provide proof to the Probation Officer upon

request.

011A Neither use nor possess any controlled substance unless prescribed to you

by a medical professional. Medical documentation is to be given to the Probation Officer.

013 Not possess any type of drug paraphernalia as defined in the H&S 11364.5(d),

including but not limited to, hypodermic needles, syringes, or any device used for

sniffing or ingesting.

012AA Submit to a controlled substance test at the direction of the Probation

Officer, Court or any peace officer. Each test is subject to a fee, to be collected by

Central Collections.”

The court held a hearing on September 26, 2023. At the outset, the court

appointed counsel for defendant. Defense counsel argued that “the probation department

has policies that are wrong on a transfer in, many of which are inappropriate to the case.”

He asserted that the only circumstance that had changed was where defendant was

reporting; thus, defendant should simply be directed to report to the probation office in

Victorville. Defense counsel then objected to the recommended drug and alcohol-related

2 Narcotics Anonymous/Alcoholics Anonymous

4 conditions, contending the requirements that defendant attend NA/AA (term 077), not

possess any controlled substance (term 011A), and not possess drug paraphernalia (term

013), were not imposed in Riverside, and they were inappropriate in this case. As to the

term requiring defendant to submit to testing (term 012AA), he argued the current offense

did not involve any controlled substances; and, if there was any testing, the probation

department should pay for it, rather than defendant. The court responded by stating:

“The position of the Court is that I’m not going to tie the hand of probation in their

supervision.· I would intend to include all of the terms that you have objected to.” The

People simply submitted on the matter, and the court concluded, “Then that will be the

order. They will be imposed pursuant to this document.”

DISCUSSION

The Trial Court Exceeded its Jurisdiction By Modifying Defendant’s Probation

Conditions Absent a Change of Circumstances

Defendant argues the court erred in modifying his probation conditions, as

recommended by the probation department, without citing any change in circumstances

that justified the additional terms. He specifically contends the court exceeded its

jurisdiction when it added the drug and alcohol-related conditions because no new facts

or changed circumstances warranted modifying his probation; thus, the conditions must

be stricken. The People claim the court had jurisdiction to modify defendant’s probation

because his transfer to San Bernardino County constituted the requisite change of

circumstances. We agree with defendant.

5 A. Relevant Law

At any time during the probationary period, a trial court has the authority to

modify the terms of probation. (§ 1203.3, subd. (a).) However, “[a] change in

circumstances is required before a court has jurisdiction to … modify probation.”

(People v. Cookson (1991) 54 Cal.3d 1091, 1095 (Cookson).) As the Supreme Court held

in In re Clark (1959) 51 Cal.2d 838 (Clark), “[a]n order modifying the terms of

probation based upon the same facts as the original order granting probation is in excess

of the jurisdiction of the court, for the reason that there is no factual basis to support it.”

(Id. at p. 840, italics added; People v. Leiva (2013) 56 Cal.4th 498, 505.) In this context,

a “change in circumstance” requires “a fact ‘not available at the time of the original

order.’” (Cookson, supra, at p. 1095.) Thus, a modification order based upon the same

facts as the original order is improper because “the court [has] reached a different

conclusion based upon the same facts.” (People v. Mendoza (2009) 171 Cal.App.4th

1142, 1156 (Mendoza).)

B. There Was No Change of Circumstances or Factual Basis To Support the

Modification

In its report, the probation department recommended the drug and alcohol-related

conditions be added, but it did not provide new facts showing a change in circumstance.

Defense counsel pointed out the only circumstance that had changed was where

defendant would be reporting. He then objected to the imposition of the drug and

alcohol-related conditions since they were not imposed in Riverside County, and they

6 were inappropriate in this case. The court’s mere response was that it was “not going to

tie the hand of probation in their supervision” and it intended to include all the terms

objected to. It then proceeded to order that the conditions “be imposed pursuant to this

document” (i.e., the probation report). It appears the trial court ordered the conditions to

be added based on its deference to the probation department. However, the court’s

deference to the probation department’s recommendation is insufficient to justify the

modification. There were no facts presented in the probation report or at the hearing that

were not before the court at the original sentencing hearing. In other words, the

modification order was improperly based on the same facts as the original order granting

probation. (Clark, supra, 51 Cal.2d at p. 840; Mendoza, supra, 171 Cal.App.4th at

p. 1156.) Because there was no change in circumstances to justify a modification, the

trial court acted in excess of its jurisdiction in modifying defendant’s probation

conditions. (Clark, supra, 51 Cal.2d at p. 840.)

The People concede that a change in circumstances is required before a court has

jurisdiction to modify probation, and they argue that the transfer of defendant’s probation

to San Bernardino County constituted the requisite change in circumstances. The People

reason that the change in supervision of defendant’s probation “was uncertain when the

original Riverside County probation order occurred.” The People further attempt to

justify the modification by arguing that the drug and alcohol-related terms were related to

defendant’s rehabilitation since he pled guilty in the misdemeanor case to driving on a

7 license that had been suspended due to a prior DUI. We respectfully disagree with the

People and find their claims are without merit.

In In re Bine (1957) 47 Cal.2d 814 (Bine), the lower court, on its own motion,

modified the defendant’s probation to vacate a fine that the court had imposed originally

and to add a six-month county jail term. At the hearing to modify probation, no evidence

was presented as to the defendant that was not before the court at the original probation

hearing. (Id. at p. 816.) The California Supreme Court observed that “the [lower] court

reached a different conclusion upon the same facts which were before it at the time it

imposed the original terms of probation.” (Id. at pp. 816-817.) The Supreme Court

concluded that the modification order “was made in excess of the jurisdiction of the court

for the reason that there was no factual basis to support it.” (Id. at p. 818.)

Here, the supervision of defendant’s probation in Riverside County was not a

“fact” upon which defendant’s original probation order was based. Thus, his transfer to

San Bernardino County did not constitute the change in circumstances required to justify

a modification of his probation conditions. Furthermore, as discussed ante, the San

Bernardino probation department did not bring any new facts to the attention of the court

when it recommended the drug and alcohol-related conditions. Thus, there was no

factual basis for the court’s determination that defendant’s probation should be modified

and the new terms imposed. (See Bine, supra, 47 Cal.2d at p. 816.) Moreover, the

People’s claim that the drug and alcohol-related conditions were related to defendant’s

rehabilitation, since he pled guilty to misdemeanor driving with a suspended license, is

8 inapposite. The misdemeanor case was a separate case, in which the sentencing court did

not grant probation with terms related to defendant’s suspended license conviction but

rather denied probation and ordered that matter closed. Further, there was no showing

that the domestic violence case that was the subject of the probationary terms was in any

way related to alcohol or drug abuse. The original sentencing court did not find it

necessary to impose drug and alcohol terms based upon the matters before it.

Nevertheless, the receiving court modified the terms of probation with no change of

circumstances and erred in doing so.

In sum, the record demonstrates the trial court lacked a factual basis to modify

defendant’s terms of probation. Thus, the court acted in excess of its jurisdiction in

ordering the drug and alcohol-related conditions to be imposed.3

3 In view of this conclusion, we find it unnecessary to address defendant’s second argument that the conditions requiring him to attend NA/AA meetings and submit to drug testing are invalid under Lent, supra, 15 Cal.3d 481. 9

DISPOSITION

The court’s order of September 23, 2023 is modified by striking the drug and

alcohol-related probation conditions. The order is affirmed as modified.

CERTIFIED FOR PUBLICATION

FIELDS

J.

We concur:

CODRINGTON

Acting P. J.

RAPHAEL

J.

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