Opinion
A150174
08-10-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MICHAEL ESCALANTE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC198002)
Defendant Anthony Escalante appeals from a judgment of conviction entered after he pleaded guilty to vehicle theft. His sole claim on appeal is that the trial court erroneously imposed a curfew requirement as a condition of his mandatory supervision. We shall strike the curfew condition but otherwise affirm the judgment.
BACKGROUND
In a complaint filed in July 2016, the Marin County District Attorney charged defendant with vehicle theft (Veh. Code, § 10851, subd. (a)) and receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)). It was further alleged he suffered a prior conviction for receiving stolen property. (Pen. Code, § 666.5, subd. (a).) In September 2016, defendant pleaded guilty to vehicle theft and admitted the special allegation concerning the prior conviction. The court imposed a three-year term of imprisonment, with one year to be served in local custody and the remaining two years to be suspended while defendant served a period of mandatory supervision.
At the time the court pronounced the sentence, it imposed certain conditions applicable to the two-year period of mandatory supervision. One of the conditions was that defendant "maintain a curfew from 11:00 p.m. to 6:00 a.m. at the discretion of the probation officer." Defense counsel objected to the imposition of a curfew as unlawful in the absence of a specific nexus to the underlying criminal behavior. In imposing the curfew, the court noted two facts purportedly establishing a nexus to defendant's criminal behavior: (1) that defendant had prior arrests and grants of probation "for similar conduct," and (2) that he committed the offense during the "evening hours."
After the court articulated the curfew condition, defendant himself asked how he could abide by a curfew given his current state of homelessness. The probation officer replied that he would "work with the defendant to get him to a homeless shelter, and then if he has police contact after his curfew hours, that would be a violation of his curfew." After defense counsel noted that there may not be available space for defendant in a homeless shelter, the court responded, "[I]f they do not, then that will be an issue that I will consider."
Following entry of judgment, defendant timely appealed.
DISCUSSION
Defendant's sole contention on appeal is that the curfew condition is unlawful. The Attorney General concedes that it was error to impose the condition and urges that it be stricken. The concession is well taken.
The validity and reasonableness of a condition of mandatory supervision is analyzed under the same standard applied to probation conditions. (People v. Martinez (2014) 226 Cal.App.4th 759, 763-764.) Our Supreme Court set forth the criteria for assessing the validity of a condition of probation in People v. Lent (1975) 15 Cal.3d 481. "A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .' " (Id. at p. 486.) "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." (Ibid.)
In People v. Nassetta (2016) 3 Cal.App.5th 699 (Nassetta), the Court of Appeal considered whether a curfew imposed as a condition of probation was valid under Lent in a case in which the defendant was convicted of driving under the influence and possessing cocaine for sale. (Id. at p. 701.) The court concluded the condition was invalid, reasoning that the condition did not bear any relationship to the defendant's criminal conduct: "Neither possession of cocaine for sale nor driving under the influence requires the offense to be committed at night." (Id. at p. 703.) The court also noted the condition did not relate to conduct that is itself criminal and was not reasonably related to preventing future criminality. (Id. at p. 707.)
The reasoning in Nassetta applies equally here. Nothing requires the crime of vehicle theft to be committed during the nighttime. Indeed, the record fails to establish that the crime in this case occurred at night. Because the conviction results from a plea, we have a limited factual record describing the offense. The only information in the appellate record bearing upon the time the crime was committed appears to be an arrest report. According to that report, the victim reported that his vehicle was stolen at approximately 7:00 a.m. after he left his key in the vehicle. Defendant was apprehended while driving the stolen vehicle, which had a tracking device that allowed officers to pinpoint the location of the car. Defendant told officers that he found the key in the vehicle and decided to take a " 'joy ride.' " While the arrest report does not definitively establish the time the crime was committed, it is reasonable to infer that defendant stole the vehicle early in the morning.
The fact that defendant had previous arrests or grants of probation for similar conduct does not establish the required nexus to defendant's criminal conduct absent any showing that any prior offenses were committed at night. Furthermore, there is nothing in the record to suggest the curfew condition is reasonably related to preventing future criminality. There was no evidence before the court that vehicle thefts occur more frequently at night or that defendant was more likely to commit a vehicle theft during the nighttime. On this record, we agree with the parties that the curfew condition must be stricken.
DISPOSITION
The order imposing conditions of mandatory supervision is modified to strike the condition that defendant "maintain a curfew from 11:00 p.m. at night to 6:00 a.m. each morning." In all other respects, the judgment is affirmed.
/s/_________
McGuiness, P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.