Opinion
D071317
08-23-2017
THE PEOPLE, Plaintiff and Respondent, v. GUSTAVO LOPEZ, Defendant and Appellant.
Benjamin P. Lechman, 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, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD268524) APPEAL from a judgment of the Superior Court of San Diego County, Daniel F. Link, Judge. Affirmed as modified. Benjamin P. Lechman, 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, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Gustavo Lopez pleaded guilty to burglary (Pen. Code, § 459). Pursuant to the plea agreement, he was sentenced to 365 days in custody and three years of probation.
On appeal, defendant objects to a portion of probation condition 6(n) and to condition 10(g). Condition 6(n), which defendant challenged in the trial court, required him to "[s]ubmit person, vehicle, residence, property, personal effects, computers, and recordable media . . . to [a] search at any time with or without a warrant, and with or without reasonable cause, when required by [his probation officer] or law enforcement officer." (Italics added.) Defendant specifically challenges the italicized portion of condition 6(n) concerning computers and recordable media (sometimes, electronic search condition), contending this "limitless electronic search" is both unreasonable and unconstitutionally overbroad because it is "completely unrelated to his second degree burglary offense or potential future criminality."
Defendant also objects to condition 10(g). This condition, which defendant did not challenge in the trial court, requires him to obtain the approval of his probation officer as to "residence" and/or "employment" (sometimes, approval condition). Defendant contends condition 10(g) is unconstitutionally vague and overbroad, as neither "component . . . relates to the crime of which [defendant] was convicted, to conduct that is criminal nor [is either] narrowly tailored to further a compelling state interest in reformation and rehabilitation."
As we explain, we agree with defendant and strike the electronic search and approval conditions.
FACTUAL OVERVIEW
Because defendant pleaded guilty, this summary is principally derived from the probation officer's report.
On August 27, 2016, victim Lisa C., her three sons—twins age nine and a 15 year old, and their nanny were staying at a rented vacation home in Ocean Beach. That day, one of Lisa's sons along with his nanny went sightseeing. At about 3:00 p.m., Lisa and her two other sons went to the beach. They purposely left the backdoor unlocked. When Lisa and her two sons returned, "they heard loud music playing. They found the defendant sitting inside the house wearing [the] eldest son's clothing. The defendant identified himself as 'Jose.' [Lisa] yelled at the defendant to leave the premises, which he did but not before unplugging his iPhone from the speakers. One of [Lisa]'s younger sons recognized the defendant from earlier in the day as the defendant had offered him candy and also asked to use their bathroom."
"[Lisa] looked through the residence and found drawers ransacked. The defendant left his backpack and rental car key behind. The defendant had removed a bottle of liquor from the cabinet and drank from it using a shot glass. He also consumed some food. [Lisa] called police, though no units were available to respond at that time.
"[Lisa]'s eldest son followed the defendant to a liquor store and confronted the defendant. The defendant agreed to return to the house to pick up his backpack. Shortly afterward, the defendant returned asking for his backpack and removed the stolen clothing. [Lisa]'s eldest son looked through the backpack to ensure none of their belongings were inside. The backpack was then returned to the defendant and he left.
"At approximately 5:50 p.m., the defendant returned to the residence asking for his car key. [Lisa] stalled the defendant pending police arrival. The defendant was taken into custody. The defendant told arresting officers that he was from Los Angeles and was at the beach playing volleyball. Voices told him to go into the house, which he did."
The record shows defendant agreed to an interview with a probation officer in connection with the preparation of the probation officer's report. In this interview, defendant stated that at the time of the incident, he had been on disability because of a work-related injury; that he had not received a disability payment for six weeks, which caused him "great stress" because he was unable to pay his bills; and that when he finally received a payment, he took a short vacation by himself to "relax" in San Diego. On the day of the incident, defendant went to Ocean Beach, where he consumed two to three 24-ounce cans of beer. While at the beach, "something in [defendant's] mind told him he was supposed to meet someone at the victim's beach house. He found the back door 'wide open' and entered the home. While there, he drank a beer, took a shot of tequila, cleaned the kitchen, showered, and then waited for whomever he was to meet there to arrive."
During the interview, defendant stated that he had no intention of committing burglary; that when the victims arrived home, he apologized to them; that he next walked to the liquor store with one of Lisa's sons; that defendant did not buy anything at the liquor store; and that defendant returned to the house with Lisa's son so that defendant could pick up his backpack. After returning the clothes, defendant left, but later returned for the key to his rental car. It was then police arrested him.
Defendant, then-age 39, "denied ever having thoughts like this before" and believed alcohol and stress played a role in his actions that day. Defendant had no criminal history. He reported he had not used marijuana since he was 17 years old and had not used cocaine since he was 22 years old. Defendant further reported he consumed one 24-ounce beer daily; that he was a " 'family man' "; and that until his arrest in the instant case, he had been employed for eight years as a manager of an auto parts store.
Defendant was evaluated under the COMPAS (i.e., Correctional Offender Management Profiling for Alternative Sanctions) assessment tool. As a result of this process, the "assessed level of risk for recidivism suggest[ed] that the defendant is likely to be successful with minimal intervention and that felony summary probation or banked formal probation would adequately serve to protect the community." The COMPAS assessment further provided that "[i]ntervention at a more intrusive level could prove ineffective or counter-productive based upon available research."
In recommending probation, the probation officer's report doubted that defendant merely consumed "only one 24-ounce beer per day," recognized alcohol likely "played a large part in his odd behavior," and concluded defendant was likely "quite intoxicated and confused with no malicious intent in the commission of the burglary."
At defendant's sentencing hearing, the court stated defendant's behavior in the instant case was "strange" for a person who, up to then, had been "crime free." The court asked whether the defense wanted to "shed light" on why this incident happened. Defense counsel in response suggested "it could be a bunch of things dealing with some depression that [defendant] was dealing with, some other stressors with some alcohol use that led to this."
The court then asked the defense if defendant wanted to "explain" his behavior, which led to the following colloquy:
"The Defendant: Well, at the time being I was going through a lot of stress. One of the reasons I came to San Diego was to let off some steam. I had a lot going on in my mind. I broke a collarbone. It is still broken. They were lagging on my workers comp, so I had bills that were backed up, mortgage payments not getting paid.
"The Court: I get all of that, but the behavior was so bizarre.
"The Defendant: I mean, it's not me. It was a lot of stress, like [defense counsel] said, depression. That had a lot to do with it. I have no criminal record . . .
"The Court: I see that.
"The Defendant: —whatsoever.
"The Court: That's benefited you obviously. Frankly, the bizarre facts benefitted you, saved [you] from . . . a residential burglary. Your actions were so strange. Obviously, there were other people there that were very frightened.
"The Defendant: I understand. I apologized to the lady that same day. I meant harm for no one. My intention was not to burglarize anything. I screwed up. I trespassed but that wasn't my intention.
"The Court: What was it?
"The Defendant: I was mislead [sic]. I thought I was going to go meet someone I knew there, but that was not the case. It was the wrong house. I had a lot of things going through my mind at the time. I made a mistake. I recognize that. I had plenty of time to think about that.
"The Court: Okay."
The record shows near the conclusion of the hearing, the defense cited People v. Lent (1975) 15 Cal.3d 481 (Lent) and In re J.B. (2015) 242 Cal.App.4th 749 (J.B.) and asked the court to strike the electronic search condition. The court responded as follows: "I believe that's what a 4th waiver is. I think it extends to cell phones. I know under some of the cases that have been cited before, there has to be nexus, but he committed residential burglary. If he commits future—probation needs tools to help them make sure he can help himself remain crime free. If he does commit theft offenses in the future, he may or may not take pictures the [sic] those things that he steals or is around. Probation needs access to his cell phone. Your objection is noted. I'm not going to alter the 4th waiver."
DISCUSSION
I
Electronic Search Condition
A. Guiding Principles
A grant of probation is an act of clemency in lieu of punishment. (People v. Moran (2016) 1 Cal.5th 398, 402.) Probation is a privilege, and not a right. A court has broad discretion to impose "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, . . . and generally and specifically for the reformation and rehabilitation of the probationer . . . ." (Pen. Code, § 1203.1, subd. (j); People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) "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 (O'Neil).)
A condition of probation will not be upheld, however, if it (1) has no relationship to the crime of which the defendant was convicted, (2) relates to conduct that is not criminal, and (3) requires or forbids conduct that is not reasonably related to future criminality. (People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin); see Lent, supra, 15 Cal.3d at p. 486.) Our high court has clarified that this "test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (Olguin, at p. 379.)
However, "[j]udicial discretion to set conditions of probation is further circumscribed by constitutional considerations." (O'Neil, supra, 165 Cal.App.4th at p. 1356.) "A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) "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.)
"Generally, we review the court's imposition of a probation condition for an abuse of discretion." (See In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143 (Shaun R.).) However, we independently review constitutional challenges to a probation condition. (Ibid.)
B. Analysis
Respondent Attorney General does not dispute that the electronic search condition fails the first two Lent prongs—the condition has no relationship to defendant's crime of second degree burglary, which did not involve the use of any electronic communication system including a cellular phone, and the use of electronic devices "is not itself criminal." (In re Erica R. (2015) 240 Cal.App.4th 907, 913 (Erica R.); J.B., supra, 242 Cal.App.4th at pp. 754-755.) Therefore, the issue is whether the electronic search condition is reasonably related to preventing future criminality. (See Olguin, supra, 45 Cal.4th at p. 379.)
The issue of the validity of an electronic search condition under the third Lent prong is pending before our high court. (See, e.g., In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25, 2016, S233932; In re Mark C. (2016) 244 Cal.App.4th 520, review granted Apr. 13, 2016, S232849; In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923.) Until we receive further direction from our high court, we must undertake to resolve this case as best we can.
Here, the record shows the trial court upheld the reasonableness of the electronic search condition on the basis that, if defendant reoffends, despite being 39 years old and having no prior criminal record, he "may or may not take pictures [of] those things that he steals" with his cell phone. In our view, the trial court's reasoning that it is conceivable that future searches of defendant's cell phone or other electronic devices might yield information about potential criminal activity by defendant is entirely speculative and does not, on this record, in and of itself support imposition of this probation condition on defendant.
Indeed, a contrary rule would provide virtually no limit to a court's imposition of the electronic search condition on a defendant. As a matter of common sense, it is always possible that a defendant may use his or her cell phone or other electronic device as an instrumentality of crime. But that possibility, without more, is insufficient to show the restriction will serve the important rehabilitative function of preventing future criminality. (See Erica R., supra, 240 Cal.App.4th at pp. 909 [concluding an electronic search condition imposed on a minor found in possession of ecstasy was unreasonable because there was no evidence "connecting the juvenile's electronic device or social media usage to her offense or to a risk of future criminal conduct"], 913 [and in so concluding, rejecting the Attorney General's contention that a cell phone can be an " 'instrumentality of a crime' " because under that theory, the minor "could have been barred from possessing power tools, opening a checking account, or driving a vehicle because all could be used as an instrumentality of a crime"].)
Furthermore, there is no evidence in the record showing defendant used his cell phone to take pictures of any items he allegedly stole from the victims, or otherwise used his cell phone or any other electronic device to commit the instant offense. Rather, the only evidence of defendant's use of his cell phone in the instant case was when he plugged it into a speaker system inside the house and listened to music while he waited for "someone" to arrive.
Nor is there any evidence in the record concerning defendant's personal history that connects his use of electronic devices including a cell phone to any potential unlawful conduct such as theft or drug use or gang participation, by way of example only. To the contrary, the record is silent concerning defendant's usage of electronic devices, much less his use of such devices to engage in any conduct that would support imposition of the electronic search condition.
Accordingly, while it is always possible to speculate about any number of crimes defendant might commit in the future and to formulate conditions that might deter or prevent such future criminality, because defendant has shown no propensity to commit crimes using an electronic device, on this record we conclude there is no reason to believe the electronic search condition would actually prevent him from committing any future crimes. (See In re D.G. (2010) 187 Cal.App.4th 47, 53 [applying the Lent test in concluding there was no reasonable basis for the court to impose on a minor a condition requiring the minor to stay more than 150 feet away from any school other than his own because "there is nothing in his past or current offenses or his personal history that demonstrates a predisposition to commit crimes near school grounds or upon students, or leads to a specific expectation he might commit such crimes"]; compare People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1173 [upholding the condition that the defendant submit to a search of electronic devices and social media websites because this condition was related to the defendant's crimes of making a criminal threat and resisting an officer after the defendant, a known gang member, told an arresting officer that "he was ' "[f]ucking with the wrong gangster," ' " and repeatedly threatened the officer and the officer's family], 1177 [and noting the "only way that defendant could be allowed to remain in the community on probation without posing an extreme risk to public safety was to closely monitor his gang associations and activities"].)
Given the intrusiveness of the electronic search condition imposed on defendant when considered in light of the lack of any relationship between defendant's use of a cell phone or other electronic device and criminality, past or future, we conclude the court abused its discretion in imposing the electronic search condition on defendant. (See Shaun R., supra, 188 Cal.App.4th at p. 1143.) As a result, we further conclude this portion of condition 6(n) should be stricken as a condition of defendant's probation.
In light of our decision, we deem it unnecessary to reach defendant's alternate contention that the electronic search condition was unconstitutionally overbroad. (See Sheena K., supra, 40 Cal.4th at p. 890.) --------
II
Approval Condition
Defendant next contends the court's imposition of condition 10(g) requiring a probation officer's approval as to defendant's residence and employment was constitutionally overbroad.
Unlike the electronic search condition discussed ante, the record shows defendant did not object to either the residency or employment conditions in 10(g). But where a claim that a probation condition is facially overbroad and violates fundamental constitutional rights is based on undisputed facts, we may treat it as a pure question of law, which is not forfeited by failure to raise it in the trial court. (Sheena K., supra, 40 Cal.4th at pp. 888-889.)
Here, there is nothing in the record to show the approval condition was necessary to aid in defendant's rehabilitation. As noted ante, defendant had no prior criminal history.
The Attorney General nonetheless argues the approval condition is necessary in the instant case "so that [defendant] does not opt to live in a residence [or work in a place] where drugs or alcohol are used or sold." However, there are myriad other probation conditions imposed on defendant to which he did not object that will allow a probation officer to monitor defendant and ensure he does not use alcohol or drugs and engage in criminal activity, including: condition 8(b), providing defendant shall "not knowingly use or possess alcohol if directed by the [probation officer]"; condition 8(f), providing defendant must submit to "any chemical test of blood, breath, or urine to determine blood alcohol content and authorize release of results to [probation officer]"; condition 14(a), providing defendant is not to use marijuana even with a doctor's recommendation and approval; condition 6(o), providing defendant shall "[s]eek and maintain full-time employment"; and perhaps most importantly, condition 6(j), requiring defendant to notify his probation officer within 72 hours of any change of address or employment.
In contrast to the lack of any showing that the approval condition would facilitate defendant's rehabilitation, we note this condition substantially impedes defendant's right to travel, his freedom of association, and his right to employment (which he had maintained for eight years until his arrest in this case). (See People v. Bauer (1989) 211 Cal.App.3d 937, 944.) For these reasons, and because the restriction applies to conduct that is not criminal, we independently conclude condition 10(g) is overbroad and should be stricken in its entirety. (See People v. Burden (1988) 205 Cal.App.3d 1277, 1279-1280 [noting a probation condition that prohibited the defendant from working in a sales position was invalid because there was no relationship between the crime of writing checks with insufficient funds, for which the defendant pleaded guilty, and his potential future employment as a salesperson]; compare People v. Stapleton (2017) 9 Cal.App.5th 989, 995, 996 [concluding a residence condition was necessary because the defendant there—unlike defendant in the instant case—had a "lengthy" criminal history, had struggled with "mental health and substance abuse," and had failed to register as a sex offender under Penal Code section 290, which collectively showed the defendant's probation officer needed to know where the defendant resided and with whom he was associating in order to deter future criminality].)
DISPOSITION
The electronic search condition in probation condition 6(n) and the approval condition in 10(g) are stricken. In all other respects, the judgment of conviction is affirmed. The superior court is directed to amend the probation order of defendant accordingly.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. IRION, J.