Opinion
D076777
07-31-2020
THE PEOPLE, Plaintiff and Respondent, v. RICKY MCCOY, Defendant and Appellant.
Shaghayegh Dinata-Hanson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Matthew Mulford, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CPR180969) APPEAL from an order of the Superior Court of San Diego County, Kathleen M. Lewis, Judge. Affirmed. Shaghayegh Dinata-Hanson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
In December 2018, Ricky McCoy was released from prison and began serving a three-year term of post release community supervision (PRCS). (Pen. Code, § 3455.) His prison commitment was for carrying a concealed dirk or dagger. (§ 21310.)
All further statutory references are to the Penal Code.
By September 2019, McCoy had been arrested six times for violation of the terms of his PRCS. McCoy had received three flash incarcerations and three revocations. In this, his seventh violation in less than a year, McCoy admitted violating the terms of his release, waived an evidentiary hearing, and agreed to the terms of his continued release except for the curfew recommended by the probation officer and the modified curfew imposed by the court. The probation officer recommended a curfew of 12 hours from 6:00 p.m. to 6:00 a.m. The curfew imposed by the court was 8:00 p.m. to 6:00 a.m. McCoy objected to the curfew.
He now appeals and contends the curfew is unconstitutional and violates the rules established by People v. Lent (1975) 15 Cal.3d 481 (Lent).
McCoy, a skinhead gang member, with a substance abuse problem, and a history of carrying weapons was arrested at around 2:00 a.m. outside a convenience store on a warrant based on the seventh violation of the terms of his release. We believe the trial judge, faced with a person who stubbornly refused to comply with the terms of his release and plainly posed a potential danger to the public, could reasonably conclude more restrictive measures needed to be imposed if there could be any hope of getting McCoy through the community supervision process. The court could not return McCoy to prison and had to fashion some measures to deal with McCoy at the county level. (People v. Gutierrez (2016) 245 Cal.App.4th 393, 399; § 1203.2, subd. (a).)
We believe the curfew imposed here is not overbroad and is appropriately tailored to attempt to prevent new criminal activity and potential danger to the public. We will affirm the trail court's order.
DISCUSSION
McCoy objected to the probation recommendation for the court to impose a curfew on him. The court explained its reasons: "Well, in looking at some of his other violations and what they all indicate about him, I think that a curfew is a reasonable condition based on his substance abuse issues repeatedly, based on his multiple weapons, and also gang—skinhead gang, allegations, his intent to get treatment. So I think it's reasonably related to him being on supervised release through probation. So I'm going to—I'll extend it a little bit, if you want, to maybe 8:00 p.m."
McCoy argues the court's decision was an abuse of discretion and it imposed an unconstitutional limitation on his freedom. We disagree.
A. Legal Principles
In Lent, supra, 15 Cal.3d at page 486, the court set forth criteria courts should use in assessing the validity of probation conditions; "[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 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." (Ibid.)
The Lent "test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate the probation term." (People v. Olguin (2008) 45 Cal.4th 375, 379.)
The general principles of reviewing probation conditions are relevant to the review of conditions of mandatory supervision. (People v. Malago (2017) 8 Cal.App.5th 1301, 1306.) We review a supervision order under Penal Code section 1203.2 for abuse of discretion. (People v. Rodriguez (1990) 51 Cal.3d 437, 447; People v. Butcher (2016) 247 Cal.App.4th 310, 318.)
In People v. Nassetta (2016) 3 Cal.App.5th 699, 702-705 (Nassetta), the court rejected the application of a curfew condition under a Lent analysis. In that case, the defendant was granted probation for repeat drunk driving and a drug offense. At the original sentencing, the court ordered a 10:00 p.m. to 6:00 a.m. curfew, apparently because the crimes were committed at night. The appellate court found the condition violated all three prongs of the Lent test. McCoy relies on Nassetta to support his claim the curfew ordered here is also invalid. Nassetta is distinguishable from the circumstances. There was nothing in the record in that case that would satisfy the requirement to show it was reasonably likely to deter future criminality.
In the present case, the court did not resort to further restriction on McCoy until his seventh violation of his supervision order. All other measures, including repeated incarcerations, had not deterred McCoy's behavior. Further, the trial court could not return McCoy to prison, but was required to continue to deal with him at the county level. We do not find the Nassetta case to be controlling in this instance.
B. Analysis
Addressing the abuse of discretion claim first, we are satisfied the trial court acted reasonably after many other attempts to gain McCoy's compliance had failed. He had failed to report, to address his substance abuse problem, remained active with his skinhead gang, and had been found with weapons at times. He was arrested this time at 2:00 in the morning.
Turning to Lent, we will assume the answer to the first two prongs is no. We turn to the third prong and ask if the curfew imposed in this extreme case is designed to address the conduct of his past crime and future criminality. Reasonable minds may differ on the issue, but where the court cannot just send McCoy back to prison after his seventh violation, and his latest encounter with authorities occurred at 2:00 a.m., we cannot say the trial court was wrong to impose this condition. The condition, on these facts, can reasonably be interpreted as an appropriate measure to prevent future criminality. We find the condition to be valid on the record before us.
DISPOSITION
The supervision order imposing a curfew on McCoy is affirmed.
HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. IRION, J.