Opinion
D072479
05-23-2018
THE PEOPLE, Plaintiff and Respondent, v. FREEMAN BOLDEN, Defendant and Appellant.
Patrick Dudley, 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, Robin Urbanski and Sabrina Y. Lane-Erwin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD272211) APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Affirmed as modified. Patrick Dudley, 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, Robin Urbanski and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Freeman Bolden pleaded guilty to one count of felony vandalism. (Pen. Code, § 594, subds. (a)(2) & (b)(1).) Pursuant to the plea agreement, Bolden was placed on formal probation for three years and was required to serve up to 180 days in custody, in return for the dismissal of two other counts. At sentencing, the court imposed terms and conditions of probation, two of which Bolden challenges on appeal: the search of his electronic devices (No. 6n), and the gang conditions (No. 12).
All further statutory references are to the Penal Code.
As we explain, we conclude on this record that the court abused its discretion when it imposed these two conditions. We thus strike both conditions, but otherwise affirm Bolden's judgment of conviction.
FACTUAL OVERVIEW
Because Bolden pleaded guilty, this summary is principally derived from the probation report.
On May 27, 2017, at about 11:00 p.m., Bolden kicked down the front door of the home of J.P. Once inside, he began attacking J.P.'s son, C.P. During the attack, Bolden broke a table valued at more than $400. After the attack, Bolden grabbed his girlfriend K.N. by the hair, dragged her out of the home, and began assaulting her. Police were called but could not locate Bolden, who fled on his bicycle. Both C.P. and K.N. declined to provide a statement to, or otherwise cooperate with, police.
Bolden returned to J.P.'s home the following evening at about 10:45 p.m. Surveillance showed Bolden attempting to climb a fence. J.P. called police, who contacted Bolden and girlfriend K.N. nearby. A police search of Bolden led to the discovery of .83 grams of methamphetamine and a box cutter. Bolden admitted to police he had been at J.P.'s home the night before and had returned for his backpack, which he had left in the home. A criminal protective order issued on June 1, 2017, for J.P, C.P, and K.N.
During a later interview, Bolden stated K.N. was friends with J.P. and C.P. Bolden claimed that he previously had left his backpack at J.P.'s home, or one of the residents had "stole[n]" it; that on the night of the incident, he went to retrieve the backpack when he and C.P. "got into a 'tussle,' " but denied any physical altercation occurred; and that when he returned the following evening, he stayed off the property while K.N. went to retrieve his backpack, which had already been turned over to police.
Bolden's probation report showed he had a lengthy criminal history dating back to 1995, when he was a juvenile. The probation report described Bolden's overall adjustment to probation as "dismal" as a result of his ongoing criminal activity combined with his noncompliance while on probation. That report also noted that Bolden admitted he became a member of the criminal street gang "Neighborhood Crips" at age 15; that he remained in that gang until he was about 25 years old, when he was "jumped out"; that he had not been involved in gangs for more than 10 years; that initially he had no opposition to the gang conditions because he did "not associate with gang members"; that "[p]er local records, the defendant is not documented as a gang member"; but that while in custody, "Sheriff's records indicated he ha[d] been flagged as a Neighborhood Crip gang member with the moniker ' Ray Ray.' "
Although presumptively ineligible for probation because he suffered two or more prior felony convictions, and although the plea deal limited his custody to 180 days, probation recommended Bolden be sentenced to 365 days in custody, supporting its recommendation as follows: "The defendant has an extensive history of criminal activity dating back to the 1990's. He has been given numerous opportunities to rehabilitate through probation and parole. However, he has consistently demonstrated an unwillingness to comply with the directives of the Court and probation. Additionally, none of the previous sanctions have deterred him from his continued criminal activity. In fact, every prior grant of formal probation has resulted in a prison commitment due to his lack of compliance and continued criminal conduct."
DISCUSSION
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 . . . ." (§ 1203.1, subd. (j); People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121 (Carbajal).) "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), citing People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).) 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.) "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." (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) However, we independently review constitutional challenges to a probation condition. (Ibid.)
We first turn to the gang conditions, as our analysis and decision on this issue is pertinent to the electronic search condition.
B. Gang Conditions
The court-imposed gang conditions challenged by Bolden provided as follows: "12a. Do not appear in court or at the courthouse unless you are a party or witness in the proceedings. b. Do not associate with any person who you know, or who a [probation officer] or other law enforcement officer informs you, is a Neighborhood Crips gang member. . . . .c. Do not knowingly visit/frequent any school grounds unless you are a student registered at the school. ... d. Do not knowingly be an occupant in a stolen vehicle. e. Do not knowingly display any gang signs or gestures. f. Do not knowingly own, transport, sell, or possess any weapon, firearm, replica firearm or weapon, ammunition, or any instrument used as a weapon. . . . .i. Do not knowingly wear, display, use, or possess [any gang paraphernalia]."
We conclude under the facts of this case that the court abused its discretion when it imposed the gang conditions on Bolden. The record shows that, although Bolden admitted to being an active gang member when he was jumped into the Neighborhood Crips gang at age 15 and was jumped out at age 25, he had not been an active gang member for more than 10 years when, at the age of about 36, he committed the instant offense.
This finding is further supported by "local records," which showed Bolden was not a documented gang member. While custody records indicated he was a gang member who went by the moniker "Ray Ray," there is nothing more in the record to show he was active in a criminal street gang, both in and out of custody, over the last 10 years. Nor has he sustained any criminal convictions over this time period involving gang allegations/crimes. As such, we conclude the gang conditions imposed on Bolden should be stricken from his probation order
C. Electronic Search Condition
Probation condition number 6n provides that Bolden shall "[s]ubmit person, vehicle, residence, property, personal effects, computers, and recordable media . . . to search at any time with or without a warrant, and with or without reasonable cause, when required by [a probation officer] or law enforcement officer." Bolden at sentencing opposed the italicized portion of this condition (i.e., the electronic search condition). In refusing to modify or delete the electronic search condition, the court found the Fourth waiver in its view "always includes electronic communication, especially in a case like this where there is some preexisting relationship or anger about something happening and the [section] 594 that was committed was based on that. There was a communication that took place at some point about the backpack. [The court doesn't] know how that took place, but it is highly likely it was through a telephone and whatever communication that led to eventually this defendant going over to that house and [his] actions. [The court is] going to include not only the telephone, but all electronics in the court's order." (Italics added.)
Here, respondent the People do not dispute that the electronic search condition fails the first two Lent prongs — the condition has no relationship to Bolden's felony vandalism offense, which did not involve the use of any electronic communication system or device including a cellular phone, and the use of electronic devices "is not itself criminal." (See In re Erica R. (2015) 240 Cal.App.4th 907, 913; In re J.B. (2015) 242 Cal.App.4th 749, 754-755.) Therefore, the issue is whether the electronic search condition is reasonably related to preventing future criminality. (See Olguin, 45 Cal.4th at p. 379.)
The issue of the validity of an electronic search condition under Lent and its progeny is pending before our high court. (See, e.g., People v. Ermin (2017) 2017 WL 2929356, Cal.App. 6 Dist., review granted Oct. 25, 2017, S243864; People v. Nachbar (2016) 3 Cal.App.5th 1122 (Nachbar), review granted Dec. 14, 2016, S238210; In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25, 2015, 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, we must undertake to resolve this case as best we can.
Respondent contends the case of People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski) provides meaningful guidance on this issue. There, the challenged probation conditions required the defendant to provide "1 '. . . all passwords to any electronic devices (including cell phones, computers or notepads) within [his] custody or control, and [to] submit such devices to search at any time without a warrant by any peace officer' "; and "2 '[to] provide all passwords to any social media sites (including Facebook, Instagram and Mocospace) and to submit those sites to search at any time without a warrant by any peace officer.' " (Id. at p. 1172.) The defendant in Ebertowski was an active member of a criminal street gang who repeatedly identified himself to law enforcement as such before entering a no contest plea to making criminal threats and resisting an officer, and admitting a gang allegation. (Id. at pp. 1172-1173.)
The Ebertowski court rejected the defendant's claim that the electronic search condition was unreasonable (and overly broad). The court noted that the "password conditions" were related to the defendant's future criminality because of his gang affiliation, which "gave [the defendant] the bravado to threaten and resist armed police officers." (Ebertowski, supra, 228 Cal.App.4th at p. 1177.) The court further noted that the only way the 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 association and activities. The password conditions permitted the probation officer to do so. Consequently, the password conditions were reasonable under the circumstances, and the trial court did not abuse its discretion in imposing them." (Ibid.)
Turning to the instant case, as noted there is no record evidence to show Bolden has been involved in gang activity for at least 10 years. We thus conclude the facts and reasoning in Ebertowski upholding the electronic search condition on the basis law enforcement needed to monitor the defendant's gang association and activities is inapposite to the instant case, where no such evidence exists. (See Ebertowski, supra, 228 Cal.App.4th at pp. 1172-1173.)
Although Bolden has a lengthy criminal history and his compliance while on probation has been described as "dismal," we nonetheless conclude the court erred in imposing the electronic search condition because the court expressly stated it did so as a matter of routine. (See People v. Trujillo (2017) 15 Cal.App.5th 574, 583 (J. Haller) [finding the electronic search condition was reasonably related to preventing the defendant's future criminality because the record showed the court imposed this condition with the "awareness of these facts and the probation department's conclusion that [the defendant] was at risk and would require close supervision of his daily activities to support a successful probation," and finding the "record shows the court did not impose this condition as a matter of routine, but considered the specific facts relevant to [the defendant's] case"] (italics added).)
Indeed, the record shows the court stated it "always" imposed the electronic search condition when there was a Fourth waiver. While the court suggested Bolden may have used his telephone to call the victim(s) to obtain his missing backpack, this is speculative, as there is no evidence of such; nor are we convinced that his doing so, even if such evidence existed, would be sufficient to impose this condition under the circumstances of this case.
The court also justified imposing this condition because of what it noted was a pre-existing relationship between the victim(s) and Bolden. We note, however, that there are several other conditions he did not challenge that ensure the safety and protection of the victims and the public in general, including the requirement he obey all laws; he "not knowingly contact or attempt to contact, annoy, or molest either directly or indirectly" J.P., C.P., and K.N; he obtain approval from probation as to residence and employment; he comply with court orders including any restraining order, which issued in the instant case; he not knowingly possess a firearm, ammunition, or a deadly weapon; he complete a residential drug treatment program and avoid using or possessing alcohol and any controlled substances; and he submit "person, vehicle, residence, [and] property . . . to search at any time with or without a warrant, and with or without reasonable cause," when directed by law enforcement. Thus, the record shows there were conditions of probation other than the challenged electronic search condition to foster Bolden's rehabilitation and to protect the victims and the public in general. (See Carbajal, supra, 10 Cal.4th at p. 1120 [noting the purpose of probation is to protect the public and to attempt to rehabilitate the defendant].)
DISPOSITION
The electronic search (No. 6n) and the gang conditions (No. 12) are stricken from the probation order. In all other respects Bolden's judgment of conviction is affirmed. The superior court is directed to amend the probation order of Bolden accordingly.
In light of our decision, we decline to address Bolden's alternate contention that the imposition of the electronic search and gang conditions were constitutionally overbroad. --------
BENKE, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.