Opinion
D073399
11-29-2018
THE PEOPLE, Plaintiff and Respondent, v. OSCAR URRUTIA, Defendant and Appellant.
Jane L. Gilbert, 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, Lise Jacobson and Robin Urbanski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCE374271) APPEAL from a judgment of the Superior Court of San Diego County, Evan P. Kirvin, Judge. Affirmed as modified. Jane L. Gilbert, 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, Lise Jacobson and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Oscar Urrutia went on a rampage against a married couple and their home in Spring Valley on August 24, 2017, for no apparent reason. Defendant was ranting, yelling, and throwing rocks at them. The husband described Urrutia as "off-the-wall crazy talking." Urrutia said a helicopter flying overhead was trying to kill him, and "they'd been trying to kill him since he was young." He also talked about aliens. He kicked and threw rocks at their garage door, causing more than $400 worth of damage to the door. A jury found Urrutia not guilty of making criminal threats and convicted him of felony vandalism. (Pen. Code, § 594, subds. (a), (b)(1).) On January 4, 2018, the trial court suspended imposition of sentence and placed Urrutia on felony probation for three years on various terms and conditions.
Urrutia's only issue on appeal is a challenge to the electronics search condition of his probation. He contends the condition is unreasonable under the California Supreme Court standards set out in People v. Lent (1975) 15 Cal.3d 481 (Lent) superseded by statute on other grounds as stated in People v. Moran (2016) 1 Cal.5th 398, 403, fn. 6.), and that it is constitutionally overbroad. The issue of the validity of an electronic search condition under Lent, as reasonably related to future criminality even when not related to the crimes committed, is pending before our high court in In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted February 17, 2016, S230923, and in numerous other cases raising this issue. Until we receive further direction, we continue to resolve this issue as best we can.
We agree with Urrutia that the trial court abused its discretion because there is no showing that the electronic search condition will prevent future criminality and promote rehabilitation. We do not reach the constitutional question because we strike that condition on state law grounds.
DISCUSSION
A. Electronic Search Condition
Probation condition number 6.n. provides that Urrutia 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 P.O. or law enforcement officer." Urrutia objected to the search of his computers and recordable media, arguing there was no nexus to this case because his crime did not involve his cell phone or text messages. The trial court overruled the objection, stating, "Given the defendant's delusional aspects of his psychology, I think that is an appropriate area to be monitored."
Defense counsel had a forensic psychologist examine Urrutia. The psychologist found that Urrutia had a narrow, fixed delusional disorder with respect to extraterrestrial perceptions.
We recently addressed this issue in People v. Acosta (2018) 20 Cal.App.5th 225, 229-232 (Acosta), review granted April 25, 2018, S247656, and rely on our discussion of the general principles applicable here.
California Rules of Court, rule 8.1115(e)(1) permits use of cases for persuasive value after the Supreme Court has granted review. --------
"A. Guiding Principles
"A grant of probation is an act of clemency in lieu of punishment. [Citation.] 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. . . .' [Citations.] '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.' " ' [Citation.]
"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. [Citations.] 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.' [Citation.]
"However, '[j]udicial discretion to set conditions of probation is further circumscribed by constitutional considerations.' [Citation.] '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.' [Citation.] '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.' [Citation.]
" 'Generally, we review the court's imposition of a probation condition for an abuse of discretion.' [Citation.] However, we independently review constitutional challenges to a probation condition. [Citation.]" (Acosta, supra, 20 Cal.App.5th at pp. 228-229.)
B. Analysis
The People do not dispute that the electronic search condition is not itself criminal. They contend that the electronic search condition was relevant to Urrutia's crime of felony vandalism and to his future criminality because the search condition promotes the goals of reformation, rehabilitation, and protecting public safety. There was no cell phone or computer used in Urrutia's crime, however, and the People provide no rationale supporting the claim that the electronic search condition was related to the offense here. 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 trial court overruled Urrutia's objection to the electronic search condition due to his psychotic delusions, but there was no evidence that electronic devices caused or contributed to his psychotic delusions or how monitoring his devices could prevent such delusions in the future. In our view, the trial court's reasoning does not, on this record, in and of itself support imposition of this probation condition on defendant. If increased monitoring is reasonably related to preventing future criminality, the condition could be imposed in every case. But the imposition of an electronic search condition should be based on the facts and circumstances of each case in determining whether that condition is reasonably related to preventing future criminality. (People v. Bryant (2017) 10 Cal.App.5th 396, 402 (Bryant), review granted June 28, 2017, S241937.)
The trial record and the record of Urrutia's personal history do not connect his use of electronic devices to any potential unlawful conduct, such as drug sales or gang participation. (See e.g., People v. Maldonado (2018) 22 Cal.App.5th 138, 143, rev. granted Jun. 20, 2018, S248800 [drug sales]; Acosta, supra, 20 Cal.App.5th at pp. 232-233 [gang involvement]; People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1177 [same].) To the contrary, the record is silent concerning Urrutia'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.
While it is always possible to speculate about any number of crimes Urrutia might commit in the future and to formulate conditions that might deter or prevent such future criminality, he has shown no propensity to commit crimes using an electronic device. We join with the other courts that have found the electronic search condition not applicable when the facts and circumstances show no basis for concluding that such a condition would actually prevent the defendant from committing any future crimes. (See Bryant, supra, 10 Cal.App.5th at pp. 404-405 [electronic search condition not related to future criminal conduct for defendant who possessed a concealed, loaded firearm]; In re J.B. (2015) 242 Cal.App.4th 749, 756 [electronic search condition not related to future criminal conduct for minor who committed petty theft]; In re Erica R. (2015) 240 Cal.App.4th 907, 909 [electronic search condition not related to risk of future criminal conduct of minor who possessed drugs].)
As a result, we conclude the reference to computers and recordable media in 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; but see People v. Valdivia (2017) 16 Cal.App.5th 1130, 1138, 1142 , rev. granted Feb. 14, 2018, S245893 [electronic search condition valid to prevent future criminality, but unconstitutionally overbroad because not tailored carefully and reasonably related to reformation and rehabilitation].)
DISPOSITION
The words "computers, and recordable media" are stricken from probation condition 6.n. In all other respects, the judgment of conviction is affirmed. The superior court is directed to amend Urrutia's probation order accordingly.
BENKE, Acting P. J. I CONCUR: HUFFMAN, J. I CONCUR IN THE RESULT: HALLER, J.