P. v. Ayala-Vega
Filed 7/10/13
P. v. Ayala-Vega CA4/1
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opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH
APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE
PEOPLE,
Plaintiff and Respondent,
v.
JONATHAN
AYALA-VEGA,
Defendant and Appellant.
D061966
(Super. Ct. No. SCN282711)
APPEAL
from a judgment of the Superior Court of
County, Robert J. Kearney, Judge.
Judgment affirmed as modified, remanded.
Jeanine
G. Strong, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, William M. Wood and Marvin E.
Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
A
jury found Jonathan Ayala-Vega guilty of first
degree residential burglary and found true the allegation that a person
other than an accomplice was present at the time. After finding unusual circumstances, the
trial court suspended the imposition of sentence and placed him on formal probation
for three years. It also imposed various
fines, fees and assessments. Vega does
not challenge his conviction, but contends that the trial court abused its
discretion in imposing probation conditions (1) prohibiting him from being
around any firearms, (2) requiring him to obtain the probation officer's
approval as to where he lives and works, and (3) prohibiting or regulating his
access to alcohol. He also asserts the
trial court erroneously failed to orally pronounce fines, fees and assessments
included in the judgment (order granting probation) and that some of the fees
are incorrect.
As
discussed below, some of Vega's contentions have merit. Accordingly, we affirm the judgment (order
granting probation) as modified and remand the matter to the trial court for
resentencing limited to the imposition of the fines, fees and assessments.
FACTUAL AND PROCEDURAL BACKGROUND
On
an evening in May 2010, Vega arrived uninvited at the home of his uncle and
aunt, Armando and Victoria Ayala. Vega
claimed he was in the area to buy a car, and asked if he could spend the
night. The couple agreed. The following morning, Vega asked Victoria
for a tour of the house. After taking him
on a tour, Victoria had Vega go outside.
About
15 minutes later, Victoria looked outside and saw Vega doing something by the
trash area. While Vega was eating
breakfast, she went outside and found a jewelry box from one of the bedrooms in
the trash. She also saw that the bedroom
window was now open. It was later
discovered that Vega had taken some jewelry.
An investigation revealed Vega's fingerprints on the bedroom window.
At
trial, Vega testified that he was 25 years old and homeless in May 2010. He admitted removing the jewelry box, but
denied entering the house or the bedroom with the intent to steal.
DISCUSSION
I.
A. General Legal Principles
Sentencing
courts have broad discretion in imposing conditions of probation meant to
protect the public and rehabilitate the defendant. (People
v. Carbajal (1995) 10 Cal.4th 1114, 1120.)
We review probation conditions for abuse of discretion. (Id.
at p. 1121.) A probation condition
is invalid if it (1) is not related to the crime of which the offender was
convicted, (2) relates to noncriminal conduct, and (3) requires or forbids
conduct which is not reasonably related to future criminality. (People
v. Lent (1975) 15 Cal.3d 481, 486 (Lent).) All three parts of this reasonableness test
must be satisfied before a reviewing court will invalidate a condition of
probation. (People v. Olguin (2008) 45 Cal.4th 375, 379.)
A
challenge to a probation condition based on the Lent unreasonableness factors is forfeited on appeal if the
defendant fails to object on that ground in the trial court. (People
v. Welch (1993) 5 Cal.4th 228, 234–238.)
However, a defendant may raise on appeal, without having objected in the
trial court, an appellate claim amounting to a " 'facial challenge' " based on a constitutional
defect that does not require scrutiny of individual facts and
circumstances. (In re Sheena K. (2007) 40 Cal.4th 875, 885–886.) 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." (
to apply, an appellate court must only concern itself with abstract and
generalized legal concepts and not with the individual facts and circumstances
of the case. (Id. at p. 885.)
A
"court may leave to the discretion of the probation officer the
specification of the many details that invariably are necessary to implement
the terms of probation. However, the
court's order cannot be entirely open-ended." (People
v. O'Neil (2008) 165 Cal.App.4th 1351, 1358–1359 [probation condition
forbidding defendant from associating with all persons designated by his
probation officer was "overbroad and permit[ted] an unconstitutional
infringement on defendant's right of association"].) We review a trial court's imposition of a
probation condition for an abuse of discretion.
(See People v. Carbajal,
1120–1121.) "However, we review
constitutional challenges to a probation condition de novo." (In re
Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
B. Alcohol Conditions
At
the sentencing hearing, Vega objected
to certain alcohol conditions on the ground they were unrelated to his
crime. Specifically, probation
conditions 8b, 8f and 8h (1) prevent him from "knowingly us[ing] or
possess[ing] alcohol if directed by the [probation officer]," (2) require
he "[s]ubmit to any chemical test of blood, breath or urine to determine
blood alcohol content and authorize release of results to [probation officer]
or the court whenever requested by the [probation officer], a law enforcement
officer, or the court ordered treatment program," and (3) prohibit him
from being "in places, except in the course of employment, where [he]
knows, or [his probation officer] or other law enforcement officer informs
[him], that alcohol is the main item for sale."
Vega
objects to these conditions as unreasonable under the three-part
to conduct that is not criminal and are not related to the crime as he was not
drinking or under the influence of alcohol or drugs before or during the
offense. Thus, the analysis turns on
whether conditions 8b, 8f and 8h are reasonably related to future criminality. This analysis is highly fact specific. (People
v. Lindsay (1992) 10 Cal.App.4th 1642, 1644.)
Vega
has no prior criminal history.
Additionally, the probation report indicates that he began consuming
alcohol when he turned 21, he only consumes alcohol on a social basis and never
" 'drinks to
get drunk.' " Vega has also used marijuana three times,
once when he was 18, and twice while in college. Vega denied ingesting any other type of
drug. Here, there is nothing in the
record suggesting that Vega ever abused alcohol or drugs or that social alcohol
use has ever played a part in any criminal activity. Simply put, the alcohol conditions have no
connection with Vega's future criminality.
Because none of the Lent
factors are satisfied, the alcohol-related probation conditions 8b, 8f and 8h
are invalid. (Lent, supra, 15 Cal.3d
481.) We modify the judgment by deleting
those conditions. (People v. Kiddoo (1990) 225 Cal.App.3d 922, 928.)
Vega
also objects to condition 8c that requires him to attend self-help meetings
"if directed" by the probation officer. Vega did not object to this condition
below. Moreover, Vega did not challenge
this particular condition on constitutional grounds. Accordingly, we conclude Vega forfeited any
challenge to probation condition 8c.
C. In Presence of Firearms
Probation
condition 12g prohibits Vega from remaining "in any building, vehicle or
in the presence of any person where [he] know[s] a firearm, deadly weapon, or
ammunition exists." Although listed
on the preprinted form as a gang condition, the trial court crossed out the
word "gang." Vega argues this
condition is overbroad and unjustifiably chills important
from being in any number of places where he is otherwise entitled to be, such
as a bank or public gathering, where armed guards are present. Vega concedes he did not object to this
condition below, but claims the constitutionality of the condition can be
raised for the first time on appeal.
The
People disagree, arguing that the reasonableness of this condition requires
examination of the facts and circumstances of the case and Vega's failure to
object prevented the development of those facts and circumstances. The People assert that forbidding Vega's
presence where he knows firearms or other weapons are located could be
reasonably related to his crime of burglary by preventing armed robbery or
burglary in the future, and the condition was also constitutionally valid
because it had a knowledge requirement.
We
agree with Vega that this condition is unconstitutionally overbroad because it
improperly impedes his freedom of travel and association. A probation condition is unconstitutionally
overbroad if it imposes limitations on the probationer's constitutional rights
and it is not closely or narrowly tailored and reasonably related to the
compelling state interest in reformation and rehabilitation. (In re
Sheena K., supra, 40 Cal.4th at p. 890.)
As Vega noted, this condition would prohibit him from any location where
armed personnel are present, such as an airport, bank or courthouse. Moreover, the People's concern of preventing
Vega from committing an armed robbery or burglary is adequately addressed by
the unchallenged probation condition requiring that Vega not knowingly possess
any firearm, weapon or ammunition. This
overbroad probation condition can be corrected without reference to the
particular sentencing record and presents a pure question of law. (Id.
at p. 887.) Accordingly, we order that
the condition 12g be modified to provide as follows: "Vega is prohibited from being in the
presence of those he knows illegally possess firearms, deadly weapons or
ammunition."
D. Approving Residence or Employment
Probation
condition 10g required Vega to obtain his probation officer's approval as to
his place of residence and employment.
Vega did not object to this condition below. The People argue Vega waived any objection to
this condition because the trial court could reasonably allow the probation
officer the discretion to disapprove of Vega living with any of his other
relatives based on him stealing from his uncle and aunt's house in this case,
and disapprove him from working in any position where he would have easy access
to jewelry or money based on him committing burglary against those who trusted
him.
We
conclude the requirement that Vega obtain probation officer approval as to his
place of residence or employment is overbroad.
The People's argument in support of this probation condition, although
couched with the facts and circumstances of this case, is generic as the same
argument can be made for virtually all theft convictions because most are
motivated by an underlying desire or need for money. If the purpose of the condition is to prevent
Vega from living with individuals he might take advantage of, then Vega will
likely be prevented from living with anyone.
Additionally, most employment places employees in a situation where they
will have an opportunity to steal something.
The
requirement improperly impedes Vega's freedom of association and his right to
employment. It also gives too much
discretion to the probation officer and applies to conduct that is not
criminal. (People v. Bauer (1989) 211 Cal.App.3d 937, 944 [condition requiring
prior approval of residence by a probation officer invalid because it infringed
on the defendant's constitutional rights of travel and freedom of association
and gave the probation officer too much discretionary power over the
defendant's living situation].) Moreover,
the condition contains no such standard by which the probation officer is to be
guided. (People v. O'Neil, supra,
165 Cal.App.4th at p. 1359.)
Accordingly, we strike probation condition 10g. (The propriety of a residence approval
probation condition in a case involving possession of drugs and misdemeanor
drug use is presently before the California Supreme Court in
Cal.App.4th 1 [145 Cal.Rptr.3d 29], review granted October 31, 2012, S205260.)
While
we agree that Vega's probation officer has an interest in knowing the location
of Vega's residence and place of employment, the unchallenged requirement that
Vega notify his probation officer within 72 hours of any change of address or
employment satisfies that interest. (
150 ["If available alternative means exist which are less violative of the
constitutional right and are narrowly drawn so as to correlate more closely
with the purposes contemplated, those alternatives should be used."].)
II.
At
the sentencing hearing, the trial court required Vega to pay $500 in victim
restitution and stated that the restitution fines would be reduced from $960 to
$240. Vega points out that the
order granting probation erroneously includes other fines, fees and assessments
that were not delineated and announced on the record. He also complains that (1) a penalty
assessment was incorrectly calculated and (2) the $240 restitution fine under
Penal Code section 1202.4, subdivision (b), and the $240 probation revocation
fine under Penal Code section 1202.44 imposed by the court must be reduced to
$200 each, the statutory minimum in effect in 2010, to avoid an ex post facto
issue. The Attorney General concedes the
latter issue and states that the trial court should clarify the penalty
assessment on remand.
A
trial court must provide a "detailed recitation of all the fees, fines and
penalties on the record," including their statutory bases. All of these fines and fees must be set forth
in the abstract of judgment. (
1192, 1200.) "[T]the inclusion of
all fines and fees in the abstract may assist state and local agencies in their
collection efforts. [Citation.]" (Ibid.) Additionally, reciting the fines and fees
notifies the defendant of the financial obligations of his conviction, provides
a record for review, and allows defendant the opportunity to contest any fines,
fees or assessments he believes should not be imposed. (See, e.g., Pen. Code, § 1202.5, subd. (a)
[theft fine contingent on defendant's ability to pay].)
Vega
asserts, the People concede and we agree that the case must be remanded for the
trial court to orally pronounce all fines, fees, and assessments imposed upon
defendant, provide defendant the opportunity to contest them, and to identify
and specify the statutory bases for all fines, fees, and assessments imposed
upon defendant.
DISPOSITION
Probation
condition 12g is modified to state "Vega is prohibited from being in the presence
of those he knows illegally possess firearms, deadly weapons or
ammunition." Probation conditions
10g, 8b, 8f and 8h are stricken. The
case is remanded for resentencing limited to the imposition of fines, fees or
assessments. At that hearing, defendant
may contest any fine, fee or assessment.
As so modified, the judgment (order granting probation) is affirmed.
McINTYRE, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
