Filed 3/22/18 P. v. Zuniga CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Defendant and Appellant,

v.

JOSE JULIO ZUNIGA,

Plaintiff and Respondent.


E067782

(Super.Ct.No. 16CR069928)

O P I N I O N


APPEAL from the Superior Court of San Bernardino County. Daniel W. Detienne, Judge. Reversed.
Shawn E. Fields, 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, and Steve Oetting and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Jose Julio Zuniga, appeals from an order modifying the terms and conditions of his probation to add an electronic search condition. He claims his change of residence from Riverside County, where he was convicted and sentenced to formal probation, to San Bernardino County, where the modification order was made, did not constitute changed circumstances justifying the modification. (See People v. Cookson (1991) 54 Cal.3d 1091, 1095-1100.) We agree.
Accordingly, we reverse the order modifying the terms and conditions of defendant’s original probation to add the electronic search condition. Because we reverse the modification order on the ground there were no changed circumstances justifying it, we do not address defendant’s additional claims that the electronic search condition is unrelated to his future criminality and is constitutionally overbroad.
II. FACTS AND PROCEDURE
A. The Facts of the Underlying Offense
One day in April 2014, defendant and two other men were drinking tequila at a house in Jurupa Valley while a third man, S., was outside the house feeding horses. Defendant wanted S. to drink tequila too, but S. would not drink tequila. At one point, defendant told S., “no one left him [defendant] hanging.”
After he had been drinking for over two hours, defendant approached S. without saying anything, and stabbed S. in the abdomen, two times, with a “big” knife. The knife, including its handle, was approximately 12 inches long. S. was rendered unconscious for a week, was hospitalized for 19 days, and suffered an eight-inch-long scar on his abdomen.
B. Procedural History
In February 2015, a felony complaint was filed in Riverside County Superior Court case No. RIF1500139, charging defendant with one count of assault with a deadly weapon, a knife (Pen. Code, § 245, subd. (a)(1)), and further alleging a great bodily injury enhancement (§ 12022.7, subd. (b)). Defendant was held to answer the charge and enhancement, and an information was filed.


On January 11, 2016, pursuant to a plea agreement, defendant pled guilty to one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), and was sentenced to 180 days in jail plus 36 months of formal probation. As a term and condition of his probation, defendant agreed to a standard search term, requiring him to “[s]ubmit to immediate search of person/property including all residences/premises/storage units, containers & vehicles under your control by, Probation Officer or law enforcement officer, with or without cause.” The original terms and conditions of defendant’s probation did not include an electronic search term.
On November 10, 2016, the Riverside County Superior Court issued an order transferring defendant’s probation to San Bernardino County, due to defendant’s change of residence to San Bernardino County. (§ 1203.9.) On December 12, 2016, the San Bernardino County Superior Court accepted the transfer and scheduled a transfer-in “probation modification hearing” on February 14, 2017.
On February 14, 2017, the San Bernardino County Superior Court, in case No. 16CR-069928, held a “transfer-in” hearing. Defendant was present and represented by counsel. The San Bernardino County Probation Department filed a document


recommending that defendant’s probation be continued in San Bernardino County under specified terms and conditions, including that he “[s]ubmit to search and seizure by a government entity of any electronic device that you are an authorized possesser of pursuant to . . . [section ] 1546.1[, subdivision] (c)(10).”
Defense counsel objected to the electronic search condition on the ground the case involved “an assault by means likely” (i.e., was unrelated to his crime), and the new condition violated defendant’s “[c]onstitutional rights.” The court replaced the term “government entity” with “law enforcement officer,” but otherwise overruled the defense objection. Defendant agreed to the terms and conditions as modified. Defendant timely appealed.
III. DISCUSSION
Defendant claims the San Bernardino County Superior Court did not have jurisdiction to modify his probation terms and conditions to add the electronic search condition, because no changed circumstances warranted the electronic search condition. For this reason alone, he argues, the order modifying the terms of his probation to add the electronic search condition must be reversed. As noted, we agree.
Although a court may modify a term of probation at any time before the expiration of the probation term, a change in circumstances, since the time of the original order, is necessary to confer jurisdiction on the court to modify the probation term. (People v. Cookson, supra, 54 Cal.3d at p. 1095; § 1203.3.) “An order modifying the terms of probation based upon the same facts as the original order granting probation is in excess of the jurisdiction of the court, for the reason that there is no factual basis to support it.” (In re Clark (1959) 51 Cal.2d 838, 840, italics added; People v. Minor (2010) 189 Cal.App.4th 1, 11 [probationer’s failure to complete sex offender treatment program, a term of his original probation, could constitute changed circumstances justifying extension of probation]; People v. Medeiros (1994) 25 Cal.App.4th 1260, 1263-1264 [court not authorized to extend probation beyond original five-year maximum term under § 1203.1].)
Here, there were no changed circumstances and no factual basis to support adding the electronic search term to defendant’s probation. The probation modification hearing was held solely on the basis that defendant had relocated from Riverside County to San Bernardino County. At the hearing, the People did not attempt to show, and the record does not indicate, that defendant’s change of residence constituted a factual basis for imposing the new electronic search condition. For example, the People did not present any evidence that defendant had relocated to a home or area in which he was likely to commit another violent assault similar to the crime for which he was on probation or any other crime. (See generally People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1176-1177 [electronic search term of probation reasonably necessary to monitor gang associations and activities of the defendant gang member who had been convicted of threatening and resisting a police officer to benefit his gang].)


In this appeal, the People argue only that defendant’s relocation to San Bernardino County was, in and of itself, a sufficient change of circumstance to justify the new electronic search term. The People maintain: “The transfer of the case from Riverside to San Bernardino County constituted a fact not available at the time of the original order. [Defendant’s] probation was now overseen by a new probation officer and court, with differing standards of practice. This constitutes a sufficient change of circumstance to justify the modification of probation terms and conditions that the new probation office deemed necessary for adequate supervision.” We disagree.
A transferee jurisdiction’s “differing standards of practice” in the manner or the extent to which it conducts probation-related searches of probationers has nothing to do with a change of circumstance affecting the terms of the defendant’s original probation. “‘“The primary goal of probation is to ensure ‘[t]he safety of the public . . . through the enforcement of court-ordered conditions of probation.’ [Citation.]” [Citation.]’” (People v. Valdivia, supra, 16 Cal.App.4th at p. 1136, review granted Feb. 14, 2018, S245893.) On this record, there is no factual basis to support the order modifying defendant’s probation to include the electronic search condition, after defendant relocated to San Bernardino County. For this reason alone, the modification order must be reversed.
IV. DISPOSITION
The February 14, 2017, order modifying the terms of defendant’s probation to add the electronic search condition is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.


We concur:

RAMIREZ
P. J.

McKINSTER
J.