P. v. Sepulveda

Filed 7/12/07 P. v. Sepulveda 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. W. Robert Fawke, Judge. Affirmed with directions.

James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Theodore M. Cropley and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

1. Introduction

Defendant and appellant Michael Ray Sepulveda II pleaded guilty to one count of committing a lewd act on a child (Pen. Code,  288, subd. (c)(1))^[1] and was placed on probation. He filed a notice of appeal, challenging several of the conditions of his probation which were imposed.

2. Factual and Procedural History

Defendant worked at a community recreation center. During the summer months, the victim, a 15-year-old boy, attended the center. One day, defendant took the boy to his home and they orally copulated one another. Defendant was charged with one count of oral copulation on a child under the age of 16 years ( 288a, subd. (b)(2)) and one count of committing a lewd act on a child. ( 288, subd. (c)(1).) Defendant pleaded guilty to count 2 and, pursuant to an agreement, count 1 was dismissed. The court suspended imposition of the sentence and placed defendant on probation for five years.

Among the conditions of probation were these:

Probation condition No. 8 required defendant to: Keep the probation officer informed of place of residence, cohabitants and pets, and give written notice to the probation officer twenty-four (24) hours prior to any changes. . . . (Italics added.)

Probation condition No. 20 required defendant to: Submit a record of income and expenditures to the probation officer quarterly.

Probation condition No. 26 required defendant to: Neither use nor possess any computer or internet device except in the course of employment with the employers knowledge of the nature of the offense.

Defendant now appeals, contending these probation conditions were invalid.

3. Analysis

I. Standard Of Review

Trial courts have broad discretion in setting reasonable terms of probation to foster rehabilitation and to protect public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) That discretion is not without limits, however. (Id. at p. 1121; People v. Welch (1993) 5 Cal.4th 228, 233 (Welch).)

The California Supreme Court in People v. Lent (1975) 15 Cal.3d 481 (Lent), established the rule on probationary 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 in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . . [Citation.] (Id. at p. 486, fn. omitted, abrogated by Prop. 8 on another ground as recognized in People v. Wheeler (1992) 4 Cal.4th 284, 290-292.) It is well established that probation conditions which regulate conduct not itself criminal must be reasonably related to the crime of which the defendant was convicted or to future criminality. (Welch, supra, 5 Cal.4th 228, 233-234, quoting Lent, supra, 15 Cal.3d 481, 486.) All three factors must be present for a condition of probation to be invalid. (People v. Wardlow (1991) 227 Cal.App.3d 360, 365-366.)

II. The Pets Probation Condition Is Invalid As Stated, But May Be Modified

A probation condition requiring defendant to notify the probation department of any pets violates all three factors of Lent. First, pet ownership had nothing to do with the offense defendant had committed (committing a lewd act on a child). Nothing indicated that any animals were involved in any way. Second, having a pet is not in itself criminal. Third, pet ownership had nothing to do with defendants future criminality. There was no reason to think that the existence of any animal at defendants residence would lead him to offend.

The proffered justification for the condition is that the probation officer is entitled to know of any animals which could pose a risk to the officers personal safety when conducting home visits. The difficulty is that the condition as drawn does not address that concern. It is overbroad or vague or both.

That does not mean to say, however, that a valid probation condition could not be imposed to meet the concern of officer safety. As noted, what probation officers making home visits to supervise probationers fear is being attacked by vicious dogs. Home visits are integral to the purposes of probation and relate to the probationers future criminality. Home visits, like probation searches, enable the probation officer to supervise the probationers progress and compliance with the other terms of probation, not only to determine whether he or she disobeys the law, but also whether he or she obeys the law. (Cf. People v. Reyes (1998) 19 Cal.4th 743, 752 [parole].)

A probation condition narrowly tailored to meet the objective of officer safety during home visits might be to prohibit defendant or any coresidents from having a named breed, such as a rottweiler or a pit bull dog. A reasonable condition could forbid having a vicious dog or a dangerous animal. Another possible example of a reasonable condition, closely tailored to the legitimate purposes of probation, has been imposed on a Utah parolee: 4. HOME VISITS: I will permit visits to my place of residence by agents of Adult Probation and Parole for the purpose of ensuring compliance with the conditions of my parole. I will not interfere with [this] requirement, i.e. having vicious dogs, . . . refusing to open the door, etc. (United States v. Crew (D.Utah 2004) 345 F.Supp.2d 1264.) Such a condition, like the other suggestions outlined, would relate to future criminality and thus satisfy Lent.

The generic pets condition, as framed, is invalid and is stricken. This is without prejudice to modifying the conditions of probation to include a properly tailored condition regarding pets.

III. The Quarterly Accounting Condition Is Invalid As Stated, But May Be Modified

Defendant argues that the requirement that he submit quarterly income and expense statements was invalid. We agree.

First, defendants offense was in no way related to financial matters. Second, earning income and spending it is lawful activity. Third, there is utterly no need to know defendants income and expenses to prevent future criminality.

Other conditions of defendants probation included condition No. 6, requiring him to [s]eek and maintain gainful employment, or attend school, and keep the probation officer informed of status of employment, or school; condition No. 12, to COMPLY WITH ANY COURT-ORDERED PAYMENT SCHEDULE; condition No. 23, to [m]ake restitution to the victim(s) through Central Collections in an amount to be recommended by the Probation Officer and determined by the Court; condition No. 24, to [p]ay a restitution fine in the amount of $220.00, plus a ten percent (10%) administrative fee through Central Collections; condition No. 32, requiring defendant to [m]ake full restitution to the victim(s) including costs incurred for medical or psychological treatment resulting from this case . . .; and condition No. 33, to [p]ay a special fine of $200.00 pursuant to Penal Code section 290.3 as directed by the probation officer.

The People attempt to justify the conditions on the ground that, because defendants probation cannot be violated for failure to pay required fines or fees without first showing that the failure or refusal to pay was willful, the quarterly reporting requirement is necessary to ensure compliance with the other terms of probation requiring defendant to be responsible to pay certain fines or fees. Contrary to the Peoples claim here, however, section 1203.1, subdivision (d), does not authorize the probation condition imposed here. Section 1203.1, subdivision (d) provides: In all cases of probation the court may require as a condition of probation that the probationer go to work and earn money for the support of his or her dependents or to pay any fine imposed or reparation condition, to keep an account of his or her earnings, to report them to the probation officer and apply those earnings as directed by the court. (Italics added.)

Here, defendants conditions of probation did not unequivocally require him to work. He was to be either gainfully employed or to attend school. More importantly, assuming that defendant does work rather than go to school, section 1203.1, subdivision (d) authorizes the court to order him to keep an account of his earnings and to report his earnings to the probation officer. It does not authorize a condition that the probationer report his expenses. Such a requirement is overbroad, intrudes into the legitimate rights retained by a probationer, and is ripe for abusive enforcement. No probationer should be subject to violation of probation for failing to report every penny spent to his or her probation officer. The condition serves no legitimate purpose which cannot be served by a requirement to report earnings only. (See People v. Bravo (1987) 43 Cal.3d 600, 610.)

IV. The Internet Restriction Condition Is Invalid As Stated, But May Be Modified

The restriction that defendant not possess or use internet devices, except at his employment, with permission of the employer after notice of the offense and with the permission of the probation officer, is invalid.

Defendants conviction offense was not internet-related and the use of internet devices is not itself unlawful (the first two Lent prongs). The People argue that the condition restricting defendant from internet devices is related to preventing future criminality.

Under similar circumstances, the court in In re Stevens (2004) 119 Cal.App.4th 1228 (Stevens), at page 1231, held that a parole condition prohibiting the parolee from possess[ing] or hav[ing] access to computer hardware or software including the internet, was overbroad and not carefully tailored to meet the governmental interest in restricting the parolees access to child pornography on the internet.^[2]

The Stevens court canvassed several federal cases concerning internet or computer restrictions. In some cases in which the defendant had used the internet as a means of committing the crime, prohibition from internet access without permission of the probation officer was upheld. (Stevens, supra, 119 Cal.App.4th 1228, 1236-1237, and cases there cited.) In other cases, however, a prohibition on internet access was held unreasonable. (Id. at pp. 1237-1239 and cases there cited.)

Significantly, a restriction on internet access intrudes into areas of protected constitutional rights, including First Amendment rights. A probation or parole condition which purports to restrict constitutional rights must be narrowly tailored and directly related to deterring the defendant and protecting the public. (United States v. Crandon (3d Cir. 1999) 173 F.3d 122, 128.) In United States v. Freeman (3d Cir. 2003) 316 F.3d 386, 392, the Third Circuit reconsidered its holding in Crandon (which had upheld a restriction from internet access without approval of a parole agent) and concluded that [t]here is no need to cut off . . . access to e-mail or benign internet usage when a more focused restriction . . . can be enforced by unannounced inspections of material stored on [the defendants] hard drive or removable disks. (Ibid.)

In United States v. Sofsky (2d Cir. 2002) 287 F.3d 122, the defendant was convicted of possessing child pornography. As a condition of probation, he was prohibited from internet access. The Second Circuit struck the restriction. The appellate court acknowledged that access to a computer and the Internet after serving his . . . sentence can facilitate continuation of his electronic receipt of child pornography, but we are more persuaded by the observation . . . that [a]lthough a defendant might use the telephone to commit fraud, this would not justify a condition of probation that includes an absolute bar on the use of telephones. [Citation.] The same could be said of a prohibition on the use of the mails imposed on a defendant convicted of mail fraud. . . . Although the condition prohibiting [the defendant] from accessing a computer or the Internet without his probation officers approval is reasonably related to the purposes of his sentencing, in light of the nature of his offense, we hold that the condition inflicts a greater deprivation on [the defendants] liberty than is reasonably necessary. [Citation.] (Stevens, supra, 119 Cal.App.4th 1228, 1238.)

In Stevens itself, the court held that [a] focused restriction could be enforced by unannounced inspections of material stored on [the defendants] hard drive or his removable disks. [Citations.] [The Board of Prison Terms (BPT)] might also have explored the implementation of monitoring software which automatically generates an e-mail to the parole officer should the parolee engage in an illegal use of his computer. [Citation.] Finally, BPT can verify [defendants] Internet usage with a sting operationsurreptitiously inviting him to respond to government-placed Internet ads for pornography. [Citation.] (Stevens, supra, 119 Cal.App.4th 1228, 1239.) Such measures would be appropriate, particularly in a case, as in Stevens and as here, where internet access had nothing to do with the crime the defendant had committed.

The condition imposed here was overbroad and inflicted a greater deprivation of liberty than was required to achieve the goals of probation supervision. This holding is without prejudice to modifying the terms of probation to include a properly focused restriction, along the lines already outlined above.

4. Disposition

The three challenged conditions of probation are each invalid as stated and must be stricken. In each case, the striking of the existing condition is without prejudice to a modification to include an appropriate probation condition. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ GAUT

J.

We concur:

/s/ McKINSTER

Acting P. J.

/s/ KING

J.

Publication Courtesy of California attorney referral.

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^[1] All further statutory references will be to the Penal Code unless otherwise indicated.

^[2] The parole condition was later modified to allow the parolee limited access to the internet; he was prohibited from accessing pornographic websites or from communicating with minors. (Stevens, supra, 119 Cal.App.4th 1228, 1232.)