People v. Acosta

• Decision Date: 06 February 2018
• Docket Number: D071575
• Citation: 228 Cal.Rptr.3d 822,20 Cal.App.5th 225
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Brian Isaiah ACOSTA, Defendant and Appellant.

20 Cal.App.5th 225

228 Cal.Rptr.3d 822

The PEOPLE, Plaintiff and Respondent,

v.Brian Isaiah ACOSTA, Defendant and Appellant.

D071575

Court of Appeal, Fourth District, Division 1, California.

Filed February 6, 2018

Steven S. Lubliner, Petaluma, 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, A. Natasha Cortina, Lynne G. McGinnis and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.

BENKE, Acting P. J.Defendant Brian Isaiah Acosta pleaded guilty to two counts of felony vandalism and admitted the gang enhancement attached to each count. ( Pen. Code,¹ § 594, subds. (a) & (b)(2)(A) & § 186.22, subd. (d).) Pursuant to the plea agreement, Acosta was placed on formal probation for three years on the condition he serve 365 days in custody with the possibility of work furlough, if eligible, after serving 90 days.

Relevant to this appeal, the court also imposed terms and conditions of probation, four of which Acosta challenges in this proceeding: the search of his electronic devices (electronic search condition) (no. 6n); the requirement he stay away from the private residences he had vandalized with graffiti (stay-away condition) (no. 14); the treatment, therapy, and counseling condition (no. 7); and the alcohol (no. 8) and drug (no. 9) conditions. Respondent, the People, concede the treatment, therapy, and counseling condition should be struck, but otherwise contend the remaining terms and conditions were properly imposed.

As we explain, we conclude there is insufficient evidence in this record to support the imposition of the drug condition on Acosta. Accepting respondent's concession, we thus strike the drug and the treatment, therapy, and counseling conditions, but otherwise affirm the judgment of conviction.

FACTUAL OVERVIEW²

Acosta was a known member of the San Diego Varrio Market Street gang (VMS) who went by the monikers "Thakas" and "Thakas1." In mid-November 2016, an eight-count felony complaint was filed against Acosta charging him with "unlawfully and maliciously defac[ing] with graffiti" real and personal property between March and October 2016 causing damage of less than $400 per incident. The complaint alleged all counts were punishable as felonies because Acosta committed the offenses "for the benefit of, at the direction of, and in association with, a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members," inasmuch as he "tagged" the properties with variations of his gang monikers. The total estimated cost to remove the graffiti was $1,017.

In December 2016, Acosta pleaded guilty to counts 1 and 2, as noted. In return for his plea, the balance of the counts was dismissed.

As relevant to this appeal, at his January 2017 sentencing Acosta objected to the imposition of various probation conditions, including the electronic search condition, the alcohol and drug conditions, and the stay-away condition.

DISCUSSION

I

Electronic Search Condition

Probation condition number 6n provides that Acosta 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. [i.e., a probation officer] or law enforcement officer." Acosta at sentencing opposed the italicized portion of this condition, as noted. In refusing to modify or delete this condition, the court found Acosta committed the crime for the "benefit of a street gang. It is also spray painting. It is the type of behavior that often times taggers photograph those types of crimes and share them and have them on their phone and/or computers. So, I think that is a reasonable link/nexus to the crime under People versus Lent [ (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545 ( Lent ) ]."

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, 205 Cal.Rptr.3d 491, 376 P.3d 617.) 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, 1121, 43 Cal.Rptr.2d 681, 899 P.2d 67 ( 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, 81 Cal.Rptr.3d 878 ( 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, 87 Cal.Rptr.3d 199, 198 P.3d 1 ( Olguin ); see Lent , supra , 15 Cal.3d at p. 486, 124 Cal.Rptr. 905, 541 P.2d 545.) 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, 87 Cal.Rptr.3d 199, 198 P.3d 1.)

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, 81 Cal.Rptr.3d 878.) "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, 55 Cal.Rptr.3d 716, 153 P.3d 282 ( Sheena K. ).) "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, 115 Cal.Rptr.3d 869.)

"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, 116 Cal.Rptr.3d 84.) However, we independently review constitutional challenges to a probation condition. ( Ibid. )

B. Analysis

Respondent the People do not dispute that the electronic search condition fails the first two Lent prongs—the condition has no relationship to Acosta's felony vandalism offenses, 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, 192 Cal.Rptr.3d 919 ; In re J.B. (2015) 242 Cal.App.4th 749, 754–755, 195 Cal.Rptr.3d 589.) 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, 87 Cal.Rptr.3d 199, 198 P.3d 1.)

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 October 25, 2017, S243864; People v. Nachbar (2016) 3 Cal.App.5th 1122, 207 Cal.Rptr.3d 855 ( Nachbar ), review granted Dec. 14, 2016, S238210; In re A.S. (2016) 245 Cal.App.4th 758, 200 Cal.Rptr.3d 100, review granted May 25, 2015, S233932; In re Mark C. (2016) 244 Cal.App.4th 520, 197 Cal.Rptr.3d 865, review granted Apr. 13, 2016, S232849; In re Ricardo P. (2015) 241 Cal.App.4th 676, 193 Cal.Rptr.3d 883, review granted Feb. 17, 2016, S230923.) Until we receive further direction, we must undertake to resolve this case as best we can.

Here, the record shows the trial court upheld the reasonableness of the electronic search condition on the basis that Acosta committed counts 1 and 2 for the "benefit" of the VMS criminal street gang, inasmuch as he spray painted variations of his gang moniker on property ostensibly within or near the gang's territory. The court found that "taggers" such as Acosta oftentimes used an electronic device to photograph graffiti to share with others, including members of his or her own gang. As such, the court found there was a nexus between the electronic search condition and Acosta's future criminality.

The case of People v. Ebertowski (2014) 228 Cal.App.4th 1170, 176 Cal.Rptr.3d 413 ( Ebertowski ) informs our analysis on this issue. The challenged probation conditions in Ebertowski required the defendant to provide "1 ‘... all passwords to any electronic devices (including cellular phones, computers or notepads) within his or her custody or control and [to] submit said devices to search at anytime [sic ] 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 said sites to search at anytime [sic ] without a warrant by any peace officer.’ " ( Id. at p. 1173, 176 Cal.Rptr.3d 413.) Like Acosta here, the defendant in Ebertowski was a member of a criminal street gang who pleaded no contest to making criminal threats and resisting an officer. ( Id. at pp. 1172–1173, 176 Cal.Rptr.3d 413.)

The Ebertowski court rejected the defendant's claim that the probation conditions were 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 "g...