Opinion
D073310
09-28-2018
THE PEOPLE, Plaintiff and Respondent, v. ANDRAGA S. JONES, Defendant and Appellant.
Rachel M. Ferguson, 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, Arlene A. Sevidal and Elizabeth M. Kuchar, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD273082) APPEAL from a judgment of the Superior Court of San Diego County, Michael S. Groch, Judge. Affirmed as ordered modified on remand. Rachel M. Ferguson, 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, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
Andraga Jones stole $5,800 from her cash register while working as a cashier. She pled guilty to grand theft by an employee in an amount more than $950, and was placed on three years' probation with terms and conditions. On appeal, Jones challenges two probation conditions: (1) an electronic-device search Fourth Amendment waiver condition; and (2) drug/alcohol-related conditions. The Attorney General concedes these conditions were improperly imposed. We accept this concession and order the court to strike the challenged conditions. We affirm in all other respects.
I. Electronic-device Search Fourth Amendment Waiver Condition
Jones argues, and the Attorney General agrees, the probation order must be corrected to reflect the trial court's oral pronouncement on the electronic-device Fourth Amendment search waiver condition.
At sentencing, Jones objected to a portion of condition 6n, the Fourth Amendment waiver, which states: "Submit person, vehicle, residence, property, personal effects, computers, and recordable media ___ to search any time with or without a warrant, and with or without reasonable cause, when required by P.O. or law enforcement officer." Jones asked the court to strike "electronic devices" from this condition because there was no nexus between her case and electronic devices. The court sustained the objection and ordered "delete[d] the inserted language including electronic devices." However, the probation order later signed by the court contains the language ordered deleted ("computers, and recordable media").
If there is a discrepancy between a court's oral pronouncement and its written order, the oral pronouncement generally controls. (People v. Jones (2012) 54 Cal.4th 1, 88; People v. Mitchell (2011) 26 Cal.4th 181, 185-188.) The oral pronouncement of a judgment is the judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Because entering a court's ruling in the minutes is a clerical function, "a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error." (Ibid.) Moreover, if the written and oral rulings cannot be reconciled, the " 'part of the record that will prevail is the one that should be given greater credence in the circumstances . . . .' " (In re D.H. (2016) 4 Cal.App.5th 722, 725.)
These principles apply to probation conditions. The oral ruling pertaining to a probation condition generally governs, unless it is merely an abbreviated reference to a condition detailed on a written form. (See People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Connors (2016) 3 Cal.App.5th 729, 734, fn. 3; People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073; People v. Thrash (1978) 80 Cal.App.3d 898, 901-902.)
Under this authority, the court's express oral ruling deleting electronic devices from the Fourth Amendment search waiver condition governs, and the inconsistent written order reflects a clerical error. We thus remand with directions for the court to delete the phrase "computers, and recordable media" from condition 6(n) to accurately reflect the court's ruling.
II. Alcohol and Drug Prohibition Conditions
Jones challenges the probation conditions prohibiting the use and possession of alcohol, controlled substances, and marijuana, and requiring her to submit to drug and alcohol testing. She contends these conditions are not reasonably related to her crime or rehabilitation and are facially overbroad. The Attorney General agrees the drug and alcohol conditions must be stricken under the Lent test. (People v. Lent (1975) 15 Cal.3d 481 (Lent).) On the particular record before us, we accept the Attorney General's concession.
A. Background
Twenty-one-year-old Jones has no criminal record. While working as a cashier, Jones stole money from her cash register; this unlawful activity was recorded by surveillance cameras installed over every cash register. When confronted by police, Jones immediately admitted the conduct and said she intended to repay the money. During her probation interview, she denied that she needed the money for herself, and said for the first time that a homeless man threatened her life if she did not steal money and give it to him. There was no corroboration for this version of the events.
With respect to drugs and alcohol, Jones told the probation officer that she only occasionally consumes alcohol, and denied ever using illegal substances. She said she has never been treated for drug or alcohol abuse and did not feel she would benefit from receiving such treatment.
Of relevance here, the probation department requested the court to impose the following alcohol/drug related conditions:
"8b. Do not knowingly use or possess alcohol if directed by the P.O.
"8c. Attend 'Self-help' meetings as/if directed by the P.O.
"8f. Submit to any chemical test of blood, breath, or urine to determine blood alcohol content and authorize release of results to P.O. or the court whenever requested by the P.O., a law enforcement officer, or the court order[ed] treatment program.
"9a. Complete a program of residential treatment and aftercare if directed by the probation officer.
"9c. Do not knowingly use or possess any controlled substance without a valid prescription and submit a valid sample for testing for the use of controlled substances/alcohol when required by the P.O., law enforcement officer, or treatment provider.
" 14a. No marijuana use at all even with a card / recommendation / prescription."
At the sentencing hearing, defense counsel objected to these conditions, arguing there was no nexus between those conditions and Jones's theft offense, background, or history. The probation officer responded that the probation department was requesting these conditions because it did not know what triggered the crime; it was unaware of Jones's circumstances; and it did not yet "know what services she could need or benefit from."
The trial court overruled Jones's objection, noting the seriousness of the crime and stating that although she committed the theft "without a stated substance abuse," this was "a bit inconsistent with what [the] court has seen in the past" because there is typically drug use involved or a "mental health component." The court also stated that probationers who are impaired are less likely to follow their probation conditions. The court additionally observed that "[e]ach one of those [probation] conditions is geared towards ensuring compliance with that by giving her the services she needs and giving probation the tools that they require."
B. Legal Principles and Analysis
" 'The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. [Citations.]' " (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) An appellate court reviews the imposition of probation conditions for an abuse of discretion. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
Under Lent, "[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.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (Lent, supra, 15 Cal.3d at p. 486.) All three Lent factors must be satisfied to invalidate a probation condition. (Olguin, supra, 45 Cal.4th at p. 379.)
Under these principles, a court errs in imposing probation conditions that have no relationship to the defendant's crime and are not reasonably related to her future criminality. (Lent, supra, 15 Cal.3d at p. 486.) In this case, Jones argues, and the Attorney General concedes, that her grand theft crime was unrelated to drugs or alcohol, and there were no facts supporting that the conditions—prohibiting Jones from any alcohol use, requiring without-cause drug testing, and requiring her to attend self-help meetings for drug/alcohol abuse—are related to supervising her or preventing her future criminality.
On the particular facts of this case, we accept this concession. We thus remand with directions for the court to delete probation conditions 8b, 8c, 8f, 9a, 9c, and 14a.
DISPOSITION
The case is remanded for the trial court with directions to (1) strike that portion of probation condition 6n stating "computers, recordable media"; and (2) strike probation conditions 8b, 8c, 8f, 9a, 9c, and 14a. In all other respects, the judgment is affirmed.
HALLER, J. WE CONCUR: NARES, Acting P. J. IRION, J.