Opinion
H042886
04-24-2017
THE PEOPLE, Plaintiff and Respondent, v. RAMON VILLALOBOS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS151355A)
Defendant Ramon Villalobos pleaded no contest to evading a police officer (Ven. Code, § 2800.2, subd. (a)), and guilty to driving under the influence of a drug, (Veh. Code, § 23152, subd. (e)), and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a).) Following the plea, the court imposed several probation conditions that included alcohol restrictions and a prohibition on the possession of surveillance equipment.
On appeal, defendant argues that the alcohol restrictions should be stricken, because they are not related to the crimes of which defendant was convicted. Defendant also argues that the surveillance equipment condition is unconstitutionally vague and overbroad.
STATEMENT OF THE FACTS AND CASE
The probation report prepared in this case provides the following summary of the facts that give rise to defendant's criminal charges: "On August 22, 2015, at approximately 0127 hours, [defendant], . . . was observed traveling in a Honda Accord at a high rate of speed. As the deputy initiated a U-turn, he continued to observe [defendant] as he weaved around several vehicles, failed to utilize his turn signal, and braked hard to avoid a traffic collision.
"The deputy attempted to initiate a traffic stop as [defendant] traveled at speeds of approximately sixty miles per hour in a posted thirty-five mile per hour zone. [Defendant] initially failed to yield but subsequently pulled over near a fire station on Laurel Drive. [Defendant] continuously looked at the deputy in his rear view mirror and appeared to be manipulating something with his right arm. He was ordered via the patrol vehicle's public address system to turn off his vehicle multiple times, but he failed to comply.
"Approximately thirty seconds later, [defendant] accelerated and his vehicle lost traction with the ground, as he unsuccessfully "peeled out," [and] made a U-turn and headed east on Laurel Drive. [Defendant] continued to drive at speeds in excess of the posted speed limits, up to approximately one hundred miles per hour, and failed to slow or stop at intersections. At one point, he approached an intersection travelling at approximately eighty miles per hour, and the left tire of his vehicle struck a raised median. He continued and accelerated through a red light. He subsequently slowed as he approached a second intersection, braked and locked his wheels, struck a median, and hit a traffic signal pole. It was noted that [defendant] was traveling at approximately five to ten miles per hour when he collided with the traffic pole which [sic] fell to the ground, and was damaged and inoperable.
"[Defendant] fled from the vehicle on foot, reached towards his waist band, and then suddenly threw both of his hands into the air. He pulled pieces of clothing from his person, and continued to run approximately three hundred yards through barbed wire fencing that led to an agricultural field. The deputy caught up with [defendant], who appeared winded, and ordered him to the ground. [Defendant] failed to comply and yelled out that he was in the military, was "one of us," and that he was being "set up." As he reached towards his waistband a second time with his back to the deputy, he was tased, and fell to the ground. He refused a command to remove his hands from under his person, he was tased a second time, and was subsequently arrested without further incident. It was noted that the vehicle pursuit was approximately 10 minutes in duration, and spanned over seven miles.
"[Defendant] advised he was "being set up," but was unable to articulate any particulars. He advised things had changed at his home and things were not where they were supposed to be. He also claimed that gangs were out to get him. [Defendant] also reported that the gang tattoo on his chest, "VGS," stood for "Very Good Student," although the arresting deputy knew it represented Vagos, a faction of the Sureño criminal street gang. It was noted that [defendant]'s eyes were red and bloodshot, [that he] rambled incoherently, constantly changed topics, and appeared to be under the influence of a controlled substance. A subsequent search of his vehicle revealed four hydrocone/ibuprofen pills that he claimed belonged to his father. [Defendant] also admitted that he ingested methamphetamine earlier that evening."
On August 25, 2015, defendant was charged with felony evasion and willful disregard of a peace officer (Veh. Code, § 2800.2, subd. (a); count 1); driving under the influence of a drug (Veh. Code, § 23152, subd. (e); count 2); possession of hydrocone, a controlled substance (Health & Saf. Code, § 11350, subd. (a); count 3); resisting a peace officer (Pen. Code, § 148, subd. (a)(1); count 4); hit-and-run driving (Veh. Code, § 20002, subd. (a); count 5); being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a); count 6); and driving without a license (Veh. Code, § 12500, subd. (a); count 7).
On September 3, 2015, defendant pleaded no contest to evasion and willful disregard of a peace officer (Veh. Code, § 2800.2, subd. (a)), and guilty to driving under the influence of a drug (Veh. Code, § 23152, subd. (e)), and possession of hydrocone (Health & Saf. Code, § 11350, subd. (a)).
The court placed defendant on felony probation for three years, with numerous conditions, including the following: "Condition 10: Totally abstain from the knowing use of alcoholic beverages, do not knowingly purchase or possess alcoholic beverages, and stay out of places where you know alcohol is the main item of sale. [¶] Condition 11: Not knowingly use or possess alcohol, intoxicants, or other controlled substances without the prescription of a physician; not traffic in, or associate with persons known to you to use or traffic in controlled substances. [¶] . . . [¶] Condition 20: You shall not own or operate a motor vehicle unless the vehicle is equipped with a functioning ignition interlock device certified pursuant to [Vehicle Code section] 13386. This restriction shall remain in effect for the entire period of the mandatory license revocation and until you meet all reinstatement requirements in [Vehicle Code section] 13352. (Veh. Code, § 23575, subd. (a)(1).) [¶] . . . [¶] Condition 25: Not have access to, use, or possess any police scanner device or surveillance equipment on your person, vehicle, place of residence, or personal effects.
DISCUSSION
Defendant argues on appeal that the three alcohol conditions should be stricken, because they lack any relationship to the crime of which he was convicted, they regulate conduct that is not itself criminal, and they " 'require or forbid conduct which is not reasonably related to future criminality . . . .' " (People v. Lent (1975) 15 Cal.3d 481, 486.) Defendant also asserts that the term "surveillance equipment," in Condition 25 is vague and overbroad.
"The primary goal of probation is to ensure '[t]he safety of the public . . . through the enforcement of court-ordered conditions of probation.' (Pen.Code, § 1202.7.)" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) "In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety . . . ." (Id. at p. 1120.) "The trial court's discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute." (Id. at p. 1121.) "As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or ' " 'exceeds the bounds of reason, all of the circumstances being considered.' " [Citations.]' " (Id. at p. 1121, quoting People v. Welch (1993) 5 Cal.4th 228, 234; see People v. Olguin (2008) 45 Cal.4th 375, 379 ["We review conditions of probation for abuse of discretion."].)
In support of his argument that the alcohol conditions are unreasonable, defendant relies on People v. Kiddoo (1990) 225 Cal.App.3d 922 (Kiddoo), disapproved on other grounds in People v. Welch, supra, 5 Cal.4th 228, 236-237), where a probation condition prohibited a narcotics offender from possessing or consuming alcohol or frequenting places where alcohol was sold. In Kiddoo, the probation report stated that the defendant had used narcotics and alcohol in the past, but he "had 'no prior problem,' that he was a social drinker, and used methamphetamine sporadically." (Id. at p. 927.) The probation report also stated that the defendant had two prior convictions, for unlawful taking or driving of a motor vehicle and for possession of marijuana. Both of these prior convictions had occurred more than 10 years before the offense at issue. The appellate court found that there was nothing in the record stating that alcohol was related to the defendant's narcotic offense, and it found that the condition was not reasonably related to future criminality. (Id. at p. 927-928.) Thus, the court found the alcohol-related probation condition was invalid. (Id. at p. 928.)
Several cases have criticized Kiddoo. In People v. Beal (1997) 60 Cal.App.4th 84, 85-86 (Beal), the defendant, who had admitted that he had a history of drug abuse but not alcohol abuse, appealed from convictions for possession and possession for sale of methamphetamine. The defendant relied on Kiddoo to challenge a probation condition that prohibited her from using alcohol. (Beal, supra, at p. 86.) The court disagreed with "the fundamental assumptions in Kiddoo that alcohol and drug abuse are not reasonably related and that alcohol use is unrelated to future criminality where the defendant has a history of substance abuse." (Id. at p. 87, citing Kiddoo, supra, 225 Cal.App.3d at p. 927.) Rather, the court recognized "a nexus between drug use and alcohol consumption," and it concluded that "substance abuse is reasonably related to the underlying crime and that alcohol use may lead to future criminality where the defendant has a history of substance abuse and is convicted of a drug-related offense." (Ibid.)
Similarly, in People v. Balestra (1999) 76 Cal.App.4th 57, the defendant pleaded guilty to elder abuse based on evidence that upon coming home one evening smelling of alcohol, she "terrorized" her mother for two hours. (Id. at p. 61.) As a condition of probation, the court ordered defendant to submit to drug and alcohol testing. On appeal, the defendant challenged that condition, relying on Kiddoo. The court upheld the condition, finding Kiddoo "simply inconsistent with a proper deference to a trial court's broad discretion in imposing terms of probation, particularly where those terms are intended to aid the probation officer in ensuring the probationer is complying with the fundamental probation condition, to obey all laws." (People v. Balestra, supra, at p. 68.)
Another case where the appellate court upheld an alcohol-related probation condition is People v. Smith (1983) 145 Cal.App.3d 1032. There, the defendant was convicted of possessing PCP and was under its influence at the time of his arrest. The court held that the defendant could properly be subjected to a no-alcohol condition despite the absence of any indication that he ever used alcohol. The court wrote that when someone uses alcohol, "[s]ensorial impairment is present, there is a lessening of internalized self-control, and euphoria, accompanied by a reduction of anxiety, is experienced. Alcoholic euphoria is accompanied by activity and aggressive behavior . . . . Drinking . . . , even for the social, controlled drinker . . . , can lead to a temporary relaxation of judgment, discretion, and control. . . . [T]he physical effects of alcohol are not conducive to controlled behavior. [¶] . . . Given the nexus between drug use and alcohol consumption, we find no abuse of discretion in the imposition of the condition of probation relating to alcohol usage." (Id. at pp. 1034-1035, fns. omitted.)
Here, based on defendant's crimes of driving under the influence of a drug, and possession of a controlled substance, as well as his substantial and long-term history of drug abuse, we find that the alcohol conditions are reasonable. Although defendant said that he consumed alcohol only once a month and denied that he had a drinking problem, defendant admitted to smoking methamphetamine from the time he was 13. By the time defendant was 19, defendant was smoking a half-gram of methamphetamine a day. Defendant started smoking marijuana when he was 11, and at the time he was arrested, he was using marijuana every day. Defendant also admitted to using cocaine on the weekends between the time he was 15 and 19. The alcohol conditions are reasonable in this case, because of the "nexus between drug use and alcohol consumption," and the fact that "alcohol use may lead to future criminality where the defendant has a history of substance abuse and is convicted of a drug-related offense," as is the case here. (Beal, supra, 60 Cal.App.4th at p. 87.) We find that the court did not abuse its discretion in imposing the alcohol conditions. (Conditions 10, 11 & 20.)
Surveillance Equipment
Condition 25 states that defendant is "not to have access to, use, or possess any police scanner device or surveillance equipment on [his] person, vehicle, place of residence or personal effect." Defendant argues that the term "surveillance equipment," is vague and overbroad because "it is not clear what qualifies as 'surveillance equipment.' " Defendant asserts that the condition should be stricken, while respondent argues that the condition should be modified.
"A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness. [Citation] 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. [Citation]" "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 "[W]e review constitutional challenges to a probation condition de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
In support of his argument, defendant cites this court's opinion in People v. Contreras (2015) 237 Cal.App.4th 868 (Contreras) wherein we analyzed whether an identical probation condition to the one in this case was unconstitutionally vague. We concluded that " '[a] relatively innocuous article such as an iPad could arguably be considered "surveillance equipment" even if [he] intended only to use it for sending and receiving emails or for other non-surveillance purposes.' " (Id. at 888.) We further found that "rapid changes and innovations in technology, particularly those involving tablet computers, smart phones, digital cameras, and other electronic devices, as well as the 'apps' or applications created for such devices, make it difficult to formulate a condition that encompasses all of the possible devices that could be used to monitor law enforcement and probation activities. It could be that someone has already developed an application that can turn a smart watch into a police scanner. Rather than attempt to list every type of prohibited electronic device—a list that may well be outdated by the time this opinion is filed—we believe the vagueness and overbreadth problem presented by the surveillance equipment condition is better addressed by listing 'police scanners' and 'surveillance equipment' as examples of prohibited items, and then describing the functions of the prohibited items or devices the trial court sought to curtail, presumably the surveillance and monitoring of law enforcement and probation department activity." (Ibid.)
Following our rationale in Contreras, we conclude that a knowledge requirement is necessary to eliminate vagueness and overbreadth in the description of the prohibited devices and activities in Condition 25. As we did in Contreras, we will remand this case to the trial court "to fashion an appropriate condition that is consistent with the views expressed in this opinion, with input from counsel for both parties and the probation department. Input from the trial court, counsel, and the probation department will be particularly helpful in this case, as they may draw on their experience applying the surveillance equipment condition in other cases." (Contreras, supra, 237 Cal.App.4th at p. 889.)
DISPOSITION
The judgment is remanded for the trial court to modify Condition 25 to clarify the meaning of "surveillance equipment." As modified, the judgment is affirmed.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------