Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. FVA700558 Douglas A. Fettel and Stephan G. Saleson, Judges.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKINSTER, Acting P. J.
INTRODUCTION
Pursuant to a plea bargain, defendant pled guilty to possession of a counterfeited seal. (Pen. Code, § 472.) The court granted defendant three years’ probation with the condition that he serve 90 days in a San Bernardino County Jail. Defendant contends the court erred by imposing probation condition No. 29, which requires defendant to obtain a credit report for the Social Security number that he admitted fraudulently using. The People agree. We conclude that probation condition No. 29 must be stricken.
Probation condition No. 29 in the reporter’s transcript is referred to as probation condition No. 28 in the clerk’s minute order.
In their respondent’s brief, under the section titled “Conclusion,” the People request the judgment be affirmed; however, in the section titled “Argument,” the People concede that the “term should be stricken” and provide arguments to support their concession. Accordingly, we infer that the People did not intend to request that the judgment be affirmed.
FACTS
The parties agreed the police reports would provide a factual basis for defendant’s plea. On March 8, 2007, Fontana Police Department officers stopped defendant while he was driving. Defendant was not a licensed driver. Defendant told the officers that he had identification in his wallet. Officer Dills looked in defendant’s wallet and discovered a fake Social Security card. A search of defendant’s vehicle revealed a paycheck stub reflecting the false Social Security number and four bags of marijuana. Defendant told the officer he bought the counterfeit Social Security card from a friend 20 years ago because he is not a United States citizen and he used it for employment purposes. The Social Security number defendant fraudulently used is a valid number that was issued to a female in 1973. The Social Security Administration does not have contact information for the victim and is unable to contact her to inform her that her Social Security number has been fraudulently used.
At defendant’s sentencing hearing, defendant objected to probation “terms 23 through 28,” which require him to notify various entities of his false use of the Social Security number and not to have any accounts associated with the false Social Security number. Defendant argued the conditions violated his Fifth Amendment rights against self-incrimination by requiring him to admit crimes by notifying the various entities of his fraudulent use of the Social Security number. The court stated that it “would expect reasonable compliance; not absolute compliance” with the probation conditions and if defendant was concerned about admitting to a crime in violation of his constitutional rights, then defendant could “come back [to court] for a hearing and brief the issues and at that time the Court [could] determine the propriety of enforcing that particular [probation condition].”
As the court was pronouncing defendant’s sentence, it added probation condition No. 29 requiring defendant to “obtain at [his] cost a copy of a credit report for the [S]ocial [S]ecurity number [he has] been using and provide a copy of the report to the Probation Department by 7-16-07.”
DISCUSSION
Defendant contends that if he were to comply with probation condition No. 29, requiring him to obtain a credit report for the Social Security number he admitted to fraudulently using, then he would be exposed to potential criminal liability for (1) unauthorized use of personal identifying information of another to unlawfully obtain services (Pen. Code, §§ 530.5, subd. (a), 530.55), (2) unauthorized access to a computer system to wrongfully obtain data (Pen. Code, § 502), and (3) obtaining a consumer credit report under false pretenses (15 U.S.C. § 1681q). The People accept as true defendant’s assumptions that he would be criminally liable for the crimes listed ante and, therefore, concede defendant is correct in asserting that probation condition No. 29 should be stricken. We conclude the court abused its discretion by imposing probation condition No. 29.
In their respondent’s brief, the People note that defendant did not object to the imposition of probation condition No. 29; however, the People concede defendant has not forfeited his claim on appeal because “it potentially involves a substantial right, to the extent the probation condition requires [defendant] to engage in further criminal conduct.”
“In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) 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.”’” (People v. Welch (1993) 5 Cal.4th 228, 234.)
Penal Code section 530.5 makes it a crime to willfully obtain a credit report of another person for an unlawful purpose. It is unclear whether obtaining a credit report for the purpose of giving it to a probation department would constitute an unlawful purpose. (See People v. Hagedorn (2005) 127 Cal.App.4th 734, 744 [Pen. Code, § 530.5 does not only address conduct involving an intent to defraud or which causes financial loss or harm].) We find, however, that it does not serve public safety nor foster defendant’s rehabilitation to require him to access the private information of the person he has been victimizing for the past 20 years. We conclude that such a requirement exceeds the bounds of reason, all circumstances being considered.
If the probation department requires a credit report to determine that defendant has complied with closing all accounts he may have opened associated with the Social Security number he fraudulently used, then the court may order a credit report be released directly to the probation department. (15 U.S.C. § 1681b(a)(1).) We see no rational purpose in authorizing defendant to again obtain personal information belonging to the victim. We conclude the court abused its discretion by imposing probation term No. 29.
DISPOSITION
The Superior Court of San Bernardino County is directed to strike probation term No. 29. In all other respects, the judgment is affirmed.
We concur: GAUT, J. KING, J.