Opinion
D071086
05-11-2017
THE PEOPLE, Plaintiff and Respondent, v. CHELSEA JORDAN LANGNER, Defendant and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Meagan Beale and Mary Katherine Strickland, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD266594) APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Affirmed. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Meagan Beale and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
The superior court granted Chelsea Langner probation for a term of three years after she pleaded guilty to one count of sexual penetration of a minor with a foreign object (Pen. Code, §289, subd. (h)). Langner argues the superior court abused its discretion by imposing certain probation conditions that prohibit legal conduct that is not reasonably related to the offense or Langner's future criminality under the test established by People v. Lent (1975) 15 Cal.3d 481 (Lent). These conditions fall into three main categories: (1) conditions requiring Langner to refrain from using alcohol and drugs; (2) conditions requiring Langner to undergo therapy; and (3) restrictions typically applied to perpetrators of sexual offenses against minors. We conclude the conditions are valid under Lent and the court did not abuse its discretion when it imposed them, and affirm the judgment.
All further statutory references are to the Penal Code.
I.
FACTUAL AND PROCEDURAL BACKGROUND
As Langner pleaded guilty, the facts are derived primarily from the charges, plea agreement, and probation report.
Langner met the victim (Doe) on a social media application around 2011. After developing a relationship by communicating online for several months, they began meeting in person. During their second in-person meeting, Langner digitally penetrated Doe. At the time, Doe was approximately 14 and Langner was 18. Throughout the following year, Langner and Doe continued to communicate online and often met in semi-public places, such as parks and stairwells. Each time they met, Langner digitally penetrated Doe. At one point, they attended "Pride Prom" together and Langner wore a different colored wristband than Doe, indicating she was over the age of 18 and Doe was not. During the prom, Doe followed Langner into a bathroom stall and digitally penetrated her. More than once, Langner told Doe she was concerned she would get into trouble because of their age difference, and Doe agreed that if they were ever caught, she would claim she told Langner she was 18.
In early 2013, Doe began seeing someone else and stopped talking to Langner. Several months later, Langner contacted Doe via text message and asked to see her. Doe agreed, but said they could only be friends. They planned to watch a movie at Doe's house, but instead Doe alleges Langner pinned her to the bed, choked her and penetrated her vagina with her fist, causing Doe to bleed, pass out from the pain, and suffer permanent nerve damage. Langner left after Doe passed out and did not contact Doe for some time thereafter. Doe was scared to tell her mother what had happened and did not report the incident.
About a year later, Langner sent Doe another text message asking to see her and Doe agreed, thinking they could discuss what had happened. They met at the beach and then went to Doe's house so Langner could rinse her feet. When they arrived, Langner followed Doe into the bedroom and, according to Doe, engaged in unwanted sexual contact including choking Doe, orally copulating Doe, and penetrating Doe's vagina with her fist. Langner sent Doe a text message approximately three months later and asked to see her again, but Doe refused and said she did not want to have any further contact with Langner.
The police became involved, and in December 2015, Doe called Langner on a recorded line. Langner admitted engaging in sexual activity with Doe despite knowing Doe was underage and further admitted to "fisting and choking" Doe. On a second recorded call about a month later, Langner said she thought Doe was okay with what had happened, wished Doe had told her to stop, and that the "consent thing" had bothered her over the previous three years.
Langner was arrested and charged with two counts of sexual penetration of a minor with a foreign object (§ 289, subd. (h)) and one count of oral copulation of a person under 18 (§ 288, subd. (b)(1)). She pleaded guilty to one count of sexual penetration with a foreign object and the prosecutor agreed to request dismissal of the remaining charges. On the plea agreement form, Langner initialed a Harvey waiver whereby she agreed the judge could consider the entire factual background of the case, including any unfiled or stricken charges or allegations, when granting probation or imposing a sentence. The probation officer recommended probation for a term of three years, along with various probation conditions.
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
Langner asked the court to reduce the charge to a misdemeanor; requested probation, but objected to a number of the recommended probation conditions; and provided a psychological evaluation in support of her requests. The evaluation indicated Langner drank alcohol somewhat regularly starting in college, smoked marijuana regularly for about a year around the age of 18, and had used text messaging and social media applications to send sexually explicit photos of herself to females with whom she was romantically involved. The psychologist noted Langner had a tendency to act impulsively and, although she admitted it was " 'stupid' " to have continued the relationship with Doe, she also denied or minimized the severity of her actions with regard to Doe. The psychologist concluded Langner was not at high risk for reoffending, but found there were certain risk factors such as Langner's poor judgment and propensity to act impulsively that contributed to the offense and, if left unaddressed, could cause Langner to harm others in the future. She recommended Langner participate in outpatient therapy to address those risk factors, among other issues.
After reviewing the probation report and the materials submitted by Langner, the court granted Langner probation for a term of three years and imposed all of the probation conditions recommended by the probation officer. The court explained why each of the disputed conditions was necessary in this particular case. The court noted Langner had used the Internet to meet and pursue a relationship with Doe despite knowing Doe was only 14 years old, had admitted using marijuana and alcohol around the time she had improper sexual contact with Doe, and had inflicted permanent physical injuries on Doe. Before signing the probation order, the court asked Langner if she accepted probation on the conditions set forth, and she said "I do." The court also denied Langner's request to reduce the charge to a misdemeanor and ordered Langner to register as a sex offender pursuant to section 290.
The court also imposed a suspended sentence of 365 days, with credit for 276 days of time served.
On appeal, Langner argues a number of the probation conditions were invalid.
II.
DISCUSSION
A. Applicable Legal Principles and Standard of Review
Probation is not a right, but an act of leniency that allows a defendant to avoid imprisonment. (People v. Moran (2016) 1 Cal.5th 398, 402 (Moran).) When a defendant chooses probation over incarceration, the trial court has a great deal of discretion in imposing conditions on the probation to further the dual goals of rehabilitating the defendant and protecting the public. (Id. at pp. 402-403.) If the defendant finds these conditions to be too onerous, he or she may forgo probation and accept the alternative sentence. (Id. at p. 403.)
We review the specific conditions imposed by the sentencing court for an abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) Under the test set forth in Lent, a probation condition is valid—and the court does not abuse its discretion in imposing it—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.' " (Lent, supra, 15 Cal.3d at p. 486.) The Lent test is conjunctive, such that a condition is only invalid if it meets all three prongs of the test. (Moran, supra, 1 Cal.5th at p. 402; Olguin, at p. 379.) Likewise, as the probation officer is responsible for ensuring the probationer refrains from criminal activity and obeys all laws during the probationary period, the court does not abuse its discretion when it imposes conditions intended to aid the probation officer in supervising the probationer and promoting his or her rehabilitation. (Olguin, at pp. 380-381; People v. Balestra (1999) 76 Cal.App.4th 57, 68 (Balestra).) B. Conditions Related to Alcohol and Drug Use
The first category of probations Langner disputes are 7(d), 8(b), 8(f), 8(h), and 14(a). These conditions require Langner to refrain from using marijuana; submit to blood alcohol testing when requested by her probation officer; avoid places where she is informed or knows alcohol is the main item for sale; and, if directed by her probation officer, attend substance abuse counseling and not knowingly use or possess alcohol. Langner asserts these conditions were improper under Lent because there was no nexus between her use of alcohol or marijuana and the crime at issue, no evidence she had a history of alcohol abuse, and no relationship to future criminality. We disagree.
Although Langner does not consistently identify the probation conditions she is referring to by number in her briefing, we address all conditions that she objected to in the trial court and addresses through substantive argument on appeal. --------
Langner admitted using marijuana on a regular basis, starting around the age of 18, and using alcohol on a regular basis before the legal age of 21, drinking four to six beers per week from the time she started college. Around the same time she was using marijuana and alcohol, she admittedly displayed poor judgment when she chose to continue a relationship with Doe despite knowing Doe was underage and to engage in increasingly improper sexual contact with Doe. Further, the psychologist determined Langner was emotionally immature and had a tendency to act impulsively. While there is no indication Langner was under the influence at the time she committed the crime at issue here, the use of either alcohol or marijuana lessens self-control and impairs reasoning, issues that Langner already struggled with and that contributed to her illegal conduct, and there is a well-established nexus between alcohol consumption and drug use. (See People v. Beal (1997) 60 Cal.App.4th 84, 87; People v. Smith (1983) 145 Cal.App.3d 1032, 1034 ["Drinking at any time, even for the social, controlled drinker who can stop at will, can lead to a temporary relaxation of judgment, discretion, and control."].) Thus, it was reasonable for the court to conclude as it did here that there was a sufficient nexus between the crime and Langner's use of alcohol and marijuana, and that the continued use of marijuana or alcohol could be a precursor to further poor judgment and criminal activity.
Langner also asserts the prohibition on the use of marijuana was improper because it restricted the legal use of marijuana pursuant to a prescription. However, she presented no evidence that she has ever had a prescription or medical need for marijuana use, or that she expects to have such a need during the term of her probation. As Langner instead had a history of illegal marijuana use without a prescription, the condition was presumptively valid as related to illegal conduct. (See Olguin, supra, 45 Cal.4th at pp. 379-380 [condition cannot be invalid unless it involves conduct that is not criminal]; Balestra, supra, 76 Cal.App.4th at p. 68 [court has broad discretion to impose conditions that aid probation officer in ensuring probationer obeys all laws]; People v. Ross (1985) 165 Cal.App.3d 368, 375 [standard obey-all-laws condition deters future criminality].) Moreover, as any marijuana use could potentially exacerbate Langner's propensity to make poor and impulsive decisions, the court was within its discretion to subject any future recommendation or prescription for Langner to use marijuana to increased scrutiny.
As the drug and alcohol conditions relate to past and future criminality under Lent, we conclude the court did not abuse its discretion by imposing them. (See People v. Malago (2017) 8 Cal.App.5th 1301, 1307-1308 (Malago) [similar alcohol and drug conditions adequately related to rehabilitation and future criminality under Lent where defendant had a history of drug and alcohol use but was not under the influence during commission of crime].) C. Conditions Related to Therapy and Counseling
The next category of conditions Langner disputes are 7(b), 8(c) and 9(a), which require her to participate in therapy as suggested by validated assessment tests and, if directed by her probation officer, to attend self-help meetings and complete a residential treatment program.
Langner asserts these provisions are invalid under Lent because the psychologist that evaluated her determined she did not meet the criteria for pedophilia and did not need any therapy related to her criminal conduct. To the contrary, the psychologist concluded that there were risk factors present that "greatly affected" Langner's decisions and behaviors with respect to the instant offense and that could cause Langner to harm others in the future if not addressed. Thus, the psychologist recommended outpatient therapy with a court-approved licensed treatment provider. Further, the psychologist noted that, although Langner pleaded guilty to sexual penetration of a minor, a serious crime, she did not seem to understand the gravity of her actions and minimized what had occurred; and the court concluded that Langner continued to lie about her knowledge of Doe's age and that her contemporaneous use of marijuana and alcohol may have contributed to her poor decisionmaking with respect to Doe. As such, the therapy conditions related to the crime Langner committed as well as to specifically identified risks for future criminality. The court did not abuse its discretion by imposing them.
Langner also argues the self-help and residential treatment conditions were too vague because the probation officer had discretion to impose them. The provisions are clear, though, as to what types of treatment programs the probation officer may direct Langner to complete, and it is within a probation officer's authority to ensure compliance with the terms of probation, including discretionary terms such as these. (See People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240-1241 [a court may give a probation officer discretion to ensure compliance with specific probation conditions].) Based on Langner's documented need for therapy to address outstanding risk factors, it was reasonable for the court to impose conditions requiring some form of therapy and providing the probation officer with discretion to require additional therapy based on Langner's demonstrated progress throughout the probationary period. (See Malago, supra, 8 Cal.App.5th at pp. 1307-1308 [finding condition requiring completion of residential treatment program if directed by probation officer appropriate].) As in any case, if the probation officer acts arbitrarily or capriciously, Langner can seek recourse with the court to modify or strike the provision. (See §§ 1203.2, subd. (b)(1), 1203.3, subd. (a); Olguin, supra, 45 Cal.4th at pp. 382-383 [condition requiring probationer to notify probation officer of the presence of pets does not permit officer to irrationally or capriciously exclude any such pets].) D. Restrictions Related to Sexual Offenses Against Minors
The final category of conditions Langner asserts were improper includes 10(n), 10(o), 10(p), 10(r) and 11(a), conditions typically imposed on perpetrators of sex-based crimes against minors and a requirement that Langner wear a global positioning system (GPS) monitoring device if directed by her probation officer. The sex offender conditions preclude Langner from possessing photographic equipment, possessing toys or similar items known to attract children, possessing pornographic material, and using an Internet-enabled device without prior approval of her probation officer.
Langner asserts these conditions do not satisfy the Lent test because the psychologist determined she did not meet the criteria for a pedophile and the connection to the Internet was limited to her initial contact with Doe. To the contrary, Langner not only initiated contact with Doe online, she also developed the relationship primarily online for several months before the two met in person, at which point she almost immediately engaged in improper sexual contact. She also admitted using similar social media applications to send sexually explicit photographs of herself to females with whom she had a romantic interest. Further, while Langner only pleaded guilty to one count of sexual penetration of a minor, the improper sexual contact between Langner and Doe continued for over a year, and escalated to the point that Langner permanently injured Doe. As Langner agreed to a Harvey waiver, the court could consider this entire history. Further still, Langner's own psychologist determined Langner not only exercised poor judgment in pursuing a sexual relationship with Doe, but also continued to demonstrate risk factors that could result in harm to others, including a propensity to act impulsively. As these additional restrictions reduced the likelihood Langner would interact with minors in an improper and potentially illegal manner during the term of her probation and allowed the probation officer to monitor her location if necessary to ensure compliance, the court did not abuse its discretion by imposing them.
Langner also argues a complete prohibition on owning or using Internet-enabled devices is overbroad. But the condition did not preclude all uses of Internet-enabled devices; instead, it only required Langner to get prior approval from her probation officer before possessing or using such devices. (See In re Victor L. (2010) 182 Cal.App.4th 902, 923-925 [discussing various cases and concluding courts more frequently uphold conditions with clauses allowing Internet access with prior approval].) As with the other discretionary conditions, the condition did not permit the probation officer to withhold approval arbitrarily or capriciously, and Langner has recourse if the officer were to do so. (See §§ 1203.2, subd. (b)(1), 1203.3, subd. (a); Olguin, supra, 45 Cal.4th at pp. 382-283.)
Finally, Langner argues the pornography restriction was invalid because there was no evidence indicating the crime she pleaded guilty to involved pornography. However, Langner admitted to viewing pornography and to sharing sexually explicit photos of herself with her romantic interests, and she repeatedly engaged in inappropriate sexual contact with a minor, demonstrating an attraction to adolescent girls. Based on these facts, it was reasonable for the court to infer there was an increased risk Langner would seek out child pornography or share pornography with a minor. The restriction therefore related to future criminality, and the court did not abuse its discretion by imposing it. (See In re George F. (2016) 248 Cal.App.4th 734, 740.)
Because the sex offender restrictions and the GPS monitoring provision are related to Langner's illegal sexual contact with a minor, as well as established risk factors for future criminality, we conclude they are valid and were within the court's discretion.
DISPOSITION
The judgment is affirmed.
HALLER, J. WE CONCUR: MCCONNELL, P. J. AARON, J.