Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County, No. JCF23921, Matias R. Contreras, Judge. (Retired judge of the Imperial S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
NARES, J.
An Imperial County jury convicted Albert Lopez of petty theft (Pen. Code, § 484, subd. (a)). In a bifurcated trial, the court found true the allegation under section 666 that Lopez had served a prior jail sentence for a theft conviction (§ 666). The court placed Lopez on probation for three years, on the condition that he submit to warrantless search of his computer and stored information (hereafter referred to as the computer probation condition).
All further statutory references are to the Penal Code unless otherwise specified.
In 2010 section 666 was amended by the addition of the designation "(a)" and other changes not pertinent to this case. (Stats. 2010, ch. 219, § 15.) All further references to section 666 will be to the statute as written prior to its 2010 amendment.
Lopez appeals, contending (1) "there was insufficient evidence to support [his] conviction under section 666 of petty theft with a prior because [he] had not served time in a penal institution within the meaning of the statute"; and (2) "the court erred in adopting a probation condition that subjects [him] to warrantless search and seizure of his computer or any location where his data is stored, as this condition is invalid and overbroad, in violation of [his] Fourth Amendment rights." We affirm Lopez's conviction under section 666 and strike the computer probation condition.
Our summary of the factual background is brief because many of the facts are not pertinent to the issues raised on appeal. We shall discuss in greater detail the evidence regarding Lopez's prior theft conviction in the discussion portion of this opinion.
On May 16, 2009, Luis Arredondo was working as an asset protection associate at Walmart in El Centro. At about 6:30 p.m. Arredondo noticed Lopez and a female companion, Arlene Cuen, enter the store. As Cuen pushed a shopping cart, she and Lopez each selected items and placed them in the cart. Arredondo saw Lopez put a bottle of cologne in his shorts pocket. Lopez and Cuen later brought the shopping cart to a self-checkout station, where Lopez scanned and paid for only some of the merchandise in the shopping cart. As Lopez and Cuen left the store, Arredondo and his assistant manager, Jose Perez, confronted them outside. Arredondo identified himself and asked Lopez and Cuen to return to the store. Lopez refused to return to the store, and left the Walmart parking lot in his vehicle. A police officer conducted a traffic stop of Lopez's vehicle. During the traffic stop, an officer found a bottle of cologne in the vehicle. Officers then arrested Lopez.
DISCUSSION
I. SECTION 666
Lopez claims "[t]here was insufficient evidence to support [his] conviction under section 666 of petty theft with a prior because [he] had not served time in a penal institution within the meaning of the statute." We perceive this claim to be two principal claims: (1) a one-day sentence in county jail with a one-day credit for time served does not satisfy the section 666 incarceration requirement, and (2) there is insufficient evidence to show that Lopez was sentenced to one day of custody in county jail with a one-day credit for time served as a result of his prior grand theft conviction. These claims are unavailing.
A. Section 66 Incarceration Requirement
Lopez first asserts that "the question is whether [his] one-day of credit for time served was sufficient to fall within section 666." He claims his prior sentence of one day in county jail with a one-day credit for time served does not meet the statutory incarceration requirement of "having served a term... in any penal institution" set forth in section 666.
1. Background
The trial court concluded that a one-day sentence with a one-day credit for time served does meet the section 666 incarceration requirement.
2. Applicable legal principles
Section 666 provides enhanced punishment for recidivist thieves. (People v. Bruno (1987) 191 Cal.App.3d 1102, 1107.) The statute provides:
"Every person who, having been convicted of [a theft-related crime] and having served a term therefor in anypenal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petty theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in state prison." (Italics added.)
We apply the de novo standard of review to Lopez's claim because it raises an issue of statutory interpretation. (See People v. Superior Court (2005) 132 Cal.App.4th 1525, 1529.)
3. Analysis
A one-day sentence with a one-day credit for time served meets the provisions of section 666. (People v. Valenzuela (1981) 116 Cal.App.3d 798, 802 (Valenzuela)). The Valenzuela court stated:
"Anyone who is arrested for petty theft, booked and released immediately following completion of booking, whether by posting bail or on his own recognizance, is deemed to have served one day in custody. Such person... is considered to have served one day in a penal institution, and therefore comes within section 666." (Id. at p. 809.)
It is well settled that a county jail is a "penal institution, " as that term is used in section 666. (In re Wolfson (1947) 30 Cal.2d 20, 26; accord, People v. James (1957) 155 Cal.App.2d 604, 612.) Thus, the trial court did not err when it concluded that Lopez's one-day sentence in county jail with a one-day credit for time served met the section 666 incarceration requirement.
B. Lopez's Statutory Intent Claim
In a related claim, Lopez contends his "one-day sentence with a one-day credit does not fall within the intent of section 666." Specifically, he asserts that "[a]llowing for [his] one-day sentence to fall within the meaning of section 666... goes against the legislative intent of the statute."
1. Applicable legal principles
"In construing statutory enactments, we look to the words of the statutes to determine legislative intent and to fulfill the purpose of the law." (In re Alanna A. (2005) 135 Cal.App.4th 555, 563.) "If the language contains no ambiguity, we presume the Legislature meant what it said, and the plain meaning of the statute governs." (People v. Robles (2000) 23 Cal.4th 1106, 1111.)
2. Analysis
The plain and commonsense meaning of the section 666 language "served a term" unambiguously applies to an incarceration term of any duration. Thus, the words of the statute are controlling. (Fitch v. Select Products Co. (2005) 36 Cal.4th 812, 818.) We conclude that a one-day term of incarceration comes within the plain, common, and unambiguous meaning of the section 666 incarceration requirement and therefore is within the intent of the statute. Our conclusion is unaffected by the fact that Lopez's term was satisfied with credit for presentence custody. (See Valenzuela, supra, 116 Cal.App.3d at p. 803 ["The Legislature did not choose to except custody resulting from credit for time served from the effect of section 666[, therefore, w]e believe that no such exclusion was intended."].) Thus, Lopez's claim that his one-day sentence with a one-day credit for time served does not fall within the intent of section 666 is unavailing.
C. Lopez's Statutory Surplusage Claim
In another related claim, Lopez asserts that "[a]llowing for [his] one-day sentence to fall within the meaning of section 666... renders its incarceration distinction meaningless." Specifically, he contends "every person arrested and booked would have served one day in custody and therefore one day in a penal institution if he were convicted. It would eliminate the Legislature's distinction that section 666 should only apply to offenders deemed serious enough to have been incarcerated because every offender would have been incarcerated for at least one day under Valenzuela's rubric." This contention is unavailing.
1. Applicable legal principles
"It is a settled axiom of statutory construction that significance should be attributed to every word and phrase of a statute, and a construction making some words surplusage should be avoided." (People v. Woodhead (1987) 43 Cal.3d 1002, 1010.)
2. Analysis
The section 666 incarceration requirement is not meaningless, because it excludes some offenders who could otherwise be punished under the statute. For example, section 666 lists "auto theft under Section 10851 of the Vehicle Code" as an eligible prior offense. As Vehicle Code section 10851, subdivision (a) makes clear, a convicted offender may be punished by "imprisonment... or by a fine..., or by both the fine and imprisonment." Thus, a person who is convicted of violating Vehicle Code Section 10851 and sentenced only to pay a fine would not come within section 666 for a later petty theft. Again, this scenario demonstrates that the section 666 incarceration requirement is not meaningless because it excludes prior convictions that were punished only with a fine. Furthermore, even if a term of incarceration is imposed for a theft-related prior conviction, it nonetheless may not meet the section 666 incarceration requirement if it is entirely satisfied outside of a penal institution. (See People v.Cortez (1994) 24 Cal.App.4th 510, 513-514 [defendant's 30-day jail term imposed as a condition of probation was entirely satisfied by her participation in a work release program and thus she did not serve a term in a penal institution within the meaning of section 666].) As these scenarios illustrate, a prior theft-related conviction for purposes of section 666 does not necessarily satisfy the statutory incarceration requirement. Thus, Lopez's claim that the section 666 incarceration requirement is meaningless surplusage is unavailing.
D. Sufficiency of the Evidence Claim
In his second principal claim, Lopez asserts that, "[i]n this case, the reasonable inference from [his] prior sentence is that the intention of the court was to give [him] a term of community service rather than jail time." He further asserts that "[t]he previous court did not deem [him] to be such a serious offender that he deserved to be incarcerated for his crime, nor can it be said that [he] failed to learn his lesson from prior incarceration." We construe these assertions to be a claim that the evidence is insufficient to establish that Lopez was sentenced to jail time for his prior conviction.
1. Background
The court granted Lopez's request for a bifurcated trial on the issues of guilt and the validity of his prior conviction under section 666. Lopez waived his right to a jury trial on the prior conviction issue. The court reviewed relevant documents and minute orders and found sufficient proof that Lopez had previously been convicted of grand theft (§ 487, subd. (a)). The documents showed that in November 2008 Lopez pleaded nolo contendere to grand theft (§ 487, subd. (a)), and was later sentenced to three years' probation and 30 days in county jail, with one day of credit for time served. The documents also showed that in February 2009 the court modified Lopez's probation conditions to give him one day in county jail with credit for time served and 360 hours of community service. The court in the present case found sufficient evidence that Lopez had been incarcerated for this prior theft.
2. Standard of review
In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence─evidence that is reasonable, credible and of solid value─such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) We defer to the trial court's factual findings if they are supported by substantial evidence. (People v. Ravaux (2006) 142 Cal.App.4th 914, 917, 919.)
3. Analysis
The court found that Lopez had been sentenced to a period of time in incarceration as a result of his prior grand theft conviction. As set forth in the supplemental clerk's transcript on augment, in an order to modify the judgment dated February 11, 2009, the court in Lopez's previous grand theft case stated: "The defendant is to serve one day with a one-day credit already served." We thus conclude that substantial evidence supports the court's finding that Lopez had served a period of one day in incarceration as a result of his prior grand theft conviction.
II. COMPUTER PROBATION CONDITION
Lopez contends "the court erred in adopting a probation condition that subjects [him] to warrantless search and seizure of his computer or any location where his data is stored, as this condition is invalid and overbroad, in violation of [his] Fourth Amendment rights." Specifically, he asserts "the computer probation condition is not reasonably related to [his] future criminality" because he never "demonstrated a proclivity for committing crimes that have anything to do with computer usage." Lopez further asserts this probation condition is overbroad in violation of his Fourth Amendment rights. We conclude that the computer probation condition is invalid, and therefore need not reach the constitutional claim.
A. Background
At sentencing, the court imposed several conditions on Lopez's probation, including the condition that he submit to warrantless searches and seizures of his property. Over defense counsel's objection, the court also imposed the following condition:
"The defendant acknowledges that [the Fourth Amendment] waiver conditions include: [¶] Any location where his/her data is stored, including networks and off-site servers [and t]hat he/she must supply any password or pass phrase to unlock or remove encryption from any file, system, computer, or data of any type."
The court found that Lopez did not have any computer-related convictions. However, the court stated that it was reasonable to allow the property search, and that such search would include Lopez's computer and data.
B. Applicable Legal Principles
The trial court has discretion to impose probation conditions that are reasonable. (§ 1203.1, subd. (j).) On appeal, we evaluate the validity of a probation condition under the abuse of discretion standard. (People v. Dominguez (1967) 256 Cal.App.2d 623, 626-627.) When deciding whether the court abused its discretion, we look to the particular facts of the case. (People v. Lindsay (1992) 10 Cal.App.4th 1642, 1644.) "A condition of probation which (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 does not serve the statutory ends of probation and is invalid." (Dominguez, supra, 256 Cal.App.2d at p. 627.)
"[E]ven if a condition of probation has no relationship to the crime..., the condition is valid as long as the condition is reasonably related to preventing future criminality." (People v. Olguin (2008) 45 Cal.4th 375, 380.) However, for a condition to reasonably relate to future criminality, "[t]here must be some rational factual basis for projecting the possibility that defendant may commit a particular type of crime in the future, in order for such projection to serve as a basis for a particular condition of probation." (In re Martinez (1978) 86 Cal.App.3d 577, 583, italics added.)
C. Analysis
The People acknowledge that Lopez's crime was not computer-related, and that computer use is not in itself criminal conduct. However, the People claim the probation condition is valid because "the computer and data search condition is related to future criminality."
In the instant case, the record does not reveal any factual relationship between Lopez's convictions and computer use. Nor does the record suggest that Lopez suffers from a propensity for computer crime. Because we detect no rational factual basis from which we could project the possibility that Lopez will commit computer crime in the future, the computer probation condition is invalid. Therefore, it was an abuse of discretion for the court to impose the computer probation condition.
The People rely on People v. Balestra to defend the validity of the probation condition because the condition "serves the statutory purpose of 'reformation and rehabilitation of the probationer' [and thus] is 'reasonably related to future criminality.'" (People v. Balestra (1999) 76 Cal.App.4th 57, 65.) In Balestra, the court upheld a drug testing probation condition even though the underlying crime of elder cruelty was unrelated to drugs. (Ibid.) The drug condition in Balestra was reasonably related to future criminality because the record was replete with evidence that the defendant had a substance abuse problem and was under the influence at the time of the crime. (Id. at p. 62 ["[T]he [trial] judge commented to Balestra that 'you need treatment for what everybody appears to agree is an alcohol problem which you have' "].) Based on this record, the Balestra court properly projected the possibility that the defendant may commit future drug-related offenses. (See id. at p. 65.) Balestra is distinguishable because, here, nothing in the record enables us to predict that Lopez's reformation and rehabilitation would be furthered by the computer probation condition. Therefore, the People's reliance on Balestra is misplaced.
1. Fourth Amendment claim
The People assert that the computer probation condition is valid because Lopez waived his Fourth Amendment rights as a condition of probation. However, one who accepts a probation condition may challenge its validity on appeal. (People v. Narron (1987) 192 Cal.App.3d 724, 730 ["[A]cceptance of probation does not preclude a challenge on appeal to the validity of a probation condition."].)
DISPOSITION
The trial court is directed to modify the judgment by striking the computer probation condition which provides:
"The defendant acknowledges that [the Fourth Amendmentn] waiver conditions include: [¶] Any location where his/her data is stored, including networks and off-site servers [and t]hat he/she must supply any password or pass phrase to unlock or remove encryption from any file, system, computer, or data of any type."
As so modified, the judgment is affirmed.
WE CONCUR: McCONNELL, P. J., IRION, J.