Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR230078
Swager, J.
Following entry of a negotiated nolo contendere plea to one count of obtaining public aid by misrepresentation (Welf. & Inst. Code, § 10980, subd. (c)(2)), and one count of perjury by false application for aid (Pen. Code, § 118), defendant was placed on probation for three years, upon the condition, among others, that he submit at any time to a warrantless search of his person, residence, or personal property. He challenges only the imposition of the search condition in this appeal. We find that imposition of the search condition was not an abuse of the trial court’s discretion, and affirm the judgment.
By his plea defendant has admitted every element of the offenses, and we assume evidence to support the convictions. (See People v. Jones (1995) 10 Cal.4th 1102, 1109; People v. Nguyen (2007) 152 Cal.App.4th 1205, 1238; People v. Marlin (2004) 124 Cal.App.4th 559, 573; People v. Cortez (1999) 73 Cal.App.4th 276, 280–281.) Therefore, we will concisely recite the facts pertinent to the underlying offenses, as necessary to a resolution of the issue of the validity of the probation search condition. The evidence is taken from the reporter’s transcripts of the preliminary hearing and the hearing on defendant’s motion to dismiss.
Defendant is the father of Marina Perez (Marina); Jenny Valdivinos (Valdivinos) is the mother of the child. Defendant and Valdivinos separated in July of 2002. Pursuant to a court order issued in July of 2004, Valdivinos was given primary custody of Marina Monday through Friday. Defendant had physical custody of Marina the first, second and third weekend of each month. Valdivinos stated that she is the “sole provider” for the child, without any financial assistance from defendant. Additional evidence was presented that Marina lived with Valdivinos on a “full-time” basis, while defendant had custody of her only three weekends a month.
Defendant applied for public aid for Marina in August of 2004. Defendant expressed that he needed “some assistance” to support Marina when she “was staying with him” on “weekends.” In application questionnaires to determine eligibility for cash aid, food stamps, Medi-Cal, and “Homeless Aid” benefits signed by defendant under penalty of perjury, he misrepresented that Marina was currently living in his home, and Valdivinos was the “non-custodial parent” of Marina. He also stated that he was unable to locate Valdivinos. In addition, defendant falsely asserted that no one else financially contributed to the care and support of Marina.
Based upon defendant’s misrepresentations in the application questionnaires, he received and signed for cash aid, homeless assistance, and food stamp benefits between August 2004 and February of 2005. Defendant was not entitled to any of those benefits due to the facts that Marina was absent from his “daily care and control” and did not reside with him “at least 50 percent of the time.” The Solano County Department of Social Services thus determined that defendant received overpayments in the full amount of all the benefits he received.
DISCUSSION
Defendant claims that the probation search condition, to which he objected at trial, is invalid. He maintains that the search condition violates his “right of privacy in his own home.” Defendant’s position is that all of the evidence of the crimes he committed “consist of public records,” and “had no involvement with his residence.” He therefore argues that the search condition “serves no purpose in terms either of preventing or exposing future criminality, or rehabilitation,” and must be stricken.
The probation order provides: “Submit person, real or personal property, automobile, and any object under defendant’s control to search and seizure, in and out of the presence of the defendant, as requested by any peace or probation officer, at any time of the day or night, with or without cause, notice, consent, or warrant.”
We review the reasonableness of the imposition of the search and seizure condition in accordance with established principles. “ ‘When granting probation, courts have broad discretion to impose restrictive conditions to foster rehabilitation and to protect public safety. Penal Code section 1203.1 [permits] the court to impose . . . “reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, . . . and specifically for the reformation and rehabilitation of the probationer.” . . .’ [Citation.]” (People v. Mason (1971) 5 Cal.3d 759, 764.) A probation condition “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.]” (People v. Lent (1975) 15 Cal.3d 481, 486; People v. Rugamas (2001) 93 Cal.App.4th 518, 522.) “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.” (People v. Lent, supra, at p. 486; see also In re Corona (2008) 160 Cal.App.4th 315, 321; People v. Zaring (1992) 8 Cal.App.4th 362, 370.) Probation conditions that restrict constitutional rights are valid “if they are narrowly drawn to serve the important interests of public safety and rehabilitation [citation] and if they are specifically tailored to the individual probationer.” (In re Babak S. (1993) 18 Cal.App.4th 1077, 1084; see also In re Tyrell J. (1994) 8 Cal.4th 68, 82; People v. Peck (1996) 52 Cal.App.4th 351, 362.)
“ ‘[A] reviewing court should not disturb the exercise of a trial court’s discretion unless it appears that there has been a miscarriage of justice. . . . “It is fairly deducible from the cases that one of the essential attributes of abuse of discretion is that it must clearly appear to effect injustice. [Citations.] Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.” [Citations.]’ [Citation.]” (People v. Brown (2001) 96 Cal.App.4th Supp. 1, 42; see also People v. Balestra (1999) 76 Cal.App.4th 57, 63; People v. Whisenand (1995) 37 Cal.App.4th 1383, 1391.)
Defendant complains that the search condition fails to have any “factual nexus” to the fraud and perjury offenses or his “meager history of criminality,” which does not include any convictions for violent crimes, or possession of drugs or weapons. We disagree for two reasons.
First, we question defendant’s factual premise that obtaining public aid by misrepresentation and perjury by false application for aid are not offenses susceptible to proof with evidence concealed on his “person or property or premises under his control.” That the offenses to which defendant entered his plea were not proved with evidence seized in a search of his residence in the present case is not determinative. Crimes identical to or indistinguishable in nature from those to which defendant entered his plea may be proved with evidence found during the search of a home, for instance: the extent to which a child actually lives with the defendant; employment or financial records; ownership of personal property; records of a private nature that indicate custody, income, or the willfulness and knowledge elements required for a conviction. (Welf. & Inst. Code, § 10980; Pen. Code, § 118; People v. Matula (1959) 52 Cal.2d 591, 599.) The search condition has the necessary relationship to the convictions.
Further, a probation search condition need not be directly related to the underlying convictions. “If a probation condition serves the statutory purpose of ‘ “reformation and rehabilitation of the probationer,” ’ such condition is ‘ “reasonably related to future criminality” ’ and will be upheld even if it has no ‘ “relationship to the crime of which the offender was convicted.” ’ [Citation.]” (People v. Brewer (2001) 87 Cal.App.4th 1298, 1311.) Here, although no use of a weapon or drugs by defendant is indicated in the present case, and public records may constitute the evidence of the current convictions, we agree with the trial court that the warrantless search condition is reasonably related to the essential objectives of deterring future misconduct, thereby effectuating rehabilitation. (People v. Reyes (1998) 19 Cal.4th 743, 752.) “ ‘[T]he purpose of the search condition is to deter the commission of crimes and to protect the public, and the effectiveness of the deterrent is enhanced by the potential for random searches.’ [Citation.]” (People v. Ramos (2004) 34 Cal.4th 494, 506 (Ramos).) As a probationer, defendant also has “a reduced expectation of privacy, thereby rendering certain intrusions by governmental authorities ‘reasonable’ which otherwise would be invalid under traditional constitutional concepts, at least to the extent that such intrusions are necessitated by legitimate governmental demands.” (People v. Mason, supra, 5 Cal.3d 759, 764–765, approved in In re York (1995) 9 Cal.4th 1133, 1150–1151.) “ ‘The level of intrusion is de minimis and the expectation of privacy greatly reduced when the subject of the search is on notice that his activities are being routinely and closely monitored. Moreover, the purpose of the search condition is to deter the commission of crimes and to protect the public, and the effectiveness of the deterrent is enhanced by the potential for random searches.’ ” (People v. Sanders (2003) 31 Cal.4th 318, 333, quoting from People v. Reyes, supra, at p. 753.)
Disapproved on other grounds in People v. Lent, supra, 15 Cal.3d 481, 486, footnote 1.
Defendant seems to propose that only convictions of offenses which are subject to proof with evidence uncovered in a search of a probationer’s residence or person will justify a probation search condition. The legitimate purposes of deterrence of future criminality and rehabilitation of the probationer have a much broader scope when assessing the validity of a search condition. While defendant may have committed offenses in this case that were proved by evidence of public records alone, the trial court was not required to assume that any future criminality would be identical in nature. Defendant has displayed at least the willingness and inclination to commit crimes in the nature of theft by false pretenses. In light of the current convictions, the trial court was entitled to conclude that defendant’s rehabilitation would be better served by imposing the monitoring of a search condition as a deterrent to commission of theft-related crimes. The objective of protecting the public by deterring future commission of crimes of an unknown nature is enhanced by the potential for random searches. (Ramos, supra, 34 Cal.4th 494, 505–506.) The warrantless search condition also serves the legitimate purpose of ascertaining whether defendant is complying with the terms of his probation. (People v. Wardlow (1991) 227 Cal.App.3d 360, 365–366.)
Thus, in Ramos, supra, 34 Cal.4th 494, 505, the California Supreme Court upheld the warrantless search of the defendant’s house and truck pursuant to a blanket probation search condition previously imposed after he had been convicted of felony driving under the influence (DUI) with injury (Veh. Code, § 23153, subd. (a)). The defendant in Ramos maintained that the search condition was improperly imposed and overbroad. (Ramos, supra, at p. 505.) Despite the lack of any direct connection between the DUI conviction and any supporting evidence found in defendant’s residence, the court concluded: “The trial court properly held that the probation search condition was reasonably related to the DUI conviction, which allowed officers to search and seize defendant’s person, property, and automobile in order to protect the public.” (Id. at pp. 505–506.) The court emphasized that the dual, related purposes of a search condition to foster rehabilitation and deter the commission of crimes to protect the public are both advanced by a probation condition that authorizes a spontaneous search. (Id. at p. 506.)
And in People v. Balestra, supra, 76 Cal.App.4th 57, a warrantless search condition of probation was imposed upon a defendant who entered a guilty plea to inflicting willful cruelty on an elder (Pen. Code, § 368, subd. (a)). The condition was found valid, although the record did not indicate any factual relationship of the underlying offense to theft, narcotics, or use of weapons in the home. The court stated: “As our Supreme Court has recently (and repeatedly) made clear, a warrantless search condition is intended to ensure that the subject thereof is obeying the fundamental condition of all grants of probation, that is, the usual requirement (as here) that a probationer ‘obey all laws.’ Thus, warrantless search conditions serve a valid rehabilitative purpose, and because such a search condition is necessarily justified by its rehabilitative purpose, it is of no moment whether the underlying offense is reasonably related to theft, narcotics, or firearms: ‘The threat of a suspicionless search is fully consistent with the deterrent purposes of the search condition. “ ‘The purpose of an unexpected, unprovoked search of defendant is to ascertain whether [the probationer] is complying with the terms of [probation]; to determine not only whether he disobeys the law, but also whether he obeys the law. Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given the defendant . . . .’ ” . . .’ [Citation.]” (People v. Balestra, supra, at p. 67, fn. omitted; see also People v. Reyes, supra, 19 Cal.4th 743, 752; People v. Bravo (1987) 43 Cal.3d 600, 610; In re Anthony S. (1992) 4 Cal.App.4th 1000, 1002, fn. 1; People v. Wardlow, supra, 227 Cal.App.3d 360, 366; People v. Bauer (1989) 211 Cal.App.3d 937, 942.)
We recognize that defendant was not ordered as a condition of his probation to submit to alcohol or drug testing, as was the defendant in Balestra. We do not think the court in Balestra was in the least persuaded to approve the search condition in that case by the requirement of alcohol and drug testing also imposed upon the defendant; nor does the lack of an alcohol and drug testing condition in the present case make it distinguishable from Balestra. We also observe that defendant’s reference at oral argument to the recent opinion in In re Corona, supra, 160 Cal.App.4th 315, is unpersuasive to us. In Corona, the court declared that a parole condition which required the parolee to “waive his right to confidentiality of the psychotherapist-patient privilege” was “an unreasonable condition of parole.” (Id. at p. 317.) Corona is factually unrelated to the case before us, and has no bearing upon the validity of the search condition imposed upon defendant.
We find that the warrantless search condition is reasonably related to defendant’s rehabilitation and the deterrence of future criminality. (In re Hudson (2006) 143 Cal.App.4th 1, 11; People v. Brewer, supra, 87 Cal.App.4th 1298, 1311; People v. Bauer, supra, 211 Cal.App.3d 937, 942.) We further find that as imposed to include authorization for a warrantless search of defendant’s person, home, vehicle and other personal property, the condition remains specifically tailored to the individual probationer. Thus, the condition is narrowly drawn to serve the important interests of public safety and rehabilitation. We therefore conclude that imposition of the search condition was not an abuse of discretion, and did not violate defendant’s constitutional rights. (People v. Balestra, supra, 76 Cal.App.4th 57, 67; In re Binh L. (1992) 5 Cal.App.4th 194, 204.)
Accordingly, the judgment is affirmed.
We concur: Stein, Acting P. J., Margulies, J.