Opinion
D070512
04-14-2017
THE PEOPLE, Plaintiff and Respondent, v. VICTORIA WILLIAMS, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCE351748) APPEAL from a judgment of the Superior Court of San Diego County, Evan P. Kirvin, Judge. Affirmed as modified. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Victoria Williams was charged by information with animal cruelty (Pen. Code., § 597, subd. (a); count 1), animal abuse and neglect (§ 597, subd. (b); count 2) and animal endangerment (§ 597.7, subd. (a); count 3). The information also alleged two prior prison convictions (§ 667.5, subd. (b)). The jury acquitted defendant of count 1 but found her guilty of counts 2 and 3. After defendant admitted her two prison priors, the court imposed a split sentence on count 2 of two years in county jail and two years of mandatory supervision. (§ 1170, subd. (h)(5)(B).) The court stayed punishment on count 3 (§ 654, subd. (a)).
All further statutory references are to the Penal Code unless otherwise noted.
On appeal, defendant contends that her conviction on count 3 must be reversed for lack of sufficient evidence as a result of her proposed construction of section 597.7; that the court's imposition of probation conditions requiring her probation officer's approval of residence and employment were overbroad and unenforceable; and that the court's imposition of "fines, fees [and] costs" in connection with defendant's mandatory supervision resulted in an unauthorized sentence.
As we explain, we conclude the court's imposition of all "fines, fees [and] costs" in connection with defendant's mandatory supervision must be stricken. In all other respects, the judgment of conviction is affirmed.
FACTUAL OVERVIEW
A. Prosecution Case
San Diego County Sheriff's Deputy Gabrielle Demarsico testified she was working at the El Cajon courthouse on June 19, 2015 when she was alerted about 1:00 p.m. by a community service officer that there was a dog in distress locked in a silver car in the courthouse parking structure. Deputy Demarsico located the silver car on the top floor of the parking structure. The car was in direct sunlight on what the deputy described as an "extremely hot" day. In fact, the record shows that a little before 1:00 p.m., it was 97 degrees outside.
Inside the car, Deputy Demarsico saw a gray pit bull with his tongue hanging out of his mouth. Deputy Demarsico saw the dog take two breaths and then stop breathing.
In an effort to help the pit bull, Deputy Demarsico tried to give the dog water through a "crack" in the window. According to Deputy Demarsico, although the windows were "cracked" open, she was unable to put her hand and arm through the window to unlock the car door. As Deputy Demarsico attempted to aid the pit bull, she noticed there was no food or water inside the car.
Deputy Demarsico used her radio to contact other deputies inside the courthouse to determine whether the silver car's owner could be found. About two or three minutes later, another deputy responded with bottled water. According to Deputy Demarsico, the responding deputy used his baton to break a rear window of the car and poured water on the pit bull. Once inside the car, Deputy Demarsico observed it was "really hot" and the pit bull was not moving. At that point, El Cajon police officers arrived at the scene. About 10 or 15 minutes later, a woman later identified as defendant approached the car and identified the pit bull, named Zeus, as belonging to her.
San Diego County Sheriff's Deputy James McFarland testified he took bottled water to the car in response to Deputy Demarsico's radio dispatch about a "dog in distress in a locked vehicle." As he approached the car, Deputy McFarland saw the dog inside "slumped over" the center console. Deputy McFarland saw the dog had no water. He next used his baton to break one of the car's window. Once inside the car, Deputy McFarland described the interior of the car as stifling and estimated the temperature at about 120 degrees. Deputy McFarland next poured water on the dog, but the dog did not move.
About five minutes after Deputy McFarland broke the car window, he contacted defendant as she approached the car while escorted by other deputies. Defendant appeared upset. Defendant told Deputy McFarland she was the caregiver for the registered owner of the car and was driving it with the permission of the owner. Defendant also told the deputy that when she heard an announcement inside the courthouse about the car, she knew it was about the dog she had left in the car. Defendant told the deputy she did not know it was that hot outside and admitted she knew it was "illegal" to leave a dog alone inside a car. Defendant also told the deputy it was her dog, which she had owned for about a year. During their encounter, defendant never mentioned that she allegedly had arranged to have the dog picked up from the car and/or at the courthouse that day.
El Cajon Police Officer Thomas Winslow testified he also contacted defendant at the car in the afternoon of June 19, 2015. Defendant told Officer Winslow that she had taken the dog with her to the courthouse because she had no one to care for the dog; that she had gone to the courthouse for a "court-related issue"; and that she did not believe it would take "that long" to resolve her issue. Defendant also told the officer that her daughter had told defendant at some point she would check on the dog and determine if the dog needed water. At no point during this interview did defendant inform Officer Winslow that she had arranged to have the dog picked up from the car and/or at the courthouse that day.
El Cajon Police Officer Philip Disque testified he also responded to the call at the El Cajon courthouse. When he approached the scene, Officer Disque saw several sheriff deputies around a car located on the top floor of the parking structure. Inside the car, Officer Disque noticed a deceased dog. Officer Disque estimated the car windows were each rolled down about one to two inches. Officer Disque saw what he described as "foaming dog vomit" in the backseat of the car, on the steering wheel and on dash of the car; he also observed a single bottle of water in the backseat that was capped. Officer Disque testified he had specific training using thermometers as a result of his undergraduate degree in environmental science. Officer Disque testified that he took the temperature inside the car about 10 minutes after he arrived on scene, which was at 1:46 p.m.; that the temperature inside the car was then 109 degrees, even after one of the car windows had been smashed and the car opened; and that, using the digital thermometer, he took the temperature of the dog's foot and found it was then 111 degrees.
Officer Disque testified he arrested defendant, whom he described as upset, and drove her to the police station. Once at the station, he read defendant her rights under Miranda v. Arizona (1966) 384 U.S. 436, and she agreed to make a statement.
Defendant told Officer Disque that she had arrived at the courthouse about 8:00 a.m. to take care of some "business"; that defendant initially thought she would spend only about 10 minutes inside the courthouse; that about 9:30 a.m., defendant met her daughter inside the courthouse, who informed defendant she had checked on the dog and the dog seemed "all right"; and that defendant then "lost track of time" until she was contacted by deputies and advised of the situation outside involving her dog, Zeus.
B. Defense Case
Defendant's daughter, Ambur Rosier, testified that she met her mother at the courthouse on June 19 about 9:00 a.m.; that about 9:50 a.m., her mother received a call from a "telemarketer" after they had exited one of the courtrooms; and that after her mother received this call, her mother's cellphone battery "died."
Rosier testified that about 10:00 a.m., defendant asked her to go to the car and make sure a person named "Anthony" had picked up Zeus. According to Rosier, defendant had arranged to have Anthony pick up Zeus that day. Rosier testified she, along with her then fiancé, went to the car and saw Zeus inside. Rosier testified it was then "hot" outside. Nonetheless, Rosier did not go back and tell her mother that Zeus was still locked inside the car because Rosier believed her mother would only be inside the courthouse another 10 minutes or so and because Rosier's fiancé wanted to leave.
Rosier testified that about 11:00 a.m., she gave Zeus some water through the crack in the window and that the dog then seemed "okay." According to Rosier, she next sent defendant a text message to let defendant know Zeus was still in the car. Rosier did this despite the fact she claimed her mother's cell phone battery had died.
Witness Antonio Medina testified that defendant asked him to pick up Zeus on June 19; that he failed to pick up the dog that day because he "forgot"; that he had watched Zeus a few days earlier, after defendant had gone to the courthouse to make the June 19 appointment; and that they had arranged for him to meet defendant at the courthouse on June 19. Medina further testified that, although he did not have keys to defendant's car, if he had not forgotten about Zeus he would have put his hand and arm through the opening in the window to reach the door lock and retrieve the dog, because he recalled it was "pretty hot that day."
Medina admitted on the stand that he lied to investigators about the reason he had failed to pick up Zeus at the courthouse on June 19. Medina initially told investigators he was at the hospital that day visiting his brother, who allegedly had been involved in a motorcycle accident. Medina testified he lied because he was frightened he would be "busted" for what had happened to Zeus.
On cross-examination, Medina testified that he had known defendant for about two-and-a-half years and that they had met on the street and remained friends. Medina further testified the plan on June 19 was for him and defendant to meet at the courthouse before 8:00 a.m. Medina stated he and defendant had made their June 19 plans in person. When asked about phone records showing a call placed at 7:26 a.m. on June 19 lasting 79 seconds between defendant's phone and Medina's phone, Medina testified he recalled speaking to defendant that morning but nonetheless forgot to pick up Zeus as they had planned.
Defendant testified in her own defense. She testified that she grew up in "East County"; that she was then working as a caregiver for an elderly woman who lived in Brawley; that before working in Brawley, she had been "homeless" and "[l]iving on the streets"; and that after she moved into a house, Zeus's prior owner asked her to take in the dog because Zeus's prior owner and Zeus also had been living on the streets.
About a week before June 19, after being stopped by an officer who "ran [her] name," defendant learned she needed to "finish [her] court proceedings." The following day, with Medina watching Zeus, defendant went to court and made an appointment. Once defendant made the appointment to return to court on June 19, she arranged for Medina once again to watch Zeus. Defendant further testified that she left a message for Medina before 8:00 a.m. on June 19 reminding him she was going to court and he needed to " 'be there' " to pick up the dog.
Defendant testified that she parked on the upper floor of the courthouse parking structure because there were no spaces left on the lower floor; that although she left the windows "cracked open" for Zeus, she should have left them more open; that if Medina was unable to get Zeus out of the car, her expectation was that Medina would "come find [her]" in the courthouse; that the reason she left no food or water in the car for Zeus was because she thought Medina was "going to pick him up"; that she was required to turn her phone off while she was in a courtroom; that she noticed her phone battery was low; that about 10:30 a.m. on June 19, her phone "died" because of the battery; and that about this same time, while still inside the courthouse, defendant asked her daughter to go and check on Zeus.
Shortly thereafter, defendant testified she met with a court official for about two hours. While on a break, defendant heard the name of the woman she cared for—the owner of the silver car—announced over an intercom. Defendant in response went to the jury lounge, as she was instructed, where she learned Zeus had died.
During her interview with law enforcement, defendant did not then mention she had arranged to have Medina pick up Zeus that day. Defendant testified that, after living on the streets for about five years, she learned there was an "unwritten rule" about not "drop[ping] names" to law enforcement. Defendant admitted she told one of the deputies she knew it was "illegal" to leave a dog alone in a car. Defendant testified she made this statement because, on prior contacts with law enforcement, she had been warned that if law enforcement ever contacted Zeus again, they would "anesthesize [sic]" the dog because of the dog's behavior toward the officers. When defendant initially left Zeus alone in the locked car, she believed she would be in the courthouse "an hour."
On cross-examination, defendant testified that Medina watched Zeus on or about June 15, a Monday, when she made the appointment for June 19; that she picked up Medina on June 15 and drove to the library, where Medina sat in the car with Zeus while defendant went into the courthouse; that she and Medina made arrangements on June 15 for him to watch Zeus on June 19; that when she arrived at the courthouse about 8:00 a.m. on June 19, Medina was not there; and that she was a "little" concerned when she left Medina a voicemail on June 19 about 7:26 a.m. because Medina had not answered his phone.
Defendant recalled the week of June 15 was "extremely hot"; and as a result of growing up and living in East County, she recognized that it got "pretty hot" in the summer. Defendant admitted that on June 19 about 9:45 a.m., she turned on her phone while still inside the courthouse but that she did not reach out to Medina to ensure he had picked up Zeus as planned; defendant also admitted that once her cellphone's battery died shortly thereafter, her daughter was still with her. Defendant testified that she did not know whether her daughter had her own cellphone that perhaps defendant could have used to contact Medina, but that, in any event, defendant never asked to borrow her daughter's cellphone to contact Medina.
With regard to her conversation with her daughter, defendant testified that, before her daughter left the courthouse, she asked her to check on Zeus and give him some water and, if Zeus was still there, to come back inside and inform defendant so defendant could go "get him." Defendant also admitted that, although she spoke to officers on June 19 after learning Zeus had died, not once did she mention an arrangement between her and Medina in which Medina would pick up the dog. When asked why defendant had arranged with Medina to pick up Zeus on June 19 if defendant believed she would be inside the courthouse for about 10 minutes, defendant stated it was "just in case."
C. Stipulations
At the conclusion of the evidence and before closing, as relevant here the parties stipulated as follows:
" 'Dr. Sklena . . . has a bachelor's of science degree in animal science and she has a doctor veterinary medicine degree. . . . Dr. Sklena perform[s] examination[s] for protective custody cases involving the humane law enforcement. [¶] Dr. Sklena also performs necropsies. Dr. Sklena performed an autopsy on Zeus on June 20, 2015. A necropsy is an examination of a dead animal and is conducted to determine the cause of death. Dr. Sklena evaluated Zeus'[s] body condition, and scored it using a scale from one to nine. One being emaciated. Nine being obese, and five being just right. Zeus appeared to be a dog in good body condition with a score of five. Zeus died as a result of heat stroke.'
" 'A heat stroke occurs when an animal is either in an environment where the temperature is too high to withstand or when the animal is exerted to a point where the core body temperature is raised to a degree that causes suffering and changes within the body, dehydration and possibly neurological changes. Basically a heat stroke causes damage to the cells in the body from heat. An animal who suffers from heat stroke would experience pain and suffering.' "
" 'Susan Perkins works at the government office where the defendant was seen after she went to Department 3 on June 19, 2015. People seen in this government office place their names on a log-in list and are seen in order. There is no time stamp or notation as to time as to when the person is seen by a government office employee. Su[san] Perkins believes that she met with the defendant shortly before noon on June 19, 2015. Susan Perkins believes that she met with the defendant for one hour to one hour and 15 minutes before the defendant left because she heard the announcement over the loud speaker.' "
DISCUSSION
A. Sufficiency of the Evidence—Count 3
Defendant contends the evidence was insufficient to support her misdemeanor conviction under section 597.7, former subdivision (a) for animal endangerment in count 3. Former subdivision (a) provided: "No person shall leave or confine an animal in any unattended motor vehicle under conditions that endanger the health or well-being of an animal due to heat, cold, lack of adequate ventilation, or lack of food or water, or other circumstances that could reasonably be expected to cause suffering, disability, or death to the animal."
Section 597.7 was amended effective January 1, 2017. (Stats. 2016, ch. 554, § 2.) Substantively, former and current subdivision (a) of this statute—which is at issue in this appeal—are identical.
Neither party challenges the court's instruction in connection with count 3, which provided: "The defendant is charged in Count 3 with animal endangerment - confinement in a motor vehicle, in violation of Penal Code § 597.7(a). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant left or confined an animal in an unattended motor vehicle; 2. When the defendant left or confined the animal in the vehicle, there existed conditions that endangered the health or well-being of the animal due to heat, cold, lack of adequate ventilation, or lack of food or water, or other circumstances that could reasonably be expected to cause suffering, disability, or death to the animal; [¶] AND [¶] 3. When the defendant left or confined the animal in the vehicle, the defendant acted with criminal negligence. [¶] Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when: [¶] 1. He or she acts in a reckless way that creates a high risk of death or great bodily injury. [¶] AND [¶] 2. A reasonable person would have known that acting in that way would create such a risk. [¶] In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinary careful person would act in the same situation that his or her act amounts to disregard for life or indifference to the consequences of that act. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm." --------
Specifically, defendant contends former subdivision (a) of section 597.7 should be interpreted such that the "conditions" referenced by the statute must exist at the time the person left or confined the animal. Because defendant further contends that, when she left her dog in the car about 8:00 a.m., the "conditions" were not then such that the dog's health or well-being was endangered, she alleges she is not guilty under former subdivision (a) of section 597.7.
1. Guiding Principles
"The canons of statutory interpretation are well settled." (People v. Singleton (2007) 155 Cal.App.4th 1332, 1337.) In construing a statute, our fundamental task is to determine the Legislature's intent so as to effectuate the law's purpose. (People v. Cornett (2012) 53 Cal.4th 1261, 1265.) " 'We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context, because the language employed in the Legislature's enactment generally is the most reliable indicator of legislative intent.' [Citations.] The plain meaning controls if there is no ambiguity in the statutory language." (Ibid.) "We do not, however, consider the statutory language 'in isolation.' [Citation.] Rather, we look to 'the entire substance of the statute . . . in order to determine the scope and purpose of the provision . . . . [Citation.]' [Citation.] That is, we construe the words in question ' "in context, keeping in mind the nature and obvious purpose of the statute . . . ." [Citation.]' [Citation.] We must harmonize 'the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole.' " (People v. Murphy (2001) 25 Cal.4th 136, 142.)
We review questions of statutory interpretation de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71; People v. Sherow (2015) 239 Cal.App.4th 875, 878.)
2. Analysis
Here, we reject defendant's contention that former subdivision (a) of section 597.7 is limited to the "conditions" that existed when a person initially "leave[s]" or "confine[s]" an animal in an "unattended motor vehicle," as opposed to any "conditions" that subsequently develop as a result of the animal being left or confined in such a vehicle. Candidly, defendant's interpretation of former subdivision (a) of section 597.7 is borderline frivolous.
The language of former subdivision (a) clearly contemplates situations that develop over time as an animal remains confined in an unattended motor vehicle. That is, as conditions outside the vehicle change, so too may the "health or well-being" of the animal confined inside the vehicle. This is just common sense. Thus, while leaving an animal in an unattended vehicle without "food or water" for 10 minutes may not initially "endanger the health or well-being" of that animal, clearly over the course of four or five hours, depending on outside "conditions" and "other circumstances," such an animal's "health or well-being" may "reasonably be expected to" be endangered.
The instant case provides just such an example. Here, the record shows defendant parked her car about 8:30 a.m. in what was then a shady area on the exposed second floor of the courthouse parking lot. The record shows the temperature was then about 75 degrees. Defendant told investigators postarrest that she left the dog locked in her car believing she would only be inside the courthouse about 10 minutes.
However, it was not until about 1:30 p.m.—or about five hours later—that defendant returned to the car after hearing the announcement inside the courthouse. At that time of day, it had turned "very hot"; the car, once parked in the shade, was then fully exposed to the sun; and the interior of the car, which ostensibly had once been comfortable, had become "stifling" and reached temperatures close to 110 degrees, if not substantially higher. Thus, as the "conditions" outside changed, so too did the dog's "health and well-being" inside the locked car.
Moreover, adopting defendant's interpretation of former subdivision (a) of section 597.7 would eviscerate the purpose of the statute, namely, to protect animals and to prevent their "suffering, disability," or, as in the instant case, "death" when confined to unattended vehicles under conditions that "could reasonably be expected" to endanger their "health or well-being." The author of Senate Bill No. 1806, which added section 597.7, noted this statute was necessary because the " 'dog days' of summer can be dangerous for pets, especially those left inside of hot cars. Every year, countless dogs die after being locked in cars while their owners work, visit, shop, or run other errands. These tragic deaths are entirely preventable. [¶] Many pet owners are not aware that even moderately warm temperatures outside can quickly lead to deadly temperatures inside a closed car. For example, within one hour an outside temperature of 72 degrees . . . can cause conditions inside a vehicle that adversely affects the health, safety, or well-being of an animal.
"Even with the windows left slightly open, an 85 degree outside temperature can cause a temperature of 102 degrees inside a vehicle in 10 minutes, and can cause 120 degrees in just half an hour. A healthy dog, whose normal body temperature ranges from 101 to 102.5 degrees, can withstand a body temperature of 107-108 for only a short time before suffering brain damage or death.
"Numerous organizations, businesses and individuals have worked to educate pet owners of the dangers of leaving animals unattended in vehicles in the heat. Unfortunately, however, animal control is finding that educational approaches by themselves have not significantly improved behavior. To be truly effective, these educational approaches must be integrated with enforcement activities.
"SB 1806 makes it illegal to leave a companion animal unattended in a motor vehicle under conditions, such as extreme heat, that could endanger the health of the animal." (Sen. Rules Com., Off. of Sen. Floor Analyses, reading analysis of Sen. Bill No. 1806 (2005-2006 Reg. Sess.) Aug. 14, 2006, pp. 5-6, italics added.)
Clearly, the legislative history of section 597.7 shows that the purpose of Senate Bill No. 1806 was not only to protect animals left unattended in vehicles for even short periods of time, but also to protect animals that were left in such vehicles for an extended period of time, which, as a result of changing "conditions" including due to "heat, cold, lack of adequate ventilation, or lack of food or water," a person "could reasonably . . . expect[]" the animal's health or well-being to be endangered. Thus, in addition to the language of section 597.7, its legislative history shows the Legislature intended to account for changing "conditions" that put an animal's "health or well-being" at risk while a person is away from an unattended vehicle.
With this construction in mind, we turn to count 3 and conclude there is substantial evidence in the record to support defendant's conviction under former subdivision (a) of section 597.7 for animal endangerment. The record shows that about 8:30 a.m., defendant left her pit bull Zeus unattended in the car she had driven to the courthouse. At that time, defendant believed she would only be inside the courthouse for about 10 minutes. Defendant locked the car and cracked open the windows just a few inches. Defendant admitted at trial that she should have left the windows more open than she did for Zeus. Deputy Demarsico testified she unsuccessfully attempted to put her hand and arm through the "crack" in the window in order to unlock the car door in order to render assistance to the dog.
Although defendant initially parked in the shade, she nonetheless parked the car on the top of the parking structure, which ultimately was exposed to full sun. At or near the time defendant first parked the car about 8:30 a.m., it already was about 75 degrees outside. By around 1:00 p.m. later that same day, the outside temperature had risen to 97 degrees. Defendant knew that it often got hot in East County, where she had grown up and lived for most of her life; that it had been particularly hot that week, including on June 19; and that it was very hot on June 19.
But there's more. The record also shows that defendant was not inside the courthouse for just 10 minutes. In fact, around 10:00 a.m., defendant asked her daughter to check on Zeus and, if necessary, to give the dog some water (ostensibly through the cracked opening of one of the windows, since her daughter did not have a car key). Defendant then "lost track of time" while inside the courthouse. About 1:30 p.m., or roughly five hours after she first parked in the courthouse parking structure, defendant heard a message broadcast over an intercom inside the courthouse directed to the owner of the silver car. At that point, defendant realized the message was meant for her and was about the dog she had left unattended in the car.
Based on the foregoing, we conclude there is more than sufficient evidence in the record to establish that defendant left Zeus in an "unattended motor vehicle under conditions [i.e., heat with very little ventilation and no food or water] that endanger[ed] the health or well-being" of Zeus. (See § 597.7, former subd. (a); see also People v. Johnson (1980) 26 Cal.3d 557, 576-578 (Johnson) [noting under the substantial evidence test, we evaluate the entire record, drawing all reasonable inferences in favor of the trial court's findings; and further noting under this standard, we do not make credibility decisions, nor do we reweigh the evidence].)
We further conclude from the foregoing there is ample evidence to establish that such conditions "could reasonably be expected to cause suffering, disability, or death" to Zeus. (See § 597.7, former subd. (a); see also Johnson, supra, 26 Cal.3d at pp. 576-578.) Indeed, with respect to this particular element, the record shows the parties stipulated that Zeus died of heat stroke and that, as a result, he experienced "pain and suffering." (Italics added.) We thus reject defendant's contention there was insufficient evidence to support her misdemeanor conviction on count 3.
B. Conditions of Mandatory Supervision
Defendant next contends that mandatory supervision condition 7g, requiring her to obtain her probation officer's "approval as to residence [and] employment," is facially unconstitutional.
1. Guiding Principles
Although supervised release is to be monitored by county probation officers "in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation" (§ 1170, subd. (h)(5)(B)), "this does not mean placing a defendant on mandatory supervision is the equivalent of granting probation or giving a conditional sentence. Indeed, section 1170, subdivision (h), comes into play only after probation has been denied. [Citation.] Moreover, section 667.5 provides for a one-year enhancement for 'prior prison terms,' including a 'term imposed under the provisions of paragraph (5) of subdivision (h) of [s]ection 1170, wherein a portion of the term is suspended by the court to allow mandatory supervision.' (§ 667.5, subd. (b).) Thus, the Legislature has decided a county jail commitment followed by mandatory supervision imposed under section 1170, subdivision (h), is akin to a state prison commitment; it is not a grant of probation or a conditional sentence." (People v. Fandinola (2013) 221 Cal.App.4th 1415, 1422 (Fandinola1).)
Because "mandatory supervision is more similar to parole than probation" (Fandinola, supra, 221 Cal.App.4th at p. 1423), we therefore will analyze the validity of the terms of supervised release under standards analogous to the conditions applied to terms of parole.
"In California, parolee status carries distinct disadvantages when compared to the situation of the law-abiding citizen. Even when released from actual confinement, a parolee is still constructively a prisoner subject to correctional authorities. [Citations.] The United States Supreme Court has characterized parole as 'an established variation on imprisonment' and a parolee as possessing 'not . . . the absolute liberty to which every citizen is entitled, but only . . . the conditional liberty properly dependent on observance of special parole restrictions.' [Citations.] Our own Supreme Court holds a like opinion: 'Although a parolee is no longer confined in prison his [or her] custody status is one which requires . . . restrictions which may not be imposed on members of the public generally.' " (People v. Lewis (1999) 74 Cal.App.4th 662, 669-670.)
The fundamental objectives of parole are " 'to help individuals reintegrate into society as constructive individuals' [citation], ' "to end criminal careers through the rehabilitation of those convicted of crime" ' [citation] and to [help them] become self-supporting." (In re Stevens (2004) 119 Cal.App.4th 1228, 1233.) In furtherance of these goals, "[t]he state may impose any condition reasonably related to parole supervision." (Ibid.) These conditions "must be reasonably related to the compelling state interest of fostering a law-abiding lifestyle in the parolee." (Id. at p. 1234.)
The validity and reasonableness of conditions of mandatory supervision/parole are analyzed under the same standard as that developed for probation conditions. (In re Hudson (2006) 143 Cal.App.4th 1, 9; In re Stevens, supra, 119 Cal.App.4th at p. 1233 [noting the "criteria for assessing the constitutionality of conditions of probation also applies to conditions of parole"].) A court has broad discretion to impose "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, . . . and generally and specifically for the reformation and rehabilitation of the [parolee]." (§ 1203.1, subd. (j); see People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) "If a . . . condition serves to rehabilitate and protect public safety, the condition may 'impinge upon a constitutional right otherwise enjoyed by the [parolee], who is "not entitled to the same degree of constitutional protection as other citizens." ' " (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355.)
A condition of mandatory supervision will not be upheld, however, if it (1) has no relationship to the crime of which the defendant was convicted, (2) relates to conduct that is not criminal, and (3) requires or forbids conduct that is not reasonably related to future criminality. (See People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin).) Our high court has clarified that this "test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a . . . term." (Id. at p. 379.)
However, "[j]udicial discretion to set conditions of [parole] is further circumscribed by constitutional considerations." (People v. O'Neil, supra, 165 Cal.App.4th at p. 1356.) "A . . . 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.) "The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
"Generally, we review the court's imposition of a [parole] condition for an abuse of discretion." (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) However, we independently review constitutional challenges to a condition of mandatory supervision/parole. (Ibid.)
2. Analysis
Initially, we note the failure to challenge the conditions of mandatory supervision in the trial court results in a forfeiture of that issue on appeal. (See People v. Welch (1993) 5 Cal.4th 228, 234-235 [extending the forfeiture rule to a claim that probation conditions are unreasonable, when the probationer fails to object on that ground in the trial court].) However, the forfeiture rule does not apply if the claim "amount[s] to a 'facial challenge' " that is "capable of correction without reference to the particular sentencing record developed in the trial court." (In re Sheena K., supra, 40 Cal.4th at pp. 885, 887.) Here, we need not decide whether defendant forfeited this claim of error because we exercise our discretion to adjudicate its merits to forestall any future claim of ineffective assistance of counsel. (See In re Victor L. (2010) 182 Cal.App.4th 902, 928 [noting although a defendant forfeited his challenge to a probation condition, the court in the exercise of its discretion reached the merits of the claim to eliminate defendant's ineffective assistance of counsel claim].)
We conclude parole condition 7g reasonably serves the compelling state interest in defendant's reformation and rehabilitation and also reasonably serves to protect public safety by preventing future criminality. (See Olguin, supra, 45 Cal.4th at pp. 379-380.) The record shows defendant has an extensive criminal history dating back to 1999, including multiple arrests for being under the influence of a controlled substance and two prison priors. Specifically, defendant sustained 11 prior misdemeanor and three prior felony convictions. The record further shows that defendant was granted formal probation with respect to the three felonies and that, in each case, she repeatedly violated the conditions of probation and also incurred multiple parole revocations, resulting in prison sentences in each case.
As a result, the May 3, 2016 probation report of defendant found her "adjustment" to supervision "poor" and noted that, at the time defendant committed the instant offense, she was on summary probation in two cases. The May 3 report summarized as follows the myriad opportunities defendant already had received in the criminal justice system: "Attempted interventions at the local level include: Drug Court, PC 1210 probation, PC 1203 probation, two different early releases and transports to RTP's [i.e., residential treatment programs]. Despite said interventions, the defendant continued to violate probation, resulting in a prison sentence as to each formal probation grant. Since her release from custody, the defendant's substance abuse issues and criminality continues."
Of additional concern, the May 3 report noted defendant admitted she then was still " 'dabbling' " in methamphetamine use, injecting the drug intravenously about every two weeks. And, shortly before defendant was sentenced in the instant case, she was arrested for possession of methamphetamine after police found 15.42 grams of the drug in defendant's car.
But there's more. At the time of the instant offense, defendant was living with an elderly woman in Brawley, California, whom defendant has cared for since November 2014. About five years earlier, defendant previously had cared for this same woman for one year. However, during the five-year span when defendant was not caring for this woman, defendant was living on the "streets," ostensibly was unemployed and was committing crimes and using controlled substances.
In light of the foregoing, we independently conclude that there is a compelling need to strictly monitor the activities of defendant during her period of mandatory supervision. (See Olguin, supra, 45 Cal.4th at p. 380; see also People v. Balestra (1999) 76 Cal.App.4th 57, 65, quoting People v. Lent (1975) 15 Cal.3d 481, 486 [noting if a condition serves the "statutory purpose of 'reformation and rehabilitation . . . ,' it necessarily follows that such a condition is 'reasonably related to future criminality' and thus may not be held invalid whether or not it has any 'relationship to the crime of which the offender was convicted' "].)
We further conclude that condition 7g, when considered in connection with some of the other conditions to which defendant did not object—including that she seek and maintain full-time employment, report any change of address or employment within 72 hours and obtain consent to leave San Diego County or the state—will assist defendant's probation officer in this endeavor by making it possible to know in advance where defendant will be living after she completes residential drug treatment (also a condition of her supervised release) and, if and when she secures employment, where she will be working. (Compare People v. Bauer (1989) 211 Cal.App.3d 937 [striking a residence condition ostensibly designed to prevent the defendant from living with his overprotective parents because, unlike the instant case, there was nothing in the record there to suggest that defendant's living at home with his parents was reasonably related to future criminality].) As such, we conclude that imposition of condition 7g was both reasonable and not unconstitutionally overbroad.
C. Payment of Fines, Fees and Costs as a Condition of Mandatory Supervision
Defendant next contends the court erred when it ordered her as a condition of mandatory supervision to pay "fines, fees [and] costs, as directed by the court." Specifically, defendant contends the court erred when it pronounced at sentencing that she was to pay a restitution fine of $1,500 (Pen. Code, § 1202.4, subd. (b)); an additional restitution fine in the amount of $1,500, which was stayed (Pen. Code, § 1202.45, subd. (b)); a court security fee of $80 (Pen. Code, § 1465.8); a justice administration fee of $154 (Gov. Code, § 29550.1); and a critical needs account fee of $60 (Gov. Code, § 70373). The People concede the court erred in requiring defendant to pay the court security, the justice administration and the critical needs account fees, but not the restitution fines.
As the parties recognize, a court cannot require a defendant to pay for the costs of mandatory supervision. (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 763-767; Fandinola, supra, 221 Cal.App.4th at p. 1418.) As such, we agree the $80 court security fee, the $154 justice administration fee and the $60 critical needs account fee must be stricken.
However, a court may order a defendant to pay victim restitution pursuant to section 1202.4 as part of a sentence to county jail followed by mandatory supervision pursuant to section 1170, subdivision (h)—as is the case here—to the extent " 'those losses aris[e] out of the criminal activity that formed the basis of the conviction.' " (People v. Rahbari (2014) 232 Cal.App.4th 185, 196.)
Turning to the instant case, in our independent review of the record we discern no evidence, much less any substantial evidence (see People v. Keichler (2005) 129 Cal.App.4th 1039, 1048), to show that the $1,500 restitution fine ordered pursuant to section 1202.4, subdivision (b) arose from " 'losses arising out of the criminal activity that formed the basis of [defendant's] conviction' " on counts 2 or 3. (See People v. Rahbari, supra, 232 Cal.App.4th at p. 196.) As such, we conclude the restitution fine of $1,500 (see § 1202.4, subd. (b)) and the stayed restitution fine in that same amount ordered in conjunction with defendant's mandatory supervision (see § 1202.45, subd. (b)) also must be stricken.
DISPOSITION
The $1,500 restitution fines, the $80 court security fee, the $154 justice administration fee and the $60 critical needs account fee are stricken. The trial court is directed to prepare an amended abstract of judgment removing these fines and fees and to furnish a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, defendant's judgment of conviction is affirmed.
BENKE, Acting P. J. WE CONCUR: NARES, J. DATO, J.