[As Modified June 25, 2015]
Monterey County Superior Court Nos. SS140496, SS140498, The Honorable Carrie M. Panetta, Trial Judge
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Sylvia Ronnau under appointment by the Court of Appeal for Defendant and Appellant
Kamala D. Harris, Attorney General Gerald A. Engler, Chief Assistant Attorney General Jeffrey M. Laurence, Assistant Attorney General Rene A. Chacon and Juliet B. Haley, Deputy Attorneys General, for Plaintiff and Respondent.
In January 2014, while being investigated for stealing money from a coworker’s purse, officers found heroin on defendant Daniel Aaron Contreras's person. Shortly thereafter, in February 2014, defendant stole seven pairs of jeans from a retail store. Defendant was subsequently charged in two different felony complaints with one felony count of possession of heroin (Health & Saf. Code, § 11350) and one felony count of second degree burglary (Pen. Code, §§ 459, 460). (All further undesignated statutory references are to the Penal Code.) Defendant pleaded no contest to both offenses. At the time of the offenses, defendant was on misdemeanor probation for two prior second degree burglary convictions arising out of thefts from retail stores in December 2012 and January 2013.
At sentencing, the court suspended imposition of sentence and granted three years’ probation in both of the felony cases, including four days in county jail as a condition of probation. The court also found that as a result of the new felony offenses, defendant had violated his probation in the misdemeanor cases. The court revoked probation in the misdemeanor cases and imposed consecutive jail sentences of 720 days (360 days in each case), for a total of 724 days for all four cases.
In this appeal, defendant challenges two of the conditions of his felony probation. First, he asserts that a probation condition requiring him to stay out of all Kohl’s stores is (1) unconstitutionally overbroad because it is not closely tailored to his rehabilitation and it restricts his constitutional right to travel, and (2) vague because it fails to require that he knowingly stay away from all Kohl’s stores. We conclude the condition is not unconstitutionally infirm, but we note that the minute order does not accurately state the condition as imposed by the court in its oral pronouncement at sentencing. We will direct the clerk of the court to correct the minute order.
Second, defendant argues that a condition prohibiting possession of, use of, or access to a police scanner or surveillance equipment is unconstitutionally vague and overbroad because the term “surveillance equipment” is vague and may include electronic devices like tablet computers that can be used for purposes other than monitoring law enforcement. Defendant also argues the condition is vague because it does not include a knowledge requirement. The Attorney General does not object to the addition of a knowledge requirement. We agree with defendant, in part, and will hold that the condition is vague and overbroad because it does not provide sufficient notice of what items are prohibited. We will therefore remand this matter to the trial court to fashion an appropriate condition in light of the views expressed herein.
In addition, defendant argues that Proposition 47––which could reduce defendant’s felony offenses to misdemeanors––requires this court to designate his eligible offenses as misdemeanors. He also asks this court to remand this matter for resentencing because his case was not final when Proposition 47 took effect. The Attorney General argues that defendant must first file a petition to recall his sentence in the trial court (§ 1170.18). We will judicially notice the facts that (1) defendant filed petitions for recall of his sentence in the trial court, (2) the trial court denied at least one of those petitions, and (3) defendant has separately appealed the trial court’s order on the petitions. Since the Proposition 47 questions relate to matters that occurred after the judgment in this case, are not included in the appellate record, and are the subject of another appeal, we conclude they are not properly before us in this case.
We will reverse the judgment and remand this matter to the trial court to modify the probation condition relating to police scanners and surveillance equipment. We will also direct the clerk of the court to correct the minute order.
Because defendant entered his pleas prior to the date set for the preliminary hearing, the following facts are based on the probation report.
I. Case No. SS140496A (the Felony Drug Possession Conviction)
In January 2014, defendant was working at a Taco Bell restaurant in Salinas, California. On January 3, 2014, defendant’s coworker, Dalia Rojas, placed her purse under a cash register at the start of her shift. When she picked up her purse later that day, she noticed $40 was missing. The next day, the restaurant manager allowed Rojas to review the restaurant’s security camera footage to determine whether someone in the restaurant had taken the money. The footage revealed that defendant had stolen the money from Rojas’s purse.
On January 8, 2014, Salinas police officers came to the restaurant to investigate the incident. They spoke with defendant who initially said he did not know what happened to the money, but later confessed to taking it. First, he said he was having money problems. Then he told the officers he was addicted to heroin and “sometimes needed heroin to ‘stay healthy.’ ” He said he used small doses of the drug to stave off painful withdrawal symptoms. The officers searched defendant and found 0.2 grams of heroin on his person.
II. Case No. SS140498A (the Felony Burglary Conviction)
On February 25, 2014, at approximately 8:30 p.m., two loss prevention agents at the Sears store at the Northridge Mall in Salinas (hereafter “Agent 1, ” “Agent 2, ” and jointly “Agents”) were monitoring activity in the store on surveillance equipment in their office. The Agents saw defendant enter the store, select seven pairs of men’s jeans, fold them, and place them on the sales floor. They then saw Defendant step out of the store and wave to a passing car. Agent 1 stepped out of the loss prevention office to see what was happening on the sales floor. Both Agents saw defendant return to the store, grab all seven pairs of jeans, and exit the store running. Agent 1 ran outside and chased defendant. During the chase, defendant dropped the jeans. As defendant approached a gray car, Agent 1 tackled him. As Agent 1 started to handcuff defendant, two men got out of the gray car and punched Agent 1 in the head. One of the men put Agent 1 in a headlock, which allowed defendant to evade Agent 1’s grasp.
Agent 2 arrived and saw one of defendant's associates pull out a knife. Agent 2 told Agent 1 to disengage from defendant and his group, which he did. Defendant and his associates got into the gray car and left. Agent 1’s injuries included a laceration on his right hand, a bump on his head, and a sore jaw.
When police officers met with defendant three days later as part of their investigation, defendant admitted taking the jeans. Defendant told the officers he had a drug problem, and as a result he “also had a problem impulsively stealing things.”
III. Defendant’s Prior Misdemeanor Convictions and Grants of Probation
At the time of his January 2014 and February 2014 offenses, defendant was 20 years old and was on probation for two prior misdemeanor second degree burglary convictions. One of his misdemeanor convictions was based on a theft in December 2012 from the same Sears store at the Northridge Mall in Salinas where the felony burglary occurred in February 2014. The other prior misdemeanor conviction appears to be based on a theft from the Macy’s store in Monterey in January 2013. Defendant was granted probation in both cases on January 30, 2013. In May 2013, defendant violated his probation when he committed a theft from the Kohl’s store in Marina. The conditions of defendant’s prior grants of probation included orders that he stay away from the Kohl’s store in Marina and the entire Northridge Mall.
I. Charges and Plea
On March 3, 2014, the prosecution filed two complaints. In case No. SS140496A, the prosecution charged defendant with one count of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a), a felony) and one count of petty theft (§ 484, subd. (a), a misdemeanor) arising out of the theft from Rojas’s purse and defendant’s possession of heroin at the time of his arrest at Taco Bell in January 2014. We shall hereafter refer to this case as the “drug possession case.”
In case No. SS140498A, the prosecution charged defendant with one count of second degree burglary (§ 459, a felony) and one count of assault with a deadly weapon, a knife, (§ 245, subd. (a)(1), a felony) arising out of the incidents at Sears in February 2014. We shall hereafter refer to this case as the “felony burglary case.”
Defendant initially pleaded not guilty to all charges and both cases were set for preliminary hearing on March 14, 2014. But on March 12, 2014, the parties entered into a negotiated disposition. Defendant pleaded no contest to: (1) felony possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) in the drug possession case, and (2) felony second degree burglary (§ 459) in the felony burglary case. Defendant agreed to this negotiated plea on the condition he be granted felony probation. The parties also agreed that the remaining counts would be dismissed at sentencing.
II. Probation Report
Defendant provided the probation officer with little information about his background and history. He told the probation officer he wanted the court and the victims to know that he was “truly sorry and remorseful.” He said he had a “serious drug addiction.” Acknowledging that he deserved substantial jail time, defendant said he would be better served by a residential drug treatment program.
The probation officer reported that in addition to his prior misdemeanor burglary convictions, defendant had several juvenile adjudications (Welf. & Inst. Code, § 602) at age 14 arising out of three incidents, including findings that he engaged in conduct that, if committed by an adult, would constitute vandalism (§ 594, subd. (a)), fighting (§ 415), assault with a deadly weapon (§ 245, subd. (a)(1)), trespass to land (Salinas City Code, § 21-35), and occupying a structure without the owner’s permission (§ 602, subd. (m)).
Defendant did not admit a gang affiliation to the probation officer. But the probation officer reported that (1) jail records from an arrest in August 2012 listed defendant as an “admitted Norteño criminal street gang member, ” and (2) in 2014, defendant was housed in a unit that was used to house active Norteño gang members. (The record does not state what the August 2012 arrest was for; that arrest does not appear to have led to a conviction.)
The probation officer recommended the court: (1) suspend imposition of sentence and grant probation in both the drug possession and felony burglary cases; (2) impose several conditions of probation, including certain gang conditions; and (3) revoke and ...