Filed 2/6/18
                           CERTIFIED FOR PUBLICATION


               COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                               STATE OF CALIFORNIA



THE PEOPLE,                                      D071575

        Plaintiff and Respondent,

        v.                                       (Super. Ct. No. SCD269653)

BRIAN ISAIAH ACOSTA,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of San Diego County, Daniel F.

Link, Judge. Affirmed as modified.


        Steven S. Lubliner, 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, A. Natasha Cortina, Lynne G.

McGinnis and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and

Respondent.
       Defendant Brian Isaiah Acosta pleaded guilty to two counts of felony vandalism

and admitted the gang enhancement attached to each count. (Pen. Code,1 § 594, subds.

(a) & (b)(2)(A) & § 186.22, subd. (d).) Pursuant to the plea agreement, Acosta was

placed on formal probation for three years on the condition he serve 365 days in custody

with the possibility of work furlough, if eligible, after serving 90 days.

       Relevant to this appeal, the court also imposed terms and conditions of probation,

four of which Acosta challenges in this proceeding: the search of his electronic devices

(electronic search condition) (no. 6n); the requirement he stay away from the private

residences he had vandalized with graffiti (stay-away condition) (no. 14); the treatment,

therapy, and counseling condition (no. 7); and the alcohol (no. 8) and drug (no. 9)

conditions. Respondent, the People, concede the treatment, therapy, and counseling

condition should be struck, but otherwise contend the remaining terms and conditions

were properly imposed.

       As we explain, we conclude there is insufficient evidence in this record to support

the imposition of the drug condition on Acosta. Accepting respondent's concession, we

thus strike the drug and the treatment, therapy, and counseling conditions, but otherwise

affirm the judgment of conviction.




1      All further statutory references are to the Penal Code.
                                              2
                                 FACTUAL OVERVIEW2

       Acosta was a known member of the San Diego Varrio Market Street gang (VMS)

who went by the monikers "Thakas" and "Thakas1." In mid-November 2016, an eight-

count felony complaint was filed against Acosta charging him with "unlawfully and

maliciously defac[ing] with graffiti" real and personal property between March and

October 2016 causing damage of less than $400 per incident. The complaint alleged all

counts were punishable as felonies because Acosta committed the offenses "for the

benefit of, at the direction of, and in association with, a criminal street gang with the

specific intent to promote, further and assist in criminal conduct by gang members,"

inasmuch as he "tagged" the properties with variations of his gang monikers. The total

estimated cost to remove the graffiti was $1,017.

       In December 2016, Acosta pleaded guilty to counts 1 and 2, as noted. In return for

his plea, the balance of the counts was dismissed.

       As relevant to this appeal, at his January 2017 sentencing Acosta objected to the

imposition of various probation conditions, including the electronic search condition, the

alcohol and drug conditions, and the stay-away condition.




2      Because Acosta pleaded guilty, this summary is principally derived from the
probation report.
                                              3
                                       DISCUSSION

                                               I

                                Electronic Search Condition

       Probation condition number 6n provides that Acosta shall "[s]ubmit person,

vehicle, residence, property, personal effects, computers and recordable media . . . to

search at any time with or without a warrant, and with or without reasonable cause, when

required by P.O. [i.e., a probation officer] or law enforcement officer." Acosta at

sentencing opposed the italicized portion of this condition, as noted. In refusing to

modify or delete this condition, the court found Acosta committed the crime for the

"benefit of a street gang. It is also spray painting. It is the type of behavior that often

times taggers photograph those types of crimes and share them and have them on their

phone and/or computers. So, I think that is a reasonable link/nexus to the crime under

People versus Lent [(1975) 15 Cal.3d 481 (Lent)]."

       A. Guiding Principles

       A grant of probation is an act of clemency in lieu of punishment. (People v.

Moran (2016) 1 Cal.5th 398, 402.) Probation is a privilege, and not a right. 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 probationer . . . ." (§ 1203.1, subd. (j); People v. Carbajal (1995) 10

Cal.4th 1114, 1121 (Carbajal).) "If a probation condition serves to rehabilitate and

protect public safety, the condition may 'impinge upon a constitutional right otherwise

                                               4
enjoyed by the probationer, 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

(O'Neil).)

       A condition of probation 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. (People v. Olguin (2008) 45 Cal.4th 375, 379–380 (Olguin); see Lent, supra,

15 Cal.3d at p. 486.) Our high court has clarified that this "test is conjunctive—all three

prongs must be satisfied before a reviewing court will invalidate a probation term."

(Olguin, at p. 379.)

       However, "[j]udicial discretion to set conditions of probation is further

circumscribed by constitutional considerations." (O'Neil, supra, 165 Cal.App.4th at

p. 1356.) "A probation 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 (Sheena K.).) "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.)




                                             5
       "Generally, we review the court's imposition of a probation 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 probation condition. (Ibid.)

       B. Analysis

       Respondent the People do not dispute that the electronic search condition fails the

first two Lent prongs—the condition has no relationship to Acosta's felony vandalism

offenses, which did not involve the use of any electronic communication system or

device including a cellular phone, and the use of electronic devices "is not itself

criminal." (See In re Erica R. (2015) 240 Cal.App.4th 907, 913; In re J.B. (2015) 242

Cal.App.4th 749, 754–755.) Therefore, the issue is whether the electronic search

condition is reasonably related to preventing future criminality. (See Olguin, supra, 45

Cal.4th at p. 379.)

       The issue of the validity of an electronic search condition under Lent and its

progeny is pending before our high court. (See, e.g., People v. Ermin (2017) 2017 WL

2929356, Cal.App. 6 Dist., review granted October 25, 2017, S243864; People v.

Nachbar (2016) 3 Cal.App.5th 1122 (Nachbar), review granted Dec. 14, 2016, S238210;

In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25, 2015, S233932; In re

Mark C. (2016) 244 Cal.App.4th 520, review granted Apr. 13, 2016, S232849; In re

Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923.) Until

we receive further direction, we must undertake to resolve this case as best we can.

       Here, the record shows the trial court upheld the reasonableness of the electronic

search condition on the basis that Acosta committed counts 1 and 2 for the "benefit" of

                                              6
the VMS criminal street gang, inasmuch as he spray painted variations of his gang

moniker on property ostensibly within or near the gang's territory. The court found that

"taggers" such as Acosta oftentimes used an electronic device to photograph graffiti to

share with others, including members of his or her own gang. As such, the court found

there was a nexus between the electronic search condition and Acosta's future criminality.

       The case of People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski)

informs our analysis on this issue. The challenged probation conditions in Ebertowski

required the defendant to provide "1 '. . . all passwords to any electronic devices

(including cellular phones, computers or notepads) within his or her custody or control

and [to] submit said devices to search at anytime [sic] without a warrant by any peace

officer' "; and "2 ' . . . to provide all passwords to any social media sites (including

Facebook, Instagram and Mocospace) and [to] submit said sites to search at anytime [sic]

without a warrant by any peace officer.' " (Id. at p. 1173.) Like Acosta here, the

defendant in Ebertowski was a member of a criminal street gang who pleaded no contest

to making criminal threats and resisting an officer. (Id. at pp. 1172–1173.)

       The Ebertowski court rejected the defendant's claim that the probation conditions

were unreasonable and overly broad. The court noted that the "password conditions"

were related to the defendant's future criminality because of his gang affiliation, which

"gave [the defendant] the bravado to threaten and resist armed police officers."

(Ebertowski, supra, 228 Cal.App.4th at p. 1177.) The court further noted that the only

way the defendant "could be allowed to remain in the community on probation without

posing an extreme risk to public safety was to monitor his gang associations and

                                               7
activities. The password conditions permitted the probation officer to do so.

Consequently, the password conditions were reasonable under the circumstances, and the

trial court did not abuse its discretion in imposing them." (Ibid.)

       The court in Ebertowski also concluded the password conditions were not

constitutionally overbroad. The court noted that the defendant's privacy rights were "not

improperly abridged by the password conditions any more than they [were] by the search

condition." (Ebertowski, supra, 228 Cal.App.4th at p. 1176.) The court noted that the

state had an interest in preventing defendant from continuing his "violent gang

associations and activities," and that this interest outweighed the "minimal invasion of

[the defendant's] privacy that is involved in the probation officer monitoring defendant's

use of his devices and his social media accounts." (Ibid.)

       Turning to the instant case, the record shows Acosta has been a gang member

since at least 2010, or for about seven years. In March of 2010, law enforcement

investigated Acosta, then a minor, after Acosta's high school received a tip from an

unknown male that Acosta might be in possession of a weapon while on campus. The

unknown male indicated a box of "slugs" was missing from his house and that Acosta

allegedly "was planning on obtaining a gun and possibly shooting a student at [the] [h]igh

[s]chool who was from a rival gang."

       On contact at the school, police found a "three-inch paring knife" concealed inside

Acosta's jacket. Acosta admitted bringing the knife to school for "protection" because he

was worried about being "jump[ed]" by a student from another gang. As a result of this

incident, the juvenile court made a true finding in June 2010 that Acosta was in

                                              8
possession of a stabbing instrument on school grounds and assigned Acosta to the "Gang

Suppression Unit" for supervision. While on probation for this offense, the record shows

Acosta violated his gang conditions on at least two occasions.

       In January 2016, police conducted a traffic stop of a vehicle in which Acosta was a

passenger. Acosta was found in possession of a loaded .38 caliber semiautomatic

handgun. A records check revealed the gun was stolen. Acosta pleaded guilty to having

a concealed firearm in a vehicle (§ 25400, subd. (c)(2)), and was granted three years'

formal probation and sentenced to 120 days in custody, which sentence was stayed.

       About a month before his November 2016 arrest in the instant case and while on

probation for the January 2016 incident, police contacted Acosta in a park frequented by

members of VMS. The probation report noted that officers had been dispatched to the

park because "a group of Hispanic males [were] drinking beer, and yelling out, 'Market

Street' up and down the area of Boundary and Market Streets. As officers arrived on

scene, they attempted to contact a male, later identified as [Acosta], but he fled before

they were able to detain him. Additional contact was made with [four other males,

including Acosta's brother], who are all known members of the Market Street criminal

street gang. As the four individuals were detained pending further investigation

additional responding officers pursued [Acosta] and successfully apprehended him a

short time later.

       "During the contact with [Acosta], officers observed that he was flushed, his eyes

were glassy, and he had the odor of an alcoholic beverage emitting from his person. At

the scene where all the men were detained, officers recovered three 32[-]ounce bottles of

                                             9
beer and one 24[-]ounce bottle [of] beer. [Acosta] later admitted that he had a 'little to

drink.' He was arrested for violating the terms of his probation. The arrest was treated as

a probation violation and no charges were filed."

       In the instant offenses, as noted Acosta spray-painted gang graffiti and variations

of his gang moniker on private residences and public property in or near VMS territory.

He admitted committing such offenses for the benefit of VMS, making them a felony.

These incidents were not isolated, but rather were committed by Acosta over about a

seven-month period. Despite admitting the crimes benefited VMS, the probation report

noted Acosta believed the "gang officers" were being "petty" because in his view,

"tagging does not benefit the gang." The probation report found Acosta's statement

concerning, given the "effect gang graffiti has on victims and on the neighborhood as a

whole."

       On this record, we conclude the electronic search condition was reasonably related

to Acosta's future criminality. In reaching this conclusion, we recognize there is no

indication in the record that Acosta—unlike the defendant in Ebertowski—used an

electronic device in connection with, or in the commission of, the gang-related offenses.

(See Ebertowski, supra, 228 Cal.App.4th at p. 1173.) In our view, that is a factor, but not

the only factor warranting imposition of this condition.

       Indeed, the record clearly shows that Acosta continued to associate with VMS

gang members despite being repeatedly ordered not to do so. And while associating with

fellow gang members, Acosta also engaged in gang-related activities that "benefited"

VMS, including spray painting gang graffiti on multiple private and public properties in

                                             10
or near VMS gang territory. Acosta's gang activities also were not merely limited to

"taggings," as he was found in possession of a stabbing instrument on school grounds in

2010. While it is not clear from the record whether Acosta was associating with fellow

gang members when police found a loaded firearm on his person in January 2016, after

stopping a car in which Acosta was merely a passenger, a reasonable inference would

support such a finding. At a minimum, the January 2016 incident shows Acosta was

engaging in more serious activities than merely "tagging" properties with gang-related

graffiti.

        The electronic search condition will allow a probation officer to ensure Acosta is

complying with the "gang conditions" of his probation. Such conditions include not

knowingly associating with members of VMS and not wearing or displaying any item or

article of clothing "evidencing affiliation with/membership in the [VMS] gang." Given

that Acosta's performance on probation "can only be rated as poor," as noted by the

probation report, "due to his continued association with known gang members,

participation in gang activity, and failure to remain law-abiding," findings that are amply

supported on this record, we conclude the court properly exercised its discretion when it

imposed the electronic search condition to "closely monitor" Acosta. (See Ebertowski,

supra, 228 Cal.App.4th at p. 1177.)

        We also independently conclude the electronic search condition was narrowly

tailored so as to limit the impact on Acosta's "constitutional rights to privacy, speech, and

association." (See Ebertowski, supra, 228 Cal.App.4th at p. 1175; see also Sheena K.,

supra, 40 Cal.4th at p. 890 [noting a "probation condition that imposes limitations on a

                                             11
person's constitutional rights must closely tailor those limitations to the purpose of the

condition to avoid being invalidated as unconstitutionally overbroad"].)

       Initially, we note the electronic search condition imposed in the instant case was

less intrusive that the "passwords conditions" imposed on the gang defendant in

Ebertowski. And for good reason: unlike the defendant gang member in Ebertowski,

there is no evidence Acosta in the instant case used an electronic device to promote his

gang, including on social media. In our view, Ebertowski supports the principle that

probation conditions should reflect the unique circumstances of each case to ensure such

conditions do not sweep too broadly and unjustly impact an individual's constitutional

rights. Here, we independently conclude the electronic search condition was narrowly

tailored to the circumstances of the instant case, as Acosta was not required to disclose

any passwords including to any social media account as a condition of his probation.

       Moreover, as noted Acosta challenged only the electronic search portion of

condition 6n. The electronic search condition will assist a probation officer in

implementing the unchallenged search, association, and gang conditions that also were

imposed in order to monitor Acosta's gang activity.

       Acosta contends the electronic search condition should be modified, if it is to be

imposed at all. However, we are unable to discern how that could be done in the instant

case, as in our view access to Acosta's electronic devices is the best way to determine if

he "is ridding himself of his gang associations and activities, as required by the terms of

his probation, or is continuing those associations and activities, in violation of his

probation." (See Ebertowski, supra, 228 Cal.App.4th at p. 1175; compare In re P.O.

                                              12
(2016) 246 Cal.App.4th 288, 297–298 [noting the requirement a minor submit his

"electronics including passwords" to search with or without a warrant was overbroad and

was thus modified to limit such searches of electronic devices and/or accounts to "media

of communication reasonably likely to reveal whether he is boasting about drug use or

otherwise involved with drugs," when there was no evidence minor was buying or selling

drugs in connection with his misdemeanor public intoxication offense, when the goal of

minor's probation was to facilitate his "rehabilitation," and when the minor's needs were

not "severe"].)

       Our conclusion that the state's interest in public safety outweighs the slight

invasion of Acosta's privacy that results from a probation officer having access to

Acosta's electronic devices is buttressed by Acosta's poor performance on probation,

which was a direct result of his gang activities, and by his failure to acknowledge the

instant offenses benefited the VMS criminal street gang. (See also People v. Peck (1996)

52 Cal.App.4th 351, 362 [noting the condition that the defendant not use or possess a

controlled substance (i.e., marijuana) was "necessary to serve public safety" because the

defendant admitted to smoking marijuana several times every day and then driving his

truck and pulling a 16-foot trailer while impaired to various jobsites, where he operated

"motorized equipment" while also under the influence].)




                                             13
                                             II

                                   Stay-Away Condition

       Acosta contends the condition requiring him to stay away from the private

residences he vandalized with gang graffiti (no. 14) was unreasonable under Lent because

he was not ordered to stay away from the public properties he similarly defaced and

because there was no evidence he harbored any "animosity towards the property owners."

       We conclude the stay-away condition is reasonably related to the offenses Acosta

pleaded guilty to in the instant case. (See Olguin, supra, 45 Cal.4th at pp. 379–380; see

Lent, supra, 15 Cal.3d at p. 486.) Indeed, count 1 involved gang-related graffiti spray

painted by Acosta on the exterior wall of a private residence located on Market Street

ostensibly within VMS gang territory. Count 2 likewise involved gang graffiti Acosta

spray painted on the exterior wall of a private residence also in or near VMS territory.

The stay-away condition listed both such residences and one other private residence that

involved count 8, which was dismissed as part of the plea agreement.

       We also conclude the stay-away condition is reasonably related to future

criminality. Although Acosta disputed that gang graffiti benefited a gang, it is common

knowledge that criminal street gangs "tag" property to "announc[e] their presence in and

enforce their turf to instill fear [in] persons in the community," not to mention rival gang

members. (See People ex rel. Reisig v. Acuna (2010) 182 Cal.App.4th 866, 872.)

Requiring Acosta to stay away from the private residences he already vandalized will




                                             14
reduce both the chances of him reoffending and the impacts, including fear, the VMS

street gang has on such residents and the community in which they live.3

                                            III

                                  Remaining Conditions

       Acosta also contends the alcohol (no. 8) and/or drug (no. 9) conditions were

unreasonable and should be struck under Lent. We first turn to the alcohol condition.

       Although Acosta was over 21 years old and there was no evidence Acosta was

under the influence of alcohol when he committed the current offenses, we conclude the

court properly exercised its discretion in imposing the alcohol condition on Acosta. (See

Olguin, supra, 45 Cal.4th at pp. 380–381; Lent, supra, 15 Cal.3d at p. 486.)

       As summarized ante, about a month before Acosta's arrest in the instant case

police were dispatched to a park inside VMS territory where its members were known to

congregate, after receiving a report of a group of Hispanic males drinking alcohol and

"yelling" gang references to "Market Street." One of those males was Acosta, who ran

from the scene but was apprehended by police shortly thereafter. As it turns out, the

males were all VMS gang members.

       On contact, police observed Acosta was "flushed," his eyes were "glassy" and he

smelled of alcohol. Acosta, who was confrontational with officers, claimed he allegedly

only had a "little to drink." Police later found three 32-ounce and one 24-ounce bottles of

beer. As part of the grant of formal probation in connection with his possession of the


3     Acosta does not argue the stay-away condition is constitutionally overbroad. (See
Sheena K., supra, 40 Cal.4th at p. 890.)
                                            15
loaded firearm stemming from the January 2016 incident, it appears Acosta was required

to submit to alcohol and drug testing. The record shows between May and September

2016, Acosta submitted 10 urinalyses that were negative for any such substances.

       Courts recognize that alcohol use is accompanied by a "a lessening of internalized

self-control" and that alcohol consumption impairs judgment and is not "conducive to

controlled behavior." (People v. Smith (1983) 145 Cal.App.3d 1032, 1034–1035.) As

noted, Acosta has repeatedly violated probation by continuing to associate with VMS

gang members. In addition, Acosta consumed alcohol and did so in the company of other

gang members as recently as October 2016, when he was arrested for a probation

violation stemming from the incident in the park. On this record, we thus conclude the

court properly exercised its discretion when it provided the probation department with the

discretion to monitor Acosta's alcohol consumption to help keep him compliant with the

terms of his probation.

       However, we reach a different conclusion with respect to the drug condition (no.

9). The probation report notes that Acosta "tried" marijuana when he was 13 years old,

or about 10 years before his arrest for the current offenses. Unlike his alcohol

consumption, there is no evidence in the record that Acosta uses or used, or sold, drugs

including marijuana during this 10-year period. We thus conclude the imposition of the

drug condition was unreasonable and should be struck. (See Olguin, supra, 45 Cal.4th at

pp. 380-381; Lent, supra, 15 Cal.3d at p. 486.)




                                            16
       Finally, we agree with the parties that the treatment, therapy, and counseling

condition (no. 7) should be struck as there is no evidence in the record that Acosta

suffered from any mental health issues, took any medication for such issues, or has any

condition requiring such treatment. (Compare, People v. Petty (2013) 213 Cal.App.4th

1410, 1417 [drug treatment program was an appropriate condition of probation for a

defendant with mental health issues]; In re Todd L. (1980) 113 Cal.App.3d 14, 20–21

[noting psychological counseling and treatment may be ordered by a court where the

social history of the probationer suggests that it may help to prevent future criminality].)

                                      DISPOSITION

       The drug (no. 9) and the treatment, therapy, and counseling (no. 7) conditions are

stricken. In all other respects, the judgment of conviction is affirmed. The superior court

is directed to amend the probation order of Acosta accordingly.




                                                                       BENKE, Acting P. J.

WE CONCUR:




O'ROURKE, J.




IRION, J.




                                             17
