Filed 6/27/14 P. v. Mercadel CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048881

         v.                                                            (Super. Ct. No. 13HF1216)

JIMMIE LEE MERCADEL,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, David A.
Hoffer, Judge. Reversed in part.
                   Marta I. Stanton for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
                                    INTRODUCTION
               Defendant Jimmie Lee Mercadel appeals from the sentence imposed after
he was convicted of second-degree burglary for an abortive attempt to shoplift $2,300 in
merchandise from an Irvine Wal-Mart. He asserts he should have been given either
straight probation or a prison term lower than the maximum he received. He also asserts
that a condition of his mandatory supervision after incarceration was unconstitutional.
               We affirm the sentence imposed and the trial court’s decision to deny
probation. Although only 25 years old when he was convicted, Mercadel already had a
12-year history of committing ever more serious offenses while repeatedly violating the
terms of his various probations. In fact, he was on probation from a prior theft when he
committed this crime. The trial court was well within its discretion when it denied
probation and imposed the maximum sentence, hoping to encourage Mercadel to consider
the likely outcome of his present course before he did something that could put him away
for a large portion of his life.
               We reverse the condition of mandatory supervision, however. The
condition is not “narrowly tailored,” that is, it is not reasonably related to probation
supervision of a person convicted of Mercadel’s crime. It therefore does not pass
constitutional muster, and it must be more narrowly drawn.
                                           FACTS
               On April 9, 2013, an Irvine police officer received a call informing him that
a person in a local Wal-Mart was behaving like a shoplifter. The officer drove to the
Wal-Mart and parked outside, watching the exit doors, while Wal-Mart’s loss prevention
personnel spoke to a police dispatcher about the person’s movements inside the store, and
the dispatcher relayed the information to the officer. About 10 minutes after the officer
arrived, a person matching the description given by the Wal-Mart personnel walked
outside, just as the watchers inside the store told the dispatcher the person they were



                                              2
observing was leaving the store. This person, Mercadel, was arrested and taken into
custody.
                  Mercadel was charged with second-degree burglary under Penal Code
                                                  1
sections 459 and 460, subdivision (b). At trial, a Wal-Mart employee in charge of
monitoring the Irvine store for shoplifters testified as the only witness. He stated he had
observed Mercadel on store surveillance cameras acting in a manner typical of
shoplifters: grabbing handfuls of the same high-end product without examining the price
sticker, throwing them into a cart, and looking around to see whether he was being
observed. Mercadel was also caught on camera stuffing some of the merchandise into a
large Target shopping bag. He evidently had a confederate, because he emptied the
Target bag into the shopping cart and abandoned it after another man came into the store
                                                                                                      2
and presumably told him the police were setting up outside to apprehend him. In the
abandoned cart, Wal-Mart employees found 64 items, the total price of which was
$2,300.
                  Mecadel was convicted of second-degree commercial burglary. The trial
court denied probation and sentenced him to three years, the high term, with the sentence
split evenly between custody and mandatory supervision under section 1170, subdivision
    3
(h). Explaining its decision on both probation and sentencing, the court reasoned that
Mercadel, although still a young man, had begun his life of crime at age 13 and had, since
that time, proceeded from minor brushes with the law to more serious offenses. Although
he had been on probation almost continuously between age 13 and age 19, and then again
beginning at age 22, the experiences appeared to have made no impression on him, as

         1
                   All further statutory references are to the Penal Code.
         2
                   The Wal-Mart employee testified that one type of shoplifting is the “push-out,” during which the
thief runs out of a side exit with a full shopping cart to an accomplice waiting in a car. Subsequently they take the
merchandise to another store for a return, where they get a store credit because they have no receipt. They then can
use the store credit to pay for whatever they want from the store.
          3
                   A probation officer recommended three years’ probation. The prosecutor recommended the low
term, noting previous failures of probation to correct Mercadel’s behavior.


                                                          3
                                                            4
evidenced by numerous probation violations. Now he had engaged in a pre-planned and
potentially dangerous felony, with an accomplice, intending to steal over $2,000 in
merchandise – while on probation for a similar crime. In the judge’s view, the courts had
been slapping Mercadel’s wrist for too many years and had thereby persuaded him that he
could continue to commit crimes without serious consequences. The judge expressed a
hope that a combination of real jail time and subsequent close supervision by a probation
officer could turn Mercadel’s life around. Mercadel did not object either to the sentence
or to any of the mandatory supervision conditions at any time during the hearing.
                                                 DISCUSSION
                  Mercadel has raised two issues on appeal. First, he asserts that the court
should not have sentenced him to three years – the maximum sentence for second-degree
burglary – but should have sentenced him either to probation or to a lower term. The
second issue deals with one of the conditions of his mandatory supervision once he was
out of jail: “maintain a residence subject to the approval of the probation . . . officer . . .”
Mercadel now objects that this condition is overbroad and violates his constitutional right
of free association and his right to travel.
I.                Sentence and Probation
                  We review the sentence imposed by the trial court, including whether to
grant probation, for abuse of discretion. (People v. Lent (1975) 15 Cal.3d 481, 486
(Lent).)




         4
                   A probation and sentencing report included eight pages of Mercadel’s prior offenses, beginning at
age 12 when he grabbed a fellow student’s money. Since that time he had, as a juvenile, threatened other students
with a knife, stolen a truck, and exposed himself to a little girl in a beauty shop. As an adult, he had been convicted
of falsely identifying himself to a police officer, stealing a laptop and a cell phone from a university professor,
indecent exposure, and resisting arrest.


                                                           4
              A.                Three-Year Sentence
              Mercadel asserts on appeal that the imposition of the maximum term –
three years – for his second-degree burglary conviction was “irrational and arbitrary.”
When a court selects the sentence from among the upper, middle, and lower terms
                                                                              5
authorized by statute, California Rules of Court, rule 4.420(b) allows it to consider
circumstances in aggravation and mitigation and any other factor reasonably related to
the sentencing decision. The circumstances of aggravation and mitigation are found in
rules 4.421 and 4.423 respectively.
              Mercadel did not object to any of the aggravating factors at the sentencing
hearing, either before or after sentence was pronounced, and “the finding of even one
factor in aggravation is sufficient to justify the upper term.” (People v. Steele (2000) 83
Cal.App.4th 212, 226.) He also did not object to the sentence itself. (See People v. Scott
(1994) 9 Cal.4th 331, 353 [waiver doctrine applies to claims involving trial court’s failure
to properly make discretionary sentencing choices].) Mercadel has thus waived any error
in the sentence the court handed down.
              Even if Mercadel had preserved this issue for appeal, it would still be
meritless. The trial court properly considered the circumstances in aggravation, there
being no mitigating circumstances at all. Among the ones listed in the rule, the court
cited “[t]he manner in which the crime was carried out indicates planning, sophistication,
or professionalism,” (rule 4.421(a)(8)); “[t]he crime involved an attempted . . . taking . . .
of great monetary value,” (rule 4.421(a)(9)); “[t]he defendant’s prior convictions as an
adult or sustained petitions in juvenile delinquency proceedings are numerous or of
increasing seriousness,” (rule 4.421(b)(2)); “[t]he defendant was on probation . . . when
the crime was committed;” (rule 4.421(b)(4)); and “[t]he defendant’s prior performance




       5
              All further rule references are to the California Rules of Court.


                                                       5
on probation . . . was unsatisfactory.” (Rule 4.421(b)(5).) The court also noted that
Mercadel’s prior sentence for commercial burglary had been reduced to a misdemeanor,
apparently causing him to believe that all such crimes were misdemeanors, for which he
                                                                                 6
would get nothing worse than informal probation as a sentence. The court believed a
high-term sentence was necessary to disabuse Mercadel of these notions.
                 The trial court’s weighing of the aggravating factors (several serious ones)
against the mitigating factors (zero) provided ample justification for a high-term
sentence. Far from being “arbitrary and irrational,” a stiff sentence may be just the thing
to deflect Mercadel from what is obviously a career path of increasingly serious crimes.
Certainly leniency has had no such salutary effect.
                 B.                Denial of Probation
                 Many of the same factors the court considers when it imposes a sentence
also apply to determining whether to grant probation. Rule 4.414 sets out a non-
exclusive list of criteria affecting probation.
                 The criteria of rule 4.414 militated strongly against probation. The court
noted the severity of the crime (rule 4.414(a)(1)); the degree of monetary loss (rule
4.414(a)(5)); Mercadel’s active participation (rule 4.414(a)(6)) and the likelihood of
repetition (rule 4.414(a)(7)); the sophistication of the crime itself (rule 4.414(a)(8));
Mercadel’s prior record (rule 4.414(b)(1); his poor performance on probation in the past
                      7
(rule 4.414(b)(2) ; and the unlikelihood that sentencing him to probation for this crime
would result in an improved performance. (Rule 4.414(b)(4).) The court would have
been well within its discretion to deny probation entirely.



        6
                  The probation officer reported that Mercadel refused to participate in an interview before the
preparation of the probation and sentencing report because he thought he had been convicted of a misdemeanor, for
which no report was necessary. The probation officer’s explanation failed to persuade him of his error.
         7
                  According to the probation report, Mercadel was on informal probation for three different crimes
when he committed his second-degree burglary at the Wal-Mart.


                                                         6
                 Instead, the court afforded Mercadel something resembling probation:
mandatory supervision. (See § 1170, subd. (h)(5)(B)(i) and (ii) [mandatory supervision is
undertaken “by the county probation officer in accordance with the terms, conditions, and
procedures generally applicable to persons placed on probation”]). The court split
                                                                                                              8
Mercadel’s three-year sentence evenly between jail time and mandatory supervision. By
splitting the sentence, the court hoped, first, to convey to Mercadel that he was in serious
trouble (“This isn’t misdemeanor land anymore.”) and, second, to afford him the benefits
of oversight by a probation officer after his release, in the hope Mercadel would learn “he
can get along without . . . committing crimes.” Whether or not Mercadel takes advantage
of the opportunity, the court acted well within its discretion in affording it.
II.              Residence Restriction
                 A probation condition may be overbroad if it unduly restricts the exercise
of a constitutional right. (In re Byron B. (2004) 119 Cal.App.4th 1013, 1016.) Probation
conditions are valid even though they restrict the exercise of constitutional rights if they
are narrowly drawn to serve the important interests of public safety and rehabilitation and
are specifically tailored. (In re Babak S. (1993) 18 Cal.App.4th 1077, 1084; see People
v. O’Neil (2008) 165 Cal.App.4th 1351, 1356, quoting People v. Bauer (1989) 211
Cal.App.3d 937, 942 [conditions impinging on constitutional rights must be “‘carefully
tailored’”].)
                 Whether a condition restricting a defendant’s residence to one approved by
a probation officer is unconstitutional is presently before our Supreme Court in People v.
                                                                                                                  9
Schaeffer (2012) 208 Cal.App.4th 1, S205260, rev. granted Oct. 31, 2012 (Schaeffer).


        8
                   The court also gave Mercadel credit for 260 days served (including 130 days of conduct credit)
and terminated the probation sentences in the other criminal cases.
         9
                   Actually the defendant in Schaeffer identified two conditions as unconstitutional: first, the
defendant must reside at a residence approved by the probation officer, and, second, the defendant cannot move
without the probation officer’s permission. The defendant asserted that both conditions infringed on her right to
travel and her freedom of association. (Schaeffer, supra, 208 Cal.App.4th at p. 4.) Mercadel’s mandatory
supervision is not subject to the second Schaeffer condition.


                                                         7
No published opinion has found the broad residential restrictions imposed here to be
constitutional; indeed, People v. Bauer (1989) 211 Cal.App.3d 937 found a nearly
identical provision to be unconstitutionally overbroad.
              Mercadel claims the mandatory supervision condition requiring him to
“maintain a residence subject to the approval of the probation . . . officer or mandatory
supervision officer” is unconstitutionally overbroad because it infringes on his
constitutional rights to travel and to freedom of association. We focus only on the
constitutionality of the condition, not whether it is reasonable as applied to Mercadel.
(See Lent, supra, 15 Cal.3d at p. 486 [test for reasonableness of probation conditions].)
By failing to object below, Mercadel has forfeited all claims except a challenge “based on
the ground the condition is vague or overbroad and thus facially unconstitutional.” (In re
Sheena K. (2007) 40 Cal.4th 875, 878.)
              But even a facial challenge to constitutionality requires more than a one-
size-fits-all approach. Our inquiry does not take into account the individual facts
pertaining to this particular probationer – as would an “as applied” challenge – but it
must take into account the nature of the case and the goals and needs of probation in
general. For example, what is constitutional in a case involving drug usage is not
necessarily the same as what is constitutional in an assault case. The difficulties of the
probation department and the probationer will be quite different in cases where the
probationer may be fighting addiction than they will be in other cases. This broad
consideration of the nature of the case must inform all decisions about whether the
condition has been “narrowly tailored,” even where, as here, we do not reach the personal
circumstances of the probationer.
              Here, the offenses are theft-related. The appropriate inquiry therefore, is
whether the probation condition use is reasonably related to probation supervision of a
thief. In that regard, we find People v. Bauer, supra, instructive. In Bauer, the defendant



                                              8
was convicted of false imprisonment and assault. As a probation condition, the trial court
required the defendant to “obtain his probation officer’s approval of his residence . . . .”
(Bauer, supra, 211 Cal.App.3d at p. 940.) The Bauer court concluded the restriction was
unconstitutionally overbroad, explaining “[t]he condition is all the more disturbing
because it impinges on constitutional entitlements – the right to travel and freedom of
association. Rather than being narrowly tailored to interfere as little as possible with
these important rights, the restriction is extremely broad.” (Id. at p. 944.)
              Bauer has been accepted since it was decided nearly 25 years ago, and has
been applied in analyzing other probation conditions. For example, in People v. O’Neil
(2008) 165 Cal.App.4th 1351 (a case involving drug sales but not usage), the appellate
court found a probation condition prohibiting the probationer from associating with
persons not approved by his probation to be unconstitutionally overbroad. (Id. at p.
1357-1358.) Relying on Bauer, the court explained the probation condition placed no
limits or guidelines on the probation officer’s discretion. Thus, “[w]ithout a meaningful
standard, the order is too broad and it not saved by permitting the probation department to
provide the necessary specificity.” (Ibid.)
              The probation condition here suffers from the same infirmity as the one in
Bauer. It puts no limits on the probation officer’s discretion. Probationer’s residence
could be disapproved for any reason, including inconvenience. Nothing about the nature
of the charges suggests a need for such unfettered oversight, so we cannot approve this
broad restriction. It must be re-drawn.




                                              9
                                     DISPOSITION
              The sentence and the mandatory supervision order are affirmed except for
the residence restriction. The matter is remanded to the trial court for imposition of a
more narrowly drawn substitute condition.




                                                  BEDSWORTH, J.


WE CONCUR:




RYLAARSDAM, ACTING P. J.



ARONSON, J.




                                             10
