Filed 4/4/14 P. v. Keigh 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                         G048477

         v.                                                            (Super. Ct. No. 10HF1977)

SPENCER AARON KEIGH,                                                   OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County,
Christopher Evans, Commissioner. Affirmed.
                   Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

                                             *               *               *
                                      INTRODUCTION
               Spencer Aaron Keigh appeals from the order revoking and reinstating his
probation with conditions. He challenges the condition that he submit to continuous
monitoring by a global positioning system (GPS). We conclude the trial court did not
abuse its discretion by imposing that condition and therefore affirm.

                                          FACTS
               In November 2011, the Orange County District Attorney filed an amended
information charging Keigh with one count of unlawful sexual intercourse in violation of
Penal Code section 261.5, subdivision (c). The amended information alleged that Keigh
had engaged in an act of sexual intercourse with a female who was not his spouse and
who was a minor more than three years younger than he. Keigh pleaded guilty to the
charged offense.
               The trial court placed Keigh on three years of formal probation on the
condition he first serve 270 days in jail (with two days of custody credit). Terms of
probation provided that Keigh use no unauthorized drugs, narcotics, or controlled
substances, and that he submit to drug or narcotics testing as directed by his probation
officer or a police officer.
               In April 2013, Keigh was charged with a probation violation. The petition
for arraignment on probation violation (the arraignment petition) alleged: “[Keigh]
submitted a urine sample which tested positive for marijuana use on February 25, 2013
and April 8, 2013. He submitted a saliva sample which tested positive for marijuana use
on March 25, 2013. When confronted on his apparent drug use [Keigh] denied using
marijuana, instead claiming a friend blew marijuana smoke in his face as a joke.” The
arraignment petition recommended as an additional probation condition that Keigh
submit to continuous electronic monitoring by a GPS.




                                             2
              At a probation revocation hearing, Keigh admitted the probation violation.
The parties stipulated the trial court could use all of the information in the arraignment
petition in “fashioning its sentence.” The trial court ordered probation revoked and
reinstated. The court ordered Keigh to spend 75 days in jail and, as an additional
probation condition, to “submit to continuous electronic monitoring positioning system or
other device as directed by your probation officer.” Keigh appealed from the probation
revocation order “to challenge GPS condition of probation.”

                                        DISCUSSION
1. Relevant Law Regarding Probation Conditions
              Courts have broad discretion to impose probation conditions “to foster
rehabilitation and to protect public safety.” (People v. Carbajal (1995) 10 Cal.4th 1114,
1120.) We review conditions of probation under the abuse of discretion standard.
(People v. Olguin (2008) 45 Cal.4th 375, 379.)
              “Generally, ‘[a] condition of probation will not be held invalid unless it
“(1) has no relationship to the crime of which the offender was convicted, (2) relates to
conduct which is not in itself criminal, and (3) requires or forbids conduct which is not
reasonably related to future criminality . . . .” [Citation.]’ [Citation.]” (People v. Olguin,
supra, 45 Cal.4th at p. 379.) This test is conjunctive; therefore, all three parts must be
satisfied before a reviewing court will invalidate a probation term. (Ibid.) “As such,
even if a condition of probation has no relationship to the crime of which a defendant was
convicted and involves conduct that is not itself criminal, the condition is valid as long as
the condition is reasonably related to preventing future criminality.” (Id. at pp. 379-380.)
              Penal Code section 1210.7, subdivision (a) authorizes probation
departments to use continuous electronic monitoring to electronically monitor the
whereabouts of probationers. The Legislature found that “continuous electronic
monitoring has proven to be an effective risk management tool for supervising high-risk


                                              3
persons on probation who are likely to reoffend where prevention and knowledge of their
whereabouts is a high priority for maintaining public safety.” (Pen. Code, § 1210.7,
subd. (e).)
2. The Trial Court Did Not Abuse Its Discretion.
              The condition that Keigh submit to GPS monitoring is reasonably related to
preventing future criminality. The arraignment petition reported that Keigh had been
convicted of violating Penal Code section 261.5, subdivision (c), and that “both [Keigh]
and the victim smoked marijuana together prior to the sex act.” Keigh’s case had been
assigned to the probation department’s sex crimes unit and was being managed under the
“Containment Model,” which includes intensive supervision, specialized treatment, and
polygraph examinations. “The goal is to provide proactive supervision and ongoing risk
assessment, to allow for intervention during high-risk conduct prior to recidivism,
thereby reducing victimization of the community.”
              According to the arraignment petition, Keigh had enrolled in sex-specific
treatment but had made “minimal progress” in treatment. The therapist had contacted
Keigh’s probation officer with concerns about Keigh’s behavior during treatment
sessions. Keigh appeared to be under the influence during sessions, and frequently
arrived late and left early. The therapist saw “high-risk behavior” in group therapy.
During an initial polygraph examination, the polygrapher noted that Keigh appeared to be
deceptive about his past sexual activity.
              The arraignment petition stated: “Since being on probation, [Keigh] has
admitted to being a sex addict. He has admitted to having more than 60 sexual partners.
He has admitted to random ‘hook-ups’ with high[]school friends and older women in
their late 40’s he met on the internet. [Keigh] does not use age, maturity level, or length
of acquaintance as factors in his choice of sexual partner.”
              The arraignment petition concluded that Keigh continued to engage in
high-risk behavior. “[Keigh] admits to sleeping most of the day and staying up all night

                                             4
playing video games. [Keigh] admits to ‘hanging out’ with his friend ‘Matt’, who uses
marijuana. It is apparent that [Keigh] uses marijuana and plays video games at ‘Matt’s’
house. Since he admittedly spends so much time there, and most video games have an
online component, it is reasonable to conclude that [Keigh] accesses the internet at
‘Matt’s’ house and avoids detection. The lack of pro-social activities like work, school,
or volunteer work, and an admitted abundance of leisure time, with no way to verify his
whereabouts, is another risk factor in his supervision.”
                Based on the parties’ stipulation, the trial court considered all of the
information in the arraignment petition. The court concluded: “[T]he link I am
concerned with is the fact the court needs to supervise the defendant for his rehabilitation.
[¶] I can’t do that if the probation officer can’t do it, and the probation officer can’t do it
when the defendant is in places where the probation officer has no way[,] without
prescience[,] of knowing where the defendant is, it is impossible to supervise that man.
[¶] The G.P.S. is the only way this court knows where the probation officer can have that
information, based on the fact that the court is considering in this three-page report that
you stipulated . . . is admissible . . . , it shows to me various locations involved, and there
is no way to determine where the defendant is and unsupervisable without the use of
G.P.S. [¶] In order to address the recidivism issue, the court feels [GPS monitoring] is
appropriate.”
                The information presented in the arraignment petition supported the trial
court’s decision by showing that Keigh was at high risk of reoffending and had made
little progress, if any, in rehabilitation. Keigh had been engaging in high-risk behavior by
using marijuana at his friend Matt’s house. Keigh had smoked marijuana with the victim
before committing the sex-related crime for which he was convicted. Keigh had made
numerous sexual liaisons and did not use age or maturity level in selecting sexual
partners, despite having been convicted for having had sex with a minor more than three



                                                5
years younger than he was. The probation department could better protect the public by
knowing whether Keigh was at a location where he might reoffend.
              Keigh had made minimal progress in treatment, frequently arrived late to
therapy sessions and left early, and while there appeared to be under the influence. Keigh
was being managed under the containment model, which included intensive supervision,
and, as the trial court recognized, his high-risk behavior had made GPS monitoring
necessary to achieve the required level of supervision.
              Keigh was one of the “high-risk persons on probation” for whom GPS
monitoring has proven to be an effective risk management tool. (Pen. Code, § 1210.7,
subd. (e).) It was important for the probation department to know his whereabouts in
order to foster rehabilitation and to protect the public. The trial court did not abuse its
discretion by imposing continuous monitoring by a GPS as a probation condition.

                                        DISPOSITION
              The order revoking and reinstating probation is affirmed.




                                                   FYBEL, J.

WE CONCUR:



ARONSON, ACTING P. J.



IKOLA, J.




                                              6
