Filed 10/31/13 P. v. Enriquez 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                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                         G047553

                   v.                                                  (Super. Ct. No. 11NF3038)

SANDRA ENRIQUEZ,                                                       OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, W.
Michael Hayes, Judge. Affirmed as modified with directions.
                   Matthew A. Siroka, 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, Senior Assistant Attorney General, Melissa Mandel

and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
              A jury convicted Sandra Enriquez of residential burglary (Pen. Code,
§ 459; all statutory citations are to the Penal Code unless noted). Enriquez contends the
trial court imposed an unconstitutional probation condition by requiring her to maintain a
residence approved by her probation officer. She also argues she is entitled to additional
presentence custody and conduct credits. For the reasons expressed below, we strike the
probation condition and direct the trial court to amend its sentencing minute order to
correct custody and conduct credits. As modified, the judgment is affirmed.


                                             I
                       FACTUAL AND PROCEDURAL BACKGROUND
              On August 6, 2011, around 4:30 a.m., Staci Taylor awoke after hearing
“thumping down the stairs” and saw a woman, whom she later identified as Enriquez,
leaning on the stairs leading to the loft in Taylor’s Anaheim hotel room. Taylor heard
clicking and saw Enriquez trying to remove an iPod from its case. Taylor asked what she
was doing, and Enriquez responded “my friend wouldn’t let me in” and gave other
nonsensical answers during their conversation, which lasted a minute or two. Enriquez
appeared under the influence of drugs.

              Taylor walked to the phone, told Enriquez she was calling the front desk,
and Enriquez left the room. Taylor noticed someone had removed a screen from a
window next to the stairway. Taylor’s mother-in-law, asleep in the loft, later noticed
someone had opened her nightstand drawer, taken her house slippers, rifled through her
purse, and took cash from her wallet totaling around $500.
              Police officers found Enriquez a few hours later in another room with two
men. She appeared to be under the influence, and admitted she had been drinking and



                                             2
smoking marijuana. Enriquez denied going into Taylor’s room, but admitted knocking
on a door in Taylor’s building looking for a misplaced business card, but left when she
discovered the room was occupied.
              Investigators did not locate the stolen money or slippers. Taylor found the
iPod, which Taylor’s daughter left charging in the kitchen when she went to bed, on the

stairway where Taylor spotted Enriquez.
              Enriquez testified and denied committing the burglary, claiming she was in
her room or the hotel Jacuzzi at the time of the crime. Following trial in August 2012,

the jury convicted Enriquez of first degree burglary. In October 2012, the trial court
suspended imposition of sentence and placed Enriquez on probation on various terms and
conditions. The court awarded her 187 days of actual presentence custody credit, plus 92

days of conduct (§ 4019) credit.1

                                             II
                                       DISCUSSION
A.   The Trial Court Erred by Requiring Probation Officer Approval of Defendant’s

Residence
              Enriquez contends the trial court erred by requiring as a condition of

probation that she “maintain a residence as approved by [her] probation, mandatory
supervision officer.” We agree.
              Section 1203.1, subdivision (a), authorizes the court to place a defendant on
probation “upon those terms and conditions as it shall determine.” The discretion to
determine proper terms and conditions has limits, however. (People v. Garcia (1993)
19 Cal.App.4th 97, 101.) “[A] condition of probation which requires or forbids conduct

       1
              Enriquez pleaded guilty before trial to an unrelated misdemeanor violation
of receiving stolen property (§ 496).

                                             3
which is not itself criminal is valid if that conduct is reasonably related to the crime of
which the defendant was convicted or to future criminality.” (People v. Lent (1975)
15 Cal.3d 481, 486.) “[E]ven 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. [Citation.]” (People v. Olguin (2008) 45 Cal.4th 375, 380.)
              Enriquez did not object to the probation condition at the sentencing hearing.
The forfeiture rule bars a defendant from raising an appellate challenge to a probation

condition when the defendant failed to object on that ground in the trial court. (People v.
Welch (1993) 5 Cal.4th 228, 234-238; see also In re Sheena K. (2007) 40 Cal.4th 875,
882 [“an adult probationer who elects to receive probation in lieu of incarceration fairly

may be charged with the need to timely challenge any conditions imposed and that
application of the forfeiture doctrine would deter the promulgation of invalid conditions
in the trial court and decrease the number of appeals contesting such conditions”].) But a

defendant may raise on appeal, without having objected in the trial court, an appellate
claim amounting to a “facial challenge” based on a constitutional defect that does not
require scrutiny of individual facts and circumstances.
              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., supra, 40 Cal.4th at

p. 890.) A “court may leave to the discretion of the probation officer the specification of
the many details that invariably are necessary to implement the terms of probation.
However, the court’s order cannot be entirely open-ended.” (People v. O’Neil (2008)

165 Cal.App.4th 1351, 1358-1359 [probation condition forbidding defendant from



                                              4
associating with all persons designated by her probation officer was “overbroad and
permit[ted] an unconstitutional infringement on defendant’s right of association”].)
              In People v. Bauer (1989) 211 Cal.App.3d 937, the defendant was
convicted of false imprisonment and assault. As a probation condition, the trial court
required the defendant to “obtain her probation officer’s approval of her residence. . . .”
(Ibid.) The court in Bauer concluded the condition was unconstitutionally overbroad
because it unnecessarily limited the defendant’s associational rights. (Ibid.; see
also People v. Burden (1988) 205 Cal.App.3d 1277, 1280 [restriction on the defendant’s

constitutional right to employment was overbroad]; cf. People v. Olguin (2008)
45 Cal.4th 375, 380 [court upheld probation condition requiring the defendant to keep
probation officer informed of place of residence, cohabitants and pets, and notify

probation within 24 hours of any changes].)
              The requirement that Enriquez obtain probation officer approval of her
residence is similarly overbroad. It impedes her rights to travel and freely associate, and

delegates too much discretionary control to the probation officer without providing a
standard to which the probation officer must adhere. Under the imposed probation
condition, the probation officer could prohibit a defendant from living with any person,
including an elderly parent or future spouse who has no association with the offense
committed and no criminal record. Indeed, as Enriquez suggests, a probation officer
could disapprove of a residence that is inconvenient to visit. Of course, probation

officers strive to act reasonably, but as phrased, the probation condition here presents the
possibility of abuse because the condition is not narrowly tailored to the government’s
interests of rehabilitation and protection of the public.




                                              5
              There is nothing in the record to show the nature of Enriquez’s residence
contributed to her crimes or related to her future criminality. At the time of the crimes,
Enriquez and her three-year-old daughter resided in Buena Park with her parents and a
sibling. Her parents had previously confronted her about her drug use and she told them
she would stop and had agreed to attend Narcotics Anonymous meetings, although she
continued to use drugs. We note the unchallenged conditions of the probation order
require Enriquez to use no unauthorized drugs, to submit to drug testing, to submit herself
and property to search and seizure at any time without warrant or reasonable cause, and

to cooperate with the probation officer in any plan for psychological and drug treatment.
Other unchallenged conditions bar her from associating with persons known by her to be
parolees or probationers, convicted felons, drug sellers or users, or persons otherwise

disapproved of by the probation officer. These conditions adequately address the state’s
interest in rehabilitation and protection of the public without unduly burdening
Enriquez’s constitutional right to freedom of association.

              For these reasons, we will modify the probation order to strike the
condition requiring Enriquez to obtain approval of her residence from her probation
officer. Although the court did not impose one, a condition requiring Enriquez to notify
the probation officer of any change in residence would be appropriate, and the trial court
may choose to add such a condition (see § 1203.1, subd. (j); § 1203.3).
B.   The Court Erred in Calculating Custody Credits

              As a condition of probation, the trial court ordered Enriquez to serve 279
days in jail with credit for time served, comprised of 187 actual days in custody between
the date of her arrest and the sentencing hearing, and 92 days of section 4019 work and

conduct credits.



                                             6
                Enriquez argues the court erred in crediting her with 187 actual custody
days. She states the probation officer correctly calculated she spent 188 days in custody
as of October 12, 2012, and the court should have added seven days because the
sentencing hearing occurred on October 19, 2012. The Attorney General states Enriquez
“appears to be correct . . . assuming the probation officer’s information . . . was
accurate . . . .”
        The trial court’s minutes reflect Buena Park police served Enriquez’s arrest
warrant on October 22, 2011. Enriquez posted a bail bond on November 21, 2011. The

court forfeited the bond on February 8, 2012 and Enriquez was back in custody on
February 14, 2012. She posted a new bond on May 18, 2012. On August 14, 2012, the
court forfeited the second bond and took Enriquez into custody, where she remained until

sentencing on October 19, 2012.
                Based on the above dates, it appears Enriquez spent 193 days in custody.
But because our calculation might contain erroneous assumptions and the Attorney

General concedes the additional two days, we will accept the Attorney General’s
concession of 195 actual days. Enriquez is also entitled to additional conduct credits.2
C.     Amended Section 4019 Does Not Apply to Crimes Committed Before October 1,

2011
                Enriquez also asserts she is entitled to additional section 4019 credits for
presentence custody she served with good conduct after October 1, 2011. She interprets
amended section 4019 to require a bifurcated calculation for conduct credits earned
before and after October 1, 2011, if the crime was committed before that date.
(See People v. Brown (2012) 54 Cal.4th 314, 322 (Brown).)

        2
               Because she has already served her time, the issue of credits presumably
only affects a future sentence should Enriquez violate probation.

                                               7
              Whether section 4019 applies to crimes committed before October 1, 2011,
is not new. In People v. Rajanayagam (2012) 211 Cal.App.4th 42 (Rajanayagam), a
panel of this court rejected the defendant’s contention section 4019 created a bifurcated
calculation for crimes committed before October 1, 2011, and we see no reason to depart
from that decision. (Rajanayagam, supra, 211 Cal.App.4th at p. 52; see People v.
Ellis (2012) 207 Cal.App.4th 1546, 1553 (Ellis) [noting “Legislature’s clear intent” to
have enhanced rate apply only to those defendants who committed their crimes on or
after October 1, 2011].)

              Enriquez argues Ellis and Rajanayagam misinterpreted the statute,
explaining “that in the first clause, ‘prospectively’ is referring to defendants who are
already in custody for previous crimes [i.e., crimes committed before October 1, 2011].

They are the only defendants about whom there could be ex post facto issues and to
whom there could be question as to whether the statute applies prospectively; thus it is
logical that the Legislature would clarify how the law applied to them. After all,

defendants in custody for crimes committed on or after the effective date of the statute
could only ever be subject to the new version of the statute; prospective application is a
non sequitur for such offenders. Yet, the Legislature specifically applied the changes
both to new defendants and prospectively, i.e., to those in custody at the time of the
statute’s effective date.”
              Enriquez also states § 4019(h)’s second sentence supports her argument:

“‘Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate
required by the prior law.’ [Citation.] If the statute was not intended to apply
‘prospectively’ to defendants in custody at the time of the effective date, there would be

no reason to clarify the rate at which the days they had already earned were to be



                                             8
calculated, because that rate would not change.” She describes as “unconvincing”
Rajanayagam’s explanation the second sentence, while “inartful,” merely clarified that
persons confined for crimes occurring before October 1, 2011 “still have the opportunity
to earn conduct credits, just under prior law.” (Rajanayagam, supra, 211 Cal.App.4th at
p. 52.) Enriquez states “there is no suggestion in the statute that anything about the
amendments would have eliminated conduct credits for those already in custody.”
              We are not persuaded. To apply the new conduct credits to defendants who
committed their crimes before October 1, 2011, would ignore section 4019(h)’s plain

wording that “[t]he changes to this section . . . shall apply to prisoners who are confined
to a . . . jail . . . for a crime committed on or after October 1, 2011.” (Italics added.) A
necessary corollary of this express directive is that it does not apply to crimes committed

before October 1, 2011. We fail to see how “prospectively” applying new credits would
apply to crimes committed before the statute’s effective date. We agree with the
Attorney General use of “prospectively” in this context “indicat[es] even more

emphatically [the Legislature’s] intent that the new custody credits formula be applied
only to defendants who commit crimes on or after October 1, 2011,” presumably as a
response to disagreements in the Court of Appeal concerning the retroactivity of prior
changes to section 4019. Because Enriquez was not confined in jail for a crime
committed on or after October 1, 2011, the changes in section 4019 do not apply to her.
Her conduct credits are to be calculated at the rate required by the prior law.

Additionally, the rule of lenity does not apply where, as here, the result would be
inconsistent with the Legislature’s intent. (People v. Cruz (1996) 13 Cal.4th 764, 783.)




                                              9
D.   Amended Section 4019’s Prospective Application Does Not Violate Equal

Protection
              Enriquez asserts our reading violates her constitutional right to equal
protection. In Rajanayagam, this court rejected a similar claim, explaining, “It is
undisputed the purpose of section 4019’s conduct credits generally is to affect inmates’
behavior by providing them with incentives to work and behave. (Brown, supra,
54 Cal.4th at pp. 327-329.) “But that was not the purpose of Assembly Bill No. 109,
which was part of the Realignment Act. . . . [T]he Legislature’s stated purpose for the

Realignment Act ‘is to reduce recidivism and improve public safety, while at the same
time reducing corrections and related criminal justice spending.’ [Citation.] Section
17.5, subdivision (a)(7), puts it succinctly: ‘The purpose of justice reinvestment is to

manage and allocate criminal justice populations more cost-effectively, generating
savings that can be reinvested in evidence-based strategies that increase public safety
while holding offenders accountable.’ (Italics added.)” (Rajanayagam, supra,

211 Cal.App.4th at pp. 54-55.) Rajanayagam applied the rational basis test and
determined the October 1, 2011, amendment to section 4019, awarding fewer credits to
defendants who committed offenses before October 1, 2011, bore “a rational relationship
to the Legislature’s legitimate state purpose of reducing costs.” (Rajanayagam,
supra, 211 Cal.App.4th at p. 55 citing People v. Turnage (2012) 55 Cal.4th 62,
77 [“‘[w]hen conducting rational basis review, we must accept any gross generalizations

and rough accommodations that the Legislature seems to have made. A classification is
not arbitrary or irrational simply because there is an “imperfect fit between means and
ends”’].)” (Rajanayagam, supra, 211 Cal.App.4th at p. 55.)




                                             10
              Relying on People v. Olivas (1976) 17 Cal.3d 236 (Olivas), Enriquez
argues we should apply the strict scrutiny level of review “because the fundamental
interest of personal liberty is impacted by the distinction” treating less favorably persons
who committed their crimes before October 1, 2011. In Olivas, a defendant who was
19 years of age at the time of his arrest was convicted of misdemeanor assault and
committed to the Youth Authority (CYA). The Supreme Court held Welfare and
Institutions Code section 1770 unconstitutional to the extent it authorized CYA to
maintain control over the defendant in excess of the maximum jail term permitted by

statute for a person over age 21. The court held the right to personal liberty is a
fundamental interest protected under federal and state equal protection clauses (Olivas,
supra, 17 Cal.3d at p. 251), a classification subject to the strict scrutiny standard of

judicial review under which the state must establish a compelling interest justifying the
distinctions drawn by the law are necessary to further that interest. The high court
concluded neither the state’s interest in rehabilitating youthful offenders, nor any other

conceivable interest, constituted a compelling interest. (Id. at p. 245, 251.)
              Enriquez has misinterpreted the scope of Olivas’s holding. “California
courts have never accepted the general proposition that ‘all criminal laws, because they
may result in a defendant’s incarceration, are perforce subject to strict judicial scrutiny.’”
(People v. Owens (1997) 59 Cal.App.4th 798, 802; People v. Silva (1994) 27 Cal.App.4th
1160, 1167.) A broad reading of Olivas would “intrude[ ] too heavily on the police

power and the Legislature’s prerogative to set criminal justice policy.” (People v. Bell
(1996) 45 Cal.App.4th 1030, 1049.) “[W]here the classification scheme adopted by a
statute has only an incidental or marginal effect on ‘fundamental’ rights, application of




                                              11
the ‘rational relationship’ test is the appropriate analytical standard.” (In re Flodihn
(1979) 25 Cal.3d 561, 568.)
              People v. Floyd (2003) 31 Cal.4th 179 is instructive. There, the defendant
complained that prospectively applying the more lenient provisions of Proposition 36,
which placed certain drug offenders on probation if they completed an appropriate drug
treatment program, violated his right to equal protection because he was convicted of a
drug offense before Proposition 36 became effective. In rejecting his argument that no
compelling state interest justified the disparate treatment, the Supreme Court observed:

“Defendant has not cited a single case, in this state or any other, that recognizes an equal
protection violation arising from the timing of the effective date of a statute lessening the
punishment for a particular offense. Numerous courts, however, have rejected such a

claim – including this court.” (Id. at p. 188.) Because the same reasoning applies here,
we reject Enriquez’s invitation to employ a strict scrutiny test in evaluating her claim.
Calculating Enriquez’s conduct credits under former section 4019, rather than under the

October 1, 2011, amendment, did not violate her equal protection rights.


                                             III
                                        DISPOSITION
              The condition of probation requiring Enriquez to maintain a residence as
approved by her probation officer is stricken (§ 1260). The trial court is directed to
amend its October 19, 2012 sentencing minute order to delete the condition, and to award




                                             12
Enriquez 195 days of actual custody credit and 96 days of conduct credit. In all other
respects, the judgment is affirmed.




                                                ARONSON, J.

WE CONCUR:



MOORE, ACTING P. J.



THOMPSON, J.




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