Filed 7/10/13 P. v. Ayala-Vega CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                      D061966

         Plaintiff and Respondent,

         v.                                                      (Super. Ct. No. SCN282711)

JONATHAN AYALA-VEGA,

         Defendant and Appellant.


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

Robert J. Kearney, Judge. Judgment affirmed as modified, remanded.

         Jeanine G. Strong, 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, William M. Wood and Marvin E.

Mizell, Deputy Attorneys General, for Plaintiff and Respondent.



         A jury found Jonathan Ayala-Vega guilty of first degree residential burglary and

found true the allegation that a person other than an accomplice was present at the time.
After finding unusual circumstances, the trial court suspended the imposition of sentence

and placed him on formal probation for three years. It also imposed various fines, fees

and assessments. Vega does not challenge his conviction, but contends that the trial court

abused its discretion in imposing probation conditions (1) prohibiting him from being

around any firearms, (2) requiring him to obtain the probation officer's approval as to

where he lives and works, and (3) prohibiting or regulating his access to alcohol. He also

asserts the trial court erroneously failed to orally pronounce fines, fees and assessments

included in the judgment (order granting probation) and that some of the fees are

incorrect.

       As discussed below, some of Vega's contentions have merit. Accordingly, we

affirm the judgment (order granting probation) as modified and remand the matter to the

trial court for resentencing limited to the imposition of the fines, fees and assessments.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On an evening in May 2010, Vega arrived uninvited at the home of his uncle and

aunt, Armando and Victoria Ayala. Vega claimed he was in the area to buy a car, and

asked if he could spend the night. The couple agreed. The following morning, Vega

asked Victoria for a tour of the house. After taking him on a tour, Victoria had Vega go

outside.

       About 15 minutes later, Victoria looked outside and saw Vega doing something by

the trash area. While Vega was eating breakfast, she went outside and found a jewelry

box from one of the bedrooms in the trash. She also saw that the bedroom window was



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now open. It was later discovered that Vega had taken some jewelry. An investigation

revealed Vega's fingerprints on the bedroom window.

       At trial, Vega testified that he was 25 years old and homeless in May 2010. He

admitted removing the jewelry box, but denied entering the house or the bedroom with

the intent to steal.

                                        DISCUSSION

                                   I. Probation Conditions

A. General Legal Principles

       Sentencing courts have broad discretion in imposing conditions of probation meant

to protect the public and rehabilitate the defendant. (People v. Carbajal (1995) 10 Cal.4th

1114, 1120.) We review probation conditions for abuse of discretion. (Id. at p. 1121.)

A probation condition is invalid if it (1) is not related to the crime of which the offender

was convicted, (2) relates to noncriminal conduct, and (3) requires or forbids conduct

which is not reasonably related to future criminality. (People v. Lent (1975) 15 Cal.3d

481, 486 (Lent).) All three parts of this reasonableness test must be satisfied before a

reviewing court will invalidate a condition of probation. (People v. Olguin (2008) 45

Cal.4th 375, 379.)

       A challenge to a probation condition based on the Lent unreasonableness factors is

forfeited on appeal if the defendant fails to object on that ground in the trial court.

(People v. Welch (1993) 5 Cal.4th 228, 234–238.) However, 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

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individual facts and circumstances. (In re Sheena K. (2007) 40 Cal.4th 875, 885–886.)

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." (Id. at p. 890.) In other words, for the forfeiture

exception to apply, an appellate court must only concern itself with abstract and

generalized legal concepts and not with the individual facts and circumstances of the case.

(Id. at p. 885.)

       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 associating

with all persons designated by his probation officer was "overbroad and permit[ted] an

unconstitutional infringement on defendant's right of association"].) We review a trial

court's imposition of a probation condition for an abuse of discretion. (See People v.

Carbajal, supra, 10 Cal.4th at pp. 1120–1121.) "However, we review constitutional

challenges to a probation condition de novo." (In re Shaun R. (2010) 188 Cal.App.4th

1129, 1143.)

B. Alcohol Conditions

       At the sentencing hearing, Vega objected to certain alcohol conditions on the

ground they were unrelated to his crime. Specifically, probation conditions 8b, 8f and 8h

(1) prevent him from "knowingly us[ing] or possess[ing] alcohol if directed by the

[probation officer]," (2) require he "[s]ubmit to any chemical test of blood, breath or urine

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to determine blood alcohol content and authorize release of results to [probation officer]

or the court whenever requested by the [probation officer], a law enforcement officer, or

the court ordered treatment program," and (3) prohibit him from being "in places, except

in the course of employment, where [he] knows, or [his probation officer] or other law

enforcement officer informs [him], that alcohol is the main item for sale."

       Vega objects to these conditions as unreasonable under the three-part Lent test.

Vega is correct that these conditions pertain to conduct that is not criminal and are not

related to the crime as he was not drinking or under the influence of alcohol or drugs

before or during the offense. Thus, the analysis turns on whether conditions 8b, 8f and 8h

are reasonably related to future criminality. This analysis is highly fact specific. (People

v. Lindsay (1992) 10 Cal.App.4th 1642, 1644.)

       Vega has no prior criminal history. Additionally, the probation report indicates

that he began consuming alcohol when he turned 21, he only consumes alcohol on a

social basis and never " 'drinks to get drunk.' " Vega has also used marijuana three times,

once when he was 18, and twice while in college. Vega denied ingesting any other type

of drug. Here, there is nothing in the record suggesting that Vega ever abused alcohol or

drugs or that social alcohol use has ever played a part in any criminal activity. Simply

put, the alcohol conditions have no connection with Vega's future criminality. Because

none of the Lent factors are satisfied, the alcohol-related probation conditions 8b, 8f and

8h are invalid. (Lent, supra, 15 Cal.3d 481.) We modify the judgment by deleting those

conditions. (People v. Kiddoo (1990) 225 Cal.App.3d 922, 928.)



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       Vega also objects to condition 8c that requires him to attend self-help meetings

"if directed" by the probation officer. Vega did not object to this condition below.

Moreover, Vega did not challenge this particular condition on constitutional grounds.

Accordingly, we conclude Vega forfeited any challenge to probation condition 8c.

C. In Presence of Firearms

       Probation condition 12g prohibits Vega from remaining "in any building, vehicle

or in the presence of any person where [he] know[s] a firearm, deadly weapon, or

ammunition exists." Although listed on the preprinted form as a gang condition, the trial

court crossed out the word "gang." Vega argues this condition is overbroad and

unjustifiably chills important constitutional rights by forbidding him from being in any

number of places where he is otherwise entitled to be, such as a bank or public gathering,

where armed guards are present. Vega concedes he did not object to this condition below,

but claims the constitutionality of the condition can be raised for the first time on appeal.

       The People disagree, arguing that the reasonableness of this condition requires

examination of the facts and circumstances of the case and Vega's failure to object

prevented the development of those facts and circumstances. The People assert that

forbidding Vega's presence where he knows firearms or other weapons are located could

be reasonably related to his crime of burglary by preventing armed robbery or burglary in

the future, and the condition was also constitutionally valid because it had a knowledge

requirement.

       We agree with Vega that this condition is unconstitutionally overbroad because it

improperly impedes his freedom of travel and association. A probation condition is

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unconstitutionally overbroad if it imposes limitations on the probationer's constitutional

rights and it is not closely or narrowly tailored and reasonably related to the compelling

state interest in reformation and rehabilitation. (In re Sheena K., supra, 40 Cal.4th at

p. 890.) As Vega noted, this condition would prohibit him from any location where

armed personnel are present, such as an airport, bank or courthouse. Moreover, the

People's concern of preventing Vega from committing an armed robbery or burglary is

adequately addressed by the unchallenged probation condition requiring that Vega not

knowingly possess any firearm, weapon or ammunition. This overbroad probation

condition can be corrected without reference to the particular sentencing record and

presents a pure question of law. (Id. at p. 887.) Accordingly, we order that the condition

12g be modified to provide as follows: "Vega is prohibited from being in the presence of

those he knows illegally possess firearms, deadly weapons or ammunition."

D. Approving Residence or Employment

       Probation condition 10g required Vega to obtain his probation officer's approval as

to his place of residence and employment. Vega did not object to this condition below.

The People argue Vega waived any objection to this condition because the trial court

could reasonably allow the probation officer the discretion to disapprove of Vega living

with any of his other relatives based on him stealing from his uncle and aunt's house in

this case, and disapprove him from working in any position where he would have easy

access to jewelry or money based on him committing burglary against those who trusted

him.



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       We conclude the requirement that Vega obtain probation officer approval as to his

place of residence or employment is overbroad. The People's argument in support of this

probation condition, although couched with the facts and circumstances of this case, is

generic as the same argument can be made for virtually all theft convictions because most

are motivated by an underlying desire or need for money. If the purpose of the condition

is to prevent Vega from living with individuals he might take advantage of, then Vega

will likely be prevented from living with anyone. Additionally, most employment places

employees in a situation where they will have an opportunity to steal something.

       The requirement improperly impedes Vega's freedom of association and his right

to employment. It also gives too much discretion to the probation officer and applies to

conduct that is not criminal. (People v. Bauer (1989) 211 Cal.App.3d 937, 944 [condition

requiring prior approval of residence by a probation officer invalid because it infringed on

the defendant's constitutional rights of travel and freedom of association and gave the

probation officer too much discretionary power over the defendant's living situation].)

Moreover, the condition contains no such standard by which the probation officer is to be

guided. (People v. O'Neil, supra, 165 Cal.App.4th at p. 1359.) Accordingly, we strike

probation condition 10g. (The propriety of a residence approval probation condition in a

case involving possession of drugs and misdemeanor drug use is presently before the

California Supreme Court in People v. Schaeffer (2012) 208 Cal.App.4th 1 [145

Cal.Rptr.3d 29], review granted October 31, 2012, S205260.)

       While we agree that Vega's probation officer has an interest in knowing the

location of Vega's residence and place of employment, the unchallenged requirement that

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Vega notify his probation officer within 72 hours of any change of address or

employment satisfies that interest. (In re White (1979) 97 Cal.App.3d 141, 150 ["If

available alternative means exist which are less violative of the constitutional right and

are narrowly drawn so as to correlate more closely with the purposes contemplated, those

alternatives should be used."].)

                              II. Fines, Fees and Assessments

       At the sentencing hearing, the trial court required Vega to pay $500 in victim

restitution and stated that the restitution fines would be reduced from $960 to $240.

Vega points out that the order granting probation erroneously includes other fines, fees

and assessments that were not delineated and announced on the record. He also

complains that (1) a penalty assessment was incorrectly calculated and (2) the $240

restitution fine under Penal Code section 1202.4, subdivision (b), and the $240 probation

revocation fine under Penal Code section 1202.44 imposed by the court must be reduced

to $200 each, the statutory minimum in effect in 2010, to avoid an ex post facto issue.

The Attorney General concedes the latter issue and states that the trial court should clarify

the penalty assessment on remand.

       A trial court must provide a "detailed recitation of all the fees, fines and penalties

on the record," including their statutory bases. All of these fines and fees must be set

forth in the abstract of judgment. (People v. High (2004) 119 Cal.App.4th 1192, 1200.)

"[T]the inclusion of all fines and fees in the abstract may assist state and local agencies in

their collection efforts. [Citation.]" (Ibid.) Additionally, reciting the fines and fees

notifies the defendant of the financial obligations of his conviction, provides a record for

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review, and allows defendant the opportunity to contest any fines, fees or assessments he

believes should not be imposed. (See, e.g., Pen. Code, § 1202.5, subd. (a) [theft fine

contingent on defendant's ability to pay].)

       Vega asserts, the People concede and we agree that the case must be remanded for

the trial court to orally pronounce all fines, fees, and assessments imposed upon

defendant, provide defendant the opportunity to contest them, and to identify and specify

the statutory bases for all fines, fees, and assessments imposed upon defendant.

                                      DISPOSITION

       Probation condition 12g is modified to state "Vega is prohibited from being in the

presence of those he knows illegally possess firearms, deadly weapons or ammunition."

Probation conditions 10g, 8b, 8f and 8h are stricken. The case is remanded for

resentencing limited to the imposition of fines, fees or assessments. At that hearing,

defendant may contest any fine, fee or assessment. As so modified, the judgment (order

granting probation) is affirmed.



                                                                      MCINTYRE, J.

WE CONCUR:

MCCONNELL, P. J.

IRION, J.




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