People v. White CA2/6 ( 2022 )

Filed 5/25/22 P. v. White CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B314223
(Super. Ct. No. 1PB00513)
Plaintiff and Respondent, (Los Angeles County)
v.
RICHARD E. WHITE,
Defendant and Appellant.
Richard E. White appeals from postjudgment orders (1)
denying his motion to modify conditions of postrelease
community supervision (PRCS), and (2) revoking PRCS. We
affirm.
Factual and Procedural Background
In October 2019 appellant was convicted in Orange County
of second degree burglary (Pen. Code, §§ 459, 460, subd. (b))1 and
grand theft (§ 487, subd. (a)). He was sentenced to prison for two
years, eight months. In October 2020 he was released from
1 All further statutory references are to the Penal Code.
prison and placed on PRCS in Los Angeles County. PRCS is due
to expire in October 2023.
In February 2021 the Los Angeles County Probation
Department filed a petition to revoke PRCS because appellant
had violated two conditions of supervision: (1) obey all orders of
the probation officer, and (2) do not leave Los Angeles County
without the probation officer’s written permission.
In July 2021 the superior court denied appellant’s motion
to delete the following conditions of supervision: (1) X34 – “Do not
be alone with any minor. All supervised contact with minor must
have prior approval by the probation officer.” (2) X36 – “Do not
reside with any minor, including but not limited to, natural
children, stepchildren, or any child with whom [appellant] has a
parenting, guardianship, or supervisory relationship, unless
approved in writing by probation officer.” (3) X13 – “Do not leave
the county of Los Angeles or the state of California without the
advance written permission of the probation officer.” (4) X91 –
“Cooperate with probation officer in a supervision plan that
includes GPS [global positioning system] enrollment and
monitoring.”
The superior court found appellant to be in violation of his
conditions of supervision, revoked and reinstated PRCS on the
same terms and conditions, and ordered him to serve 120 days in
county jail.
PRCS
“PRCS was created by the Legislature in 2011 as an
alternative to parole for non-serious, nonviolent felonies. It is
similar, but not identical to parole. A felon who qualifies
for PRCS may be subject to supervision for up to three years after
his or her release from prison. (§ 3451, subd. (a).) This
supervision is conducted by a county agency, such as the [Los
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Angeles] County Probation Agency, rather than by the state’s
Department of Corrections and Rehabilitation. [Citations.] The
supervised person may be subject to various sanctions for
violating the conditions of his or her PRCS, including
incarceration in the county jail, but may not be returned to state
prison for PRCS violations.” (People v. Gutierrez (2016) 245
Cal.App.4th 393, 399.)
PRCS Conditions: Standard of Review
In determining the reasonableness of conditions of PRCS,
we apply the same test used in determining the reasonableness of
conditions of probation. (People v. Bryant (2021) 11 Cal.5th 976,
981, 991.) “In granting probation, courts have broad discretion to
impose conditions to foster rehabilitation and to protect public
safety . . . .” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) A
court abuses its discretion “when its determination is arbitrary or
capricious or ‘“‘exceeds the bounds of reason, all of the
circumstances being considered.’” [Citations.]’” (Id. at p. 1121.)
“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 (2008) 45 Cal.4th 375, 379
(Olguin).) This three-pronged test is known as the Lent test.
(People v. Lent (1975) 15 Cal.3d 481, 486, superseded by
Proposition 8 on another ground as stated in People v.
Wheeler (1992) 4 Cal.4th 284, 290-292.)
The “test is conjunctive—all three prongs must be satisfied
before a reviewing court will invalidate a probation term.
[Citations.] As such, even if a condition of probation has no
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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.” (Olguin, supra, 45 Cal.4th at pp. 379-380.)
PRCS Conditions Prohibiting Appellant from
Being Alone with and Residing with Any Minor
Condition X34 prohibits appellant from being alone with
any minor. Condition X36 prohibits him from residing with any
minor unless approved in writing by the probation officer. These
conditions satisfy the first two prongs of the Lent test, i.e., they
“‘“(1) ha[ve] no relationship to the crime of which the offender
was convicted, [and] (2) relate[] to conduct which is not in itself
criminal . . . .”’” (Olguin, supra, 45 Cal.4th at p. 379.) The issue
is whether the conditions satisfy the third prong – they
“‘“require[] or forbid[] conduct which is not reasonably related to
future criminality . . . .”’” (Ibid.) The conditions are valid if they
are “reasonably related to preventing future criminality.” (Id. at
p. 380.)
The superior court did not exceed the bounds of reason in
concluding that conditions X34 and X36 are reasonably related to
preventing future criminality. In its 14-page decision on
appellant’s motion to modify conditions of PRCS, the court stated:
“[Appellant’s] probation report includes a concerning, and
relatively recent arrest for lewd and lascivious acts with his [six-
year-old] autistic daughter. [Record citation.] While the case
was dismissed for lack of evidence, the court’s independent
review of the underlying reports regarding this incident present
‘a substantial basis for believing the information is reliable’ for
the purposes of upholding the challenged PRCS condition[s].
[Citation.] [¶] The initial crime report . . . identifies that,
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sometime between March 22 and 26, 2018, [appellant’s other
minor] daughter saw [appellant] l[]ying naked in [the autistic
daughter’s] bed.” Appellant was on top of his autistic daughter,
who “‘was on her back with her clothes on.’” The other minor
daughter “saw [appellant] ‘thrust his pelvis in a backward and
forward motion . . . sexually towards [the autistic daughter’s]
vagina.’” The other minor daughter said that appellant had
“‘humped my sister’” like “‘he humps mommy.’” “She ‘took . . .
dolls, laid the female on the table and made the male bounce up
and down on top of the female.’”
The other minor daughter told a sheriff’s deputy that,
“after committing the sexual act, [appellant] placed duct tape on
[the autistic daughter’s] mouth.” But the other minor daughter
later said that “the duct tape was placed on her [own] mouth,”
not the autistic daughter’s mouth. A sheriff’s deputy interviewed
the autistic daughter. She “denied all accusations pertaining to
the sexual incident.”
The court concluded that conditions X34 and X36 are
reasonable because of the prior sexual incident involving
appellant’s autistic daughter and because the conditions “merely
preclude[] [appellant] from being alone with children, not from
never seeing children.”
At a probation hearing the court may consider evidence of
other uncharged criminal conduct if “the reliability of the
information [concerning such conduct] . . . is sufficiently
demonstrated.” (People v. Peterson (1973) 9 Cal.3d 717, 727.)
The information that may be considered includes “responsible
unsworn or out-of-court statements concerning the convicted
person’s life and characteristics. [Citations.] Fundamental
fairness, however, requires that there be a substantial basis for
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believing the information is reliable.” (People v. Lamb (1999) 76
Cal.App.4th 664, 683.)
Appellant contends, “[T]here was no substantial basis to
believe the information in the probation report was both accurate
and reliable” because “[t]he prosecution rejected the case for
filing citing insufficient evidence, and the victim denied the
incident took place.” But the prosecution’s rejection of the case
and the victim’s denial are not determinative factors. Unlike a
probation proceeding, in a criminal trial the prosecution must
carry the heavy burden of proving guilt beyond a reasonable
doubt. It often occurs that a child victim of sexual abuse by a
close family member will sometimes deny the abuse to protect the
family member. The superior court reasonably concluded that
there was “‘a substantial basis for believing the information [of
sexual abuse by appellant] is reliable’ for the purposes of
upholding the challenged PRCS condition[s].” (See In re Ricardo
P. (2019) 7 Cal.5th 1113, 1122 [“courts may properly base
probation conditions upon information in a probation report that
raises concerns about future criminality unrelated to a prior
offense”].)
Appellant claims that, in denying the motion to modify
conditions X34 and X36, the superior court erroneously relied “on
information appellant had an open case with E[]delman
Dependency.” The court said: “Probation learned that
[appellant] has an open case ‘with Edelman Dependency
Court . . . regarding four of [his] minor children.’ [Citation.] The
case ‘is a result of ongoing domestic violence history between
[appellant] and . . . the mother of . . . the . . . [four] children.’” In
November 2019 appellant was denied reunification services and
“may ‘only have monitored visits with the children involved in
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this case.’” The court concluded, “This new information
demonstrates that [appellant] should not be alone with at least
some of his children and further supports Probation’s assessment
of the need for the challenged condition.”
Appellant argues, “This was not a valid basis to impose
conditions X34 and X36 because the open case [with Edelman
Dependency Court] involved allegations of domestic violence
between appellant and the mother, not against the children.
[Record citation.] In addition, this was a pending matter in
which there had been no formal decision.” Domestic violence
between parents may have harmful effects on their minor
children. That the dependency matter was pending did not
preclude the superior court from considering it.
Finally, appellant maintains that he was denied due
process because the superior court considered “expired protective
orders protecting his children” from appellant. The expired
orders were “from August and December 2018 and June 2019.”
Appellant asserts, “If there had been an ongoing threat to the
minor children, the protective orders would have been reissued.
They were not.” The protective orders had expired, but they were
nevertheless properly considered. The record does not disclose
why they were not reissued. There is no evidence that they were
not reissued because appellant could safely be alone with his
children.
Conditions X34 and X36 Are Not Overbroad
Appellant argues that conditions X34 and X36 are
overbroad because they “impermissibly abridge appellant’s state
and federal constitutional rights to cohabitate and associate with
his family, and his constitutional right of association.” This is a
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pure question of law subject to de novo review. (In re Sheena K.
(2007) 40 Cal.4th 875, 888.)
“A restriction is unconstitutionally overbroad . . . if it (1)
‘impinge[s] on constitutional rights,’ and (2) is not ‘tailored
carefully and reasonably related to the compelling state interest
in reformation and rehabilitation.’ [Citations.] 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.)
X34 and X36 are not unconstitutionally overbroad. They
are carefully tailored to the purpose of the conditions – to prevent
appellant from indulging his sexual interest in children. (See
People v. Delvalle (1994) 26 Cal.App.4th 869, 879 [“the state has
a compelling interest in the protection of children which justifies
the restriction on Delvalle's freedom of association”].) Appellant
is not barred from visiting his children. He simply cannot be
alone with them and cannot reside with them without the
probation officer’s approval.
Appellant claims that condition X34 is overbroad because
“[b]y banning appellant from being alone with any minor,
appellant is unable to go anyplace without risking violating [the
condition].” For example, “he risks being sent back to jail” if “he
enters an elevator and a teenager enters and rides up with him.”
“A probation condition should be given ‘the meaning that
would appear to a reasonable, objective reader.’” (Olguin, supra,
45 Cal.4th at p. 382.) No reasonable, objective reader would
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interpret X34 as prohibiting appellant’s chance, brief encounter
with a minor such as in the elevator hypothetical.
The GPS Monitoring Condition – X91
Condition X91 provides, “Cooperate with probation officer
in a supervision plan that includes GPS enrollment and
monitoring.” Appellant claims that condition X91 is
unconstitutionally overbroad and violated his right to privacy as
well as his right to “equal protection of the law because other
similarly situated moderate risk offenders are not required to
wear a GPS device.” In addition, appellant asserts that the
condition “must be stricken” because it was not among the initial
conditions of PRCS. It was “added two weeks after [he] was
placed on PRCS” in response to his criminal history. But “there
was no change in [his] criminal history” to justify adding it as a
condition two weeks later.” Moreover, his criminal history “fails
to justify the addition of GPS monitoring.”
The Penal Code expressly authorizes GPS monitoring as a
condition of PRCS. (§§ 3454, subd. (b), 1210.7.) The condition
may be imposed if it is “reasonably related to . . . the offender’s
risk of recidivism, and the offender’s criminal history, and [is]
otherwise consistent with law.” (§ 3454, subd. (a).) The condition
must also be “consistent with public safety.” (Id., subd. (b).) If a
GPS monitoring condition is not imposed when a person is
initially released on PRCS, there is no requirement that the
addition of the condition be justified by changed circumstances
since his release.
The superior court did not abuse its discretion in denying
appellant’s motion to delete the GPS monitoring condition. The
court reasoned: “The totality of the evidence regarding
[appellant’s] criminal and personal history show that the GPS
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condition is supported and reasonably related to preventing
future criminality. [Appellant], now 54 years old, has an
extensive criminal record including a manslaughter conviction at
age 18, numerous drug related arrests and convictions . . . ,
numerous theft and/or burglary convictions . . . , an assault arrest
where he was found in possession of a firearm . . . , multiple
domestic violence arrests and/or convictions . . . , and multiple
recently expired protective orders where he was the restrained
party evidencing prior court findings of [appellant’s]
inappropriate conduct necessitating that he be restrained.”
The Superior Court continued: “During an October 23,
2019 probation interview related to his commitment offense,
[appellant] reported using marijuana daily, cocaine weekly, and
drinking alcohol multiple times per week. . . . [¶] Since his
release [on PRCS, appellant] has allegedly violated his PRCS
terms on numerous occasions by traveling outside of Los Angeles
County without written permission of the probation department
and after being warned about such unauthorized travel. . . .
Probation concluded that [appellant] ‘appears by evidence of GPS
monitoring, to wander throughout Los Angeles, Orange, and San
Bernardino County. [His] activities in the community are
unknown, potentially putting the community safety at risk.’
. . . [¶] [¶] . . . It is noteworthy that, since 1986 [appellant]
‘sustained seven parole violations.’”
The superior court concluded: “In short, Probation has a
well-founded reason to be concerned about [appellant] engaging
in future criminal conduct. GPS tracking is further justified
because [appellant] has already accumulated several arrests in
neighboring counties since his release from prison and appears to
travel outside of Los Angeles County as he sees fit, including to
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the area where his children live. . . . Accordingly, based on the
totality of the evidence before the court [appellant] is a ‘high-risk
person[] . . . where prevention and knowledge of [his]
whereabouts is a high priority for maintaining public safety.’
[§ 1210.7, subd. (e).]”
Condition X91 is not unconstitutionally overbroad. It is
“‘tailored carefully and reasonably related to the compelling state
interest in reformation and rehabilitation.’” (In re E.O., supra,
188 Cal.App.4th at p. 1153.)
Condition Requiring Approval before
Leaving the County or State – X13
A required condition of PRCS is that “[t]he person shall
obtain a travel pass from the supervising county agency before
they may leave the county or state for more than two days.”
(§ 3453, subd. (l).) Condition X13 is more restrictive. It provides,
“Do not leave the county of Los Angeles or the state of California
without the advance written permission of the probation officer.”
Appellant asserts that the condition “is unreasonable under Lent”
because it “is not reasonably related to future criminality.” In
addition, appellant claims it is unconstitutionally overbroad and
vague.
The superior court did not abuse its discretion in ruling
that condition X13 “is clearly reasonably related to [appellant’s]
risk of recidivism.” The court explained: “Since [appellant]
traveled outside of Los Angeles County without permission on
‘approximately 37 days’ between October 17, 2020 and March 17,
2021 (151 days), probation has a legitimate reason to know where
[he] plans to travel outside of Los Angeles County before he does
so. [Record citation.] Moreover, in light of the valid condition
that [appellant] not be alone with minor children, Probation has
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a legitimate basis to approve any of his out of county travel to
ensure that any people [he] may be visiting are aware of the
conditions limiting his access to children. [Record citation.]”
Appellant’s “lengthy and extensive criminal history across
several counties . . . , multiple expired protective orders, [and] the
alleged lewd and lascivious conduct with his minor daughter . . .
support the need for increased monitoring of [appellant] to deter
future criminality.” The superior court noted that “[t]he
condition is not unduly burdensome as it does not prohibit
[appellant] from traveling, but merely requires that he obtain
permission in advance of doing so.”
Appellant maintains that condition X13 is
unconstitutionally overbroad because it “impermissibly limits
[his] constitutional right to travel.” We disagree. “While all
citizens enjoy a federal constitutional right to travel from state to
state [citation], that right is not absolute and may be reasonably
restricted in the public interest. [Citation.] . . . [U]nder Lent, the
condition is reasonably related to preventing future criminality
by placing a reasonable limitation on [appellant’s] . . . ability
to travel [outside of Los Angeles County].” (People v. Relkin
(2016) 6 Cal.App.5th 1188, 1195.) “[T]he condition’s limitation on
. . . travel is closely tailored to the purpose of monitoring
defendant's travel [outside of Los Angeles County] not by barring
his ability to travel altogether but by requiring that he first
obtain written permission before doing so.” (Ibid.)
Appellant contends that condition X13 is unconstitutionally
vague. “The vagueness doctrine ‘bars the government from
enforcing a provision that “forbids or requires the doing of an act
in terms so vague” that people of “common intelligence must
necessarily guess at its meaning and differ as to its application.”’
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[Citation.] ‘A restriction is unconstitutionally vague if it is not
“‘sufficiently precise for the probationer to know what is required
of him, and for the court to determine whether the condition has
been violated.’”’” (People v. Rhinehart (2018) 20 Cal.App.5th
1123, 1127.) Condition X13 could not be more precise. It simply
requires appellant to obtain permission from his probation officer
before leaving Los Angeles County or the State of California.
Condition X11
For the first time on appeal, appellant challenges PRCS
condition X11, which provides, “Obey all specific orders,
instructions and conditions of the probation office.” Appellant
claims that the provision “should be stricken” because it “is
redundant, overbroad, and permits appellant to be assessed twice
for each violation.” (Bold and capitalization omitted.) Appellant
explains, “It permits the probation department to cite appellant
once for violation, and a second time for failing [to] follow all
orders, which is redundant and serves no purpose.” The claim is
forfeited because it is not supported by meaningful, intelligible
legal argument with citation to pertinent authority. (In re S.C.
(2006) 138 Cal.App.4th 396, 408.)
Appellant Forfeited Evidentiary Claim
Appellant claims that at the PRCS revocation hearing the
superior court erroneously “admitted the social worker’s
[hearsay] statement to the [Los Angeles County] probation officer
that appellant resided with his minor children in violation of
Condition X36.” The probation officer testified that, based on
information provided by the social worker, she determined that
appellant was living with his children. The evidentiary claim is
forfeited because appellant did not object to the probation officer’s
testimony. (People v. Nolan (2002) 95 Cal.App.4th 1210, 1216.)
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Appellant concedes that he “did not object to this hearsay
specifically.” But he argues that a forfeiture did not occur
because he “repeatedly objected to the hearsay in the probation
report.” In support of this argument, appellant cites pages 6-7 of
the reporter’s transcript of the hearing on appellant’s motion to
modify the conditions of PRCS. The hearing occurred on June 11,
2021, more than one month before the PRCS revocation hearing
on July 22, 2021. At pages 6-7 of the reporter’s transcript,
appellant’s counsel objected to reliance “on hearsay . . . that came
out of the Orange County [probation] report.” Counsel had
earlier alleged that, in determining the conditions of PRCS,
“Probation relied on [appellant’s] criminal history, as reflected in
the Orange County Probation Department . . . Report dated
November 8, 2019.”
Appellant’s hearsay objection on June 11, 2021 did not
excuse his failure to object to the Los Angeles County probation
officer’s testimony at the July 22, 2021 PRCS revocation hearing.
The probation officer’s testimony had nothing to do with hearsay
in the Orange County probation report.
PRCS Was Properly Revoked
Appellant maintains that the superior court abused its
discretion in revoking PRCS for violating “Condition X13 not to
leave the county because he had permission to leave Los Angeles
County to go to court . . . .” But appellant did not just go to court.
He also went to a casino. He did not have permission to go to the
casino. Appellant acknowledges, “The probation officer explained
he could only go to the location on the travel pass, meaning
court.”
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Disposition
The orders denying appellant’s motion to modify conditions
of PRCS and revoking PRCS are affirmed.
NOT TO BE PUBLISHED.
YEGAN, Acting P. J.
We concur:
PERREN, J.
TANGEMAN, J.
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Kevin S. Rosenberg, Judge
Superior Court County of Los Angeles
______________________________
Sally Patrone Brajevich, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael C. Keller, John Yang,
Deputy Attorneys General, for Plaintiff and Respondent.