People v. Pena CA4/1 CA4/1 ( 2021 )

Filed 3/30/21 P. v. Pena CA4/1 CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076480
Plaintiff and Respondent,
v. (Super. Ct. No. SCD277208)
LARRY PENA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Charles G. Rogers, Judge. Affirmed as modified.
Kenneth J. Vandevelde, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal, Andrew S. Mestman and Elizabeth M. Kuchar, Deputy Attorneys
General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Larry Pena committed multiple theft-related offenses at
stores in the San Diego area. After having charged Pena with two felonies
and three misdemeanors,1 the People amended the charging document to
charge Pena with a single felony and three misdemeanors; on that same date,
Pena entered a plea of guilty to all of the charges. Pena admitted that he
committed the offenses while out on bail in another case, and further
admitted that he had suffered four prison priors. According to the record,
Pena’s “plea to the sheet” was in exchange for the trial court’s commitment
that the court would resentence him in a separate case, combining the
sentence for that case with the sentence for Pena’s current offenses, and that
the court would impose an overall sentence not to exceed seven years four
months, split between no more than five years in custody and two years four
months on mandatory supervision. The court sentenced Pena to seven years
four months, and imposed a single one-year prison prior enhancement for one
of Pena’s prison priors, and struck the other three prison priors.
After Pena was sentenced and while an appeal was pending, Senate
Bill No. 136 became effective; the legislation amended Penal Code2 section
667.5, subdivision (b) to eliminate the one-year enhancement for nonsexually
violent prison priors.
1 In the first charging document filed in this case, the People charged
Pena with a single felony and a single misdemeanor; approximately two
months later, the complaint was amended to charge Pena with two felonies
and three misdemeanors.
2 Further statutory references are to the Penal Code unless otherwise
indicated.
2
On appeal, Pena contends that the one-year prison prior enhancement
that the court imposed pursuant to section 667.5, subdivision (b) must be
stricken, because his prison prior was for a nonsexually violent offense, which
no longer qualifies for the prison prior enhancement. Pena also challenges
several conditions of his mandatory supervision under People v. Lent (1975)
15 Cal.3d 481 (Lent), and on constitutional vagueness and overbreadth
grounds.
The People concede that the one-year prison prior term imposed must
be stricken, and we agree. We further conclude that Pena’s arguments
regarding the conditions of his mandatory supervision are without merit.
We therefore strike the section 667.5 subdivision (b) enhancement from
Pena’s sentence and affirm the judgment as modified.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background3
On April 30, 2018, while Pena was out of custody on bail on a grand
theft case from Riverside County (case No. SWF1800214), Pena entered the
Home Depot store located on Sports Arena Boulevard in San Diego. Pena
placed an air compressor, which was valued at less than $950, inside his cart,
and left the store without paying for the air compressor. Pena loaded the air
compressor into his vehicle. While driving through the parking lot, Pena
stopped next to a customer’s pickup truck, which had several tools in the bed
of the truck. Pena got out of his vehicle and took $1,838 worth of tools,
including cordless drills and cordless hammers, from the truck bed.
3 Because Pena pled guilty to the offenses, we take the factual
background from the evidence presented at the preliminary hearing and the
facts admitted by Pena during his guilty pleas.
3
Just over two months later, on July 8, 2018, Pena entered a Dixieline
Lumber store located on Lomas Santa Fe Drive in Solana Beach. Pena took a
$300 Sawzall power tool and ran out of the store without paying for the item.
Once outside of the store, Pena got into the rear passenger seat of a silver
sedan that had been parked in front of the store. Pena fled the scene in the
silver sedan. Approximately thirty minutes later, Pena entered another
Dixieline Lumber store. Pena grabbed two $380 Dewalt grinder tool kits and
walked toward the front doors of the store, where he knelt down behind a
display near the checkout counter. While Pena was crouched down, a silver
Chrysler sedan pulled up to the front of the store. An unknown man got out
of the sedan, opened both passenger side doors and began to walk toward the
store. Pena motioned toward the man while still in a crouched position. Just
as the man entered the store, Pena ran out of the store, still holding both
grinder tool kits, and got into the silver sedan, which was being driven by an
unidentified woman. He fled the scene in the silver sedan.
B. Procedural background
On June 11, 2019, the San Diego County District Attorney filed an
amended information charging Pena with grand theft of personal property
(§ 487, subd. (a), count 1), and three counts of misdemeanor shoplifting
(§ 459.5, counts 2, 3 & 4). The amended information alleged that Pena
committed count 1 while he was out on bail in a Riverside County case
(§ 12022.1, subd. (b)), and further alleged that Pena had suffered four prison
priors (§ 667.5, subd. (b)).4
As described by both parties, on the same day that the District
Attorney amended the information, Pena entered into a “negotiated plea
4 The parties agree that Pena’s four prison priors were for nonsexually
violent offenses.
4
agreement” with the trial court, rather than with the prosecutor. Pena pled
guilty to all charges and admitted all of the allegations in exchange for
certain sentencing commitments from the court––i.e., that the court would
resentence Pena on the two grand theft convictions in his Riverside County
case (case No. SWF1800214) by combining them with the counts in the
current case, pursuant to California Rules of Court, rule 4.452(a), such that
the overall sentence would not exceed seven years four months, to be split
between no more than five years in custody and two years four months on
mandatory supervision, and Pena would receive all of the custody credits that
he had accrued in both cases.
The trial court imposed the maximum sentence contemplated by the
plea agreement––i.e., seven years four months, split between five years in
custody and two years four months of mandatory supervision with several
terms and conditions. In reaching this sentence, the court imposed the upper
term of three years on the first grand theft count and one-third the middle
term of eight months on the second grand theft count in the Riverside County
case. With respect to the San Diego County case, the court imposed a
consecutive sentence of one-third the middle term of eight months for the
grand theft count, plus two years for the out-on-bail enhancement and one
year for one prison prior enhancement. The court struck Pena’s three
remaining prison prior enhancements in the interest of justice (§ 1385), and
sentenced Pena to credit for time served on the misdemeanor shoplifting
counts.
Pena filed a timely notice of appeal in conjunction with a request for a
certificate of probable cause. The trial court denied Pena’s request for a
certificate of probable cause.
5
III.
DISCUSSION
A. The parties agree that the trial court’s imposition of a one-year
enhancement imposed under section 667.5, subdivision (b) must be
stricken pursuant to a recent change in the law
Pena contends that the trial court’s imposition of a one-year prison
prior enhancement under section 667.5, subdivision (b) must be stricken
because Senate Bill No. 136 amended the law to eliminate the one-year
prison prior enhancement except with respect to certain sexually-violent
offenses. The People concede that the one-year enhancement imposed under
section 667.5, subdivision (b) must be stricken pursuant to Senate Bill No.
136.5
On October 8, 2019, after Pena was sentenced, the Governor signed
Senate Bill No. 136, which amended section 667.5, subdivision (b). (People v.
Lopez (2019) 42 Cal.App.5th 337, 340.) Under the amendment to section
667.5, subdivision (b), the one-year enhancement in that provision applies
only if the defendant’s prior prison term was “for a sexually violent offense as
defined in subdivision (b) of Section 6600 of the Welfare and Institutions
Code.” (Stats. 2019, ch. 590, § 1.) Senate Bill No. 136’s amendment to
5 At the time the parties were briefing this case, there was an existing
split of authority as to whether a defendant who pled guilty and was
sentenced pursuant to a plea agreement had to obtain a certificate of
probable cause in order to be able to challenge that sentence based upon a
subsequent retroactive change in the law. Despite this split of authority, the
People took the position that Pena was not required to obtain a certificate of
probable cause to seek the ameliorative effect of Senate Bill No. 136. After
the People filed a respondent’s brief, the Supreme Court issued an opinion in
People v. Stamps (2020) 9 Cal.5th 685 (Stamps), in which the Supreme Court
determined that no certificate is required when a defendant who pled guilty
appeals from his or her sentence based upon a subsequent beneficial
retroactive change in the law. (Id. at p. 698.)
6
section 667.5, subdivision (b) became effective on January 1, 2020. (People v.
Lopez, at p. 341.)
As the People concede, this amendment applies retroactively to all
defendants whose judgments are not yet final as of that date under the
authority of In re Estrada (1965) 63 Cal.2d 740, 745, given that the
elimination of the one-year enhancement for offenses other than sexually
violent offenses constitutes an ameliorative change in the law. (Cf. Stamps,
supra, 9 Cal.5th at p. 699 [under authority of Estrada, beneficial change in
the law regarding granting discretion to trial court to strike a serious felony
enhancement in the interests of justice applies retroactively to judgments
that are not yet final].) Pena’s prior offense for which the prison prior was
imposed was not a sexually violent offense. Pena is therefore entitled to
retroactive application of the amended law.
The People further concede that under the particular circumstances of
Pena’s plea, the proper remedy is for this court to strike the one-year
enhancement because the trial court has no authority to impose a different
sentence on remand. We agree with this assessment, and accept the People’s
concession.6 We therefore strike the one-year prior prison enhancement that
6 In Stamps, supra, 9 Cal.5th at p. 707, the Supreme Court concluded
that where the defendant has entered into a plea agreement and has pled
guilty in exchange for a specific prison term, and there is no indication that
the Legislature “intended to overturn long-standing law that a court cannot
unilaterally modify an agreed upon term [of the negotiated plea agreement]
by striking portions of it” (id. p. 701), the proper remedy is to remand to allow
the defendant to decide whether to seek the trial court’s exercise of its newly
granted discretion to strike the serious felony enhancement; if, on remand,
the defendant seeks the trial court’s exercise of its discretion and the court
decides to strike the enhancement, the prosecution should be offered the
option to accept the modification of the plea bargain to reflect the lower
sentence or to withdraw from the agreement entirely. (Id. at pp. 706‒707.)
In addition, if the trial court decides to strike the serious felony
7
was imposed pursuant to section 667.5, subdivision (b) and order the
sentence modified accordingly.
B. Pena’s challenges to various conditions of supervised release
Pena challenges a number of conditions of the mandatory supervision
order that the trial court imposed on him pursuant to his term of release.
Specifically, Pena challenges condition 1(m) (the electronics search
condition);7 condition 1(k) (the travel condition);8 condition 1(j) (the law
enforcement contact condition);9 and condition 5(h), which prohibits Pena
enhancement, the court may also choose to withdraw its approval of the plea
agreement. (Id. at p. 708.) This case does not involve a plea agreement for
which a stipulated sentence is one of the material terms of the negotiated
agreement between the prosecution and the defendant. Rather, the trial
court set a maximum term to which Pena could be sentenced, or a “lid,” in
exchange for Pena’s agreement to plead guilty to the entirety of the
information. Because this case does not involve a plea agreement with a
stipulated sentence, we conclude that the portion of Stamps discussing the
appropriate remedy in a situation that involves a plea agreement with a
stipulated sentence is inapplicable. Therefore, no remand is necessary. We
accept the People’s concession that the appropriate remedy in this case is to
strike the prison prior enhancement on appeal.
7 Condition 1(m) requires that Pena “[s]ubmit person, vehicle, residence,
property, personal effects, computers, and recordable media — including cell
phones [—] to search at any time with or without a warrant, and with or
without reasonable cause, when required by [a probation officer (P.O.)] or law
enforcement officer.”
8 Condition 1(k) requires that Pena obtain his parole officer’s approval
prior to traveling outside San Diego County.
9 Condition 1(j), requires that Pena “[p]rovide true name, address, and
date of birth if contacted by law enforcement,” and “[r]eport contact or arrest
in writing to the P.O. within 7 days” with “the date of contact/arrest, charges,
if any, and the name of the law enforcement agency.”
8
from being in bars, liquor stores, or other places where alcohol is the “main
item for sale.”10
Although Pena did not obtain a certificate of probable cause prior to
appealing and challenging certain conditions of his mandatory supervision
period, the People concede that Pena was not required to obtain a certificate
of probable cause in order to challenge these conditions, because neither his
plea agreement with the court nor the appellate waiver that he signed,
specified the terms of the mandatory supervision that the court would
impose. We agree with the People’s analysis and accept the People’s
concession that Pena was not required to obtain a certificate of probable
cause in order to challenge the conditions of his mandatory supervision.
(See People v. Patton (2019) 41 Cal.App.5th 934, 940, 942–943 (Patton)
[defendant did not need a certificate of probable cause to challenge a
probation condition because his plea and appellate waiver did not specify the
terms of probation].)
1. Legal standards on review from challenges to conditions of
mandatory supervision
This case involves the imposition of a period of mandatory supervision
under the Criminal Justice Realignment Act of 2011. The Criminal Justice
Realignment Act of 2011 authorizes a trial court to impose a “split sentence,”
in which a person convicted of certain “low-level” felony offenses (People v.
Scott (2014) 58 Cal.4th 1415, 1418), such as the ones Pena committed, serves
a portion of his sentence in county jail and the remainder of the sentence in
the community on mandatory supervision. (§ 1170, subds. (h)(5) & (7).)
When a defendant serves a period of mandatory supervision, “the defendant
10 Condition 5(h) prohibits Pena from being “in places, except in the
course of employment, where you know, or a P.O. or other law enforcement
officer informs you, that alcohol is the main item for sale.”
9
shall be supervised by the county probation officer in accordance with the
terms, conditions, and procedures generally applicable to persons placed on
probation.” (Id., subd. (h)(5)(B).)
Courts generally have “broad discretion in fashioning terms of
supervised release, in order to foster the reformation and rehabilitation of the
offender, while protecting public safety.” (People v. Martinez (2014) 226
Cal.App.4th 759, 764 (Martinez).) A condition of mandatory supervision may
be challenged on the same grounds as a condition of parole, which in turn,
may be challenged based on the same standards for challenging probation
conditions. (Id. at pp. 763–764.)11
A condition of mandatory supervision may be challenged on state-law
grounds pursuant to the standards set forth in Lent, supra, 15 Cal.3d at
p. 486. (Martinez, supra, 226 Cal.App.4th at p. 764.) Under Lent, a court
abuses its discretion when it imposes a term or condition that “ ‘(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.’ ” (Lent, at p. 486.)
“This test is conjunctive—all three prongs must be satisfied before a
reviewing court will invalidate a . . . term.” (People v. Olguin (2008) 45
Cal.4th 375, 379 (Olguin).) A trial court’s application of the Lent test is
reviewed for abuse of discretion. (Olguin, at p. 379.)
11 The question whether the validity of a condition imposed pursuant to a
term of mandatory supervision should be assessed in the same manner as a
probation condition is currently pending before the California Supreme
Court. (See People v. Bryant (2019) 42 Cal.App.5th 839, review granted Feb.
19, 2020, S259956.) Until the Supreme Court comments on the issue, we will
continue to apply the law as expressed in Martinez, supra, 226 Cal.App.4th at
pages 763 to 764.
10
A condition of mandatory supervision may also be challenged on
constitutional grounds, including principles prohibiting vagueness and
overbreadth. “A probation condition ‘must be sufficiently precise for the
probationer to know what is required of him, and for the court to determine
whether the condition has been violated,’ if it is to withstand a challenge on
the ground of vagueness. [Citation.] 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. (2007) 40 Cal.4th 875, 890
(Sheena K.).) “ ‘ “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.” ’ ” (Patton, supra, 41 Cal.App.5th
at p. 946.)
When a condition of mandatory supervision is challenged on
constitutional grounds, we apply a de novo standard of review. (Martinez,
supra, 226 Cal.App.4th at p. 765.) Challenges to conditions of mandatory
supervision ordinarily must be raised in the trial court, and if they are not,
appellate review of those conditions is forfeited. (See People v. Welch (1993)
5 Cal.4th 228, 234–235.) An exception applies to the forfeiture rule if the
challenge presents a facial constitutional challenge presenting “a pure
question of law, easily remediable on appeal by modification of the condition.”
(Sheena K., supra, 40 Cal.4th at p. 888.) The forfeiture rule does not apply in
such a case because a facial constitutional challenge “ ‘present[s] [a] “pure
question[ ] of law that can be resolved without reference to the particular
sentencing record developed in the trial court” ’ ” (id. at p. 889), and “does not
11
require scrutiny of individual facts and circumstances but instead requires
the review of abstract and generalized legal concepts—a task that is well
suited to the role of an appellate court.” (Id. at p. 885.)
2. The electronics search condition
At sentencing, Pena objected to the electronics search condition on the
ground that no nexus existed between the condition and the offenses of which
he was convicted, and that the condition was unconstitutionally overbroad.
The court rejected Pena’s argument and approved the electronics search
condition.12
Pena extends his argument on appeal, contending that the electronics
search condition requiring that he submit his “computers, and recordable
media, including cellphones, to search at any time with or without a warrant,
and with or without reasonable cause, when required by P.O. or law
enforcement officer,” is unreasonable as applied in this case under the
authority of Lent and In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). In
the alternative, Pena contends that even if this court concludes that the
imposition of the electronics search condition is reasonable under Lent, we
should conclude that the condition is unconstitutionally overbroad as applied
to him under the rationale of the dissenting opinion in Ricardo P.
12 The trial court initially mentioned to defense counsel that it appeared
to the court that “a telephone was probably used” in the commission of one of
the offenses in the current case because “the confederates pull up in the car
outside just as he’s walking out [of the store] with this thing that he puts in
the backseat of the car.” The prosecutor also noted that Pena had “18 theft
convictions throughout his history,” and that “as a matter of common sense
and practicality, . . . often those items are then sold and traded on the
internet on — via text messages, via social media, et cetera. All of those
things, that fencing, is . . . related to these offenses. And though it wasn’t
charged or a part of the direct offense, it is reasonably related. And certainly,
there is a sort of nexus in that regard.”
12
a. The electronics search condition is valid under Lent and
Ricardo P.
As previously discussed, in Lent, the Supreme Court adopted a
conjunctive three-part test for determining the reasonableness of a probation
condition; only if all three prongs are satisfied will a condition be invalidated.
(Olguin, supra, 45 Cal.4th at p. 379.) Thus, a condition of probation will be
determined to be invalid only if 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.’ ” (Lent, supra, 15 Cal.3d at p. 486.)
The People contend that the electronics search condition does have a
relationship to the crimes for which Pena has been convicted and was
sentenced. Specifically, the People contend that the trial court could
reasonably infer that Pena utilized a cell phone to coordinate with his
accomplice during the Dixieline theft that gave rise to count 4, given the
precise timing of the accomplice pulling up to the front of the store just as
Pena was reaching the front of the store. Pena argues that the evidence
demonstrates that no cell phone was used, citing the fact that Pena used his
hands to gesture toward one of his accomplices who was outside the store,
and the lack of any reference to the use of a cell phone from the preliminary
hearing testimony provided by an officer who reviewed surveillance footage
from inside the store. However, the officer also testified that there was no
surveillance footage of Pena taking the items from the shelves. Thus, the fact
that the officer did not describe the use of a cell phone in the footage that he
viewed does not suggest that no cell phone was used in the crime. Rather,
given the precise timing of the accomplices to this theft that ensured that the
get-away car was in front of the store waiting for Pena just as he reached the
front of the store, the court could reasonably infer that Pena used some type
13
of electronic communication with his accomplices to coordinate the timing.
Thus, the trial court could reasonably have concluded that there is a nexus
between the use of an electronic device and Pena’s commission of at least one
of the offenses for which he was convicted. Given this nexus, the condition
that Pena submit his electronic devices, including cell phones, to search is
reasonably related to one of the offenses for which Pena was sentenced. The
condition thereby fails the first prong of the Lent analysis for invalidity, and
we may uphold the condition on this basis.13
The record also demonstrates that even if an electronics search
condition was not reasonably related to any of Pena’s current theft crimes,
the imposition of such a condition fails the third prong of the Lent analysis
for invalidity because the condition is reasonably related to preventing Pena’s
future criminality, given Pena’s criminal record. (See Olguin, supra, 45
Cal.4th at p. 380 [even if a condition is unrelated to the crime defendant was
convicted of committing and relates to conduct, not itself criminal, “the
condition is valid as long as the condition is reasonably related to preventing
future criminality”].) In Ricardo P., supra, 7 Cal.5th at p. 1119, the Supreme
Court clarified the parameters of the Lent test’s third prong, i.e., whether the
condition “ ‘ “requires or forbids conduct which is not reasonably related to
future criminality.” ’ ” Ricardo P. involved a juvenile who was granted
probation after admitting to two counts of burglary. The juvenile court
imposed drug conditions because the minor had indicated that he had
13 Although Pena relies heavily on the analysis in Ricardo P., supra,
7 Cal.5th 1113, it is clear that Ricardo P. dealt not with the first prong of the
Lent analysis, but with the third—i.e., whether a condition that is unrelated
to the crime the defendant was convicted of committing and that relates to
conduct that is itself not criminal, but is “ ‘ “reasonably related to future
criminality.” ’ ” (Id. at p. 1119.)
14
previously smoked marijuana. The court also imposed a condition requiring
that the minor “submit to warrantless searches of his electronic devices,
including any electronic accounts that could be accessed through these
devices.” (Id. at p. 1115.) However, nothing in the record indicated that the
minor had ever used electronic devises to commit, plan, discuss or consider
criminal conduct. In imposing the condition, the juvenile court relied on its
own “observation that teenagers ‘typically’ brag about such drug use on social
media.” (Id. at pp. 1117, 1119.)
The Ricardo P. court concluded that even if one were to accept as true
the trial court’s premise about the tendency of teenagers to brag about drug
use on social media, an abstract or hypothetical relationship between the
probation condition and preventing future criminality was insufficient to
demonstrate that the condition, which imposed a significant burden on the
juvenile, was reasonably related to future criminality. (Ricardo P., supra,
7 Cal.5th at pp. 1119–1120.) The third prong of the Lent test “contemplates a
degree of proportionality between the burden imposed by a probation
condition and the legitimate interests served by the condition.” (Ricardo P.,
at pp. 1122–1123.) The Ricardo P. court concluded that this condition
significantly burdened the juvenile’s privacy interests, given how much
sensitive and confidential information can be accessed on devices such as cell
phones, and that the limited justification for the condition did not support
such a significant burden. (Ibid.) Accordingly, the court concluded that the
electronics search condition was not reasonably related to the juvenile’s
future criminality and was therefore, invalid under Lent, supra, 15 Cal.3d
481. (Ricardo P., at p. 1128.)
In reaching this conclusion, the Supreme Court expressly noted that its
determination was not a blanket invalidation of all electronics search
15
conditions and stated that there might be cases in which “the probationer’s
offense or personal history may provide the . . . court with a sufficient factual
basis from which it can determine that an electronics search condition is a
proportional means of deterring the probationer from future criminality.”
(Ricardo P., at pp. 1128–1129, italics added.) In this case, the record
demonstrates that Pena has used an electronic device in connection with
previous offenses. For example, in the past, Pena used an electronic device to
access an online mobile application, OfferUp, to sell Nixon watches that he
had stolen. Thus, unlike the record in Ricardo P., in which there was
“nothing [to] suggest[ ] that Ricardo has ever used an electronic device or
social media in connection with criminal conduct” (id. at p. 1122), the record
here clearly shows that Pena, has, at a minimum, used an electronic device in
connection with his criminal conduct in the past. Thus, Pena’s record is
qualitatively different from that of the juvenile in Ricardo P. Given Pena’s
criminal record and his personal history of drug use and repeated thefts in
connection with his drug habit, the burden that an electronics search
condition imposes on Pena is not substantially disproportionate to the state’s
legitimate interests in promoting Pena’s rehabilitation and the successful
completion of his period of mandatory supervision without further criminal
conduct. We therefore conclude that the imposition of an electronics search
condition in this case is reasonable and not invalid under Lent.
b. The electronics search condition is not constitutionally
overbroad as applied to Pena
Pena also posits in a cursory argument that if this court concludes that
the electronics search condition is a reasonable condition under Lent, the
court should consider whether the condition is nevertheless
unconstitutionally overbroad. Pena relies on the dissenting opinion written
by Chief Justice Cantil-Sakauye in Ricardo P. as support for his contention.
16
(See Ricardo P., supra, 7 Cal.5th at pp. 1129‒1140 (conc. & dis. opn. of
Cantil-Sakauye, C.J.).) However, for reasons similar to those underlying our
rejection of Pena’s contention that application of the majority opinion in
Ricardo P. renders the imposition of an electronics search condition
unreasonable under Lent, we similarly conclude that the imposition of this
condition is not constitutionally overbroad as applied to Pena. Specifically,
the electronics search condition is sufficiently tailored to appropriate
considerations involved in supervising Pena and in assuring that he remains
law abiding. The record demonstrates that, at a minimum, Pena has used an
electronic device in connection with his theft offenses in the past; specifically,
he has used an electronic device to sell stolen items for cash. In addition, as
the trial court found, Pena’s current offenses demonstrate a sophistication
and coordinated timing that suggest that he utilized a cell phone in
conducting at least one of the thefts. The electronics search condition is
sufficiently tailored to the state’s interest in supervising Pena and will
provide Pena’s parole officer the necessary oversight to ensure that Pena
remains law-abiding and does not engage in similar behavior during his
period of mandatory supervision. We therefore conclude that Pena’s
constitutional challenge to the electronics search condition fails.
3. The travel condition
Pena argues that the requirement in mandatory supervision condition
1(k) requiring that he obtain his parole officer’s “consent” before leaving San
Diego County infringes on his constitutional right to intrastate travel and is
not narrowly tailored, causing the condition to be constitutionally overbroad.
Pena further argues that this condition is impermissibly overbroad because it
“delegates standardless discretion” to his parole officer. Finally, Pena argues
that the condition is impermissibly vague because it “authorize[s] restrictions
17
on a defendant’s constitutional rights ‘on an ad hoc and subjective basis.’ ”
(Italics omitted.) (See Sheena K., supra, 40 Cal.4th at p. 890).
Pena did not raise any objection to the imposition of the travel
condition in the trial court. He has therefore forfeited any contention that
the condition is unconstitutional in its application to him. We will consider
Pena’s contentions only to the extent that he is arguing that the travel
condition is constitutionally invalid on its face. (See Sheena K., supra, 40
Cal.4th at p. 887 [a constitutional claim may be raised for the first time on
appeal only where it concerns a challenge that presents a pure question of
law, such that the issue can be resolved as a matter of law without reference
to the sentencing record].)
a. The travel condition is not facially overbroad
i. Pena has forfeited his contention that the travel
condition is overbroad because it is not sufficiently
tailored to the state’s interests in his rehabilitation
Pena argues that the travel condition is unconstitutionally overbroad
because it “is not closely tailored to the state’s interests.” (Boldface and
capitalization omitted.) Pena relies on In re White (1979) 97 Cal.App.3d 141,
in which an appellate court concluded that a probation condition that
prohibited the probationer from entering a particular sector of Fresno,
California was unconstitutionally overbroad. Pena asserts that, like the
travel prohibition in In re White, “[t]here is no direct relationship between his
offenses and his right to travel outside the county.” Pena’s argument
demonstrates that he is relying on the particular facts of his case to
demonstrate the purported overbreadth of the condition. In other words,
Pena is arguing that the condition is unconstitutionally overbroad because
there is no relationship between his offenses and traveling out of the county;
this demonstrates that he is raising an as-applied constitutional challenge.
18
As noted, Pena has forfeited any as-applied challenge by failing to object to
the travel condition in the trial court. (See, e.g., Sheena K., supra, 40 Cal.4th
at p. 885 [a defendant who did not object to a condition at sentencing may
raise a challenge to that condition on appeal only if the defendant’s appellate
claim “amount[s] to a ‘facial challenge’ ” and the determination whether the
condition is constitutionally defective “does not require scrutiny of individual
facts and circumstances but instead requires the review of abstract and
generalized legal concepts—a task that is well suited to the role of an
appellate court”]; People v. Pirali (2013) 217 Cal.App.4th 1341, 1347
[“[a]lthough a probation condition may be overbroad when considered in light
of all the facts, only those constitutional challenges presenting a pure
question of law may be raised for the first time on appeal”].)14 We therefore
decline to address this contention.
ii. The travel condition is not facially overbroad merely
because it grants the parole officer some discretion to
withhold consent to travel
Pena next argues that the travel condition is “also overbroad because it
delegates standardless discretion to the parole officer.” (Boldface and
capitalization omitted.) Although Pena seems to suggest that this is a facial
challenge to the condition, he also appears to challenge the condition as
applied to him, given his personal circumstances. For example, at one point,
Pena asserts that “the travel restriction on Mr. Pena bears no relation to his
rehabilitation and reform.” (Italics added.) To the extent that Pena is
14 To be clear, Pena does not argue that requiring preapproval for travel
outside of the county is unconstitutional in all circumstances. We therefore
do not address the question of whether the provision is unconstitutionally
overbroad on its face on the ground that it is not sufficiently tailored to the
state’s interests in supervising individuals who are in the community
pursuant to a term of mandatory supervision.
19
attempting to challenge the discretionary power given to his parole officer to
withhold consent for a request to travel as applied to Pena, we conclude that
Pena may not raise this challenge because he did not object to the imposition
of this condition on any ground, let alone on the ground that it improperly
delegates standardless discretion to his parole officer. (See Sheena K., supra,40 Cal.4th at p. 885.)
To the extent, however, that Pena’s challenge to the travel condition is
that in any circumstance, granting a parole officer the discretion to withhold
permission for travel outside of the county is constitutionally overbroad, we
will consider this contention.15
“If a probation condition serves to rehabilitate and protect public
safety, the condition may ‘impinge upon a constitutional right otherwise
enjoyed by the probationer, who is “not entitled to the same degree of
constitutional protection as other citizens.” ’ ” (People v. O’Neil (2008) 165
Cal.App.4th 1351, 1355.) The constitutional right to travel “is not absolute
and may be reasonably restricted in the public interest.” (People v. Relkin
(2016) 6 Cal.App.5th 1188, 1195 (Relkin).) “Although criminal offenders
placed on probation [or, as in this case, mandatory supervision] retain their
constitutional right to travel, reasonable and incidental restrictions on [such
an individual’s] movement are permissible.” (People v. Moran (2016)
1 Cal.5th 398, 406 (Moran) [condition that the defendant stay away from all
stores in the same chain he burglarized reasonable].) In fact, “[i]mposing a
limitation on [a probationer’s] movements as a condition of probation is
common, as probation officers’ awareness of [a probationer’s] whereabouts
15 Pena argues that the condition permits a parole officer to prohibit a
supervisee “from traveling anywhere outside of San Diego County for any
reason or for no reason at all.” (Italics omitted.)
20
facilitates supervision and rehabilitation and helps ensure [a probationer]
. . . compl[ies] with the terms of [his] conditional release.” (Ibid.) There is no
reason why individuals serving out a sentence on mandatory supervision may
not be similarly subject to such travel limitations. Similarly, the
constitutional right to associate “ ‘may be restricted if reasonably necessary
to accomplish the essential needs of the state and public order.’ ” (People v.
Lopez (1998) 66 Cal.App.4th 615, 627–628 (Lopez).)
The fact that the travel condition gives the parole officer some
discretion as to whether to grant a supervisee’s request to leave the county
does not render the condition facially unconstitutional. Rather, a condition
“should be given ‘the meaning that would appear to a reasonable, objective
reader,’ ” and in giving it this meaning, one may presume that a probation
officer will not withhold approval for irrational or capricious reasons.
(Olguin, supra, 45 Cal.4th at p. 383.) Indeed, the grant of discretionary
authority to a supervising officer includes an implicit requirement that the
discretion be exercised reasonably. (See People v. Stapleton (2017) 9
Cal.App.5th 989, 996–997 (Stapleton) [“A probation officer cannot issue
directives that are not reasonable in light of the authority granted to the
officer by the court. Thus, a probation officer cannot use the residence
condition to arbitrarily disapprove a defendant’s place of residence”]; see also
People v. Arevalo (2018) 19 Cal.App.5th 652, 658 [condition giving probation
officer approval power over probationer’s residence “presumes a probation
officer will not withhold approval for irrational or capricious reasons”].)
Thus, the fact that a condition permits a parole officer to exercise some
discretion to grant or deny a supervisee’s request to leave the county “does
not grant [that] officer the power to issue arbitrary or capricious directives
that the court itself could not order.” (Stapleton, at p. 997, citing People v.
21
Kwizera (2000) 78 Cal.App.4th 1238, 1240–1241 [probation condition
requiring a probationer to obey directions from his probation officer does not
give probation officer “power to impose unreasonable probation conditions”].)
Further, in any given case, if a parole officer were to deny, for an
arbitrary reason, a request to leave the county, the supervisee may file a
petition for modification of her probation condition to address any improper
exercise of the discretion granted to the parole officer. (See Pen. Code,
§§ 1170, subd. (h)(5)(B), 1203.2, subd. (b)(1), 1203.3, subd. (a); see also People
v. Keele (1986) 178 Cal.App.3d 701, 708 [trial court retains jurisdiction to
review probation officer’s actions].)
We conclude that a mandatory supervision condition that requires a
supervisee to obtain approval from his parole officer before leaving the county
is not facially overbroad merely because it grants the parole officer some
discretion in granting or denying such a request.
b. The travel condition is not void for vagueness
Pena also challenges the travel condition on the ground that it is
“impermissibly vague” because it “permits the parole officer to impair Mr.
Pena’s constitutional rights ‘on an ad hoc and subjective basis.’ ” He asserts
that this condition “permits the parole officer to virtually preclude Mr. Pena
from traveling anywhere outside the county to associate with anyone,” and
suggests that this condition is similar to one invalidated in Sheena K., supra,
40 Cal.4th at page 890, which prohibited the probationer from associating
with anyone “ ‘disapproved of by probation.’ ” (Ibid.)
To avoid invalidation on vagueness grounds, a probation condition
“ ‘must be sufficiently precise for the probationer to know what is required of
him, and for the court to determine whether the condition has been
violated.’ ” (Sheena K., supra, 40 Cal.4th at p. 890; Stapleton, supra,
22
9 Cal.App.5th at p. 994.) A vague condition not only fails to provide adequate
notice, but also “ ‘ “impermissibly delegates basic policy matters to policemen,
judges, and juries for resolution on an ad hoc and subjective basis, with the
attendant dangers of arbitrary and discriminatory application.” ’ ” (Sheena
K., at p. 890.)
Unlike the condition at issue in Sheena K., which provided no notice to
the probationer as to which persons might be “ ‘disapproved of by probation,’ ”
(Sheena K., supra, 40 Cal.4th at p. 890), the travel condition at issue here
adequately informs Pena what is required of him: before leaving San Diego
County, he must get approval from his parole officer. This is precise and
clear, and there is no ambiguity as to how Pena can fulfill the condition. It is
also clear how the condition may be violated: Pena violates this condition if
he leaves the county without first obtaining the requisite approval. Thus, the
condition does not “impermissibly delegate basic policy matters” to those who
are deciding whether the condition has been met. (Ibid.) There is no
discretion by the parole officer or a court as to whether Pena has satisfied
this condition, and, thus, the condition is not impermissibly vague.16
4. The law enforcement contacts condition
Pena contends that mandatory supervision condition 1(j), which
requires that he “[p]rovide true name, address, and date of birth if contacted
by law enforcement,” and “[r]eport contact or arrest in writing to the P.O.
within 7 days” by providing “the date of contact/arrest, charges, if any, and
the name of the law enforcement agency,” is unconstitutionally vague and
overbroad on its face. Specifically, Pena asserts that the word “contact” is
16 While the parole officer will have discretion to approve of the proposed
travel or disapprove of it,]this does not make the condition “vague”; Pena is
clearly apprised of what he must do in order to comply with the condition.
23
inherently vague because it leaves him to guess what sorts of encounters with
law enforcement he must report. He further contends that the condition is
overbroad because it sweeps “within its scope contacts with law enforcement
that are unrelated to the officer’s law enforcement responsibilities, including
even casual or social occasions, that [are] not worthy of reporting[.]”17 We
apply the same legal standards for assessing vagueness as identified in
section III.B.3.b, ante, to Pena’s contention that this condition is
unconstitutionally vague.
Pena relies on Relkin, supra, 6 Cal.App.5th 1188, in support of his
argument that condition 1(j) is unconstitutionally vague. The Relkin court
considered a probation condition that required the defendant “to ‘report to
the probation officer, no later than the next working day, any arrests or any
contacts with or incidents involving any peace officer.’ ” (Id. at p. 1196.) The
defendant argued that the phrases “ ‘contacts with’ and ‘incidents involving’
peace officers are uncertain because one cannot determine whether those
terms include occasional conversation[s] with a police officer who lives down
the street, answering an officer’s questions as a witness to a crime, or
participation in a demonstration where officers are present.” (Id. at
pp. 1196–1197.) The defendant also contended that the condition was
unconstitutionally vague “because it is subject to the ‘ “whim of any police or
probation officer,” ’ and infringes on [the defendant’s] rights under the First
Amendment of the United States Constitution.” (Relkin, at p. 1197.)
17 Pena did not object to the imposition of the law enforcement contacts
condition. However, his challenges to the condition address the
constitutionality of the provision on its face, and not as applied to him; as
such, Pena has not forfeited his challenges to the law enforcement contacts
condition. (See Sheena K., supra, 40 Cal.4th at p. 888.)
24
The Relkin court determined that the condition was unconstitutionally
vague, in part, in that “the portion of the condition requiring that defendant
report ‘any contacts with . . . any peace officer’ ” is vague because it “does
indeed leave one to guess what sorts of events and interactions qualify as
reportable.” (Relkin, supra, 6 Cal.App.5th at p. 1197.) According to the
Relkin court, the defendant could not be certain that the condition would not
be triggered “when defendant says ‘hello’ to a police officer or attends an
event at which police officers are present, but would be triggered if defendant
were interviewed as a witness to a crime or if his ‘lifestyle were such that he
is present when criminal activity occurs,’ ” as the People had argued on
appeal. (Ibid.) “The language does not delineate between such occurrences
and thus casts an excessively broad net over what would otherwise be
activity not worthy of reporting.” (Ibid.)
In contrast to the condition at issue in Relkin, the law enforcement
contact reporting condition that requires Pena to “[p]rovide true name,
address, and date of birth if contacted by law enforcement,” and to “[r]eport
contact or arrest in writing to the P.O. within 7 days” by providing “the date
of contact/arrest, charges, if any, and the name of the law enforcement
agency” would appear to a reasonable, objective reader to refer to contacts
initiated by a law enforcement officer in which the officer requests such
identifying information from Pena. This would not include mere greetings by
law enforcement officers or casual conversations with officers at public events
or social gatherings. Further, the requirement that Pena report the “contact
or arrest” and include the “name of the law enforcement agency” indicates
that the interaction with a law enforcement officer must be of the type that
either the law enforcement officer supplied that information to Pena, or Pena
was made aware of this information because the nature of the “contact” was
25
sufficiently meaningful. This, too, indicates that a reasonable reading of the
condition sufficiently delineates between casual, random interactions
between Pena and law enforcement officers, including the exchanging of
pleasantries, and situations in which Pena is a witness to a crime or is
specifically stopped and questioned by a law enforcement officer. The mere
fact that there “ ‘ “ ‘may be difficulty in determining whether some marginal
or hypothetical act is covered by [a condition’s] language’ ” ’ ” does not render
the condition “impermissibly vague.” (In re I.V. (2017) 11 Cal.App.5th 249,
261.) We therefore reject Pena’s vagueness challenge to condition 1(j).
These same factors also lead us to reject Pena’s challenge to the
condition on the ground that it is unconstitutionally overbroad on its face.
Pena argues that none of the provisions of the condition “narrow the term
‘contact’ sufficiently to exclude contacts not worthy of reporting.” He suggests
that the requirement that he “[p]rovide [his] true name, address, and date of
birth if contacted by law enforcement” “could refer to a situation where a
police officer greeted Mr. Pena with a ‘hello’ or spoke to him at an event
unrelated to the officer’s law enforcement duties,” because it “applies to any
contact, as long as a law enforcement officer initiates the contact.” This is not
a reasonable reading of the condition. In no reasonable interpretation of the
condition would one believe that Pena would be required to provide his name,
address, and date of birth in response to a simple “hello” from a law
enforcement officer who did not request this information of him. Further,
given the second part of the condition, which requires that Pena report to his
parole officer the date of the contact and that he also include the name of the
law enforcement agency, the condition is most reasonably understood to
require that Pena supply his correct information when he is contacted by a
law enforcement officer and that officer requests this information from him,
26
and in turn, provides Pena with information as to who is making the request.
This would obviously exclude exchanges of pleasantries with officers, whether
encountered on the street or at an event. We therefore conclude that the
reporting of law enforcement contacts condition is narrower than Pena
suggests, and that the condition is not unconstitutionally overbroad.
5. The condition prohibiting Pena from being in places where alcohol
is the main item for sale
Finally, Pena argues that the mandatory supervision condition
prohibiting him from being in places where he knows that alcohol is the main
item for sale is not reasonably related to his current offenses or his future
criminality, and that it must therefore be stricken. Relying on Lent and
Ricardo P., Pena asserts that the significant burden that this condition
imposes on his constitutional rights to travel and to associate is substantially
disproportionate to the state interests served by the condition.
At trial, Pena objected to the imposition of this condition, arguing that,
although he has admitted that he was using marijuana and
methamphetamine during the period leading up to his arrest, he had not
used alcohol in “a couple of years.” His attorney stated, “So I don’t think that
that’s a priority, and I’d like him to not be limited in the places that he can
visit.” The court rejected this argument, noting that “[t]here’s a whole lot of
drugs sold in bars, and he’s had a drug problem in the past.” The court also
noted that “it’s pretty well-established that alcohol and drugs both lower
one’s inhibitions and make[ ] one more likely to do things that he’s vowed not
to do again.”
As mentioned above, a condition that forbids conduct that is not itself
criminal, such as the condition at issue, is nevertheless valid if that conduct
is reasonably related to the defendant’s current convictions or future
criminality. (Lent, supra, 15 Cal.3d at p. 486.) Although there is no
27
indication that alcohol use or being in a location where the main item for sale
is alcohol are related to Pena’s current offenses, it is nevertheless clear that
“ ‘conditions of probation aimed at rehabilitating the offender need not be so
strictly tied to the offender’s precise crime’ [citation] so long as they are
‘reasonably directed at curbing [the defendant’s] future criminality.’ ”
(Ricardo P., supra, 7 Cal.5th at p. 1122.) However, Lent’s third prong
“contemplates a degree of proportionality between the burden imposed by a
probation condition and the legitimate interests served by the condition” and
“requires more than just an abstract or hypothetical relationship between the
probation condition and preventing future criminality. (Ricardo P., at
pp. 1119, 1121–1122 [burden imposed by electronics search condition on
minor’s privacy interests was “substantially disproportionate to the
countervailing interests of furthering his rehabilitation and protecting
society”].)
Pena argues that the burden that the alcohol condition imposes on his
rights to travel and associate is substantially disproportionate to the
condition’s goal of deterring his drug use and preventing future criminality.
However, a supervisee’s constitutional rights to travel and to associate are
not absolute and may be restricted if reasonably necessary to accomplish the
essential needs of the state in rehabilitating criminal offenders and
protecting the public. (Moran, supra, 1 Cal.5th at p. 406; Lopez, supra, 66
Cal.App.4th at pp. 627–628; Relkin, supra, 6 Cal.App.5th at p. 1195.) The
record in this case demonstrates that Pena’s personal and criminal histories
support imposing a condition limiting his ability to be in places where alcohol
is the main item for sale. Specifically, Pena admitted to a long-standing and
untreated drug problem. Pena was 12 years old when he began using
marijuana and methamphetamine, and he was 15 years old when he started
28
drinking alcohol. Pena claimed that “he was ‘clean from 2014–2017’ but he
relapsed,” and in the six months leading up to his arrest, Pena was using
methamphetamine daily, including on the day he was arrested. He also
acknowledged that the last time he used marijuana was “around the time of
his arrest.” Despite claiming to have been “ ‘clean’ ” between 2014 and 2017,
Pena was convicted of driving under the influence of alcohol and possession of
a controlled substance in 2015. Pena’s criminal history and his current
offenses involve theft offenses, which, when combined with Pena’s admitted
drug habit, suggest that he may have been committing theft offenses to
support that daily drug habit.
Thus, unlike the record in Ricardo P., the record in this case provides a
link between Pena’s criminal conduct and his use of drugs. (Compare
Ricardo P., supra, 7 Cal.5th at p. 1119 [“there is no suggestion in the record
or by the Attorney General that Ricardo has ever used electronic devices to
commit, plan, discuss, or even consider unlawful use or possession of drugs or
any other criminal activity”].)
Further, the fact that Pena’s most recent substance of choice appears to
be methamphetamine does not mean that conditions intended to limit Pena’s
access to and use of alcohol are unwarranted. Courts have long recognized
that there is an empirical nexus between drugs and alcohol. (People v. Beal
(1997) 60 Cal.App.4th 84, 87 (Beal).) As explained in Beal, “It is well
documented that the use of alcohol lessens self-control and thus may create a
situation where the user has reduced ability to stay away from drugs.
[Citations.] Presumably for this very reason, the vast majority of drug
treatment programs . . . require abstinence from alcohol use.” (Ibid.) Given
this connection, the Beal court concluded that “alcohol use may lead to future
criminality where the defendant has a history of substance abuse.” (Ibid.; see
29
also People v. Malago (2017) 8 Cal.App.5th 1301, 1308 [upholding alcohol
consumption, testing, treatment, and monitoring conditions as a proper
exercise of discretion and reasonably related to prevent future criminality
where defendant had a history of alcohol, marijuana, and cocaine use].)
More recently, in People v. Cota (2020) 45 Cal.App.5th 786, we upheld a
probation condition restricting use or possession of alcohol where the
defendant, who had pled guilty to carrying a concealed dirk or dagger,
admitted that he was “a habitual user of methamphetamine and a daily user
of marijuana.” (Id. at pp. 788, 792.) Although alcohol was not involved in the
incident, this court observed that “alcohol is a drug–albeit a legal one” and
noted the empirical nexus between drugs and alcohol. (Id. at p. 792.) “It
would make little sense to deprive [a defendant’s] probation officer of the
power to direct [a defendant] away from alcohol as a substitute mind-altering
substance when his [or her] substance abuse history is so clearly
demonstrated.” (Id. at p. 793.) Given the defendant’s history of drug use, we
concluded that the imposition of alcohol-related probation conditions was
reasonably related to preventing future crimes. (Ibid.) The court rejected an
argument that the case was distinguishable from Beal, supra, 60 Cal.App.4th
84 because Cota was not charged with a drug-related offense. Rather, the
court concluded the Beal analysis was applicable when considering whether
an alcohol condition is reasonably related to future criminality. (Cota, at
p. 793, fn. 7.)
We conclude that an alcohol-related condition such as the place
limitation condition imposed in this case is reasonably related to preventing
future criminality, given Pena’s history of drug use, as well as evidenced in
the record of his alcohol use, and his conviction for DUI in 2015. As the trial
court noted, drugs are often sold in bars and, as we have already outlined,
30
there is a recognized connection between drug use and alcohol consumption,
both of which can lower a person’s inhibition and self-control. Further, the
court imposed other alcohol-related conditions in addition to the place-related
condition, including that Pena “not knowingly use or possess alcohol if
directed by the P.O.,” and that he “[s]ubmit to any chemical test of blood,
breath or urine to determine blood alcohol content.” Pena did not object to
the imposition of these conditions. The condition prohibiting Pena from being
in places where he knows alcohol is the main item for sale can assist in
ensuring his compliance with the other alcohol-related conditions. We
conclude that the condition prohibiting Pena from being in places where
alcohol is the main item for sale is reasonably related to Pena’s future
criminality and is a proportional means of reducing his risk of recidivism and
promoting his successful rehabilitation. We therefore reject Pena’s challenge
to condition 5(h).
31
IV.
DISPOSITION
The sentence is modified to strike the prison prior enhancement under
section 667.5, subdivision (b) and to reduce the sentence by one year. The
trial court is directed to amend the abstract of judgment to reflect the change
in sentence and forward a certified copy to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
AARON, J.
WE CONCUR:
HALLER, Acting P. J.
GUERRERO, J.
32