P. v. Little

Filed 1/25/18 P. v. Little 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY DUANE LITTLE,
Defendant and Appellant.
D071414
(Super. Ct. No. SCD268739)
APPEAL from a judgment of the Superior Court of San Diego County, Polly H.
Shamoon, Judge. Affirmed in part and reversed in part with directions.
Kent D. Young, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y.
Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.

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Anthony Duane Little pled guilty to possession of methamphetamine for sale
(Health & Saf. Code, § 11378). He also admitted to a prior conviction of possessing
drugs for sale (Health & Saf. Code, § 11370.2). Under the provisions of Penal Code
section 1170, subdivision (h)(5)(B),1 the trial court sentenced Little to a split sentence of
six years, with three years in county jail followed by three years of mandatory
supervision.
On appeal, Little challenges, as unconstitutional, conditions on his mandatory
supervision under section 1170, subdivision (h)(5)(B), which require that he report any
contact with law enforcement to his probation officer (condition No. 1j); submit
computers and recordable media to search at any time when asked by his probation
officer or a law enforcement officer (condition No. 1m); if directed by his probation
officer, participate in GPS monitoring and comply with all zone and curfew restrictions
(condition Nos. 1d, 8a & b); and obtain approval from his probation officer as to
residence and employment (condition No. 7g). Little also contends the court erred by
imposing a $1,500 restitution fine.
In the main, we find no errors in the conditions or fine imposed by the trial court.
However, with respect to the requirement Little report contact with law enforcement
officers, we remand with directions that the requirement be limited to contacts during
which Little is asked to produce identification. In all other respects, we affirm.
1 All statutory references are to the Penal Code unless otherwise specified.

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FACTUAL AND PROCEDURAL BACKGROUND
On September 15, 2016, a police officer observed Little make three drug
transactions. When he was contacted by law enforcement officers, Little was in
possession of 4.25 grams of methamphetamine, 20 unopened packs of cigarettes, a few
Xanax tablets, and two oxycodone tablets.
Little was arrested and pled guilty to possession of methamphetamine for sale and
admitted one prior conviction of Health and Safety Code section 11370.2. The terms of
the plea agreement included three years in county jail and three years of mandatory
supervision under Penal Code section 1170, subdivision (h)(5)(B). The probation report
prepared for sentencing recommended a restitution fine of $1,800 and several conditions
of his mandatory supervision.
At Little's sentencing and following defense counsel's objection to the proposed
restitution fine, the trial court imposed a restitution fine of $1,500. At sentencing, Little
did not object to any of the conditions of his mandatory supervision proposed by the
probation department and the trial court adopted them. Consistent with the parties' plea
agreement, the trial court sentenced Little to a split sentence of six years, three years in
county jail and three years of mandatory supervision.
DISCUSSION
I. General Principles
Conditions of mandatory supervision, like conditions of parole and probation must
be reasonably related to the compelling state interest of fostering a law-abiding lifestyle
in the released prisoner, parolee, or probationer. (See In re Stevens (2004) 119

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Cal.App.4th 1228, 1234.) Thus, in most respects, cases which have considered probation
conditions are helpful in determining the validity of conditions of mandatory supervision
imposed under section 1170, subdivision (h). "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." ' " (People v.
Olguin (2008) 45 Cal.4th 375, 379 (Olguin), quoting People v. Lent (1975) 15 Cal.3d
481, 486.) "This test is conjunctive—all three prongs must be satisfied before a
reviewing court will invalidate a probation term." (Olguin, at p. 379.) Failure to raise the
constitutionality of probation conditions does not forfeit the issue for review on appeal.
(In re Sheena K. (2007) 40 Cal.4th 875, 888–889; People v. Quiroz (2011) 199
Cal.App.4th 1123, 1127.) Importantly to avoid any vagueness, these conditions must
provide an opportunity for "the probationer to know what is required of him, and for the
court to determine whether the condition has been violated." (In re Sheena K., at p. 890.)
Challenges on probation conditions are considered forfeited if not raised when
they are imposed (People v. Welch (1993) 5 Cal.4th 228, 234–235), unless they are, as
here, constitutional challenges presenting pure questions of law. (In re Sheena K., supra,
40 Cal.4th 875, 885.)
II. Report of Contacts with Law Enforcement
Little contends the condition requiring him to report any "contact" with law
enforcement to his probation officer is unconstitutionally vague. We agree.

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" '[T]he underpinning of a vagueness challenge is the due process concept of "fair
warning." [Citation.] The rule of fair warning consists of "the due process concepts of
preventing arbitrary law enforcement and providing adequate notice to potential
offenders" [citation], protections that are "embodied in the due process clauses of the
federal and California Constitutions. [Citation.]" [Citation.] The vagueness doctrine
bars enforcement of " 'a statute which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must necessarily guess at its meaning
and differ as to its application.' [Citations.]" (People v. Relkin (2016) 6 Cal.App.5th
1188, 1196–1197 (Relkin).) In Relkin, as here, a condition of probation required that the
defendant report "any contacts with or incidents involving any peace officer." (Id. at
p. 1196.) The court found the condition overbroad: "[T]he portion of the condition
requiring that defendant report 'any contacts with . . . any peace officer' is vague and
overbroad and does indeed leave one to guess what sorts of events and interactions
qualify as reportable. We disagree with the People's argument that the condition is
clearly not 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.' 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."
(Id. at p. 1197.)
Plainly, the condition imposed on Little suffers from the defect identified in
Relkin: by requiring that Little report any contact with law enforcement, it does not

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differentiate between casual contact unrelated to any criminality, or even suspicion of
criminality, and contact which might warrant some further investigation by a probation
officer. Apparently recognizing the overbreadth of the condition, the Attorney General
suggests that the condition be interpreted as only requiring that Little report contacts with
law enforcement during which Little is asked to produce identification. We agree that
such a limitation on the condition would cure its overbreadth defect by giving Little
unambiguous guidance with respect to what events he must report and limiting his
reporting obligation to those instances in which law enforcement officers are
investigating possible criminality. However, rather than providing this limitation on the
condition by way of interpretation in an appellate opinion, as a practical matter in order to
fully protect Little's rights, this limitation on the condition should be expressly modified
by the trial court. Accordingly, we will remand with directions that the condition be
expressly modified.
III. Search and Seizure
The search and seizure condition imposed by the trial court requires Little to
"[s]ubmit person, vehicle, residence, property, personal effects, computers, and
recordable media ______ 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." Little
argues this condition is vague and constitutionally overbroad because it gives his
probation officer the ability to "fill-in-the blank" with respect to recordable media; he
also argues that in requiring that he submit his computers to warrantless searches, the trial
court unnecessarily invaded his right to be free of unreasonable searches.

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When defendants agree to serve a probationary sentence as a substitute to
incarceration, "courts have broad discretion to impose conditions to foster rehabilitation
and to protect public safety . . . ." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120
(Carbajal); see Olguin, supra, 45 Cal.4th at p. 379.) The broad discretion granted to trial
courts requires probation conditions to "serve a purpose specified in the statue," and are
" 'reasonably related to the crime of which defendant was convicted or to future
criminality.' " (Carbajal, at p. 1121.)
First, we note that by its express terms condition 1m requires that Little submit all
his property, personal effects, computers, and recordable media to search; that description
of what is subject to search is on its own broad enough to cover whatever is in Little's
possession. In this context, the blank space in the form, rather than giving the probation
officer any power to fill it in with some other device, location, or circumstance, appears
to have been placed there by the drafters of the form so that the trial court, in a particular
circumstance, may fill it in with a more specific description of what is subject to a search
without a warrant at the time of sentencing. As interpreted in this manner, the blank
space in the form provides Little's probation officer with no additional power to expand
what is subject to search.
Second, we find no error in the condition insofar as it permits a warrantless search
of Little's computer and electronic devices. Little's criminal history, dating back to 1995,
includes numerous drug sale offenses, drug possession, and theft offenses, along with
other assorted offenses. He has previously completed a rehabilitation program, but then
relapsed. He is a lifelong drug addict who is also involved in drug sales. In People v.

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Nachbar (2016) 3 Cal.App.5th 1122, 1129 (Nachbar), we approved a very similar
condition of probation and stated: "As a defendant who has pleaded guilty to a felony
and accepted probation in lieu of additional punishment, defendant has a diminished
expectation of privacy as compared to law-abiding citizens or those subject to searches
incident to arrest." With respect to Little's expectation of privacy, we find the reasoning
in Nachbar persuasive.2 Here, given Little's unfortunate history of drug use and drug
trafficking, the condition is closely related to preventing future criminality and promoting
his rehabilitation. Thus, we find no error in imposing it as a condition of his mandatory
supervision.
IV. Curfew and Electronic Monitoring
Little contends the curfew and electronic monitoring condition the trial court
imposed is unconstitutionally vague and overbroad because it impinges upon his
constitutional right of intrastate travel and because it impermissibly delegates unlimited
discretion to the probation officer. The condition requires him to participate in GPS
monitoring, if requested by his probation officer, and comply with zone and curfew
restrictions.
2 In Nachbar, we expressly disagreed with the opinion in People v. Appleton (2016)
245 Cal.App.4th 717, 725 (Appleton), on which Little relies. (See Nachbar, supra, 3
Cal.App.5th at pp. 1128–1129.) In Appleton, the court held that given the breadth of
information available on computers a warrant is required to conduct a search of a
probationer's computer. (Appleton, at p. 725.) The Supreme Court granted review in
Nachbar, pending its disposition of In re Ricardo P. (2015) 241 Cal.App.4th 676, which
presents the issue of whether an electronics search probation condition may be imposed
upon a juvenile when that condition has no relationship to the crimes committed.
(Nachbar, S238210, Dec. 14, 2016.)

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A probation condition may restrict the right to travel so long as it is " 'reasonably
related to the compelling state interest in reformation and rehabilitation . . . .' " (In re
White (1997) 97 Cal.App.3d 141, 146, quoting People v. Mason (1971) 5 Cal.3d 759,
768.) The curfew and GPS monitoring are reasonably related to aiding Little's
rehabilitation by allowing probation officers to monitor his whereabouts and thereby
ensuring his compliance with the other requirements of his mandatory supervision.
Where, as here, a drug trafficker has been convicted of drug trafficking, the connection
between preventing future criminality and the ability of a probation officer to monitor the
defendant's whereabouts is self-evident.
V. Residence and Employment Conditions
Little objects to the conditions requiring him to obtain consent as to his residence
and employment as unconstitutionally vague and overboard because the conditions are
not tailored toward furthering a compelling state interest.
As we have noted, Little has a long history of drug abuse and has failed on
multiple occasions to rehabilitate himself through various grants of probation
supervision. In order to deter any future criminality, it is reasonable for a supervising
probation officer to be aware of Little's associates and where he resides. (People v.
Stapleton (2017) 9 Cal.App.5th 989, 995–996 (Stapleton).) In Stapleton, a residency
condition was upheld because the condition aided probationer's rehabilitation. Similarly
here, placing conditions on Little's residence and employment will allow probation
officers to restrict him, for example, from living in a residence where drugs are sold or

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used. Little's serious addiction to drugs, specifically methamphetamine, has shown the
need for such a narrowly tailored condition.
The record here is in marked contrast to the one the court considered in People v.
Bauer (1989) 211 Cal.App.3d 937, 944 (Bauer), upon which Little relies. In Bauer, the
defendant was convicted of false imprisonment and assault and was placed on probation.
One of the probation conditions was that he "obtain his probation officer's approval of his
residence . . . ." (Id. at p. 940.) The defendant argued the condition was not related to his
crime or rehabilitation and therefore unreasonably infringed on his constitutional rights of
travel and association. (Id. at p. 944.) The court agreed, holding the defendant's home
did not contribute to his crimes and gave the probation officer too much discretionary
power over the defendant's living situation. (Ibid.) Here, in contrast, the probation
condition giving the probation officer power over Little's residence and employment is
closely related to the goal of preventing him from falling back into the drug use and
distribution lifestyle which led to his current conviction.3
3 As our discussion indicates, with the exception of the condition that he report his
law enforcement contacts, we reject Little's contention the conditions he challenges are
invalid. As we have noted, those conditions are related to his current and prior criminal
history and contrary to his contention none of them, including a requirement that he
participate in any validated assessment program required by the probation officer and any
treatment suggested by that testing, amount to an improper delegation of authority to his
probation officer. The challenged conditions are not open-ended and do not provide
Little's probation officer with unfettered discretion as to their scope, but instead are
details of supervision, which a court may properly leave to a probation officer's
discretion. (See § 1202.8, subd. (a); People v. Leon (2010) 181 Cal.App.4th 943, 953–
954.)

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VI. Restitution Fine
Little argues the court improperly imposed a $1,500 restitution fine based on an
inaccurate application of section 1202.4, subdivision (b). We find no error.
Section 1202.4, subdivision (b) provides: "(b) In every case where a person is
convicted of a crime, the court shall impose a separate and additional restitution fine,
unless it finds compelling and extraordinary reasons for not doing so and states those
reasons on the record.
"(1) The restitution fine shall be set at the discretion of the court and
commensurate with the seriousness of the offense. If the person is convicted of a felony,
the fine shall not be less than three hundred dollars ($300) and not more than ten
thousand dollars ($10,000). If the person is convicted of a misdemeanor, the fine shall
not be less than one hundred fifty dollars ($150) and not more than one thousand dollars
($1,000).
"(2) In setting a felony restitution fine, the court may determine the amount of the
fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the
number of years of imprisonment the defendant is ordered to serve, multiplied by the
number of felony counts of which the defendant is convicted." (Italics added.)
If a court decides to impose a fine greater than the $300 minimum fine, then the
court "shall consider any relevant factors, including, but not limited to, the defendant's
inability to pay, the seriousness and gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a result of the crime, the
extent to which any other person suffered losses as a result of the crime, and the number

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of victims involved in the crime . . . [a] defendant shall bear the burden of demonstrating
his or her inability to pay. Express findings by the court as to the factors bearing on the
amount of the fine shall not be required." (§ 1202.4, subd. (d).)
In the present case, the probation report recommended a restitution fine of $1,800
by using the formula in section 1202.4, subdivision (b)(2) and multiplying Little's six-
year sentence by the minimum $300 restitution fine. Little contends that in making the
calculation the probation department incorrectly used his total six-year sentence rather
than the three years he will serve in local custody and that this calculation was implicitly
adopted by the trial court in reducing the fine from $1,800 to $1,500.
Under the Criminal Justice Realignment Act of 2011 (Realignment), qualified
defendants, such as Little, who are convicted of nonserious and nonviolent felonies are
sentenced to county jail instead of state prison. (Stats. 2011, ch. 15, § 1; Stats. 2011, 1st
Ex. Sess. 2011–2012, ch. 12, § 1; People v. Scott (2014) 58 Cal.4th 1415, 1418; People v.
Catalan (2014) 228 Cal.App.4th 173.) In general, "[t]rial courts have discretion to
commit the defendant to county jail for a full term in custody, or to impose a hybrid or
split sentence consisting of county jail followed by a period of mandatory supervision."
(People v. Catalan, at p. 178.)
The Legislature has made it clear that the mandatory supervision established by
Realignment is to be treated as part of a defendant's prison term. (See People v.
Fandinola (2013) 221 Cal.App.4th 1415, 1422.) In Fandinola, the trial court imposed on
the defendant, who was sentenced under section 1170, subdivision (h), a probation
supervision fee under section 1203.1b, subdivision (a). On appeal, the court found that

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the trial court erred because the mandatory supervision provided under section 1170,
subdivision (h) is not a grant of probation or conditional release. The Court of Appeal
rejected this argument and stated: "Section 1170, subdivision (h)(5)(B)(i), authorizes the
trial court to suspend execution of a concluding portion of a defendant's term, 'during
which time the defendant shall be supervised by the county probation officer in
accordance with the terms, conditions, and procedures generally applicable to persons
placed on probation,' but this does not mean placing a defendant on mandatory
supervision is the equivalent of granting probation or giving a conditional sentence.
Indeed, section 1170, subdivision (h) comes into play only after probation has been
denied. (See People v. Cruz (2012) 207 Cal.App.4th 664, 671 ["once probation has been
denied, felons who are eligible to be sentenced under realignment will serve their terms
of imprisonment in local custody rather than state prison"].) Moreover, section 667.5
provides for a one-year enhancement for 'prior prison terms,' including a 'term imposed
under the provisions of paragraph (5) of subdivision (h), of Section 1170, wherein a
portion of the term is suspended by the court to allow mandatory supervision.' (§ 667.5,
subd. (b).) Thus, the Legislature has decided a county jail commitment followed by
mandatory supervision imposed under section 1170, subdivision (h), is akin to a state
prison commitment; it is not a grant of probation or a conditional sentence." (Fandinola,
at p. 1422, italics added.)
Because mandatory supervision under section 1170, subdivision (h) is not a grant
of probation or a conditional sentence, but akin to a prison term, neither the probation

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department nor the trial court erred in using Little's full six-year sentence as the basis for
calculating his restitution fine under section 1202.4.
DISPOSITION
The matter is remanded to the superior court with instructions to modify the
mandatory supervision order to state that the "contact," which must be reported in
accordance with condition No. 1j, is limited to instances in which law enforcement
requests identification or personal identifying information from Little.
In all other respects, the judgment is affirmed.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.

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