In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25, 2015, S233932; In re
Mark C. (2016) 244 Cal.App.4th 520, review granted Apr. 13, 2016, S232849; In re
Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923.) Until
we receive further direction, we must undertake to resolve this case as best we can.
Here, the record shows the trial court upheld the reasonableness of the electronic
search condition on the basis that Acosta committed counts 1 and 2 for the "benefit" of
6
the VMS criminal street gang, inasmuch as he spray painted variations of his gang
moniker on property ostensibly within or near the gang's territory. The court found that
"taggers" such as Acosta oftentimes used an electronic device to photograph graffiti to
share with others, including members of his or her own gang. As such, the court found
there was a nexus between the electronic search condition and Acosta's future criminality.
The case of People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski)
informs our analysis on this issue. The challenged probation conditions in Ebertowski
required the defendant to provide "1 '. . . all passwords to any electronic devices
(including cellular phones, computers or notepads) within his or her custody or control
and [to] submit said devices to search at anytime [sic] without a warrant by any peace
officer' "; and "2 ' . . . to provide all passwords to any social media sites (including
Facebook, Instagram and Mocospace) and [to] submit said sites to search at anytime [sic]
without a warrant by any peace officer.' " (Id. at p. 1173.) Like Acosta here, the
defendant in Ebertowski was a member of a criminal street gang who pleaded no contest
to making criminal threats and resisting an officer. (Id. at pp. 1172–1173.)
The Ebertowski court rejected the defendant's claim that the probation conditions
were unreasonable and overly broad. The court noted that the "password conditions"
were related to the defendant's future criminality because of his gang affiliation, which
"gave [the defendant] the bravado to threaten and resist armed police officers."
(Ebertowski, supra, 228 Cal.App.4th at p. 1177.) The court further noted that the only
way the defendant "could be allowed to remain in the community on probation without
posing an extreme risk to public safety was to monitor his gang associations and
7
activities. The password conditions permitted the probation officer to do so.
Consequently, the password conditions were reasonable under the circumstances, and the
trial court did not abuse its discretion in imposing them." (Ibid.)
The court in Ebertowski also concluded the password conditions were not
constitutionally overbroad. The court noted that the defendant's privacy rights were "not
improperly abridged by the password conditions any more than they [were] by the search
condition." (Ebertowski, supra, 228 Cal.App.4th at p. 1176.) The court noted that the
state had an interest in preventing defendant from continuing his "violent gang
associations and activities," and that this interest outweighed the "minimal invasion of
[the defendant's] privacy that is involved in the probation officer monitoring defendant's
use of his devices and his social media accounts." (Ibid.)
Turning to the instant case, the record shows Acosta has been a gang member
since at least 2010, or for about seven years. In March of 2010, law enforcement
investigated Acosta, then a minor, after Acosta's high school received a tip from an
unknown male that Acosta might be in possession of a weapon while on campus. The
unknown male indicated a box of "slugs" was missing from his house and that Acosta
allegedly "was planning on obtaining a gun and possibly shooting a student at [the] [h]igh
[s]chool who was from a rival gang."
On contact at the school, police found a "three-inch paring knife" concealed inside
Acosta's jacket. Acosta admitted bringing the knife to school for "protection" because he
was worried about being "jump[ed]" by a student from another gang. As a result of this
incident, the juvenile court made a true finding in June 2010 that Acosta was in
8
possession of a stabbing instrument on school grounds and assigned Acosta to the "Gang
Suppression Unit" for supervision. While on probation for this offense, the record shows
Acosta violated his gang conditions on at least two occasions.
In January 2016, police conducted a traffic stop of a vehicle in which Acosta was a
passenger. Acosta was found in possession of a loaded .38 caliber semiautomatic
handgun. A records check revealed the gun was stolen. Acosta pleaded guilty to having
a concealed firearm in a vehicle (§ 25400, subd. (c)(2)), and was granted three years'
formal probation and sentenced to 120 days in custody, which sentence was stayed.
About a month before his November 2016 arrest in the instant case and while on
probation for the January 2016 incident, police contacted Acosta in a park frequented by
members of VMS. The probation report noted that officers had been dispatched to the
park because "a group of Hispanic males [were] drinking beer, and yelling out, 'Market
Street' up and down the area of Boundary and Market Streets. As officers arrived on
scene, they attempted to contact a male, later identified as [Acosta], but he fled before
they were able to detain him. Additional contact was made with [four other males,
including Acosta's brother], who are all known members of the Market Street criminal
street gang. As the four individuals were detained pending further investigation
additional responding officers pursued [Acosta] and successfully apprehended him a
short time later.
"During the contact with [Acosta], officers observed that he was flushed, his eyes
were glassy, and he had the odor of an alcoholic beverage emitting from his person. At
the scene where all the men were detained, officers recovered three 32[-]ounce bottles of
9
beer and one 24[-]ounce bottle [of] beer. [Acosta] later admitted that he had a 'little to
drink.' He was arrested for violating the terms of his probation. The arrest was treated as
a probation violation and no charges were filed."
In the instant offenses, as noted Acosta spray-painted gang graffiti and variations
of his gang moniker on private residences and public property in or near VMS territory.
He admitted committing such offenses for the benefit of VMS, making them a felony.
These incidents were not isolated, but rather were committed by Acosta over about a
seven-month period. Despite admitting the crimes benefited VMS, the probation report
noted Acosta believed the "gang officers" were being "petty" because in his view,
"tagging does not benefit the gang." The probation report found Acosta's statement
concerning, given the "effect gang graffiti has on victims and on the neighborhood as a
whole."
On this record, we conclude the electronic search condition was reasonably related
to Acosta's future criminality. In reaching this conclusion, we recognize there is no
indication in the record that Acosta—unlike the defendant in Ebertowski—used an
electronic device in connection with, or in the commission of, the gang-related offenses.
(See Ebertowski, supra, 228 Cal.App.4th at p. 1173.) In our view, that is a factor, but not
the only factor warranting imposition of this condition.
Indeed, the record clearly shows that Acosta continued to associate with VMS
gang members despite being repeatedly ordered not to do so. And while associating with
fellow gang members, Acosta also engaged in gang-related activities that "benefited"
VMS, including spray painting gang graffiti on multiple private and public properties in
10
or near VMS gang territory. Acosta's gang activities also were not merely limited to
"taggings," as he was found in possession of a stabbing instrument on school grounds in
2010. While it is not clear from the record whether Acosta was associating with fellow
gang members when police found a loaded firearm on his person in January 2016, after
stopping a car in which Acosta was merely a passenger, a reasonable inference would
support such a finding. At a minimum, the January 2016 incident shows Acosta was
engaging in more serious activities than merely "tagging" properties with gang-related
graffiti.
The electronic search condition will allow a probation officer to ensure Acosta is
complying with the "gang conditions" of his probation. Such conditions include not
knowingly associating with members of VMS and not wearing or displaying any item or
article of clothing "evidencing affiliation with/membership in the [VMS] gang." Given
that Acosta's performance on probation "can only be rated as poor," as noted by the
probation report, "due to his continued association with known gang members,
participation in gang activity, and failure to remain law-abiding," findings that are amply
supported on this record, we conclude the court properly exercised its discretion when it
imposed the electronic search condition to "closely monitor" Acosta. (See Ebertowski,
supra, 228 Cal.App.4th at p. 1177.)
We also independently conclude the electronic search condition was narrowly
tailored so as to limit the impact on Acosta's "constitutional rights to privacy, speech, and
association." (See Ebertowski, supra, 228 Cal.App.4th at p. 1175; see also Sheena K.,
supra, 40 Cal.4th at p. 890 [noting a "probation condition that imposes limitations on a
11
person's constitutional rights must closely tailor those limitations to the purpose of the
condition to avoid being invalidated as unconstitutionally overbroad"].)
Initially, we note the electronic search condition imposed in the instant case was
less intrusive that the "passwords conditions" imposed on the gang defendant in
Ebertowski. And for good reason: unlike the defendant gang member in Ebertowski,
there is no evidence Acosta in the instant case used an electronic device to promote his
gang, including on social media. In our view, Ebertowski supports the principle that
probation conditions should reflect the unique circumstances of each case to ensure such
conditions do not sweep too broadly and unjustly impact an individual's constitutional
rights. Here, we independently conclude the electronic search condition was narrowly
tailored to the circumstances of the instant case, as Acosta was not required to disclose
any passwords including to any social media account as a condition of his probation.
Moreover, as noted Acosta challenged only the electronic search portion of
condition 6n. The electronic search condition will assist a probation officer in
implementing the unchallenged search, association, and gang conditions that also were
imposed in order to monitor Acosta's gang activity.
Acosta contends the electronic search condition should be modified, if it is to be
imposed at all. However, we are unable to discern how that could be done in the instant
case, as in our view access to Acosta's electronic devices is the best way to determine if
he "is ridding himself of his gang associations and activities, as required by the terms of
his probation, or is continuing those associations and activities, in violation of his
probation." (See Ebertowski, supra, 228 Cal.App.4th at p. 1175; compare In re P.O.
12
(2016) 246 Cal.App.4th 288, 297–298 [noting the requirement a minor submit his
"electronics including passwords" to search with or without a warrant was overbroad and
was thus modified to limit such searches of electronic devices and/or accounts to "media
of communication reasonably likely to reveal whether he is boasting about drug use or
otherwise involved with drugs," when there was no evidence minor was buying or selling
drugs in connection with his misdemeanor public intoxication offense, when the goal of
minor's probation was to facilitate his "rehabilitation," and when the minor's needs were
not "severe"].)
Our conclusion that the state's interest in public safety outweighs the slight
invasion of Acosta's privacy that results from a probation officer having access to
Acosta's electronic devices is buttressed by Acosta's poor performance on probation,
which was a direct result of his gang activities, and by his failure to acknowledge the
instant offenses benefited the VMS criminal street gang. (See also People v. Peck (1996)
52 Cal.App.4th 351, 362 [noting the condition that the defendant not use or possess a
controlled substance (i.e., marijuana) was "necessary to serve public safety" because the
defendant admitted to smoking marijuana several times every day and then driving his
truck and pulling a 16-foot trailer while impaired to various jobsites, where he operated
"motorized equipment" while also under the influence].)
13
II
Stay-Away Condition
Acosta contends the condition requiring him to stay away from the private
residences he vandalized with gang graffiti (no. 14) was unreasonable under Lent because
he was not ordered to stay away from the public properties he similarly defaced and
because there was no evidence he harbored any "animosity towards the property owners."
We conclude the stay-away condition is reasonably related to the offenses Acosta
pleaded guilty to in the instant case. (See Olguin, supra, 45 Cal.4th at pp. 379–380; see
Lent, supra, 15 Cal.3d at p. 486.) Indeed, count 1 involved gang-related graffiti spray
painted by Acosta on the exterior wall of a private residence located on Market Street
ostensibly within VMS gang territory. Count 2 likewise involved gang graffiti Acosta
spray painted on the exterior wall of a private residence also in or near VMS territory.
The stay-away condition listed both such residences and one other private residence that
involved count 8, which was dismissed as part of the plea agreement.
We also conclude the stay-away condition is reasonably related to future
criminality. Although Acosta disputed that gang graffiti benefited a gang, it is common
knowledge that criminal street gangs "tag" property to "announc[e] their presence in and
enforce their turf to instill fear [in] persons in the community," not to mention rival gang
members. (See People ex rel. Reisig v. Acuna (2010) 182 Cal.App.4th 866, 872.)
Requiring Acosta to stay away from the private residences he already vandalized will
14
reduce both the chances of him reoffending and the impacts, including fear, the VMS
street gang has on such residents and the community in which they live.3
III
Remaining Conditions
Acosta also contends the alcohol (no. 8) and/or drug (no. 9) conditions were
unreasonable and should be struck under Lent. We first turn to the alcohol condition.
Although Acosta was over 21 years old and there was no evidence Acosta was
under the influence of alcohol when he committed the current offenses, we conclude the
court properly exercised its discretion in imposing the alcohol condition on Acosta. (See
Olguin, supra, 45 Cal.4th at pp. 380–381; Lent, supra, 15 Cal.3d at p. 486.)
As summarized ante, about a month before Acosta's arrest in the instant case
police were dispatched to a park inside VMS territory where its members were known to
congregate, after receiving a report of a group of Hispanic males drinking alcohol and
"yelling" gang references to "Market Street." One of those males was Acosta, who ran
from the scene but was apprehended by police shortly thereafter. As it turns out, the
males were all VMS gang members.
On contact, police observed Acosta was "flushed," his eyes were "glassy" and he
smelled of alcohol. Acosta, who was confrontational with officers, claimed he allegedly
only had a "little to drink." Police later found three 32-ounce and one 24-ounce bottles of
beer. As part of the grant of formal probation in connection with his possession of the
3 Acosta does not argue the stay-away condition is constitutionally overbroad. (See Sheena K., supra, 40 Cal.4th at p. 890.) 15
loaded firearm stemming from the January 2016 incident, it appears Acosta was required
to submit to alcohol and drug testing. The record shows between May and September
2016, Acosta submitted 10 urinalyses that were negative for any such substances.
Courts recognize that alcohol use is accompanied by a "a lessening of internalized
self-control" and that alcohol consumption impairs judgment and is not "conducive to
controlled behavior." (People v. Smith (1983) 145 Cal.App.3d 1032, 1034–1035.) As
noted, Acosta has repeatedly violated probation by continuing to associate with VMS
gang members. In addition, Acosta consumed alcohol and did so in the company of other
gang members as recently as October 2016, when he was arrested for a probation
violation stemming from the incident in the park. On this record, we thus conclude the
court properly exercised its discretion when it provided the probation department with the
discretion to monitor Acosta's alcohol consumption to help keep him compliant with the
terms of his probation.
However, we reach a different conclusion with respect to the drug condition (no.
9). The probation report notes that Acosta "tried" marijuana when he was 13 years old,
or about 10 years before his arrest for the current offenses. Unlike his alcohol
consumption, there is no evidence in the record that Acosta uses or used, or sold, drugs
including marijuana during this 10-year period. We thus conclude the imposition of the
drug condition was unreasonable and should be struck. (See Olguin, supra, 45 Cal.4th at
pp. 380-381; Lent, supra, 15 Cal.3d at p. 486.)
16
Finally, we agree with the parties that the treatment, therapy, and counseling
condition (no. 7) should be struck as there is no evidence in the record that Acosta
suffered from any mental health issues, took any medication for such issues, or has any
condition requiring such treatment. (Compare, People v. Petty (2013) 213 Cal.App.4th
1410, 1417 [drug treatment program was an appropriate condition of probation for a
defendant with mental health issues]; In re Todd L. (1980) 113 Cal.App.3d 14, 20–21
[noting psychological counseling and treatment may be ordered by a court where the
social history of the probationer suggests that it may help to prevent future criminality].)
DISPOSITION
The drug (no. 9) and the treatment, therapy, and counseling (no. 7) conditions are
stricken. In all other respects, the judgment of conviction is affirmed. The superior court
is directed to amend the probation order of Acosta accordingly.
BENKE, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
17
AI Brief
AI-generated · verify before citing
Holding. The court held that the electronic search and stay-away probation conditions were reasonable and constitutional, but struck the drug and counseling conditions due to a lack of evidence supporting their necessity.
Issues
Whether the electronic search condition of probation is reasonable and constitutional.
Whether the stay-away condition of probation is reasonably related to the offenses and future criminality.
Whether the alcohol and drug conditions of probation are supported by sufficient evidence.
Disposition. affirmed as modified
Quotations verified verbatim against the opinion
“we conclude the electronic search condition was reasonably related to Acosta's future criminality.”
“we independently conclude the electronic search condition was narrowly tailored to the circumstances of the instant case”
“we conclude there is insufficient evidence in this record to support the imposition of the drug condition on Acosta.”