Filed 4/14/23 P. v. Banuelos CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPE A L, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v.

JONATHAN BANUELOS , Defend ant and Appellant. D079842

(Super. Ct. No. JCF004767 )

APPEAL from a judgment of the Superior Court of Imperial County, Christopher J. Plourd, Judge. Affirmed ; remanded with directions

.

Justin Behravesh , under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters , Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Erica A. Swenson and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent

.2

The People charg ed Jonathan Banuelos wit h inflicting corporal injury on a girlfriend (Pen. Code, 1 § 273.5, subd. (a); count 1), false imprisonment by violence (§ 236; count 2), and misdemeanor interference with a wireless communication device (§ 591.5; count 3). He ple ade d no contest to infliction of corporal injury on a girlfriend and, in exchange , the People dismiss ed the remaining charges.
T he court suspended imposition of sentence and plac ed Banuelos on three years of formal probation on several terms and conditions, including that he be subject to warrantless search es , and th a t he “[n]ot own, possess, or purchase any firearms, ammunition and/or any other dangerous weapons.” I t also ordered him to pay various fees and fines, including that he rei mburse presentence investigation and probation supervision costs under section 1203.1b, subdivision (e).
Banuelos conten ds: (1) the warrantless search condition must be stricken as invalid; and (2) under Assembly Bill No. 1869, the court’s order
that he r eimburse costs under section 1203.1b, subdivision (e) must be
vacated

. The P eople correctly concede the second argument has merit;

a ccordingly , we will affirm the judgment , but remand with instructions set forth below.

1 U ndesignated statutory references are to the Penal Code.3 FACTUAL AND PROCEDURAL BACKGROUND 2

I n June 2021, Banuelos and his girlfriend got into an argument o ver a video th a t someone sent to Banuelos ’s cell phone

. When Banuelos became upset, his girlfriend asked him to take her home. Banuelos then pushed her in the chest, causing her to fall in to a chair and hurt her toe. Banuelos wa s going to drive her home, but she refused to get in his truck

. Banuelos followed her in his truck , and she threw a rock at his vehicle

. Banuelos
exited the truck , dragged her by the neck , squeez ing it , and slappe d her face three to four times while trying to put her in his truck

. Eventually, s he managed to get out of the vehicle and started running ; however, Banuelos caught up to her , grabbed her by the hair , said he was taking her back to his
house instead , and push ed her back int o the vehicle. When she refused to sit in the passenger seat, Banuelos again pulled her hair, pushed her face into
the seat and hit her three or four times in the thigh. Banuelos drove away
while she continued to tell him that she want ed to go home. He then took her cell phone to prevent her from calling the police. H e later threw the phone at her, and drove her home. When s he got home she call ed police. A police officer arrived at her house and observed that she “ appeared to have w atery eyes, and a scratch on the right side of her cheek. ” She told the officer that
when Banuelos grabbed her by the neck, she felt like she needed air. Banuelos was 20 years old at the time of the incident. The probation officer , evaluating the poss ible circumstances in aggravation under California Rules of court, r ule 4.421 (a)(1) , stated : “ The

2 At the change of plea hearing, the court accepted the parties’ st ipulation that the factual basis for Banuelos’s plea was contain ed in the Imperial County S heriff’s Office report

. W e rely on that report for our statement of facts

.4

crime involved great violence/great bodily harm/threat of great bodily harm/other acts disclosing a high degree of cruelty, viciousness, or
callousness. ” T he reporting officer add ed: “ It is always in the best interest of the community that this sentence aid not only in the rehabilitation of the defendant, but also in the prevention of any further criminal activity. It is imperative that the defendant learn s to manage his anger, control his
behavior and understand the severity of his offense. ” T he probation officer
recommended Banuelos take a 52

- week anger management course, and that the court impose the standard warrantless search probation condition limit ed

to Banuelos ’s person and property , a s well as a condition that Banuelos not own or possess any firearms, ammunition, or dangerous weapons. At the sentencing hearing, defense counsel objected to the search condition, arguing that no basis existed for it as Banuelos di d not have or use

any weapon during the offense. The prosecutor argued the domestic violence condition carried a no

weapons clause ; therefore, the warrantless search condition was necessary to ensure compliance with a no
- weapons conditio n. The court sentenced Banuelos based on the probation officer’s report.
and rul ed “it would be very productive and necessary for the probation officer to be able to monitor the defendant’s possession of weapons and, therefore, a
Fourth [ waiver is] appro priate.”
DISCUSSION
I. Warrantless Search Condition
Banuelos contends the search condition requiring him to submit to warrantless searches of his person and property is not reasonably related to preventing future criminality under People v. Lent (1975) 15 Cal.3d 481 ( Lent ) and In re Ricardo P. (2019) 7 Cal.5th 1113 ( Ricardo P. ).5

Trial courts have broad discretion to impose reasonable conditions of probation that foster rehabilitation and protect the community. (§ 1203.1 subds. (a) and (i); People v. C arbajal (1995) 10 Cal.4th 1114, 1120.) “[A] reviewing court will disturb the trial court ’ s decision to impose a particular condition of probation only if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable.” ( People v. Bryant (2021) 11 Cal.5th 976, 984 .) In order to invalidate a probation condition under Lent , the defendant must make three showings: 1) the condition has no relationship to the crime; 2) the condition is related to conduct that is not itself cr iminal; and 3) the condition is not reasonably related to his or her future criminality. ( Lent,

supra, 15 Cal.3d at p. 486.) In Ricardo P. , the California Supreme Court explained that the test of reasonableness involves a balancing of factors.

“ Lent ’s th ird prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality.” ( Ricardo P ., supra , 7 Cal.5th at p. 1121.) Specifically, a probation condition cannot be justified solely on th e basis that it enhances the effective supervision of the probationer without regard for the burden it places on the probationer. ( Id . at pp. 1122, 1125.) Rather, the “requirement that a probation condition must be ‘ “reasonably related to
future crimin ality” ’ contemplates a degree of proportionality” between the burden imposed by the condition and the legitimate interests it serves. ( Id

. at p. 1122.)
I t may be appropriate to impose a probation condition that, although not directly connected to the crime for which probation is granted, is related to the probationer ’ s personal and criminal history. In Ricardo P. , the Supreme Court reasoned “that ‘conditions of probation aimed at6

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.) Indeed, the court noted that “ ‘courts may properly base probation conditions upon inform ation in a probation report that raises concerns about future criminality unrelated to a prior offense.’ ” ( Ibid. ) T his court has stated, “probation conditions authorizing searches of a probationer ’ s person, property, and vehicle are ‘routinely imposed.’ ” ( In re I.V. (2017) 11 Cal.App.5th 249, 261.)
A

. Analysis In imposing the warrantless search condition, the trial court made an
individualized determination based on the facts of this case

. T he probation officer was sufficiently concerned about the seriousness of this crime and the rapidity with which Banuelos’s attack on his girlfriend escalated , to recommend a year of anger management classes, the warrantless search
condition , and condition that he “[n]ot own, possess, or purchase any firearms, amm unition and/or any other dangerous weapons.” The
warrantless search condition is reasonably related to Banuelos ’s future criminality as it ensures compliance with the uncontested prohibitions on his gun ownership

. The burden on Banuelos is slight

. “ ‘ Th e level of intrusion is de minimis and the expectation of privacy greatly reduced when the subject
of the search is on notice that his activities are being routinely and closely
monitored. Moreover, the purpose of the search condition is to deter the

comm ission of crimes and to protect the public, and the effectiveness of the deterrent is enhanced by the potential for random searches. ’ ” ( People v.
Ramos (2004) 34 Cal.4th 494, 506.)7

Banuelos is adequately protected in the enforcement of the search
condit ion by the Fourth Amendment, which requires that warrantless searches carried out pursuant to involuntary search conditions not be arbitrary, capricious, or harassing. ( People v. Reyes (1998) 19 Cal.4th 743, 752 [a search carried out pursuant to a parole or probation search condition “is reasonable within the meaning of the Fourth Amendment as long as it is not arbitrary, capricious or harassing”].) Further, “[w]arrantless searches are justified in the probation context because they aid in deterring furth er offenses by the probationer.” ( People v. Robles (2000) 23 Cal.4th 789, 795.)

II. Imposition of Reimbursement Costs We accept the People ’ s concession that the court erred by imposing the
reimbursement order under section 1203.1b. T he ameliorative cha nges of Assembly Bill No. 1869 apply retroactively to make any unpaid portion of the identified assessments, as they existed on June 30, 2021, unenforceable and uncollectible as of July 1, 2021. (Stats. 2020, ch. 92 , §§ 11, 62.) T he plain language of Gov ernment Code section 6111 and Penal Code section 146 5 .9 , subdivision (a) mandates we vacat e a portion of the judgment for the purpose of striking the now

- unauthorized costs here, the unpaid balance of the probation supervision and criminal justice administ ration costs

. ( People v. Greele y (2021) 70 Cal.App.5th 609, 626.)8 DISPOSITION The judgment is affirmed and the matter remanded to the superior

court , which is directed to correct the December 29, 2021 minute order to reflect that Banuelos is not requir ed to reimburse costs pursuant to section 1203.1b, subdivision (e).

O’ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

DATO, J.