People v. LaDuke

Filed 12/14/18
CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D072597

Plaintiff and Respondent,

v. (Super. Ct. No. SCN368628)

RICHARD L. LADUKE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Blaine K.

Bowman, Judge. Affirmed as modified.

Cathryn Lintvedt Rosciam, 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, Steve Oetting and Daniel J.

Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of parts II through IV.
 Richard L. LaDuke appeals a judgment following his jury conviction of arson

(Pen. Code,1 § 451, subd. (d)), vandalism of a religious educational institution (§ 594.3,

subd. (a)), and felony vandalism causing over $400 in damage (§ 594, subds. (a), (b)(1)).

At sentencing, the trial court granted him three years of formal probation, subject to

certain conditions of probation. On appeal, he contends: (1) there is insufficient

evidence to support his conviction for vandalism of a religious educational institution

(§ 594.3, subd. (a)); (2) that conviction must be reversed because section 594.3,

subdivision (a) is unconstitutional under the United States and California Constitutions;

(3) his conviction for felony vandalism causing over $400 in damage (§ 594,

subds. (a), (b)(1)) must be reversed because it is a necessarily included offense of

vandalism of a religious educational institution (§ 594.3, subd. (a)); and (4) the

electronics search condition of his probation is unconstitutionally overbroad. Because, as

discussed post, we conclude the electronics search probation condition is unreasonable in

this case, we modify the probation order to strike that condition and affirm the judgment

in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

At about 9:45 a.m. on January 15, 2017, LaDuke squirted lighter fluid on a sign in

front of John Paul the Great Catholic University (University) in Escondido and then lit

the sign on fire. After about 30 seconds, LaDuke sprayed the sign with lighter fluid again

and relit the sign on fire. The sign was made of aluminum and plastic and was mounted

1 All statutory references are to the Penal Code except as otherwise specified.

2
on a red brick base, and each side of the sign had an image of the crucifix and the words,

"John Paul the Great Catholic University." LaDuke burned both sides of the sign and left

after about five minutes. The sign was charred with black burn marks.

A police officer stopped LaDuke a few blocks away. LaDuke had a lighter in his

front right pocket. An eyewitness identified him as the person who lit the sign on fire.

The University is a nonprofit educational institution with about 300 students

enrolled in theology, creative arts, and business programs. It was founded and is based

on the Catholic faith. One-third of its students major in theology and all students are

required to take theology or religious philosophy classes. Most of its students are

Catholic. Students are encouraged to attend mass services, which are held on campus

daily. The University paid $12,000 to replace the damaged sign.

An information charged LaDuke with arson (§ 451, subd. (d)), vandalism of a

building owned and occupied by a religious educational institution (§ 594.3, subd. (a)),

and vandalism causing damage in excess of $400 and also in excess of $10,000 (§ 594,

subds. (a), (b)(1)). At trial, the prosecution presented evidence substantially as described

ante. In his defense, LaDuke testified that he was 63 years old, unemployed, and

homeless. He stated that he was upset that "the Jews are always blamed for the

crucifixion of Jesus" and decided to relieve himself of the burden of being "blamed for

crucifying Christ." He admitted he bought a lighter and "some barbecue things"

(e.g., lighter fluid), poured lighter fluid all over the University's sign, and lit the sign on

fire. On cross-examination, LaDuke admitted he knew the sign had the name, "John Paul

the Great Catholic University," on it. He knew the University was a Catholic university.

3
He also saw that the sign had a cross on it, symbolizing Christ on the cross. He knew

burning the sign was wrong, but he did not care. He stated a priest at the University

refused to talk to him. He did not consider the University a religious organization. He

asserted that Catholicism was a "group of teachings" with which he did not agree.

The jury convicted him on all three counts and found the damage on count three

(§ 594, subds. (a), (b)(1)) was over $400, but less than $10,000. At sentencing, the trial

court suspended imposition of sentence and granted LaDuke three years of formal

probation, subject to certain conditions. One probation condition required that he consent

to warrantless searches of "personal effects, computers, and recordable media." LaDuke

timely filed a notice of appeal.

DISCUSSION

I

Substantial Evidence to Support LaDuke's Section 594.3, Subdivision (a) Conviction

LaDuke contends there is insufficient evidence to support his section 594.3,

subdivision (a) conviction of vandalism of a building owned and occupied by a religious

educational institution. In particular, he argues that the sign was not a "building," or part

of a building, owned and occupied by a religious educational institution within the

meaning of section 594.3, subdivision (a).

A

Following the close of evidence at trial, LaDuke made a section 1118.1 motion to

dismiss the section 594.3, subdivision (a) charge against him. He argued that the statute

protected only "buildings" and the sign was not attached to, or any part of, any building.

4
The court concluded that the Legislature intended the statute to apply to both personal

property and real property. It also noted that there would be no need for the sign unless

there was a building it needed to identify. It also stated that burning the sign was more

egregious than burning a part of the building because the sign featured a cross and the

word "Catholic." The court denied the section 1118.1 motion.

B

When a conviction is challenged on appeal for insufficient evidence to support it,

we apply the substantial evidence standard of review. (People v. Vines (2011)

51 Cal.4th 830, 869; People v. Johnson (1980) 26 Cal.3d 557, 578.) In so doing, we

review the whole record in the light most favorable to the judgment to determine whether

there is substantial evidence to support the conviction. (Vines, at p. 869; Johnson, at

p. 578.) Substantial evidence is evidence that is reasonable, credible, and of solid value

such that a reasonable trier of fact could find the defendant guilty beyond a reasonable

doubt. (People v. Killebrew (2002) 103 Cal.App.4th 644, 660.)

In contrast, in reviewing a trial court's interpretation of a statute, we apply a de

novo, or independent, standard of review. (People ex rel. Lockyer v. Shamrock

Foods Co. (2000) 24 Cal.4th 415, 432.) In independently interpreting a statute, our task

is to ascertain and effectuate the law's intended purpose. (Weatherford v. City of San

Rafael (2017) 2 Cal.5th 1241, 1246.) In interpreting a statute, we look first to the

statute's words. (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798.) The statutory

language is generally the most reliable indicator of legislative intent. (People v. Cordell

(2011) 195 Cal.App.4th 1564, 1575; Whaley v. Sony Computer Entertainment America,

5
Inc. (2004) 121 Cal.App.4th 479, 484-485.) If the statutory language is unambiguous, we

will presume the Legislature meant what it said and the plain meaning of the statute will

prevail unless its literal meaning would result in absurd consequences that the Legislature

did not intend. (Cordell, at p. 1575; Whaley, at pp. 484-485; Riverside County Sheriff's

Dept. v. Stiglitz (2014) 60 Cal.4th 624, 630.)

However, if the statutory language is ambiguous and is reasonably susceptible to

more than one meaning, we look to a variety of extrinsic aids, including the ostensible

objects to be achieved, the evils to be remedied, the legislative history, public policy,

contemporaneous administrative construction, and the statutory scheme of which the

statute is a part. (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 992

(DiCampli-Mintz).) Our ultimate objective in interpreting a statute is to construe the

statute in a way that most closely comports with the apparent intent of the Legislature.

(People v. Rubalcava (2000) 23 Cal.4th 322, 328.)

C

LaDuke argues there is insufficient evidence to support his section 594.3,

subdivision (a) conviction because the sign was not a "building" within the meaning of

that statute. Section 594.3, subdivision (a) provides:

"Any person who knowingly commits any act of vandalism to a
church, synagogue, mosque, temple, building owned and occupied
by a religious educational institution, or other place primarily used
as a place of worship where religious services are regularly
conducted or a cemetery is guilty of a crime punishable by
imprisonment in a county jail for not exceeding one year or
imprisonment pursuant to subdivision (h) of Section 1170." (Italics
added.)

6
Section 594.3 does not define the term "building," nor is that term defined elsewhere in

the Penal Code in the context of vandalism. The parties have not cited, and we are

unaware of, any published case interpreting the phrase "building owned and occupied by

a religious educational institution" within the meaning of section 594.3, subdivision (a).

Accordingly, the question of the meaning of that phrase appears to be one of first

impression.

LaDuke argues the term "building," as used in section 594.3, subdivision (a),

necessarily refers to a structure that can be owned and occupied. He cites People v.

Muszynski (2002) 100 Cal.App.4th 672, in which the court concluded the term "building"

was ambiguous in the context of the offense of arson and was reasonably susceptible to

multiple interpretations. (Id. at p. 683.) After reviewing the legislative history of the

arson statute, the court interpreted the term "building" as not including an individual

apartment within an apartment complex. (Id. at pp. 681, 683.) LaDuke also notes that

the term "building" has been interpreted in the context of burglary as a structure with four

walls and a roof and includes carports and other structures that are attached to, and an

integral part of, the building. (See, e.g., People v. Gibbons (1928) 206 Cal. 112, 114;

People v. Chavez (2012) 205 Cal.App.4th 1274, 1279; In re Christopher J. (1980)

102 Cal.App.3d 76, 78-79.) Relying on those arson and burglary cases, LaDuke argues

that the term "building," as used in section 594.3, subdivision (a), should be interpreted as

a structure with four walls and a roof that can be occupied and therefore the term

"building" would not include a stand-alone sign such as the one in this case.

7
 In contrast, the People argue the term "building" should be interpreted broadly to

achieve the legislative objectives of section 594.3, subdivision (a). Citing various

dictionary definitions of the term "building," the People argue that we should interpret

that term, as used in section 594.3, subdivision (a), to include anything that is built or

constructed (e.g., a structure).2 Citing Civil Code section 660,3 the People further argue

the term "building" should include fixtures (e.g., things that permanently rest upon or are

permanently attached or affixed to land). Because the University's sign was a structure

that was permanently affixed to its land, the People argue that sign should be included

within the term "building," as used in section 594.3, subdivision (a). The People also

argue that by enacting section 594.3, subdivision (a), the Legislature intended to protect

the rights of individuals to freely exercise their religious beliefs without the fear of

vandalism of the places at which they exercise those beliefs.

Considering the parties' arguments and the language of section 594.3,

subdivision (a), we conclude the phrase "building owned and occupied by a religious

educational institution," as used in that statute, is reasonably susceptible to more than one

meaning. One reasonable narrow interpretation of the term "building" is, as LaDuke

2 For example, the People cite one dictionary's definition of the term "building" as
meaning "a thing built." (Webster's 3d New Internat. Dict. (2002) p. 292.) Likewise,
they cite another definition of the term "building" as meaning "anything built or
constructed." (Random House Unabridged Dict. (2d ed. 1993) p. 274.)

3 Civil Code section 660 provides: "A thing is deemed to be affixed to land when it
is attached to it by roots . . . ; or imbedded in it, as in the case of walls; or permanently
resting upon it, as in the case of buildings; or permanently attached to what is thus
permanent, as by means of cement, plaster, nails, bolts, or screws . . . ."
8
argues, a structure that has four walls and a roof and is occupied. In contrast, a

reasonable broad interpretation of the term "building" is, as the People argue, any

structure or thing built, including any fixtures attached thereto. Given more than one

reasonable interpretation of the statutory language of section 594.3, subdivision (a), we

must construe that ambiguous language by determining its legislative intent, and, in so

doing, we look to a variety of extrinsic aids, including the ostensible objects to be

achieved, the evils to be remedied, the legislative history, public policy, construction, and

the statutory scheme of which the statute is a part. (DiCampli-Mintz, supra, 55 Cal.4th at

p. 992.)

In construing the language of section 594.3, subdivision (a), we consider, inter

alia, the statutory scheme of which that statute is a part. (DiCampli-Mintz, supra,

55 Cal.4th at p. 992.) In particular, we note that the statute uses the term "vandalism,"

which is defined in section 594 as the malicious act of defacing, damaging, or destroying

"any real or personal property" not his or her own. Therefore, "vandalism," as used in

both sections 594 and 594.3, subdivision (a), necessarily includes malicious damage to

either real or personal property. Because the vandalism set forth in section 594.3,

subdivision (a) prohibits damage to both real and personal property, we reject LaDuke's

suggested interpretation limiting that offense to damage to only an occupied structure

with four walls and a roof. Instead, the statute's use of the term "vandalism" indicates the

Legislature intended to prohibit malicious acts causing damage not only to the physical

structure of a building, but also to personal property located within that building or on the

same real property as, and related to, the building. Accordingly, we construe section

9
594.3, subdivision (a) as prohibiting, inter alia, malicious damage to personal property or

fixtures located on or attached to the real property of, and related to, a "building owned

and occupied by a religious educational institution." (§ 594.3, subd. (a).)

The People note that the Legislature amended section 594.3 in 1983 to add

subdivision (b),4 which subdivision defines the separate, but related, "hate crime" offense

of vandalism of religious property and, in so doing, the Legislature stated that the

amendment was in response to an "alarming increase in the number of incidents

involving acts of vandalism to religious institutions," which acts were often done to

intimidate and deter individuals "from freely exercising their religious beliefs."

(Stats. 1983, ch. 726, § 2(a), (b).) Although that amendment involved a different

subdivision and different offense, we believe it is reasonable to presume the Legislature

held the same concerns when originally enacting section 594.3, subdivision (a) two years

earlier. Therefore, the Legislature's expressed concerns in 1983 are instructive in

interpreting section 594.3, subdivision (a), which was enacted in 1981. (Stats. 1981,

ch. 211, § 2.) In particular, we infer that in enacting that statute, the Legislature sought to

protect the rights of persons to freely exercise their religious beliefs by making it a

criminal offense to vandalize certain religious properties, including buildings owned and

4 Section 594.3, subdivision (b) provides: "Any person who knowingly commits
any act of vandalism to a church, synagogue, mosque, temple, building owned and
occupied by a religious educational institution, or other place primarily used as a place of
worship where religious services are regularly conducted or a cemetery, which is shown
to have been a hate crime and to have been committed for the purpose of intimidating and
deterring persons from freely exercising their religious beliefs, is guilty of a felony
punishable by imprisonment pursuant to subdivision (h) of Section 1170."
10
occupied by religious educational institutions. To further that legislative purpose, we

presume the Legislature intended to prohibit malicious damage not only to the actual

physical structures within which religious or religious educational activities are

conducted, but also to personal property or fixtures located on or attached to the real

property of, and related to, that structure or "building owned and occupied by a religious

educational institution." (§ 594.3, subd. (a).)

Based on our interpretation ante of section 594.3, subdivision (a), we conclude the

University's sign, which was located in front of, on the same real property as, and related

to, the physical structure within which its educational activities are conducted, was either

personal property or a fixture located on or attached to the real property of, and related to,

that structure and therefore could reasonably be found by the jury to be part of the

"building owned and occupied" by the University within the meaning of that statute. The

instant sign, made of aluminum and plastic, was built by a contractor who installed it on a

red brick base on the University's real property. The sign had an image of the crucifix

and the words, "John Paul the Great Catholic University," identifying the physical

structure behind it as part of the University and also identifying the University as a

religious educational institution. Whether considered personal property or a fixture, the

jury could therefore reasonably conclude from the evidence at trial that the sign was part

of the building owned and occupied by the University, which is a religious educational

11
institution.5 Accordingly, we conclude there is substantial evidence to support LaDuke's

conviction of the section 594.3, subdivision (a) offense.

II

Constitutionality of Section 594.3, Subdivision (a)

LaDuke contends that his section 594.3, subdivision (a) conviction must be

reversed because that statute is unconstitutional under the United States and California

Constitutions. In particular, he argues that statute is unconstitutional because it: (1) is

void for vagueness; (2) violates the establishment clauses of the United States and

California Constitutions; (3) violates the no-preference clause of the California

Constitution; and (4) violates the equal protection clauses of the United States and

California Constitutions. As discussed post, we reject each of his arguments.

A

Before trial, LaDuke moved to dismiss the section 594.3, subdivision (a) charge

against him on constitutional grounds. The trial court overruled his constitutional

objections and denied the motion. The court also denied his request that its jury

instruction for that charge define the phrase "religious educational institution" and denied

his proposed instruction defining that phrase. Instead, the court instructed the jury with

the language of section 594.3, subdivision (a) stating:

5 We note that certain photographs of the sign (Exhibit Nos. 1-6) were admitted in
evidence and viewed by the jury, which photographs presumably showed the sign's
location adjacent to and in front of the University's structure in which its educational
activities were conducted. However, neither party lodged those exhibits with, or
requested their transfer to, this court, and therefore we have not reviewed them in
disposing of this appeal.
12
 "The defendant is charged in Count 2 with vandalism of religious
property in violation of Penal Code section 594.3. [¶] To prove that
the defendant is guilty of this crime, the People must prove that:

"1. The defendant maliciously damaged or destroyed real or
personal property of a building owned and occupied by a religious
educational institution;

"2. The defendant knew the property belonged to a building owned
and occupied by a religious educational institution; [¶] AND

"3. The defendant did not own the property.

"Someone acts maliciously when he or she intentionally does a
wrongful act or when he or she acts with the unlawful intent to
annoy or injure someone else."

On appeal, when an appellant challenges the constitutionality of a statute, we

apply the de novo, or independent, standard of review. (People ex rel. Lockyer v. Sun

Pac. Farming Co. (2000) 77 Cal.App.4th 619, 632; Duarte Nursery, Inc. v. California

Grape Rootstock Improvement Commission (2015) 239 Cal.App.4th 1000, 1011.)

B

Void-for-vagueness claim.

LaDuke asserts section 594.3, subdivision (a) is unconstitutional because it is void

for vagueness. In particular, he argues that the phrase "religious educational institution"

in that statute does not put a person on notice of what specific institutions are included

and thereby encourages arbitrary and discriminatory enforcement. We disagree.

The void-for-vagueness doctrine, "which derives from the due process concept of

fair warning, bars the government from enforcing a provision that 'forbids or requires the

doing of an act in terms so vague' that people of 'common intelligence must necessarily

13
guess at its meaning and differ as to its application.' " (People v. Hall (2017) 2 Cal.5th

494, 500.) A penal statute "must be sufficiently explicit to inform those who are subject

to it what conduct on their part will render them liable to its penalties." (Connally v.

General Const. Co. (1926) 269 U.S. 385, 391.) However, there is a strong presumption

that statutes must be upheld unless their unconstitutionality clearly, positively, and

unmistakably appears. (Walker v. Superior Court (1988) 47 Cal.3d 112, 143.) A party

challenging a statute as void for vagueness cannot carry his or her burden on appeal by

merely showing the statute may be uncertain or ambiguous in some instances, but must

instead show the statute is impermissibly vague in all of its applications. (Evangelatos v.

Superior Court (1988) 44 Cal.3d 1188, 1201 (Evangelatos).) An appellant "cannot

prevail by simply suggesting hypothetical situations in which constitutional problems

may arise." (People v. Sipe (1995) 36 Cal.App.4th 468, 481 (Sipe).) "[S]peculation

about possible vagueness in hypothetical situations not before the Court will not support

a facial attack on a statute when it is surely valid 'in the vast majority of its intended

applications.' " (Hill v. Colorado (2000) 530 U.S. 703, 733 (Hill).)

LaDuke argues section 594.3, subdivision (a) is unconstitutionally void for

vagueness because its phrase, "religious educational institution," is not defined and is so

vague that it fails to put a person on notice of which institutions are protected by the

statute and encourages arbitrary and discriminatory enforcement. In the circumstances of

this case, LaDuke fails to persuade us that a person would not be put on notice that the

University, as designated on the sign, was a religious educational institution protected by

section 594.3, subdivision (a). As noted ante, the sign bore the name of the University,

14
"John Paul the Great Catholic University." By the sign's inclusion of the word,

"Catholic," there could be no reasonable confusion whether the University was

"religious" within the meaning of the statute. In fact, LaDuke testified that he knew the

University was a Catholic university and that the sign had the name, "John Paul the Great

Catholic University," on it. He stated that he was upset that "the Jews are always blamed

for the crucifixion of Jesus" and decided to relieve himself of the burden of being

"blamed for crucifying Christ" by lighting the sign on fire. Contrary to LaDuke's

apparent assertion, we conclude people of common intelligence would necessarily know

that the term "Catholic" represents a religion and therefore the University, which was

identified on the sign as Catholic, is a religious institution. (People v. Hall, supra,

2 Cal.5th at p. 500.) Although LaDuke testified at trial that he did not consider the

University a religious organization and asserted that Catholicism was a "group of

teachings" with which he did not agree, his personal and subjective beliefs regarding the

Catholic faith are irrelevant to our determination of whether people of common

intelligence would consider the instant Catholic university a religious institution within

the meaning of the statute's language.

Furthermore, we conclude that people of common intelligence would know that

the University is an educational institution within the meaning of section 594.3,

subdivision (a). The term "university" necessarily connotes an institution of higher

learning that educates its students. Therefore, there can be no doubt that the University is

an educational institution.

15
 LaDuke argues that the phrase, "religious educational institution," as used in

section 594.3, subdivision (a), is nevertheless vague because a person may be confused

whether it includes only seminaries or other educational institutions that are owned and

operated by religious organizations and exclusively instruct their students on religion or

whether that phrase applies more broadly to also include educational institutions that are

merely affiliated with certain religions. However, we conclude that people of common

intelligence would not construe the phrase, "religious educational institution," so

narrowly as to exclude from its meaning educational institutions that are aligned or

affiliated with certain religions and not owned or operated by religious organizations or

that do not exclusively instruct their students on religion. It is commonly understood that

many educational institutions (e.g., colleges and universities) are affiliated with certain

religions, but provide their students with instruction on secular subjects, and are not

owned and operated by a church or other religious organization. Therefore, we conclude

people of common intelligence would understand that the phrase, "religious educational

institution," was not vague or ambiguous in the circumstances of this case and clearly

applied to the University.

E.E.O.C. v. Kamehameha Schools/Bishop Estate (9th Cir. 1993) 990 F.2d 458,

cited by LaDuke and which involved the federal Civil Rights Act of 1964, is factually

and procedurally inapposite to this case and does not persuade us to reach a contrary

conclusion. To the extent he argues the phrase, "religious educational institution," may

be ambiguous as applied to other institutions or other hypothetical situations, that

argument does not show the phrase is unconstitutionally vague in this case.

16
(Evangelatos, supra, 44 Cal.3d at p. 1201; Sipe, supra, 36 Cal.App.4th at p. 481;

Hill, supra, 530 U.S. at p. 733.)

Furthermore, because we conclude that the phrase, "religious educational

institution," is not vague or ambiguous in the circumstances of this case, the trial court

did not err, as LaDuke asserts, by not defining that phrase in its instructions to the jury or

by denying his proposed instruction defining that phrase. (People v. Griffin (2004)

33 Cal.4th 1015, 1022 ["Although trial courts, generally, have a duty to define technical

terms that have meanings peculiar to the law, there is no duty to clarify, amplify, or

otherwise instruct on commonly understood words or terms used in statutes or jury

instructions."].)

C

Establishment clauses.

LaDuke asserts section 594.3, subdivision (a) is unconstitutional because it

violates the establishment clauses of the United States and California Constitutions. In

particular, he argues that statute provides greater protection to religious institutions than

to nonreligious or secular institutions.

The First Amendment to the United States Constitution, which applies to the states

through the Fourteenth Amendment, provides: "Congress shall make no law respecting

the establishment of religion, or prohibiting the free exercise thereof." (Cantwell v.

Connecticut (1940) 310 U.S. 296, 303.) Similarly, article I, section 4 of the California

Constitution provides: "The Legislature shall make no law respecting an establishment of

religion." In interpreting the California Constitution's establishment clause, we are

17
guided by decisions of the United States Supreme Court regarding the federal

establishment clause. (East Bay Asian Local Development Corp. v. State of California

(2000) 24 Cal.4th 693, 719 (East Bay); Sedlock v. Baird (2015) 235 Cal.App.4th

874, 885.) In Lemon v. Kurtzman (1971) 403 U.S. 602 (Lemon), the United States

Supreme Court set forth a three-part test for determining whether a statute or

governmental practice violates the establishment clause. (Id. at pp. 612-613.) "Under

that test . . . , to satisfy the Establishment Clause a governmental practice must (1) reflect

a clearly secular purpose; (2) have a primary effect that neither advances nor inhibits

religion; and (3) avoid excessive government entanglement with religion." (Lee v.

Weisman (1992) 505 U.S. 577, 584-585.) A statute is unconstitutional if it fails to satisfy

any of the three Lemon requirements. (Edwards v. Aguillard (1987) 482 U.S. 578, 583.)

Regarding the first prong of the Lemon test, we conclude section 594.3,

subdivision (a) has the clear secular purposes of protecting private property from

vandalism, protecting religious institutions from disruption, and protecting the free

exercise of religion. The protection of the exercise of religion is a legitimate secular

purpose. (See, e.g., Larkin v. Grendel's Den, Inc. (1982) 459 U.S. 116, 124 (Larkin)

[protection of churches and schools from disruption is valid secular purpose]; United

States v. Corum (8th Cir. 2004) 362 F.3d 489, 496 [curbing threats of violence against

religious institutions is valid secular purpose]; Mayweathers v. Newland (9th Cir. 2002)

314 F.3d 1062, 1068.) The Legislature could reasonably conclude that section 594.3,

subdivision (a) serves the legitimate secular purposes of protecting the free exercise of

religion and protecting religious institutions, including religious educational institutions,

18
from disruption and intimidation caused by malicious vandalism. Contrary to LaDuke's

apparent assertion, a statute's purpose need not be unrelated to religion. (Corporation of

Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos (1987)

483 U.S. 327, 335.) Provided a statute does not promote a particular religion or religious

point of view, that statute need not maintain a "callous indifference" toward religion.

(Zorach v. Clauson (1952) 343 U.S. 306, 314.) Because section 594.3, subdivision (a)

does not promote a particular religion or religious point of view, we conclude it has

legitimate secular purposes and thereby satisfies the first prong of the Lemon test.

Contrary to LaDuke's assertion, the fact that section 594.3, subdivision (a) vandalism

offenses are subject to potentially more severe punishment than for general vandalism

offenses under section 594 (e.g., vandalism against nonreligious institutions) does not

show that the purpose of section 594.3, subdivision (a) is religious rather than secular.

To the extent that statute arguably provides greater protection to religious institutions

against vandalism, it serves the legitimate secular purpose of protecting the free exercise

of religion.6

Regarding the second prong of the Lemon test, we conclude section 594.3,

subdivision (a) has a "primary effect . . . that neither advances nor inhibits religion."

(Lemon, supra, 403 U.S. at p. 612.) That statute does not affirmatively advance religion,

6 Contrary to LaDuke's assertion, the fact that section 594.3, subdivision (b), which
prohibits "hate crime" acts of vandalism against religious institutions, also provides
greater punishment for acts of vandalism than section 594 does for general vandalism
does not show that section 594.3, subdivision (a) does not also have the legitimate secular
purposes of protecting religious institutions from disruption and protecting the free
exercise of religion.
19
but merely protects religious property from malicious vandalism and its inherent

disruption of, or intimidation discouraging, the free exercise of religion. By so doing, it

does not promote or endorse religion, but at most provides an incidental benefit to

religious institutions. (Cf. Carter v. Peters (7th Cir. 1994) 26 F.3d 697, 699 ["incidental,

indirect benefits to religion do not offend the second prong of the Lemon test"].)

Contrary to LaDuke's assertion, the statute does not demonstrate a state preference for

religious institutions over nonreligious institutions. Texas Monthly, Inc. v. Bullock

(1989) 489 U.S. 1, cited by LaDuke and which involved a state sales tax exemption for

religious publications, is factually and procedurally inapposite to this case and does not

persuade us to reach a contrary conclusion.

Regarding the third prong of the Lemon test, we conclude section 594.3,

subdivision (a) avoids excessive governmental entanglement with religion. (Lee v.

Weisman, supra, 505 U.S. at p. 585.) That statute does not improperly intertwine

churches and other religious institutions with government in its exercise of its powers.

(Cf. Larkin, supra, 459 U.S. at p. 126.) Religious institutions have no control over how

the statute is enforced by governmental agencies. In particular, religious institutions need

not consent to, or be consulted regarding, the enforcement of that statute in particular

cases. Furthermore, enforcement of section 594.3, subdivision (a) by a governmental

agency does not evince any endorsement of, or entanglement with, any particular religion

or religion in general. At most, there may be incidental contact with religious institutions

that is necessary to prosecute violations of that statute. (Cf. Agostini v. Felton (1997)

521 U.S. 203, 233 ["Interaction between church and state is inevitable (citation), and we

20
have always tolerated some level of involvement between the two."].) In the

circumstances of this case, we conclude section 594.3, subdivision (a) does not involve

excessive governmental entanglement with religion. None of the cases cited by LaDuke

are apposite to this case and he does not otherwise persuade us that the third prong of the

Lemon test is not satisfied.7 Because section 594.3, subdivision (a) satisfies all three

prongs of the Lemon test, we conclude it does not violate the establishment clauses of the

United States and California Constitutions. (Lemon, supra, 403 U.S. at pp. 612-613;

cf. United States v. Corum, supra, 362 F.3d at pp. 496-497 [federal Church Arson

Prevention Act did not violate establishment clause of United States Constitution].)

D

No-preference clause.

LaDuke asserts section 594.3, subdivision (a) is unconstitutional because it

violates the no-preference clause of the California Constitution. Article I, section 4 of the

California Constitution provides in relevant part: "Free exercise and enjoyment of

religion without discrimination or preference are guaranteed." (Italics added.) The

California Supreme Court has not yet "definitively construe[d] the [no-preference]

clause." (East Bay, supra, 24 Cal.4th at p. 719.) Nevertheless, the Supreme Court stated:

"[T]he plain language of the clause suggests . . . that the intent is to ensure that free

exercise of religion is guaranteed regardless of the nature of the religious belief

7 The fact that section 594 provides protection against vandalism generally does not,
as LaDuke asserts, necessarily show that section 594.3, subdivision (a)'s protection
against vandalism against religious property involves excessive governmental
entanglement with religion.
21
professed, and that the state neither favors nor discriminates against religion." (Ibid.) In

East Bay, because the challenged statutes satisfied all three prongs of the Lemon test

regarding the establishment clause, the court concluded that "it follow[ed]" that those

statutes were "neither a governmental preference for or discrimination against religion."

(East Bay, at p. 719.) The court stated: "Neither the history nor the language of the no-

preference clause supports [the] argument that the clause bans governmental

accommodation of religion or religious belief in general." (Id. at p. 720.)

Because we concluded ante that section 594.3, subdivision (a) satisfied all three

prongs of the Lemon test, we, applying the same reasoning as in East Bay, conclude that

section 594.3, subdivision (a) does not violate the no-preference clause of the California

Constitution. Furthermore, because that statute neither favors nor discriminates against

religion, it does not violate the no-preference clause. (East Bay, supra, 24 Cal.4th at

p. 719.) Because Sands v. Morongo Unified School Dist. (1991) 53 Cal.3d 863 (Sands),

cited by LaDuke, was a plurality opinion and preceded East Bay's interpretation (albeit a

nondefinitive one) of the no-preference clause, we conclude that Sands's broader

interpretation of that clause than the federal establishment clause was, in effect, overruled

by East Bay and therefore it does not apply to our review of section 594.3, subdivision (a)

in this case.8

8 In any event, assuming arguendo that Sands's interpretation of the no-preference
clause applies to this case, we nevertheless would conclude that section 594.3,
subdivision (a) does not, as LaDuke asserts, provide greater protection to religious
institutions or demonstrate a preference for religious property. To the extent that statute
provides for greater punishment than section 594 does, that difference does not show a
22
 E

Equal protection clauses.

LaDuke asserts section 594.3, subdivision (a) is unconstitutional because it

violates the equal protection clauses of the United States and California Constitutions.

The Fourteenth Amendment to the United States Constitution provides that no state may

"deny to any person within its jurisdiction the equal protection of the laws." Article I,

section 7 of the California Constitution provides: "A person may not be . . . denied equal

protection of the laws." The California Supreme Court has stated that California's equal

protection clause is substantially the equivalent of the federal equal protection clause.

(Manduley v. Superior Court (2002) 27 Cal.4th 537, 571-572.) In general, equal

protection of the laws means that no person or class of persons shall be denied the same

protection of the laws that is enjoyed by other persons or classes of persons in like

circumstances. (People v. Wutzke (2002) 28 Cal.4th 923, 943.)

To show a violation of the equal protection clauses, a defendant must satisfy a

two-step test. First, the defendant must show "that the state has adopted a classification

that affects two or more similarly situated groups in an unequal manner." (In re Eric J.

(1979) 25 Cal.3d 522, 530.) "This initial inquiry is not whether persons are similarly

situated for all purposes, but 'whether they are similarly situated for purposes of the law

challenged.' " (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) Second, the

defendant must show there is no sufficient justification for the unequal treatment.

preference for religious institutions. Furthermore, Sands addressed religious invocations
at a public high school graduation ceremony and therefore is factually inapposite to this
case. (Sands, supra, 53 Cal.3d at p. 868.)
23
(People v. Chatman (2018) 4 Cal.5th 277, 288.) The level of justification needed

"depends on the nature or effect of the classification at issue." (Ibid.) If there is no

suspect classification or fundamental right involved, the defendant must show that the

challenged classification bears no rational relationship to a legitimate government

purpose. (Id. at pp. 288-289; People v. Turnage (2012) 55 Cal.4th 62, 74; Romer v.

Evans (1996) 517 U.S. 620, 635.) However, when the disparity implicates a suspect class

or a fundamental right, strict scrutiny applies. (Warden v. State Bar (1999) 21 Cal.4th

628, 641.) In those cases, the government bears the burden to show there is a compelling

state interest for the disparate treatment and that the classifications are necessary to

further that interest. (In re Smith (2008) 42 Cal.4th 1251, 1263; People v. Olivas (1976)

17 Cal.3d 236, 251; Serrano v. Priest (1971) 5 Cal.3d 584, 597.) If the classifications

involve gender or illegitimacy, an intermediate level of scrutiny applies. (In re Smith, at

p. 1263.)

Contrary to LaDuke's assertion, we conclude section 594.3, subdivision (a) and

section 594, the general vandalism statute, do not affect two similarly situated groups in

an unequal manner under the first step of the equal protection test because those statutes

define different crimes. Under section 594, a person commits the crime of vandalism if

he or she "maliciously commits any of the following acts with respect to any real or

personal property not his or her own . . . : (1) [d]efaces with graffiti or other inscribed

material. [¶] (2) [d]amages. [¶] [or] (3) [d]estroys" and is subject to various punishment

based on the amount of damage caused. (§ 594, subds. (a), (b).) If the amount of damage

is $400 or more, the crime is felony vandalism, subjecting the defendant to imprisonment

24
pursuant to section 1170, subdivision (h), or in a county jail for a period not exceeding

one year, or a fine of not more than $10,000, or both a fine and imprisonment. (§ 594,

subd. (b)(1).) However, if the amount of damage is $10,000 or more, the fine may be up

to $50,000. (§ 594, subd. (b)(1).) If the amount of damage is less than $400, the crime is

misdemeanor vandalism, generally subjecting the defendant to imprisonment in a county

jail not exceeding one year, or a fine of not more than $1,000, or both a fine and

imprisonment.9 (§ 594, subd. (b)(2)(A).)

In contrast, under section 594.3, subdivision (a) a person commits the crime of

felony vandalism against religious property without regard to the amount of damage, if

any, caused. Furthermore, that crime includes a knowledge requirement, i.e., the person

must "knowingly" commit the act of vandalism against a building owned and occupied

by a religious educational institution or other religious property described in the statute.

(§ 594.3, subd. (a).) Section 594 does not include such a knowledge requirement.

Therefore, the crimes under section 594 and section 594.3, subdivision (a) are different

crimes. Because they are different crimes, persons who commit those respective crimes

are not similarly situated. LaDuke has not persuaded us otherwise. Accordingly,

LaDuke has not satisfied the first step of the two-step test and his equal protection clause

challenge necessarily fails. (In re Eric J., supra, 25 Cal.3d at p. 530; Cooley v. Superior

Court, supra, 29 Cal.4th at p. 253.)

9 If, however, the defendant has been previously convicted of vandalism, the
punishment ante for misdemeanor vandalism may include a fine of not more than $5,000.
(§ 594, subd. (b)(2)(B).)
25
 Assuming arguendo that persons who commit crimes under section 594 and

section 594.3, subdivision (a) are similarly situated, we nevertheless conclude LaDuke

has not carried his burden to show that California does not have any rational basis for

treating those two classes of persons differently (i.e., that the classifications bear no

rational relationship to a legitimate governmental purpose). We reject his argument that

the two classes of persons involve suspect classifications or fundamental interests that

trigger the strict scrutiny standard. Contrary to LaDuke's assertion, the two crimes do not

involve a person's freedom to hold, or not hold, religious beliefs. Rather, the crimes

involve acts of vandalism against property, regardless of the offender's religious beliefs

or the lack thereof.

Applying the rational relationship standard to the two classes of offenders, we

conclude, as the People argue, that those classifications have a rational relationship to the

legitimate governmental purpose of protecting religious properties from vandalism

which, in turn, protects the free exercise of religion without the inherent intimidation or

disruption caused by such vandalism. (Cf. State v. Vogenthaler (N.M.Ct.App. 1976)

548 P.2d 112, 115 [rejecting equal protection clause challenge because "there is a rational

basis for treating criminal damage to a church differently than criminal damage to other

property. Churches 'uniquely contribute to the pluralism of American society by their

religious activities.' [Citation.] . . . A rational basis for treating criminal damage to a

church differently than criminal damage to other property is the role of religion in society

as a whole."].) Therefore, to the extent section 594.3, subdivision (a) imposes greater

punishment than section 594, there is a rational relationship for that differential treatment

26
to the legitimate governmental purpose of protecting the free exercise of religion.

Accordingly, LaDuke has not satisfied the second step of the two-step test and his equal

protection clause challenge necessarily fails. (People v. Turnage, supra, 55 Cal.4th at

p. 74; Romer v. Evans, supra, 517 U.S. at p. 635.)

III

Section 594 as a Lesser Included Offense of Section 594.3, Subdivision (a)

LaDuke contends his conviction for felony vandalism causing over $400 in

damage (§ 594, subds. (a), (b)(1)) must be reversed because it is a necessarily included

offense of vandalism of a religious educational institution (§ 594.3, subd. (a)).

A

In general, a defendant may be convicted of multiple offenses arising out of the

same act or course of conduct. (§ 954; People v. Sanders (2012) 55 Cal.4th 731, 736.)

However, that general rule is subject to "a judicially created exception [that] prohibits

multiple convictions based on necessarily included offenses." (People v. Montoya (2004)

33 Cal.4th 1031, 1034.) "When a defendant is found guilty of both a greater and a

necessarily lesser included offense arising out of the same act or course of conduct, and

the evidence supports the verdict on the greater offense, that conviction is controlling,

and the conviction of the lesser offense must be reversed." (Sanders, at p. 736.)

"In deciding whether multiple conviction is proper, a court should consider only

the statutory elements." (People v. Reed (2006) 38 Cal.4th 1224, 1229.) "Under the

elements test, if the statutory elements of the greater offense include all of the statutory

27
elements of the lesser offense, the latter is necessarily included in the former." (Id. at

p. 1227.) Alternatively stated, if the greater offense cannot be committed without also

committing the lesser offense, the lesser offense is a necessarily included offense of the

greater offense. (Ibid.)

28
 B

LaDuke argues that his section 594 offense is a necessarily included offense of his

section 594.3, subdivision (a) offense and therefore the former offense must be reversed.

We disagree. LaDuke was convicted of felony vandalism under section 594, which

offense, as discussed in section II(E) ante, requires damage of $400 of more. (§ 594,

subds. (a), (b)(1).) Under section 594, a person commits the crime of felony vandalism if

he or she "maliciously commits any of the following acts with respect to any real or

personal property not his or her own . . . : (1) [d]efaces with graffiti or other inscribed

material. [¶] (2) [d]amages. [¶] [or] (3) [d]estroys" and the amount of damage is $400

or more. (Id., subds. (a), (b)(1).) In contrast, the section 594.3, subdivision (a) offense of

felony vandalism against religious property may be committed with little, or no, damage

to property.10 Each offense includes an element not contained in the other—the nature

of the property in section 594.3, subdivision (a) and the dollar amount specified in section

594.

Alternatively stated, unlike section 594 felony vandalism, the amount of damage

caused to property is not an element of a section 594.3, subdivision (a) offense.

Therefore, contrary to LaDuke's assertion, section 594 felony vandalism is not a

10 As quoted ante, section 594.3, subdivision (a) provides: "Any person who
knowingly commits any act of vandalism to a church, synagogue, mosque, temple,
building owned and occupied by a religious educational institution, or other place
primarily used as a place of worship where religious services are regularly conducted or a
cemetery is guilty of a crime punishable by imprisonment in a county jail for not
exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170."
29
necessarily included offense of a section 594.3, subdivision (a) offense.11 (People v.

Reed, supra, 38 Cal.4th at pp. 1227, 1229.) Accordingly, his section 594 conviction need

not be reversed as he contends. Based on the same reasoning, we likewise reject

LaDuke's assertion that the fines and fees imposed in connection with his section 594

conviction must be stricken.

IV

Electronics Search Probation Condition

LaDuke contends the electronics search condition of his probation is

unconstitutionally overbroad. Because we conclude post that the electronics search

probation condition was unreasonable in this case, we strike that condition and therefore

do not address LaDuke's constitutional overbreadth argument.

A

The probation report noted that LaDuke stated he had been homeless for 30 years

and had not been employed since 1995. He stated he did not have access to a computer

or cellular phone. The probation report showed that prior to the instant offenses, he had

criminal convictions in 1991, 1998, and 2000, and was granted probation in all three

cases. There were no reports of any probation violations by LaDuke in those cases. The

probation officer recommended that the court grant LaDuke formal probation and

11 Contrary to LaDuke's assertion, the fact that CALCRIM No. 2901 refers to the
People's burden under section 594 to prove the "allegation" that the amount of damage
caused by the vandalism was $400 or more and, if so, was also $10,000 or more, does not
persuade us that the statutory elements of a section 594 felony vandalism offense do not
include the element that the amount of damage be $400 or more.
30
proposed certain conditions of probation, including No. 6(n): "Submit 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 [a probation officer] or law enforcement officer." (Italics added.)

At sentencing, the trial court stated that it had read the probation report and was

inclined to follow its recommendations. The court noted that although LaDuke had a

criminal record, it was "somewhat insignificant and fairly old." Finding probation was

appropriate, the court suspended imposition of sentence and placed LaDuke on formal

probation for three years with the condition that he serve 365 days in jail and subject to

the other conditions of probation recommended in the probation report, including

condition No. 6(n), as quoted ante. LaDuke did not object to any of the conditions of

probation.

B

"The sentencing court has broad discretion to determine whether an eligible

defendant is suitable for probation and, if so, under what conditions." (People v.

Carbajal (1995) 10 Cal.4th 1114, 1120.) The court has broad power when granting

probation, "to impose any 'reasonable conditions, as it may determine are fitting and

proper to the end that justice may be done . . . specifically for the reformation and

rehabilitation of the probationer . . . .' (Pen. Code, § 1203.1, subd. (j).)" (People v.

Olguin (2008) 45 Cal.4th 375, 379 (Olguin).)

"We review conditions of probation for abuse of discretion. [Citations.]

Generally, '[a] condition of probation will not be held invalid unless it "(1) has no

31
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 . . . ." ' " (Olguin, supra, 45 Cal.4th at p. 379, citing

People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).) "This test is conjunctive—all three

prongs must be satisfied before a reviewing court will invalidate a probation term.

[Citations.] As such, even if a condition of probation has no relationship to the crime of

which a defendant was convicted and involves conduct that is not itself criminal, the

condition is valid as long as the condition is reasonably related to preventing future

criminality." (Olguin, at pp. 379-380.) A probation condition that enables a probation

officer to effectively supervise the defendant may be found to be reasonably related to

prevention of future criminality. (Id. at pp. 380-381.)

Furthermore, "[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.) "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 . . . ." (In re E.O. (2010)

188 Cal.App.4th 1149, 1153.) We review de novo constitutional challenges to probation

conditions. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)

C

Because LaDuke did not object below to the electronics search probation

condition, he arguably forfeited any challenge on appeal to that condition. However, the

32
People do not argue that LaDuke forfeited any constitutional or other challenge to that

probation condition. Therefore, we may consider his contention on appeal that the trial

court erred by imposing the electronics search probation condition.

In any event, to the extent LaDuke forfeited any reasonableness challenge under

Lent, supra, 15 Cal.3d 481, by not objecting below to the probation condition on that

ground, we nevertheless elect to exercise our discretion to address that issue to avoid a

future possible claim of ineffective assistance of counsel.12 (Cf. People v. Mattson

(1990) 50 Cal.3d 826, 854 [court considered issues not raised in trial court "to forestall a

later claim that trial counsel's failure to [raise those issues] reflects constitutionally

inadequate representation"].) In People v. Williams (1998) 17 Cal.4th 148, the court

stated that although a party generally cannot complain about the manner in which the trial

court exercises its sentencing discretion for the first time on appeal, "[a]n appellate court

is generally not prohibited from reaching a question that has not been preserved for

review by a party" and "has the authority to" address on appeal the question of the trial

court's exercise of its sentencing discretion. (Id. at p. 161, fn. 6.) "Whether or not [an

appellate court] should [address that question] is entrusted to its discretion." (Ibid.) In In

re Sheena K., supra, 40 Cal.4th 875, the court stated: "In general, forfeiture of a claim

not raised in the trial court by a party has not precluded review of the claim by an

appellate court in the exercise of that court's discretion." (Id. at p. 887, fn. 7.) That court

12 In People v. Welch (1993) 5 Cal.4th 228, 237, the court held that "failure to timely
challenge a probation condition on [Lent] grounds in the trial court waives the claim on
appeal."
33
noted: "The appellate courts typically have engaged in discretionary review only when a

forfeited claim involves an important issue of constitutional law or a substantial right."

(Ibid.) Furthermore, an appellate court may exercise its discretion to consider that issue

even though the parties did not raise it on appeal. (Tsemetzin v. Coast Federal Savings &

Loan Assn. (1997) 57 Cal.App.4th 1334, 1341, fn. 6.) Because the imposition of an

unreasonable probation condition affects the substantial rights of a defendant, we exercise

our discretion to address the issue of whether the electronics search probation condition

imposed on LaDuke was unreasonable under Lent even though he did not raise it below

or on appeal.

Regarding the first prong of the Lent test, it is indisputable based on the record on

appeal that the electronics search probation condition has no relationship to the crimes of

which LaDuke was convicted. (Lent, supra, 15 Cal.3d at p. 486.) He was convicted of

arson (§ 451, subd. (d)), vandalism of a building owned and occupied by a religious

educational institution (§ 594.3, subd. (a)), and vandalism causing damage in excess of

$400 (§ 594, subds. (a), (b)(1)). All of those offenses were based on his conduct in

lighting the University's sign on fire and damaging it. There is no evidence showing

LaDuke used computers or recordable media in preparing for or committing those

offenses. In fact, the record supports a contrary conclusion. The probation report noted

that LaDuke stated he did not have access to a computer or cellular phone. He also stated

he had been homeless and unemployed for 30 years. Therefore, we conclude the

electronics search probation condition has no relationship to the crimes of which LaDuke

was convicted. (Lent, at p. 486.)

34
 Regarding the second prong of the Lent test, it is likewise indisputable that the

electronics search probation condition relates to conduct which is not in itself criminal.

(Lent, supra, 15 Cal.3d at p. 486.) The possession and use of computers and recordable

media, as commonly used by individuals in contemporary society, is lawful and does not

violate any criminal laws. Therefore, we conclude the electronics search probation

condition relates to conduct which is not in itself criminal. (Ibid.)

Regarding the third prong of the Lent test, we conclude the electronics search

probation condition requires or forbids conduct which is not reasonably related to future

criminality in this case.13 (Lent, supra, 15 Cal.3d at p. 486.) Based on the undisputed

facts in this case, LaDuke's offenses were committed without the use of any computers or

recordable media. Furthermore, LaDuke does not have access to a computer or cellular

phone. He has been homeless and unemployed for 30 years. As the trial court noted at

sentencing, his criminal record was insignificant and old. He had been granted probation

in three prior cases and apparently successfully completed probation in those cases

without any violations. Accordingly, there is no evidence to support a finding that the

electronics search probation condition is reasonably related to preventing LaDuke's future

13 We note the issue of the validity of an electronics search probation condition
under Lent and its progeny is currently pending before the California Supreme Court.
(See, e.g., People v. Ermin (July 10, 2017, H043777) [nonpub. opn.], review granted
Oct. 25, 2017, S243864; People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted
Dec. 14, 2016, S238210; In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25,
2016, 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 that court provides further direction on that issue, we decide this
case based on our understanding of current law and the record in this case.
35
criminality. (Olguin, supra, 45 Cal.4th at pp. 379-380.) In particular, there is insufficient

evidence to support a finding that the electronics search probation condition would enable

a probation officer to effectively supervise LaDuke. (Id. at pp. 380-381.) There was no

showing below as to how the electronics search condition would reasonably prevent any

future crime or aid in LaDuke's rehabilitation.

In the circumstances of In re Erica R. (2015) 240 Cal.App.4th 907 (Erica R.), the

court concluded that an electronics search probation condition was not reasonably related

to the juvenile's future criminal activity, stating:

" '[n]ot every probation condition bearing a remote, attenuated,
tangential, or diaphanous connection to future criminal conduct can
be considered reasonable.' [Citation.] There is nothing in this
record regarding either the current offense or Erica's social history
that connects her use of electronic devices or social media to illegal
drugs. In fact, the record is wholly silent about Erica's usage of
electronic devices or social media. Accordingly, '[b]ecause there is
nothing in [Erica's] past or current offenses or [her] personal history
that demonstrates a predisposition' to utilize electronic devices or
social media in connection with criminal activity, 'there is no reason
to believe the current restriction will serve the rehabilitative function
of precluding [Erica] from any future criminal acts.' " (Id. at p. 913.)

Accordingly, the court struck the electronics search probation condition as unreasonable

and invalid under Lent. (Erica R., at pp. 913-915.)

The nexus between the electronics search probation condition and LaDuke's future

criminality is more obviously absent in this case than it was in the circumstances of

Erica R, supra, 240 Cal.App.4th 907. In that case, the juvenile apparently had access to,

or the use of, electronic devices. Absent a reasonable factual basis for the trial court to

decide that the electronics search condition would assist the probation department in

36
supervising LaDuke or would otherwise prevent him from committing future crimes, that

probation condition is unreasonable and invalid, and we therefore conclude the court

abused its discretion by imposing it. (Olguin, supra, 45 Cal.4th at pp. 379-381; Lent,

supra, 15 Cal.3d at p. 486.) Because we dispose of LaDuke's challenge of that probation

condition on that ground, we need not, and do not, address his contention that the

electronics search probation condition was unconstitutionally overbroad.

DISPOSITION

The language setting forth the electronics search condition in No. 6(n) of the

probation order (i.e., "computers, and recordable media") is stricken from that order. In

all other respects, the judgment of conviction is affirmed. The superior court is directed

to amend the probation order accordingly.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

AARON, J.

37