Filed 2/8/24 P. v. Burgos CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F086021
Plaintiff and Respondent,
(Super. Ct. No. BF185848A)
v.
MIGUEL ANGEL BURGOS, MODIFICATION OF OPINION
AND DENIAL OF REHEARING
Defendant and Appellant. [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion herein filed on January 30, 2024, be modified as
follows:
1. On page 2, in the first paragraph, the first sentence is deleted and replaced with:
In this appeal, defendant Miguel Angel Burgos challenges the validity
of a condition of probation chosen, as well as the authority to impose fines,
fees, and assessments at sentencing without an ability to pay hearing.
2. On page 2, in the second paragraph under PROCEDURAL SUMMARY, add
the sentence “The court also imposed fines and fees totaling $2,900.” after the sentence
ending in “custody on count 1.”
3. On page 8, in the first paragraph under II., add the sentence “Defendant also
contends counsel was ineffective because he failed to request a hearing to determine
defendant’s ability to pay fines, fees, or other assessments.” after the sentence ending in
“a warrant at any time.”
4. On page 8, add the subheading “A. The Applicable Law” before the
sentence beginning with “To establish a claim.”
5. On page 9, add the subheading “B. Application” before the paragraph
beginning with “Again, a condition.”
6. On page 10, delete the sentence “Because we cannot conclude the failure to
object to the condition of probation imposed by the trial court was prejudicial, we cannot
conclude defendant was provided ineffective assistance of counsel.”
7. On page 10, after the first paragraph under “B. Application,” ending in
the citation “(See People v. Moran, supra, 1 Cal.5th at p. 403.),” insert the following new
paragraphs:
We reach a similar conclusion on the failure to request an ability to pay
hearing.1 Again, where a claim of ineffective assistance of counsel is
made on a direct appeal, the record must affirmatively demonstrate trial
counsel had “no rational tactical purpose” or no satisfactory explanation
for the failure to act. (People v. Mai, supra, 57 Cal.4th at p. 1009.) The
record provides no such evidence here. First, we do not view the total
amount of fines, fees, and assessments imposed in this case as excessive
on its face. Next, the probation report shows defendant had been able to
obtain employment in the past, and there was no evidence that his ability
to obtain employment while on probation had changed. While defendant
may argue he did not have an immediate ability to pay the amounts
imposed, this does not mean he could not make payments in the future.
(See, e.g., People v. Potts (2019) 6 Cal.5th 1012, 1055–1057.)
1 While defendant does not cite People v. Duenas (2019) 30 Cal.App.5th 1157, his
argument that the failure to request a hearing on the ability to pay constituted ineffective
assistance of counsel suggests there was a constitutional duty owed. We note, the
Duenas opinion that reached this conclusion was filed more than three years before
defendant was sentenced in this case. Moreover, People v. Kopp (2019) 38 Cal.App.5th
47 is still pending with our Supreme Court on the issue of whether trial courts must
consider a defendant’s ability to pay before imposing or executing fines, fees, and
assessments; and if so, which party bears the applicable burden of proof.
2.
On this record, defendant cannot establish prejudice as it would have
been entirely reasonable for counsel to conclude an ability to pay hearing
would not alter the court’s calculation of the fines, fees, or assessments
imposed. (See People v. Price (1991) 1 Cal.4th 324, 387 [Counsel’s
failure to make a futile or unmeritorious objection does not constitute
ineffective assistance of counsel.].) Even if we considered this challenge
using a higher constitutional standard, we would reject defendant’s claims
and find any error here to be harmless beyond a reasonable doubt, as
defendant had the ability to make payments toward any fines, fees, and
assessments while on probation. (See Chapman v. California (1967) 386
U.S. 18, 24.)
Neither the failure to object to the challenged condition of probation
imposed in this case, nor the failure to request a hearing to consider
defendant’s ability to pay fines, fees, and assessments, constitutes
reversible error. On the record before this court, we cannot conclude
defendant was provided ineffective assistance of counsel.
This modification does not effect a change in the judgment.
The petition for rehearing is denied.
LEVY, A.P.J.
WE CONCUR:
DETJEN, J.
FRANSON, J.
3.
Filed 1/30/24 P. v. Burgos CA5 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F086021
Plaintiff and Respondent,
(Super. Ct. No. BF185848A)
v.
MIGUEL ANGEL BURGOS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez, Deputy
Attorney General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Detjen, J. and Franson, J.
In this appeal, defendant Miguel Angel Burgos only challenges the validity of a
condition of probation imposed by the trial court at sentencing. Defendant has not
challenged the quality or sufficiency of the evidence supporting his conviction by a jury.
Following our review of the record, we affirm.
PROCEDURAL SUMMARY
On January 21, 2022, an information was filed charging defendant with two counts
of having contact with a minor with the intent to commit a sexual offense (Pen. Code,1
§ 288.4, subd. (b), a felony; counts 1 & 2). On February 28, 2023, the information was
amended. Count 1 now alleged a violation of section 288.3, again a felony, which listed
more specificity about the acts defendant was allegedly intending to commit when he
contacted the minor. The allegations contained in count 2 were virtually unchanged. The
information was amended yet again on March 1, 2023, changing the date when the acts
were alleged to occur from June 6, 2021, to June 10, 2021.
Following a jury trial, on March 1, 2023, defendant was found guilty of
committing the acts alleged in both counts 1 and 2. At the sentencing hearing held on
March 29, 2023, the trial court granted defendant probation for both counts, but specified
he was to serve 365 days in custody on count 1. Defendant filed a notice of appeal on
this same date.
FACTUAL SUMMARY
Officer Eric Celedon testified that in June 2021, he was a detective assigned to the
special victims unit. Celedon’s assignment at that time involved investigating crimes
against children and other sexual assaults. On June 10, 2021, Celedon was conducting a
“decoy” operation, by creating accounts on different applications or social media.
Through these accounts, Celedon was posing as an underage juvenile in an attempt to
1 All further code references are to the Penal Code.
2.
identify and locate individuals who might try to target similar juveniles. When
describing his process, Celedon stated:
“It’s just like setting up any account on any other social media. You
go to the website or download the application. You enter the information
such as names, email addresses, … and a birthday associated with that
account, and you join the website that way.”
Celedon testified the application at the center of this case would not allow him to enter a
birth date indicating his “juvenile” was younger than 18, so he entered a birthdate that
would result in an age of 18. No one from the company owning the application contacted
Celedon to verify the information he entered. Celedon testified he never initiated
conversations in this application.
On June 10, 2021, Celedon received a request for a chat with his “juvenile” from
someone identifying himself as “Jose Estrada.”2 While the conversation started with a
friendly tone, “Estrada” eventually requested “pics,” which Celedon interpreted to mean
nude photos. Celedon explained he reached this conclusion based on his experience
during prior similar operations. When “Estrada” asked for a photo of a specific body
part, Celedon responded stating he could not provide that because he was previously
caught by his mother, and he was too young. To this information, “Estrada” stated,
“cool. How young[?]” Celedon responded he was “almost 15.”
When the conversation continued, Celedon asked if “Estrada” was still “trying to
meet up.” Shortly thereafter, “Estrada” responded by asking the “juvenile” if he was a
“cop,” and Celedon answered “no.” Eventually, “Estrada” informed the “juvenile” he
was 25 years old, which was then followed by a discussion about what they would do
when they met in person. After specifying two sex acts he wanted to engage in with the
2 Throughout this conversation, Celedon responded to “Estrada” solely as the
“juvenile” persona he was posing as.
3.
“juvenile,” “Estrada” asked about a meeting location. Celedon stated he would be at a
hockey rink by the park, and “Estrada” responded that he was on his way.
Approximately 20 minutes later, “Estrada” informed the “juvenile” that he was in
the parking lot in an SUV. Once Celedon received this message, he alerted undercover
units in the area, so they could identify the suspect. While he was not at the park
personally, Celedon became aware that defendant was taken into custody at the park.
During an interview Celedon conducted after the arrest, defendant admitted the “Jose
Estrada” profile belonged to him.
Detective Cory Boyer testified that on June 10, 2023, he was assisting officers in
an operation at Saunders Park. Boyer stated he came into contact with defendant on that
day while defendant was in a vehicle and being detained by another officer. Boyer noted
nothing of a sexual nature, including child pornography or condoms, were found on
defendant or in his vehicle when he was detained.
The defense presented no evidence in this trial on behalf of defendant.
DISCUSSION
Again, defendant has not challenged the evidence supporting his conviction in this
case. Our focus will, therefore, be on a review of the condition of probation defendant
believes was improperly imposed.
I. The Challenged Condition of Probation
After addressing the length of the actual sentence that would be imposed, the trial
court stated:
“[T]he imposition of sentence is suspended, and the defendant is
admitted to probation for a period of two years on the following terms and
conditions. The first 365 days in custody. He must report in person to the
probation officer within five days of his release from custody and monthly
[thereafter] as to his current address, employment, income, and expenses.
“He must permit his person, residence, motor vehicle or possessions
to be inspected or searched for electronic devices capable of internet access
and data storage. Any such device is subject to search for internet access or
4.
information related to contact with minors by the probation officer or any
law enforcement officer at any time during his probationary period without
prior notice of intent to inspect or search, with or without a search warrant,
warrant of arrest, or reasonable cause.
“He must provide the probation officer with all computer[,] email[,
and] internet passwords and usernames known by him for any such devices,
and he is not permitted to knowingly delete computer history or cache. [He
must] refrain from further violations of the law and obey all reasonable
instructions of the probation officer.”
The minute order documented essentially the same language for the conditions of
probation imposed on defendant at the hearing.
Defendant now challenges the requirement that he provide a probation officer “all
computer[,] email[, and] internet passwords and usernames known by him for any such
devices.” Defendant contends this condition of probation is unconstitutionally overbroad,
believing it requires him “to disclose the username and password for every single
internet site he uses” and “invades the area of constitutionally protected freedoms.”
A. The Applicable Law
When granting probation, a trial court “may impose and require any or all of the
terms of imprisonment, fine, and conditions” as it determines are fitting and appropriate.
(§ 1203.1, subd. (j).) A condition of probation is valid unless it “ ‘(1) has no relationship
to the crime of which the offender was convicted, (2) relates to conduct which is not in
itself criminal, and (3) requires or forbids conduct which is not reasonably related to
future criminality.’ ” (People v. Bryant (2021) 11 Cal.5th 976, 983 (Bryant), citing
People v. Lent (1975) 15 Cal.3d 481, 486.) This requires a case-by-case assessment
considering the relationship of the probation condition to the crime, the specific terms
provided in the challenged condition, and the connection of that condition to the
probationer’s future criminality. (Bryant, at p. 983.)
Because a trial court has broad discretion when imposing conditions of probation,
we generally review the decisions about probation using an abuse of discretion standard.
5.
(People v. Moran (2016) 1 Cal.5th 398, 403.) Therefore, this 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.”
(Ibid.) However, if a significant privacy interest is impacted, such as allowing sweeping
electronics searches without a warrant, the burden imposed on a defendant will be
considered a heavy one, warranting our de novo review. (See People v. Cota (2020) 45
Cal.App.5th 786,790; In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) Under these
circumstances, to be considered reasonable, the probation condition must be based on
more than an “ ‘abstract or hypothetical relationship’ ” between the condition and the
goal of preventing future criminality. In other words, “there must be a specific
relationship—grounded in the facts of the case—between the condition and preventing
future criminality.” (Cota, at p. 790.)
On appeal, defendant has only challenged the probation condition requiring him to
provide “all computer[,] email[, and] internet passwords and usernames known by him
for any such devices,” as being overbroad. Our consideration of defendant’s challenge
on this issue is, therefore, limited to this specific constitutional question.
Again, “[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; see also People v. Quiroz (2011) 199 Cal.App.4th 1123, 1128.)
“ ‘ “The essential question in an overbreadth challenge is the closeness of the fit between
the legitimate purpose of the restriction and the burden it imposes on the defendant’s
constitutional rights—bearing in mind, of course, that perfection in such matters is
impossible, and that practical necessity will justify some infringement.” ’ ” (People v.
Patton (2019) 41 Cal.App.5th 934 946 (Patton).)
It should be noted, case law has rejected claims that an electronics search
condition is facially overbroad automatically because such a condition can be imposed
6.
constitutionally under appropriate circumstances. (Patton, supra, 41 Cal.App.5th at
p. 947; In re Malik J. (2015) 240 Cal.App.4th 896, 902.) “[T]he fact that a search of an
electronic device may uncover comparatively more private information than the search of
a person, or a personal item like a wallet, does not establish that a warrantless electronic
search condition of probation is per se unconstitutional.” (People v. Guzman (2018) 23
Cal.App.5th 53, 65.)
B. Application
The People contend defendant forfeited his challenge of the electronics search
condition by failing to raise it in the trial court. “As a general rule, a defendant must first
raise the issue in the trial court to challenge a probation condition on appeal. [Citation.]
However, our Supreme Court has held that the forfeiture rule does not apply to a
defendant’s contention that a probation condition is unconstitutionally vague and
overbroad on its face when the challenge presents a pure question of law.” (People v.
Quiroz, supra, 199 Cal.App.4th at p. 1127, citing In re Sheena K., supra, 40 Cal.4th at
p. 887.)
Following our de novo review, we conclude the condition is constitutional. We
specifically believe there is a close fit “ ‘ “between the legitimate purpose of the
restriction and the burden it imposes on the defendant’s constitutional rights.” ’ ”
(Patton, supra, 41 Cal.App.5th at p. 946.) The application defendant used to contact an
individual who he believed was a juvenile is not the only application available on
electronic devices used to contact strangers. Furthermore, we are not ignorant of the fact
such communications may move from one application to another, or to a more
mainstream form of communication. Because the social media environment is subject to
constant change, a probation officer must have some flexibility in monitoring a
defendant’s progress during probation.
We acknowledge defendant’s concern the condition allows a probation officer to
force him “to disclose the username and password for every single internet site he uses”
7.
and “invades the area of constitutionally protected freedoms.” However, we are not
reviewing any actual question involving the enforcement of this condition, only whether
this particular condition is overbroad on its face. (People v. Olguin (2008) 45 Cal.4th
375, 386, fn. 5.) We note:
“[A] defendant facing revocation of his or her probation for violating
a term of probation has the right … to a hearing, at which he or she has the
right to counsel and to argue that a particular application of a probation
condition exceeds the bounds of reason under the circumstances.” (People
v. Olguin, supra, 45 Cal 4th a p. 386, fn. 5.)
Furthermore, the “waiver of Fourth Amendment rights as a condition of probation does
not permit searches undertaken for harassment or searches for arbitrary or capricious
reasons.” (People v. Bravo (1987) 43 Cal.3d 600, 610.) Thus, defendant has a level of
protection available should he feel a request, such as one for medical or financial
information unrelated to the crime, is unreasonable.
Given the facts underlying defendant’s conviction, the condition of probation
requiring the disclosure of “all computer[,] email[, and] internet passwords and
usernames known by him for any such devices,” was not constitutionally overbroad.
II. The Claim of Ineffective Assistance of Counsel
Defendant further argues his trial counsel was ineffective for failing to challenge
the terms of his probation in the trial court subjecting him to a search of his electronic
devices and financial documents without a warrant at any time. To establish a claim of
ineffective assistance of counsel, a defendant must show (1) counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms, and
(2) counsel’s deficient performance was prejudicial. (Strickland v. Washington (1984)
466 U.S. 668, 687–688; People v. Ledesma (1987) 43 Cal.3d 171, 216–217.) “ ‘Unless a
defendant establishes the contrary, we shall presume that “counsel’s performance fell
within the wide range of professional competence and that counsel’s actions and
inactions can be explained as a matter of sound trial strategy.” [Citation.] If the record
8.
“sheds no light on why counsel acted or failed to act in the manner challenged,” an
appellate claim of ineffective assistance of counsel must be rejected “unless counsel was
asked for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation.” ’ ” (People v. Lopez (2008) 42 Cal.4th 960, 966.) To establish
prejudice, defendant must make a showing “sufficient to undermine confidence in the
outcome” that but for counsel’s errors there is a reasonable probability that the result of
the proceeding would have been different. (Strickland, at p. 694; Ledesma, at pp. 217–
218.)
Claims of ineffective assistance of counsel are more appropriately resolved in a
habeas corpus proceeding. (People v. Mai (2013) 57 Cal.4th 986, 1009.) “On direct
appeal, a conviction will be reversed for ineffective assistance only if (1) the record
affirmatively discloses counsel had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide one, or (3) there
simply could be no satisfactory explanation.” (Ibid.) However, “ ‘[a] court need not
determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.… If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, … that
course should be followed.’ ” (People v. Jacobs (2013) 220 Cal.App.4th 67, 75–76.)
Again, a condition of probation is valid unless it “ ‘(1) has no relationship to the
crime of which the offender was convicted, (2) relates to conduct which is not in itself
criminal, and (3) requires or forbids conduct which is not reasonably related to future
criminality.’ ” (Bryant, supra, 11 Cal.5th at p. 983; Lent, supra, 15 Cal.3d at p. 486.)
When considering this test laid out in both Bryant and Lent, we cannot conclude
defendant was sufficiently prejudiced. Defendant committed the crimes he was convicted
of while using an application on an electronic device. While the use of an electronic
device does not generally involve “criminal conduct” on its own, restrictions on
defendant’s use here were reasonably related to the possibility he could engage in similar
9.
criminal conduct in the future. (See Bryant, supra, 11 Cal.5th at p. 983.) It is commonly
understood that applications can be downloaded on a variety of electronic devices, not
just smartphones. Therefore, an ability to check that defendant is not using the specific
application used in this case, or is using other similar applications to communicate with
individuals unknown to him for criminal purposes, is entirely reasonable, and not an
abuse of discretion. (See People v. Moran, supra, 1 Cal.5th at p. 403.)
Because we cannot conclude the failure to object to the condition of probation
imposed by the trial court was prejudicial, we cannot conclude defendant was provided
ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
10.