People v. McCulloch CA4/1 ( 2021 )

Filed 3/15/21 P. v. McCulloch CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077567
Plaintiff and Respondent,
v. (Super. Ct. No. SCD281832)
VERNON McCULLOCH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Polly H. Shamoon, Judge. Affirmed.
Matthew R. Garcia, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael
Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and
Respondent.
BACKGROUND
On May 20, 2019, 11-year-old A.G. waited alone for her mother in the
staff parking lot at her elementary school. The parking lot was surrounded
by fencing and gates that were 15 to 20 feet high. One of the gates remained
open. As she waited, defendant Vernon McCulloch approached the
dumpsters on the side of the parking lot. He was singing, humming and
saying inappropriate things, like “fuck.”
When defendant saw A.G. he started talking to her, again saying
inappropriate things and calling her a “bitch.” He told her he wanted to play
and they would be “playing with [her] pussy.” He simulated a humping
motion. A.G. became frightened and called out for the school janitor.
Defendant then found the padlock on the gate and locked A.G. inside.
Cursing, he left while A.G. tried to find a way out of the parking lot. After a
few minutes, her mother arrived and called the police. A.G. stated she was
scared and felt uncomfortable and not safe.
The San Diego County District Attorney filed an amended information
charging defendant in count 1, with contacting a minor with intent to commit
a sexual offense, in violation of Penal Code1 section 288.3, subdivision (a).
He was also charged with false imprisonment by violence, menace fraud or
deceit in count 2, in violation of sections 236 and 237, subdivision (a), in
count 3 with child molestation in violation of section 647.6, subdivision (a)(1),
and in count 4 with cruelty to a child by endangering her health in violation
of section 273a, subdivision (b).
Defendant pled guilty to counts 2 and 4. The remaining counts were
dismissed. Defendant agreed to a waiver under People v. Harvey (1979) 25
Cal.3d 754, which allowed the sentencing judge to consider defendant’s prior
history and the entire factual background of this case, including the
dismissed charges, for purposes of probation, restitution, and imposing
sentence.
1 Further statutory references are to the Penal Code.
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The court suspended imposition of the sentence, granted four years of
formal probation and ordered that defendant serve 365 days in custody with
credit for time served.
Defendant’s formal probation included 1) submitting computers and
recordable media, including electronic devices, to search at any time, with or
without a warrant, and with or without reasonable cause, not extending to
medical or financial records 2) not knowingly possessing pornographic
material or knowingly being in places where pornographic materials were the
main items for sale, and 3) not participating in computer chat rooms or
otherwise knowingly contacting minors or persons defendant believed to be
minors via computer.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant’s sole issue on appeal is that the electronic search condition
is improper under People v. Lent (1975) 15 Cal.3d 481 (Lent), and In re
Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.).
Trial courts have broad discretion to impose reasonable conditions of
probation where they foster rehabilitation and protect the community. (§
1203.1 subds. (a) and (i); People v. Carbajal (1995) 10 Cal.4th 1114, 1120.)
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 criminal; and 3) the
condition is not reasonably related to his or her future criminality. (Lent,
supra, 15 Cal.3d at p. 486.)
In examining the reasonableness of a probation condition more than a
mere abstract or a hypothetical relationship between the condition and
preventing future criminality is required. Rather, there must be a specific
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relationship between the condition and preventing future criminality.
(People v. Cota (2020) 45 Cal.App.5th 786, 790 (Cota).)
Here, the trial court concluded that while Lent’s first two prongs were
not met, the electronics search fell within the third prong in that it was
related to defendant’s future criminality. In this respect, the court concluded
defendant was a danger to the public in general, and young children in
particular, especially at schools. The court reasoned that the circumstances
of the current offenses involving inappropriate and sexual remarks and
gestures toward a minor, his extensive criminal behavior and history while
under the influence of drugs and past violations of probation orders and
failures to appear, a past offense at a different school, and five previous
incidents involving contacting, harassing, or assaulting people, made the
electronics condition reasonable.
Courts of Appeal review the imposition of probation conditions for an
abuse of discretion. (People v. Appleton (2016) 245 Cal.App.4th 717, 723.) We
conclude the electronics condition is reasonably related to defendant’s future
criminality as it ensures compliance with the uncontested prohibitions on his
possession of pornographic materials, and participation in computer chat
rooms, or knowing contact with minors via computer. Contrary to
defendant’s argument, the court did not impose this condition because of
defendant’s drug history. Moreover, we do not accept defendant’s argument
that the condition serves as a gateway to other, private information. The
trial court specifically stated the condition does not extend to medical and
financial records.
In light of our conclusions, we deem the electronic search condition
reasonable.
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DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
DO, J.
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