Opinion
H046544
08-27-2020
THE PEOPLE, Plaintiff and Respondent, v. VINCENT BARNES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 18CR010015)
Defendant Vincent Barnes pleaded no contest to unlawful sexual intercourse with a minor under the age of 16 and giving cannabis to a minor 14 years or older. The trial court granted a three-year term of probation and imposed various probation conditions, including a condition requiring Barnes to make his electronic devices available for searching. The trial court granted Barnes' request for a certificate of probable cause.
Barnes challenges several probation conditions, and he contends the electronic search condition is invalid under the Lent test as applied by In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). The Attorney General contends Barnes waived his right to bring these claims on appeal by entering a waiver of appellate rights at the time of his plea. The Attorney General further argues the probation conditions are valid.
People v. Lent (1975) 15 Cal.3d 481 (Lent).
We conclude the appellate waiver did not foreclose Barnes's appeal from the electronic search condition. The claim relies on a subsequent post-waiver change in the law, and Barnes did not enter a knowing and voluntary waiver of that claim. (People v. Castellanos (2020) 51 Cal.App.5th 267 [defendant did not enter a knowing and voluntary waiver of the right to appeal from electronic search probation condition because the claim relied on a post-waiver change in the law] (Castellanos).) On the merits of the claim, we hold the search condition is not overbroad under Lent and Ricardo P.
As to the remaining probation conditions, we conclude Barnes entered a knowing, intelligent, and voluntary waiver of his right to appeal from those conditions. Barnes contends his trial counsel rendered ineffective assistance by failing to advise him of the consequences of the waiver, but we find this claim without merit. Barnes further contends the trial court erred by denying a post-sentencing motion to modify the conditions under Penal Code section 1203.3, but we conclude the trial court properly denied the motion.
We will affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
The prosecution charged Barnes with three counts: Count 1—lewd act upon a child (Pen. Code, § 288, subd. (c)(1)); count 2—unlawful sexual intercourse with a minor under the age of 16 (§ 261.5, subd. (d)); and count 3—giving cannabis to a minor 14 years of age or older (Health & Saf. Code, § 11361, subd. (b)). Barnes pleaded no contest to counts 2 and 3 in exchange for a term of felony probation and the dismissal of count 1.
Subsequent undesignated statutory references are to the Penal Code.
Barnes signed and initialed a preprinted plea form including the following waiver language: "(Appeal and Plea Withdrawal Waiver) I hereby waive and give up all rights regarding state and federal writs and appeals. This includes, but is not limited to, the right to appeal my conviction, the judgment, and any other orders previously issued by this court. I agree not to file any collateral attacks on my conviction or sentence at any time in the future. I further agree not to ask the Court to withdraw my plea for any reason after it is entered." During the plea colloquy, the trial court asked Barnes if he gave up the right to appeal, and he answered affirmatively. The court found that Barnes knowingly, intelligently, and voluntarily waived his rights.
The sentencing hearing was held in December 2018. The court suspended imposition of sentence, granted a three-year term of probation, and imposed the following conditions, among others: "17. Submit all electronic devices under your control to a search by the Probation Officer or a peace officer, of any text messages, voicemail messages, call logs, photographs, email accounts and social media accounts, with or without reasonable or probable cause or the benefit of a search warrant, at any time of the day or night and provide the probation or peace officer with any passwords necessary to access the information specified, and you will not change or add any email address or passwords without prior permission of your Probation officer. [. . . ¶ . . .] 20. Not possess sexually explicit materials or matter which depicts youth for the purpose of arousing prurient interests. [. . . ¶ . . .] 21. Not to be in the presence of children under 18 years of age unless another responsible adult is present. [. . . ¶ . . .] 24. Any computer or electronic data storage device in your custody, possession or control shall be subject to a forensic computer search. [¶] 25. Any computer or electronic data storage device to which you have shared, partial, or limited access, shall be subject to a forensic computer search."
Barnes lodged several written objections to these probation conditions, generally arguing they were overbroad, vague, unrelated to the offense, and not reasonably related to future criminality. The trial court imposed them over these objections.
In January 2019, Barnes filed a written motion to modify the above probation conditions under section 1203.3. The trial court denied the motion on the ground that it lacked jurisdiction to modify probation absent a change in circumstances, citing People v. Cookson (1991) 54 Cal.3d 1091 (Cookson).
The trial court granted Barnes's request for a certificate of probable cause to challenge the conditions and the appellate waiver on appeal.
We take the facts from the probation report. --------
Barnes, who was 27 years old at the time, "friended" his 15-year-old neighbor Jane Doe on Facebook after they were introduced by another neighbor. Barnes and Doe developed a friendship through conversations on Facebook Messenger, and he sent sexually explicit messages to her through social media. In August 2018, Barnes engaged in sexual intercourse with Doe in his car. He also sold marijuana to Doe.
Doe's mother discovered the sexually explicit messages on her phone. While Doe's mother was scrolling through the messages, Barnes called the phone and Doe's mother confronted him. He promised not to speak to Doe anymore if the mother would not call the police, but he continued to send sexually explicit messages to Doe.
II. DISCUSSION
Barnes challenges the above probation conditions on the grounds that they are overbroad, vague, and lack a sufficient nexus to the offense. The Attorney General contends that Barnes waived his right to bring these claims on appeal, among other contentions. For the reasons below, we conclude Barnes did not waive his right to challenge the electronic search probation condition, but we conclude the condition was properly imposed. We further conclude he entered a knowing, intelligent, and voluntary waiver of his right to appeal from the remaining probation conditions.
A. Validity of the Appellate Waiver
As a threshold matter, we consider whether Barnes's claims fall within the scope of the appellate waiver he entered as part of his plea. We conclude he waived the right to appeal from some of the challenged conditions, but he retains the right to challenge the electronic search condition because the law governing the validity of that condition changed after he entered the waiver. (Castellanos, supra, 51 Cal.App.5th at p. 272.)
1. Legal Principles Governing Waiver of Appellate Rights
"Waiver is the voluntary, intelligent, and intentional relinquishment of a known right or privilege. [Citations.] ' "[T]he valid waiver of a right presupposes an actual and demonstrable knowledge of the very right being waived. [Citations.]" ' [Citations.]" (Castellanos, supra, 51 Cal.App.5th at p. 272.) "A general waiver of the right to appeal does not preclude an appeal from an unforeseen error that occurs after the waiver is entered because such a waiver is not knowing and intelligent. [Citations.] The same rule applies where the 'error' is a ruling contravened by a subsequent change in law. While we construe plea agreements according to general contract principles, a plea is generally deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws. [Citation.] 'That the parties enter into a plea agreement thus does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them.' [Citations.]" (Id. at p. 272.) "The burden is on the party claiming the existence of the waiver to prove it was clearly established by evidence in the record. [Citations.] 'The voluntariness of a waiver is a question of law which appellate courts review de novo.' [Citation.]" (Ibid.)
2. Barnes Did Not Waive His Right to Appeal the Electronic Search Probation Condition
As set forth above in section I.A., Barnes signed and initialed a preprinted plea form purporting to "waive and give up all rights regarding state and federal writs and appeals" including but not limited to "the right to appeal [his] conviction, the judgment, and any other orders previously issued" by the trial court. The Attorney General contends Barnes thereby waived his right to challenge the probation conditions on appeal. Barnes contends he did not waive the right to bring these claims because the waiver did not specifically address probation conditions. He further contends that if the waiver is construed to include these claims, his trial counsel provided ineffective assistance by failing to advise him of that outcome.
For the purposes of appellate waiver analysis, the language sets forth a nonspecific, general waiver. (Castellanos, supra, 51 Cal.App.5th 267.) (See People v. Pannizon (1996) 13 Cal.4th 68, 85, fn. 11 ["I waive my appeal rights," or "I waive my right to appeal any ruling in this case" are examples of general appellate waivers].) We agree with the Attorney General that, based on its broad language, the waiver on its face includes probation conditions as part of the "judgment." (People v. Becerra (2019) 32 Cal.App.5th 178, 182-183, 190 (Becerra).) Barnes was therefore on notice of the fact that he was waiving his right to challenge the probation conditions, and as a general matter, his waiver was knowing, intelligent, and voluntary. A "general" waiver, however, does not preclude an appeal from a change in the law that occurs after the waiver is entered. (Castellanos, supra, 51 Cal.App.5th 267.)
Furthermore, Barnes obtained a certificate of probable cause, allowing him to challenge the validity of the waiver itself. (See Becerra, supra, 32 Cal.App.5th at p. 188.) "[W]hen a defendant waives the right to appeal as part of a plea agreement, and the waiver's terms encompass the issue the defendant wishes to raise, the defendant must obtain a certificate of probable cause to avoid dismissal of the appeal. With a certificate of probable cause in hand, the defendant may argue that the waiver is not enforceable as to the issue raised, whether because the waiver was not knowing and intelligent or for some other reason. And if the reviewing court determines that the waiver is not enforceable, it will reach the merits of the defendant's underlying claim." (People v. Espinoza (2018) 22 Cal.App.5th 794, 803.)
With respect to the validity of the electronic search probation condition, this claim relies on a subsequent change in law, as the Supreme Court did not file Ricardo P. until after Barnes had entered his waiver. The touchstone in considering the validity of waiver is whether the waiver was voluntary, intelligent, and knowing. (Edwards v. Arizona (1981) 451 U.S. 477, 482.) This requires actual knowledge of the rights being waived. (People v. Vargas (1993)13 Cal.App.4th 1653, 1662.) Given that the Supreme Court had not yet decided Ricardo P., Barnes could not have known he could bring an appeal on the grounds set forth in that opinion. We conclude the waiver was not a knowing, intelligent waiver of the right to appeal from the electronic search probation condition.
As to the remaining probation conditions, Barnes does not point to any post-waiver changes in the law. He contends the waiver was not knowing, intelligent, and voluntary with respect to these conditions, but Barnes's trial counsel attested to the fact that he entered his plea knowingly, intelligently, and voluntarily. Barnes now asserts he was denied effective assistance of counsel based on his attorney's failure to advise him of the consequences of his plea.
To succeed on a claim of ineffective assistance of counsel, a defendant must show both that counsel failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate and that the defendant was prejudiced as a result. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217; Strickland v. Washington (1984) 466 U.S. 668, 684.) " 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." ' [Citations.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decision making must be evaluated in the context of the available facts.' " (People v. Weaver (2001) 26 Cal.4th 876, 925-926.) "In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (Id. at p. 926.)
The record here suggests trial counsel made a tactical decision not to challenge the appellate waiver at the time of the plea. Barnes received a grant of probation in exchange for the dismissal of count 1—lewd act upon a child, (§ 288, subd. (c)(1))—and no requirement that he register as a sex offender under section 290. Barnes contends the fact that trial counsel later challenged the probation conditions implies she did not know she had waived the right to do so. But counsel likely understood she could assert the claim at sentencing without jeopardizing the plea agreement, whereas asserting the right before entering the plea would have disrupted plea negotiations.
We conclude Barnes has not shown counsel rendered deficient performance, and we further conclude his waiver of the remaining probation conditions was knowing, intelligent, and voluntary. We shall consider, however, the merits of the claim challenging the electronic search probation condition based on the subsequent change in law.
B. Validity of the Electronic Search Probation Condition
The trial court imposed an electronic search probation condition materially identical to the probation condition at issue in Ricardo P., in which the California Supreme Court held the condition was overbroad based on the circumstances of that case. Barnes argues that Ricardo P. compels the same outcome here. The Attorney General argues that the probation condition in this case is not overbroad under Ricardo P. because the condition was related to the offense for which Barnes was convicted. We agree with the Attorney General.
1. Legal Principles Governing Probation Conditions
A condition of probation will not be held invalid 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. (Lent, supra, 15 Cal.3d at p. 486.) This test is conjunctive; all three prongs must be satisfied before a reviewing court will invalidate the condition. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) The third prong, relating to future criminality, "contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (In re Ricardo P., supra, 7 Cal.5th at p. 1122.) This prong "requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality." (Id. at p. 1121.)
We review conditions of probation for abuse of discretion, looking to whether the condition is " 'arbitrary or capricious' or otherwise exceeds the bounds of reason under the circumstances." (Ricardo P., supra, 7 Cal.5th at p. 1118, quoting Olguin, supra, 45 Cal.4th at p. 384.)
2. The Probation Condition is Not Overbroad
The Attorney General argues that the challenged probation condition should not be invalidated under the first prong of the Lent test because it is related to the offense for which Barnes was convicted. According to the probation report, Doe told police that Barnes had "friended" her on Facebook, and their relationship developed through texts sent on the Facebook Messenger application. Doe's mother corroborated the account, finding sexually explicit messages from Barnes on Doe's phone.
We conclude the trial court's imposition of the condition was not an abuse of discretion. The holding in Ricardo P. primarily concerned the third prong of the Lent test regarding future criminality. Here, the probation condition was closely related to the facts of the offense, which is covered under the first prong of the Lent test. Barnes used electronic media to befriend the victim and continued to develop his relationship through it. The court in Ricardo P. held that an electronic search condition may be upheld on such grounds. (Ricardo P, supra, 7 Cal.5th at pp. 1128-1129, citing People v. Appleton (2016) 245 Cal.App.4th 717, 724, [finding electronics search condition reasonable because the defendant lured victim using either social media].) Given the circumstances of this case, the probation condition is not overbroad under the Lent test as applied by Ricardo P.
C. Motion to Modify Probation Conditions Under Penal Code Section 1203 .3
After sentencing, but before filing the notice of appeal, Barnes filed a motion to modify the probation conditions under section 1203.3. He raised the same grounds set forth above, arguing the electronic search condition was invalid under Lent, and arguing the remaining conditions were overbroad, vague, or lacked a sufficient nexus to the offense. The trial court denied the motion on the ground that it lacked jurisdiction to modify probation absent a change in circumstances, citing Cookson, supra, 54 Cal.3d 1091. Barnes now contends the trial court erred in denying the motion. The Attorney General contends the court properly denied the motion under Cookson because the court lacked jurisdiction absent any change in circumstances.
Section 1203.3 provides in part, "The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence." (§ 1203.3, subd. (a).) In Cookson, however, the California Supreme Court held, "A change in circumstances is required before a court has jurisdiction to extend or otherwise modify probation. As we held in In re Clark (1959) 51 Cal.2d 838, 'An order modifying the terms of probation based upon the same facts as the original order granting probation is in excess of the jurisdiction of the court, for the reason that there is no factual basis to support it.' [Citation.]" (Cookson, supra, 54 Cal.3d at p. 1095.)
Barnes does not point to any change in circumstances or facts that would trigger the jurisdictional exception set forth in Cookson. Rather, Barnes contends Cookson is distinguishable, and he argues the trial court retained jurisdiction to modify the probation conditions because the sentence was unauthorized. Generally, courts have jurisdiction to correct an unauthorized sentence. (People v. Williams (2007) 156 Cal.App.4th 898, 906 [court may correct unauthorized sentence despite pending appeal].) For the reasons set forth in sections A and B above, however, Barnes's sentence was not unauthorized. The trial court therefore did not err in denying the motion under Cookson.
For the reasons above, we conclude Barnes' claims are without merit, and we will affirm the judgment.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Greenwood, P.J. I CONCUR: /s/_________
Grover, J.
Danner, J., Concurring in part and concurring in the judgment
I agree with the majority opinion except on one point. I would not reach the merits of Barnes's challenge to the electronic search condition because Barnes, in his written plea agreement, voluntarily waived his right to challenge the condition on appeal. For the reasons explained in my separate opinion in People v. Castellanos (2020) 51 Cal.App.5th 267, 277-281 (conc. & dis. opn. of Danner, J.), I believe the decision of the California Supreme Court in In re Ricardo P. (2019) 7 Cal.5th 1113 was neither unanticipated nor a change in the law sufficient to render unknowing Barnes's appellate waiver. (Castellanos, at p. 279 (conc. & dis. opn. of Danner, J.).) I would therefore decide that Barnes knowingly, intelligently, and voluntarily waived his right to challenge the electronic search condition. With that caveat, I otherwise join in the analysis and conclusions of the majority opinion.
/s/_________
Danner, J.