Opinion
D072801
08-08-2018
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER RICHARD BIRD, Defendant and Appellant.
Helen S. Irza, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman, and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD273037) APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Affirmed as modified. Helen S. Irza, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman, and Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
Christopher Richard Bird pleaded guilty to carrying a concealed dirk or dagger. (Pen. Code, § 21310.) The trial court suspended imposition of his sentence for three years and granted formal probation. As a condition of his formal probation, Bird was required to "[s]ubmit [his] person, vehicle, residence, property, personal effects, computers, . . . recordable media [and] electronic devices to search at any time with or without a warrant, and with or without reasonable cause, when required by [the probation officer] or law enforcement officer." Bird was also required to obtain his probation officer's approval of his residence and employment.
Further statutory references are to the Penal Code.
Bird appeals. He contends (1) the condition requiring him to submit his computers, recordable media, and electronic devices to warrantless search is unreasonable and unconstitutionally overbroad; (2) the conditions requiring him to obtain approval of his residence and employment are unconstitutionally overbroad; and (3) an $820 fine imposed under section 672 conflicts with the court's oral pronouncement and should be stricken.
The Attorney General concedes the fine should not have been imposed. We accept this concession. Bird's remaining contentions are unpersuasive. We will therefore modify the order granting probation to strike the $820 fine and affirm it as modified.
FACTUAL AND PROCEDURAL BACKGROUND
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Because Bird appeals a judgment following his guilty plea, we draw this statement of facts from the charging document, the plea agreement, and the probation report. Additional facts will be discussed where relevant in the following section.
On August 2, 2017, Bird was in a park in San Diego, California. Police officers saw him leaning against a bathroom wall. He appeared to be unconscious and under the influence of drugs. Police later found a fixed-blade knife and pepper spray concealed on his person.
According to his probation report, Bird had several prior felony and misdemeanor convictions. As a result of a misdemeanor conviction for theft (§ 484), he was placed on summary probation for three years. While on probation, he stole a mountain bike and was convicted of grand theft (§ 487, subd. (a)). He was admitted to drug court, but he was not successful. He was granted formal probation for three years, which was later revoked and reinstated when he suffered another misdemeanor conviction. He was still on probation when he committed the instant offense.
The probation report noted that Bird "has failed to appear numerous times, [was] remanded to custody and continually failed to remain law abiding; therefore, it can be said his prior performance on probation was poor." It stated, "The standard probation conditions shall be recommended with drug and alcohol conditions given his admission of drug use. Also, to aid the defendant's rehabilitation and ensure appropriate supervision in the community, the defendant shall obtain Probation's approval as to his residence if safe access or entry is denied to conduct Fourth Waiver searches."
At sentencing, Bird objected to the electronic search condition because there was no "nexus" between the crime of carrying a concealed dirk or dagger and any computers or electronic devices. The prosecutor responded that the electronic search condition was warranted because Bird had an extensive substance abuse problem and the condition would facilitate his compliance with the probation conditions prohibiting drug and alcohol use. The court agreed with the prosecution that the electronic search condition was appropriate. It reasoned, "[I]t is clear that you have a very bad drug problem; in fact, you are on probation for several cases when you committed this offense. And based on the drug issue on your last three cases and [the] drug conviction charge and the nexus between drugs and the bad decisions you make, I do believe there is a nexus."
DISCUSSION
I
Electronic Search Condition
Bird contends the electronic search condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally overbroad. We review the reasonableness of probation conditions for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) "That is, a reviewing court will disturb the trial court's decision to impose a particular condition of probation only if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable." (People v. Moran (2016) 1 Cal.5th 398, 403.) We review Bird's constitutional challenge de novo. (People v. Appleton (2016) 245 Cal.App.4th 717, 723 (Appleton).)
"When an offender chooses probation, thereby avoiding incarceration, state law authorizes the sentencing court to impose conditions on such release that are 'fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and . . . for the reformation and rehabilitation of the probationer.' (§ 1203.1, subd. (j).) Accordingly, [our Supreme Court has] recognized a sentencing court has 'broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to . . . section 1203.1.' [Citation.] But such discretion is not unlimited: '[A] condition of probation must serve a purpose specified in the statute,' and conditions regulating noncriminal conduct must be ' "reasonably related to the crime of which the defendant was convicted or to future criminality." ' [Citation.] 'If the defendant finds the conditions of probation more onerous than the sentence he would otherwise face, he may refuse probation' [citation] and simply 'choose to serve the sentence' [citation]." (Moran, supra, 1 Cal.5th at pp. 402-403.)
"Generally, '[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 . . . ." [Citation.]' [Citation.] 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, supra, 45 Cal.4th at pp. 379-380; see Lent, supra, 15 Cal.3d at p. 486.)
Here, the Attorney General does not contend the electronic search condition would be valid under the first two Lent prongs. Instead, he argues that the electronic search condition is valid under the third Lent prong because it facilitates effective supervision of Bird. Under the circumstances of this case, we agree.
Outside the digital context, it is well settled that search conditions are permissible under the third Lent prong because they deter future criminality and allow for more effective supervision of probationers. "For example, probation conditions authorizing searches 'aid in deterring further offenses . . . and in monitoring compliance with the terms of probation. [Citations.] By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers.' [Citation.] A condition of probation that enables a probation officer to supervise his or her charges effectively is, therefore, 'reasonably related to future criminality.' " (Olguin, supra, 45 Cal.4th at pp. 380-381.)
The issue of whether and to what extent electronic search conditions are reasonable under the third Lent prong is currently pending before the Supreme Court. (See, e.g., In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923.) Pending further guidance from the Supreme Court, and recognizing that other courts have reached different conclusions, we will adhere to this court's recent discussion of the third prong in People v. Trujillo (2017) 15 Cal.App.5th 574, review granted November 29, 2017, S244650 (Trujillo), which affirmed imposition of an electronic search condition under similar circumstances.
Trujillo explained that the reasonableness of an electronic search condition, under the third Lent prong, will depend on the particular facts surrounding the crimes at issue and the defendant's history. "The primary focus of Lent's third-prong jurisprudence has been on the particular facts and circumstances of the case before the court, rather than on establishing bright-line rules. [Citations.] This makes sense given that the appropriateness of a particular probation condition necessarily depends on a myriad of tangible and intangible factors before the trial court, including the defendant's particular crime, criminal background, and future prospects. It is for the trial court, with the assistance of the probation officer and other experts, to determine the probation conditions that will permit effective supervision of the probationer." (Trujillo, supra, 15 Cal.App.5th at p. 584, review granted.)
In affirming the electronic search condition at issue in that appeal, Trujillo emphasized the particular facts in the record that supported the need for intensive monitoring while the defendant was on probation, including significant untreated alcohol abuse. (Trujillo, supra, 15 Cal.App.5th at p. 583, review granted.) Similarly, In re J.E. (2016) 1 Cal.App.5th 795, 801, review granted October 12, 2016, S236628 (J.E.), held that a minor's need for intensive monitoring, including for compliance with various drug-related probation conditions, justified an electronic search condition.
Like the defendants in Trujillo and J.E., Bird had an untreated substance abuse problem. Unlike those defendants, Bird also had several prior convictions and had already performed poorly on probation. These circumstances amply support the trial court's exercise of its discretion to impose an electronic search condition. The court could reasonably determine that Bird's history and present circumstances required the intensive monitoring that an electronic search condition would provide. (See Trujillo, supra, 15 Cal.App.5th at p. 584, review granted ["The trial court had a reasonable basis to conclude the most effective way to confirm Trujillo remains law abiding is to permit his electronic devices to be examined, rather than relying on a meeting or a telephone conversation."]; J.E., supra, 1 Cal.App.5th at p. 801, review granted ["In light of this record, it was within the juvenile court's discretion to impose the search condition as a means of effectively supervising Minor for his compliance with his drug conditions, as well as the rest of his undisputed probation conditions."].) Bird's claim that his substance abuse and other circumstances are insufficient to justify an electronic search condition is unpersuasive.
Bird supports his argument under Lent by relying heavily on alleged constitutional considerations. While not entirely unrelated, the two issues are analyzed separately. " '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.' [Citation.] '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. Pirali (2013) 217 Cal.App.4th 1341, 1346 (Pirali).)
Courts are split on the constitutionality of broad electronic search conditions like the one imposed here. (Compare Appleton, supra, 245 Cal.App.4th at pp. 724-727 [striking an electronic search condition as unconstitutionally overbroad] with J.E., supra, 1 Cal.App.5th at pp. 803-807, review granted [rejecting the argument that an electronic search condition was unconstitutionally overbroad].) In the absence of further guidance from our Supreme Court, we will again adhere to this court's recent opinion in Trujillo, supra, 15 Cal.App.5th at page 587, review granted, which rejected a defendant's constitutional challenge under similar circumstances.
It appears that Bird did not object to the electronic search condition on constitutional grounds in the trial court. However, in light of our conclusion, and in the absence of any forfeiture argument by the Attorney General, we need not consider whether Bird forfeited his as-applied constitutional challenge by failing to object on that ground in the trial court. (See, e.g., People v. Guzman (2018) 23 Cal.App.5th 53, 63, fn. 3; People v. Smith (2017) 8 Cal.App.5th 977, 987.)
Trujillo comprehensively examined the constitutionality of electronic search conditions. (Trujillo, supra, 15 Cal.App.5th at pp. 587-589, review granted.) It concluded that where, as here, an electronic search condition is justified based on a probationer's need for intensive supervision, a broad electronic search condition is not unconstitutionally overbroad unless there is a sufficient showing of some particularized harm to the probationer's privacy interests. (Id. at p. 589.) It noted that courts routinely uphold broad probation conditions allowing the warrantless search of a probationer's residence, and it rejected any analogy to Riley v. California (2014) ___ U.S. ___ [134 S.Ct. 2473] (Riley), which involved the unrelated situation of a search incident to arrest. (Trujillo, at p. 588.)
In sum, Trujillo explained, "Significantly, the factual record here contains no information that Trujillo owns a cell phone or computer and uses these devices to hold the type of sensitive medical, financial, or personal information described in Riley and Appleton. Although many devices hold this information, there is no evidence that this young man uses his devices in this way. Additionally, there are no facts in the record showing a search of Trujillo's electronics would be any more invasive than an unannounced, without-cause, warrantless search of his residence, a condition to which he has not objected. Absent particularized facts showing the electronics-search condition will infringe on Trujillo's heightened privacy interests, there is no reasoned basis to conclude the condition is constitutionally overbroad or to remand for the court to consider a more narrowly drawn condition." (Trujillo, supra, 15 Cal.App.5th at p. 589, review granted.)
Similarly, here, Bird has provided no facts supporting any tangible infringement on his privacy rights as a result of the electronic search condition. Bird has cited no evidence in the record about the number or type of electronic devices that would be subject to the search condition and what types of information would be accessible by a probation officer acting under the electronic search condition. Bird claims that third parties might be impacted by the electronic search condition, but this claim is purely speculative and insufficient to support a constitutional challenge. (See In re Q.R. (2017) 7 Cal.App.5th 1231, 1237, review granted Apr. 12, 2017, S240222.) As explained above, the trial court could reasonably find that Bird required intensive supervision based on his untreated substance abuse, prior convictions, and poor performance on past probations. Under these circumstances, Bird has not shown the electronic search condition is unconstitutionally overbroad. (See Trujillo, supra, 15 Cal.App.5th at p. 589, review granted; J.E., supra, 1 Cal.App.5th at p. 806, review granted.) We note that if further information comes to light that would render the electronic search condition unconstitutional, Bird may petition the trial court to modify the condition. (§ 1203.3, subd. (a); see Trujillo, at p. 589; J.E., at p. 806.)
Although Bird focuses on the trial court's comments regarding Bird's substance abuse alone, the court could reasonably find that supervision was needed based on other factors as well.
II
Residence and Employment Conditions
Bird further contends the probation conditions requiring him to obtain his probation officer's approval of his residence and employment are unconstitutionally overbroad. As noted, " 'A [probation] restriction is unconstitutionally overbroad . . . if it (1) "impinge[s] on constitutional rights," and (2) is not "tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation." [Citations.] 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. Arevalo (2018) 19 Cal.App.5th 652, 656-657 (Arevalo).)
As an initial matter, we must consider the Attorney General's argument that Bird forfeited his contention by failing to object to the residence and employment conditions in the trial court. We conclude he has forfeited his claim.
"In general, the forfeiture rule applies in the context of sentencing as in other areas of criminal law." (In re Sheena K. (2007) 40 Cal.4th 875, 881.) Even constitutional challenges are forfeited unless they mount a facial challenge, i.e., "a challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed in the trial court[.]" (Id. at p. 887; see Pirali, supra, 217 Cal.App.4th at p. 1345 ["A Court of Appeal may review the constitutionality of a probation condition, even when it has not been challenged in the trial court, if the question can be resolved as a matter of law without reference to the sentencing record."].)
Although Bird characterizes his argument as a facial challenge, the substance of his argument belies his characterization. He does not argue the residence and employment conditions could never be constitutionally imposed on him, i.e., there is no reasonable set of facts under which the conditions would be constitutional. Instead, he argues, "Nothing about the nature of the charges in Mr. Bird's case suggests a need for such unfettered oversight." Bird's argument is that the conditions are unconstitutionally overbroad as applied to him, under the particular circumstances of this case. This argument is an as-applied challenge, not a facial challenge. As such, Bird forfeited his argument by failing to object. (See In re R.S. (2017) 11 Cal.App.5th 239, 247, review granted July 26, 2017, S242387 (R.S.); People v. Kendrick (2014) 226 Cal.App.4th 769, 778 (Kendrick).)
The forfeiture rule is not a mere procedural hurdle. In this case, had Bird objected, the prosecution and the trial court would have had the opportunity to put the reasons for the residence and employment conditions on the record and address any overbreadth concerns under the circumstances of this case. (See Kendrick, supra, 226 Cal.App.4th at p. 778.) Because Bird did not object, the record is largely silent regarding the reasons for these conditions. The probation report references "approval as to his residence if safe access or entry is denied to conduct Fourth Waiver searches," so it appears the probation officer was concerned about the ability to search Bird's residence, but we have no facts in the record explaining this concern. It may be the case, for example, that the probation department had difficulty in the past supervising Bird because of his choice of residence. This fact would likely provide a reasonable basis for the residence condition. In any event, because it was incumbent on Bird to raise an objection in the trial court, he cannot now benefit from this gap in the record by raising his overbreadth challenge for the first time on appeal. (See R.S., supra, 11 Cal.App.5th at p. 247, review granted.)
Moreover, it is clear the residence and employment conditions are not facially unconstitutional. Under appropriate circumstances, a trial court may validly impose such conditions. (See, e.g., Arevalo, supra, 19 Cal.App.5th at p. 657 [residence]; People v. Burden (1988) 205 Cal.App.3d 1277, 1281 [employment].) Bird has not shown that these conditions could not be constitutionally applied to him. And, although Bird claims the probation conditions impose "no limits" on the probation officer's discretion to approve his residence and employment, the probation officer may not act in an arbitrary or capricious manner. (Arevalo, at p. 658; see Olguin, supra, 45 Cal.4th at p. 383.) Again, however, if further facts come to light that would render these conditions unconstitutional or unreasonable as applied to him, Bird may petition the trial court to modify the conditions. (§ 1203.3, subd. (a).)
III
Fine Under Section 672
Bird argues the trial court erred in its order granting formal probation by imposing an $820 fine under section 672. At Bird's sentencing hearing, the court stated that it would stay or strike any discretionary fines to help Bird get on the right track.
A fine under section 672 is discretionary. (People v. Clark (1992) 7 Cal.App.4th 1041, 1050.) Although Bird characterizes the imposition of the fine as an abuse of discretion, it is more correctly seen as a clerical error in recording the judgment. Where the court's written judgment conflicts with its oral pronouncement of judgment, the oral pronouncement controls. (Pirali, supra, 217 Cal.App.4th at p. 1345.) We will therefore modify the order granting formal probation to reflect the oral pronouncement of judgment and strike the $820 fine under section 672. (See People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073.)
DISPOSITION
The order granting formal probation is modified to strike the $820 fine under Penal Code section 672. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended order granting formal probation.
GUERRERO, J. WE CONCUR: NARES, Acting P. J. DATO, J.