Opinion
D077276
05-11-2021
THE PEOPLE, Plaintiff and Respondent, v. RYAN THOMAS CLARK, Defendant and Appellant.
Kristin Traicoff, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stephanie H. Chow, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCE395658-02) APPEAL from a judgment of the Superior Court of San Diego County, Robert O. Amador and Daniel G. Lamborn, Judges. Affirmed. Kristin Traicoff, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
Ryan Clark pled guilty to second degree burglary (Pen. Code, § 459). In the plea agreement, the parties agreed that Clark would receive a three-year split sentence, which would be suspended pending a determination on whether Clark would be accepted to parole reentry court (Reentry Court). (See § 3015 [authorizing the establishment of a reentry court as part of a parole reentry accountability program].) After Clark was found to be ineligible for Reentry Court, Clark made a motion to substitute appointed counsel on the basis that counsel had misadvised him about his eligibility. The trial court held a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and denied Clark's motion. Clark then filed a motion to withdraw his guilty plea, which the trial court denied. Based on the terms of the plea agreement, the trial court imposed a three-year sentence, with one year to be served in local custody, and two years to be served on mandatory supervision.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Clark makes two arguments on appeal. First, he contends that the trial court abused its discretion in denying his Marsden motion because it did not conduct an adequate inquiry into the basis for the motion. Second, he argues that the trial court improperly imposed a condition of mandatory supervision (condition 1.m) requiring Clark to submit to searches of his "computers, recordable media[, and] cell phone." We conclude that Clark's contentions lack merit, and we accordingly affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On October 25, 2019, a complaint charged Clark with one count of second degree burglary (§ 459) and one count of petty theft (§ 484). The charges were based on evidence that Clark took items from vehicles in a parking lot at Ramona High School. Specifically, video surveillance from the evening of October 17, 2019, showed Clark grabbing a backpack out of an unlocked Jeep. Clark also used a tool to unlock a truck, from which he took items and then fled the scene.
Because Clark pled guilty before any evidence was presented, we rely on the probation officer's report for the relevant factual background.
On November 1, 2019, Clark pled guilty to one count of second degree burglary. The plea agreement stated, "I will receive a 3 year sentence which will be suspended and I will be referred to Reentry Court. If not accepted, I will receive a 1-2 split sentence." As the basis for the plea, Clark stated in the plea agreement that he "participated in the burglary of a locked car."
At the plea hearing, the trial court inquired of Clark, "Paragraphs 1 and 2 tell me you're going to plead guilty to Count 1, a violation [of] Penal Code Section 459 in the second degree, a car burglary. You're going to get a three-year stayed prison sentence, which will—and I am going to refer you to reentry court. If you're not accepted to reentry court, you're going to get a three-year prison sentence with a one-two split; one year in and two years under court supervision. Is that your understanding of the agreement?" Clark answered in the affirmative. After further colloquy, the trial court accepted the plea agreement, and the People dismissed the remaining count.
At a November 22, 2019 hearing in the Reentry Court, Clark was determined to be ineligible for participation. As the court explained at that hearing, "Unfortunately, your history: Sales, firearms[ ] possession, and violence don't make you a good fit for this program."
The minute order from the hearing says Clark was ineligible because of "violence/sales/firearm possessions." We note that the transcript of the hearing before the Reentry Court reflects that Clark's ineligibility to participate was first discussed in more detail off the record prior to the hearing. As counsel appearing for Clark stated on the record, "I've spoken to Mr. Clark, Your Honor, and explained to him the discussion this morning . . . ."
On December 4, 2019, Clark appeared at a hearing during which defense counsel informed the trial court that he believed a Marsden hearing was required because Clark wanted to withdraw his guilty plea due to what Clark perceived to be incorrect advice from defense counsel. As defense counsel told the court, "When I discussed the matter with him prior to the hearing, he advised me that he wished to withdraw his guilty plea and said that I had misadvised him. And for that reason, we request a Marsden hearing under Sanchez."
Defense counsel's reference to "Sanchez" invoked People v. Sanchez (2011) 53 Cal.4th 80, which addressed the circumstances under which "a trial court is obligated to conduct a hearing on whether to discharge counsel and appoint new counsel when a criminal defendant indicates a desire to withdraw a guilty or no contest plea on the ground that current counsel has provided ineffective assistance." (Id. at pp. 83-84.)
The trial court then closed the courtroom and held a Marsden hearing with Clark and defense counsel in attendance. The trial court inquired of Clark, "Mr. Clark, at this time, would you advise me, sir, of your concerns regarding [defense counsel's] representation?" Clark replied, "Yeah. When I signed the deal, I was—I was convinced that I was—I signed for reentry. That's what I was getting, and I didn't get it." The trial court then looked at and recited the terms of the plea agreement. Clark responded, "Correct. I was convinced that I was—when I signed the deal, I was convinced that . . . I was getting reentry. But when I went to reentry court, they denied me for my charges." The court asked, "Okay. And you're thinking [defense counsel] is to blame for that?" Clark said, "Yes. I'd say so. . . . I was getting it. I was getting reentry court. That was pretty much set in stone. I was convinced of that. . . . If I had any thought of me not getting it, I wouldn't have signed the deal."
The trial court then turned to defense counsel for comment. Defense counsel stated, "Your Honor, in our discussions earlier today, what he told me was that when we had the discussion about reentry court, I did tell him that, as far as I could see from the criteria for reentry court, he was eligible. And he told me—today he said, 'well, [defense counsel], you told me I was getting reentry court. I wouldn't have signed if I wasn't getting reentry court.' And so it was on that basis that I asked the court for the hearing. . . . What I can tell you is I remember the conversation with Mr. Clark, and I remember pulling up on my laptop the criteria for reentry court and going over all of them with him and saying, 'Look. Everything here says you're eligible for reentry court.' What he and I did not discuss was whether his current—the case that he's on A.B. 109 parole was going to make—was going to cause them to reject him. I knew the charges in that case, but I did not—I did not discuss with him that that fact would make him—that they wouldn't take him. And he advised me when he went to reentry court—I think it was last week or the week before—that they refused to take him because of that. And [counsel] from the primary public defender office was the attorney that was with him that day. She sent me an email saying that he was denied reentry court in part because of the A.B. 109 parole situation."
We understand the reference to "A.B. 109 parole" to refer to postrelease community supervision as set forth in section § 3451, which was enacted by Assembly Bill 109. (Stats. 2011, ch. 15, § 479.) As explained in the probation officer's report, on November 4, 2019 (i.e., three days after Clark's guilty plea), Clark's postrelease community supervision from a 2018 conviction was revoked for violations of the terms of supervision, and Clark was sentenced to a 180 day custodial sanction.
The Marsden hearing then concluded with the following exchange:
"The Court: Okay. I am looking at the . . . minute order from that hearing. . . . The defendant was found not eligible. And it says violence, sales, and firearm possession were the bases for that. I don't see a basis for a Marsden, [defense counsel]. Maybe a motion to withdraw. I don't like the odds of it, but I don't see a basis for a Marsden hearing.
"[Defense counsel]: When he told me I misadvised him, that's why I advised the court. And . . . he discussed with me before that that he wanted to withdraw his plea, and then the discussion when he said I misadvised him. He said, '[defense counsel], you told me I was getting reentry court, and I didn't.'
"[Clark]: I think we have a conflict of interest.
"[Defense counsel]: He gets to make the call.
"The Court: I . . . certainly appreciate your frustration in this. This . . . may be a basis for something else, but a Marsden motion is not it. I don't find that [defense counsel] has misadvised or has not properly represented you in this matter. In fact, my review of this shows that even the backup offer that you may end up with is still pretty good. The split sentence of one two is still a pretty good split. So let's not talk about that anymore. I'm denying the Marsden motion."
On December 19, 2019, on behalf of Clark, defense counsel filed a motion to withdraw Clark's guilty plea. In support of the motion, Clark submitted a declaration stating, "At the time I entered my plea of guilty, I believed that I would be placed in Re-Entry Court. I believed this because of discussions I had with [defense counsel]. [¶] I did not receive Re-Entry Court in this case[.] [¶] Had I known that I would not be placed into Re-Entry Court, I would not have entered a plea of guilty in this case. [¶] I am not guilty of the felony offense of car burglary. The car was not locked when I took property from it, and I did not force entry to the car in any way." In the motion, defense counsel argued that Clark's declaration "establishes that he was induced to enter his guilty plea because he believed that he would be [permitted] to participate in the Re-Entry Court program. That did not occur, through no fault of Mr. Clark." The trial court denied the motion, explaining that the record from the plea hearing showed that Clark understood his ability to participate in Reentry Court was conditional upon being accepted. It further observed that Clark affirmed he forced entry into a locked car when he pleaded guilty.
Pursuant to the terms of the plea agreement, the trial court imposed a three-year sentence, with one year to be served in local custody, and two years to be served on mandatory supervision. The order granting mandatory supervision contained numerous conditions, among which was condition 1.m, requiring Clark to "[s]ubmit person, vehicle, residence, property, personal effects, computers, and recordable media[,] cell phone[,] to search at any time with or without a warrant, and with or without reasonable cause, when required by [probation officer] or law enforcement officer." The trial court imposed condition 1.m over the following objection by defense counsel: "Your Honor, with respect to condition [1.m], the mandatory supervision, the Fourth Amendment waiver, his cell phone had nothing to do with the case. We'd . . . ask the court to strike the cell phone."
Clark received a certificate of probable cause to file an appeal.
II.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion By Making an Inadequate Inquiry During the Marsden Hearing
We first consider Clark's contention that the trial court abused its discretion by not conducting an adequate inquiry during the Marsden motion.
" 'When a defendant seeks substitution of appointed counsel pursuant to People v. Marsden, supra, 2 Cal.3d 118, "the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result." ' [Citation.] 'A trial court should grant a defendant's Marsden motion only when the defendant has made "a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation." ' [Citation.] 'We review the denial of a Marsden motion for abuse of discretion.' " (People v. Streeter (2012) 54 Cal.4th 205, 230.) Further, as particularly relevant here, "[w]hen reviewing whether the trial court abused its discretion in denying a Marsden motion, we consider whether it made an adequate inquiry into the defendant's complaints." (People v. Mungia (2008) 44 Cal.4th 1101, 1128.)
Our Supreme Court has specifically discussed the circumstances under which a trial court must hold a Marsden hearing when, as here, a defendant seeks to withdraw his guilty plea on the ground that defense counsel's inadequate representation caused the defendant to enter into the plea. "[A] trial court is obligated to conduct a Marsden hearing on whether to discharge counsel for all purposes and appoint new counsel when a criminal defendant indicates after conviction a desire to withdraw his plea on the ground that his current counsel provided ineffective assistance . . . when there is 'at least some clear indication by defendant,' either personally or through his current counsel, that defendant 'wants a substitute attorney.' " (Sanchez, supra, 53 Cal.4th at pp. 89-90.) "A defendant is entitled to competent representation at all times, including presentation of a new trial motion or motion to withdraw a plea. . . . Thus, when a defendant satisfies the trial court that adequate grounds exist, substitute counsel should be appointed. Substitute counsel could then investigate a possible motion to withdraw the plea or a motion for new trial based upon alleged ineffective assistance of counsel. Whether, after such appointment, any particular motion should actually be made will, of course, be determined by the new attorney." (People v. Smith (1993) 6 Cal.4th 684, 696.)
Our Supreme Court has noted that, although in a motion to withdraw a plea, " 'it is difficult for counsel to argue his or her own incompetence,' " it is not "impossible for counsel to do so." (Sanchez, supra, 53 Cal.4th at p. 89.) Thus, " '[a] defendant has no greater right to substitute counsel at the later stage than the earlier.' . . . 'It is the very nature of a Marsden motion, at whatever stage it is made, that the trial court must determine whether counsel has been providing competent representation. Whenever the motion is made, the inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future. But the decision must always be based on what has happened in the past. The further one is in the process, the more counsel has done in the past that can be challenged, but that is a difference of degree, not kind.' " (Id. at p. 88, citations omitted.)
Here, Clark does not specifically target the trial court's ruling that defense counsel provided competent representation. Instead, Clark focuses his appellate challenge on the procedure that the trial court implemented in conducting the Marsden hearing. Clark argues that "the trial court failed to make the necessary factual inquiries into the basis of Mr. Clark's allegations of conflict with counsel, rendering its ruling an abuse of discretion for which remand is appropriate." To evaluate this contention, we first review the case law setting forth the type of procedure that is required during a Marsden hearing.
In Sanchez, when the trial court failed to conduct a proper inquiry into whether defense counsel should be substituted for all purposes, the appropriate disposition was to remand the matter for the trial court to hold a proper Marsden hearing. (Sanchez, supra, 53 Cal.4th at pp. 92-93.)
" ' "[A] Marsden hearing is not a full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendant's allegations regarding the defects in counsel's representation and decides whether the allegations have sufficient substance to warrant counsel's replacement." ' " (People v. Gutierrez (2009) 45 Cal.4th 789, 803.) The required procedure was first addressed in Marsden itself. There, the defendant sought a ruling on whether he was receiving competent representation. In considering the issue, the trial court did not allow the defendant to explain the basis for his contention, even though the defendant asked that he be permitted to describe specific instances. Instead, the trial court denied relief based on the court's observation of counsel during the proceedings. (Marsden, supra, 2 Cal.3d at pp. 121-122.) Marsden held that the trial court's approach was inadequate because the defendant did not have a chance to explain the basis for his claim of incompetent representation. "The trial court cannot thoughtfully exercise its discretion in this matter without listening to [a defendant's] reasons for requesting a change of attorneys. A trial judge is unable to intelligently deal with a defendant's request for substitution of attorneys unless he is cognizant of the grounds which prompted the request. The defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom. . . . Thus, a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant's offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney." (Id. at pp. 123-124.)
Similarly, in People v. Lewis (1978) 20 Cal.3d 496, 498, the trial court failed to conduct an adequate Marsden hearing when it denied the defendant's motion on the ground that counsel "is an extremely competent attorney" and repeatedly cut off the defendant when he tried to explain why he wanted to obtain substitute counsel.
Following Marsden, our Supreme Court has on numerous occasions considered whether a trial court followed adequate procedures during a hearing at which a defendant sought to substitute appointed counsel. As those cases show, a trial court conducts an adequate inquiry when "the court allow[s] defendant to explain the reasons for his dissatisfaction with counsel and permit[s] counsel to respond." (People v. Abilez (2007) 41 Cal.4th 472, 488.) A defendant should be given a " 'full opportunity to air all of his complaints, and counsel to respond to them.' " (Ibid.; see also People v. Hines (1997) 15 Cal.4th 997, 1023-1024 [" 'the court must consider any specific examples of counsel's inadequate representation that the defendant wishes to enumerate.' "].) In general, "[i]nquiring of counsel is necessary for the trial court to evaluate the defendant's request and for appellate review" (People v. Panah (2005) 35 Cal.4th 395, 432), and the trial court is "entitled to credit counsel's explanations" (People v. Taylor (2010) 48 Cal.4th 574, 600).
As one court has summarized the relevant authority, "Marsden and its progeny require that when a defendant complains about the adequacy of appointed counsel, the trial court permit the defendant to articulate his causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance. [Citations.] If the defendant states facts sufficient to raise a question about counsel's effectiveness, the court must question counsel as necessary to ascertain their veracity." (People v. Eastman (2007) 146 Cal.App.4th 688, 695; see also People v. Smith (2003) 30 Cal.4th 581, 607 [the trial court conducted "a full inquiry into defendant's complaints" when it "allowed defendant to express himself fully," "[i]ts inquiry was 'as comprehensive as the circumstances reasonably would permit,' " and " '[t]he court invited defendant to make a statement, listened to defendant's reasons for desiring new counsel, and found them to be without merit' "].)
Clark contends that the trial court ran afoul of these requirements because, as in Marsden, it "relied solely on the trial record" in determining whether defense counsel should be substituted for providing incompetent representation. Clark argues, "Like the trial court in Marsden, the court here undertook minimal effort to determine the allegations underlying the request for substitute counsel and, instead, appeared to rely on a layperson's 'groping for the proper manner in which to demonstrate the alleged lack of competence of his attorney.' . . . Although the trial court should have been aware that the facts necessary to adjudicate the motion were outside the trial record, it did not inquire into any of those facts. . . . Instead, the court relied solely on the contents of the record as a basis for its denial, which militates strongly towards reversal."
Clark's argument lacks merit. Unlike the procedure employed in Marsden, the trial court in this case did not rely solely on its courtroom observations during prior proceedings to conclude that counsel provided competent representation. Instead, as required, the trial court solicited information specifically relevant to the Marsden motion from both Clark and defense counsel, beyond what was in the record.
First, the court listened to Clark's description of why he believed he had received incompetent representation, including asking a follow up question after Clark's initial statement. From this inquiry, it became clear that Clark believed he was misadvised by counsel regarding his eligibility for Reentry Court. Next, the trial court turned to defense counsel to provide an explanation of what had occurred. Defense counsel described his advice to Clark about his apparent eligibility for Reentry Court based on the criteria that they reviewed on counsel's laptop. Defense counsel then explained that he understood, based on reports from Clark and from counsel who appeared with Clark at the Reentry Court hearing, that Clark was determined to be ineligible for a reason that counsel did not consider when advising Clark. Specifically, as defense counsel learned after the hearing, Clark's ineligibility was based, at least in part, on a previous conviction for which Clark was on postrelease community supervision.
While it is true that the trial court also reviewed items in the record, namely the minute order from the Reentry Court hearing and Clark's plea agreement, the trial court relied on those items to enhance its understanding of the situation. The court did not rely on items in the record to the exclusion of the other information solicited at the hearing.
Although we find the trial court's investigation adequate under these circumstances, we recognize that criminal defendants in Marsden proceedings might sometimes benefit from a more searching inquiry undertaken by the court. Since defendants are understandably less familiar than an attorney would be about what information the court needs to evaluate their motions, the strength of their petitions might, in some cases, depend on the particular information the court elicits. Here, however, nothing the court might have uncovered with a more detailed inquiry would have made a difference. That is because Clark's complaint, ultimately, was that his counsel provided him with inaccurate or misleading advice about the contingencies in his plea deal. And defendants who make such claims successfully are required to make a threefold showing: (1) that counsel's performance fell below expected standards, (2) that there was a reasonable probability that, if not for the attorney's error, they "would not have pleaded guilty and would have insisted on going to trial" (Hill v. Lockhart (1985) 474 U.S. 52, 59), and (3) that independent, objective evidence beyond their own testimony corroborates their claim about going to trial. (In re Alvernaz (1992) 2 Cal.4th 924, 938 (Alvernaz); see also In re Resendiz (2001) 25 Cal.4th 230, 254 [adopting the Hill standard for evaluating ineffective assistance of counsel as to a guilty plea].)
Setting aside the question of whether Clark could successfully argue the first two factors, nothing in the record would support a contention that he would have chosen to go to trial if he thought his chances of participating in Reentry Court after pleading guilty were less than certain. His own statement to this effect, which came only after he was denied Reentry Court, is precisely the kind of self-serving evidence that was expressly deemed unreliable by our Supreme Court in Alvernaz, supra, 2 Cal.4th at p. 938.
Therefore, we conclude the trial court did not abuse its discretion with respect to the procedure it used to evaluate the Marsden motion. The trial court properly based its ruling on information that it solicited from both Clark and defense counsel, giving them ample opportunity to present their comments. (People v. Alfaro (2007) 41 Cal.4th 1277, 1320 ["The trial court afforded defendant ample opportunity to set forth [his] complaints regarding counsel's representation, and after hearing defendant's complaints the trial court allowed counsel to respond. The trial court was not required to do more."].) B. Clark's Challenge to the Conditions of Mandatory Supervision Lacks Merit
Because we reject Clark's contention that the trial court failed to conduct a proper inquiry during the Marsden hearing, we accordingly reject Clark's contention that the lack of a proper inquiry violated his federal constitutional right to counsel under the Sixth Amendment.
We next consider Clark's challenge to one of the conditions of mandatory supervision imposed by the trial court. As we have described, condition 1.m required Clark to "[s]ubmit person, vehicle, residence, property, personal effects, computers, and recordable media[,] cell phone[,] to search at any time with or without a warrant, and with or without reasonable cause, when required by [probation officer] or law enforcement officer." Clark challenges this condition insofar as it requires him to submit to searches of his "computers, and recordable media[,] cell phone" (the electronics search condition).
1. The Electronics Search Condition is Not Facially Overbroad
Clark first argues that the electronics search condition is "facially unconstitutional as overbroad." "A facial challenge 'does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts.' [Citation.] The claim is that a condition cannot have any valid application, without relying on any facts in the sentencing record." (People v. Patton (2019) 41 Cal.App.5th 934, 946 (Patton).)
In Patton, this court rejected a facial constitutional challenge to an electronics search condition nearly identical to the condition at issue here. (Patton, supra, 41 Cal.App.5th at pp. 946-947.) We explained that the facial challenge lacked merit because there are instances in which such an electronics search condition may be constitutionally imposed. (Ibid.; cf. In re Ricardo P. (2019) 7 Cal.5th 1113, 1128-1129 (Ricardo P.) [stating that "[i]n certain cases, the probationer's offense or personal history may provide the juvenile court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality"].) We rely on our analysis in Patton to conclude that Clark's facial constitutional challenge lacks merit. Clark has not established that the electronics search condition imposed here "cannot have any valid application." (Patton, at p. 946.)
The condition in Patton required that the defendant " 'submit person, vehicle, residence, property, personal effects, computers, and recordable media including electronic devices 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.' " (Patton, supra, 41 Cal.App.5th at p. 939, italics omitted.) The only difference is that in Clark's case, the phrase "including electronic devices" is replaced by the term "cell phone."
2. The Reasonableness Challenge Fails
Next, Clark argues that the electronics search condition is unreasonable based on the facts of his particular case under the standards set forth in People v. Lent (1975) 15 Cal.3d 481, 486 (Lent). Under Lent, a court abuses its discretion when it imposes a term or condition that " '(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.' " (Id. at p. 486.) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a . . . term." (People v. Olguin (2008) 45 Cal.4th 375, 379.) A trial court's application of the Lent test is reviewed for abuse of discretion. (Ibid.)
Case law has held that a challenge to a condition of mandatory supervision should be examined according to the factors set forth in Lent. (People v. Malago (2017) 8 Cal.App.5th 1301, 1306-1308; People v. Martinez (2014) 226 Cal.App.4th 759, 764-765.) As the People point out, our Supreme Court is currently reviewing People v. Bryant, which held that "Lent applies to terms and conditions of mandatory supervision," and rejected the People's contention that the conditions should be reviewed pursuant to the approach described for parole conditions in People v. Burgener (1986) 41 Cal.3d 505 (Burgener). (People v. Bryant (2019) 42 Cal.App.5th 839, 849-850, review granted Feb. 19, 2020, S259956.) Here, although the People acknowledge that review of Bryant is pending, the People assume for the purpose of their analysis that the Lent factors apply. Clark also advocates that the Lent factors apply to his challenge to the conditions of mandatory supervision. We accordingly apply the Lent factors here. However, we note that our disposition would not change were we to conduct our analysis under Burgener, which asks whether imposing a condition requiring warrantless searches as a condition of parole is "for a purpose properly related to parole supervision." (Burgener, at p. 532.) Under either Lent or Burgener, the cell phone search condition is valid as applied to Clark due to his criminal history that involves his use of a cell phone in carrying out criminal activity.
Except for facial constitutional challenges, a defendant's challenges to conditions of mandatory supervision ordinarily must be raised in the trial court, and if they are not, appellate review of those conditions is forfeited. (See People v. Welch (1993) 5 Cal.4th 228, 234-235; In re Sheena K. (2007) 40 Cal.4th 875, 887-889; People v. Brand (2021) 59 Cal.App.5th 861, 867.)
On appeal, Clark challenges the portion of condition 1.m that refers to "computers, and recordable media[,] cell phone." However, Clark did not challenge all of those items in trial court. Instead, defense counsel objected solely to the portion of condition 1.m requiring that Clark submit to a search of his cell phone. As we have explained, defense counsel stated, "Your Honor, with respect to condition [1.m], the mandatory supervision, the Fourth Amendment waiver, his cell phone had nothing to do with the case. We'd . . . ask the court to strike the cell phone." Accordingly, Clark has forfeited his ability to bring an appellate challenge, under Lent, to the portion of condition 1.m that requires him to submit to a search of his "computers, and recordable media." We will accordingly address only the portion of condition 1.m that requires Clark to submit to searches of his cell phone (the cell phone search condition).
In light of Clark's forfeiture, although the People concede that the portion of the electronics search condition referring to "computers, and recordable media" is unreasonable under Lent and should be stricken, we do not accept the People's concession.
Because the cell phone search condition relates neither to a crime for which Clark was convicted in this case, nor to conduct which is itself criminal, only the third Lent factor is implicated here. Thus, we must decide whether the cell phone search condition " 'requires or forbids conduct which is not reasonably related to future criminality.' " (Lent, supra, 15 Cal.3d at p. 486.)
The leading case on how Lent's third prong applies to cases involving the search of a defendant's electronic devices is Ricardo P., supra, 7 Cal.5th at page 1116, in which our Supreme Court concluded that, under the facts of the case before it, the electronics search condition failed the third prong of the Lent test. (Id.) Specifically, in Ricardo P., the juvenile probationer, who had committed two burglaries (id. at p. 1115), was ordered by the juvenile court to " '[s]ubmit . . . electronics including passwords under [his] control to search by Probation Officer or peace office[r] with or without a search warrant at any time of day or night.' " (Id. at pp. 1116-1117.) Even though there was no basis for inferring that electronic devices were connected to the juvenile's commission of the burglaries, the juvenile court imposed the electronics search condition to enable probation officers to monitor whether the juvenile was communicating about drugs or with people associated with drugs. (Id. at p. 1119.) To support its reasoning, the juvenile court pointed to evidence that the juvenile had previously used marijuana, which the juvenile stated " 'did not allow him to think clearly.' " (Ibid.)
Explaining that "Lent's requirement that a probation condition must be ' "reasonably related to future criminality" ' contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition" (Ricardo P., supra, 7 Cal.5th at p. 1122), our Supreme Court concluded that "[s]uch proportionality is lacking here" because, among other things, "nothing in the record suggests that [the juvenile] has ever used an electronic device or social media in connection with criminal conduct." (Ibid.) Our Supreme Court explained that because an electronics search condition is "burdensome and intrusive," it "requires . . . substantial and particularized justification," which was lacking. (Id. at p. 1126.)
In summarizing its holding, Ricardo P. clarified that it did not intend to "categorically invalidate electronics search conditions" and "[i]n certain cases, the probationer's offense or personal history may provide the juvenile court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality." (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.) Ricardo P. cited examples of the type of case where an electronics search condition could be a proportional means to deterring future criminality, such as where the "defendant lured [the] victim using ' "either social media or some kind of computer software," ' " the defendant had a " 'history of robbing people of their cell phones,' " or the defendant "had previously used social media sites to promote his gang." (Id. at p. 1129.) As our Supreme Court explained, "[u]nder the rule we set forth today, a juvenile court imposing such a condition must consider whether, in light of 'the facts and circumstances in each case' . . . , the burdens imposed by the condition are proportional to achieving some legitimate end of probation." (Id. at p. 1127, citation omitted.)
In this case, the probation officer's report indicated that Clark had a recent history of using his cell phone in connection with criminal activity. Specifically, during the investigation leading to a 2018 conviction, "[a] warrant served on [Clark's] cell phone revealed text messages indicative of the sale of controlled substances. An investigation revealed [Clark] and [a co-defendant] were working in concert together in prescription fraud."
Clark argues that even though his 2018 conviction was based on criminal activity involving a cell phone, the cell phone search condition is not warranted because the other offenses during his lengthy criminal history did not necessarily involve the use of a cell phone. We reject the argument. Because it was based on recent criminal activity, the 2018 conviction is especially relevant in assessing whether the cell phone search condition was a proportional means to deter future criminality. --------
Based on Clark's criminal history of using a cell phone in connection with the illegal sale of drugs, the trial court was within its discretion to conclude that Clark's personal history provided it with "a sufficient factual basis from which it can determine that [the cell phone search condition] is a proportional means of deterring [Clark] from future criminality." (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.) Because Clark had previously used his cell phone to commit crimes, the cell phone search condition was "reasonably related to future criminality." (Id. at p. 1128.)
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: BENKE, Acting P. J. DATO, J.