Opinion
D078664
04-27-2022
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL J. LUCAS, Defendant and Appellant.
Patrick Dudley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD278373, Robert F. O'Neill, Judge.
Patrick Dudley, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General for Plaintiff and Respondent.
DO, J.
INTRODUCTION
Miguel J. Lucas pled guilty to one count of possession of a firearm by a felon in violation of Penal Code section 29800, subdivision (a)(1). He was granted two years of formal probation and ordered to serve a term of 365 days in local custody with credit for time served. Among other conditions of Lucas's probation, the court required him to submit to warrantless searches of his "person, vehicle, residence, property, personal effects, computers, and recordable media including electronic devices."
All further unspecified statutory references are to the Penal Code.
Lucas asserts the electronic search condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) because it has no relationship to the crime of which Lucas was convicted and is not reasonably related to future criminality. We conclude Lucas has forfeited this claim by failing to raise it in the trial court. Lucas further asks us to vacate any unpaid portion of the $154 criminal justice administration fee imposed under the recently repealed Government Code section 29550.1. We shall modify the judgment to vacate any unpaid portion of that fee as of July 1, 2021 and affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
According to the probation report, at approximately 1:35 in the morning on August 25, 2018, Lucas approached a woman while walking on a busy street and grabbed either her hair or arm. The woman's boyfriend confronted Lucas, and Lucas retrieved a handgun from his pocket and showed it to the man. Lucas then stated he would not "do anything with all of these people around," put the gun back in his pocket, and took a fighting stance. The woman pushed her boyfriend away from Lucas and the two continued walking. An officer found Lucas nearby and detained him. Lucas had a concealed, loaded .25 caliber Beretta semi-automatic handgun on his person. The police later determined Lucas was a convicted felon and the gun was stolen.
Lucas was charged with possession of a firearm as a convicted felon (§ 29800, subd. (a)(1); count 1); possession of ammunition by a prohibited person (§ 30305, subd. (a)(1); count 2); having a concealed firearm (§ 25400, subd. (a)(2); count 3); drawing or exhibiting a firearm (§ 417, subd. (a)(2); count 4); and resisting an officer (§ 148, subd. (a)(1); count 5). It was further alleged he suffered two or more prior felony convictions. Lucas pled guilty to possession of a firearm as a felon (count 1) in exchange for dismissal of the remaining charges. The plea form stated the trial court "indicated a likelihood of probation."
The probation department recommended the upper term of three years but also submitted a proposed probation agreement. Among other conditions, a requirement that Lucas submit to warrantless searches of his "person, vehicle, residence, property, personal effects, computers, and recordable media including electronic devices" was recommended in paragraph 6(n). The attached proposed order further clarified, "[s]earch authorization does not extend to medical information, financial accounts or transactions, or to data created before the acceptance of this grant of probation."
At the sentencing hearing, defense counsel asked the court to strike or modify several proposed probation conditions, but raised no objection as to paragraph 6(n). The trial court granted Lucas two years of formal probation, ordered him to serve 365 days in local custody, and gave him credit for time served. The court imposed a number of fines and fees, including a $154 criminal justice administration fee. The court struck or modified several of the conditions to which defense counsel had raised objections. As to paragraph 6, the court stated, "all the boxes checked are ordered." The court asked Lucas if he accepted the terms and conditions of probation as indicated. Lucas nodded affirmatively and defense counsel stated he agreed on behalf of his client.
The trial court entered a written probation order consistent with those terms. The order included the $154 criminal justice administration fee and the electronic search condition set forth in paragraph 6(n), as well as the additional language excluding medical, financial, and pre-existing information from the search condition.
Lucas timely appealed.
DISCUSSION
I.
Lucas Waived His Claim Regarding the Electronic Search Condition by Failing to Object in the Trial Court
Probation is not a right, but an act of leniency that allows a defendant to avoid imprisonment. (People v. Moran (2016) 1 Cal.5th 398, 402 (Moran).) The trial court has broad discretion in determining the conditions of probation necessary to serve the primary goals of promoting rehabilitation and protecting the safety of the public. (Id. at pp. 402-403; People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) The court's discretion is not without limits, though, and any conditions regulating otherwise legal conduct must be "reasonably related to the crime of which the defendant was convicted or to future criminality." (Lent, supra, 15 Cal.3d at p. 486.)
A defendant who believes a proposed probation condition is unreasonable must timely object to the condition in the trial court. (People v. Welch (1993) 5 Cal.4th 228, 234 (Welch); In re SheenaK. (2007) 40 Cal.4th 875, 881 (Sheena K.).) A timely objection provides an opportunity for the parties to present argument or evidence concerning the need for the condition and for the court to modify the condition if necessary. (Welch, at pp. 234-235.) A defendant who fails to make a timely objection in the trial court typically forfeits any such argument on appeal. (Ibid.) There is an exception to the general rule where a defendant raises a facial challenge involving a pure question of law capable of resolution without any reference to the trial court record. (Id. at p. 235; SheenaK., at pp. 887-889.)
Lucas concedes he did not raise any objection to the electronic search condition in the trial court. On appeal, he asserts a probation condition impinging on a fundamental constitutional right must be narrowly drawn, but the remainder of his analysis relies on Lent and cases applying Lent to determine whether the probation condition at issue is "reasonably related to the crime of which the defendant was convicted or to future criminality." (Lent, supra, 15 Cal.3d at p. 486; see also In re Ricardo P. (2019) 7 Cal.5th 1113, 1128 [holding "the electronics search condition here is not reasonably related to future criminality and is therefore invalid under Lent"].) That analysis falls squarely under the forfeiture rule set forth in Welch. (Welch, supra, 5 Cal.4th at p. 237 ["We therefore hold that failure to timely challenge a probation condition on 'Bushman/Lent' grounds in the trial court waives the claim on appeal."].)
Moreover, Lucas's contentions necessarily require consideration of the trial court record. (See Sheena K., supra, 40 Cal.4th at p. 887 [exception to forfeiture rule where challenge does not require "reference to the particular sentencing record developed in the trial court"].) Lucas asserts, "there is no evidence in the record of [his] use of computers, recordable media, or cell phones in committing the crime here," and the condition is not related to future criminality. (Italics added.) In response, the Attorney General contends Lucas had a history of robbing people of electronic devices and used a gun in at least one of those robberies. (See In re Malik J. (2015) 240 Cal.App.4th 896, 902 [electronic search provision related to future criminality where defendant had a history of robbing people of their cell phones].) Lucas should have raised these issues in the trial court. (See Welch, supra, 5 Cal.4th at pp. 234-235 [timely objection allows for additional evidence, argument, and potential modification of the condition].) Because he failed to do so, we conclude he has waived them on appeal.
Lucas relies on two cases to assert appellate courts have at least glanced at the record in other cases, but neither case is apposite. In People v. Contreras (2015) 237 Cal.App.4th 868, the court reached a constitutional overbreadth argument despite the defendant's failure to object in the trial court, but noted the review was appropriate because it did not require reference to the record. (Id. at p. 879.) The court found the probation condition, precluding the defendant from entering Kohl's stores, was not constitutionally overbroad, without any reference to the trial court record. (Id. at pp. 882-883.) The court then commented its analysis might have been different if, for example, the condition prohibited the defendant from entering the only grocery store in town. (Id. at p. 883.) The probation condition at issue in In re Luis F. (2009) 177 Cal.App.4th 176 required the defendant to take all prescribed medications. (Id. at p. 181.) The court noted the defendant had forfeited a constitutional overbreadth challenge that required reference to the record by failing to raise it in the trial court, but elected to address protected liberty interest and procedural due process claims the defendant raised under the Fourteenth Amendment. (Id. at pp. 182-183.) Lucas does not raise any such claim here.
To the extent Lucas asserts the electronic search condition is constitutionally overbroad on its face, this court has rejected that contention for a nearly identical electronics search condition. (People v. Patton (2019) 41 Cal.App.5th 934, 946.) We adhere to Patton, adopt its analysis, and conclude any facial overbreadth challenge lacks merit.
II.
Any Unpaid Portion of the $154 Criminal Justice Administration Fee Shall Be Vacated
Lucas requests that we modify the judgment to strike the $154 criminal justice administration based on recent changes to the law.
After Lucas was sentenced, Assembly Bill No. 1869 (2019-2020 Reg. Sess.) (Assembly Bill No. 1869) was signed into law. As of July 1, 2021, pursuant to Assembly Bill No. 1869, the statutory provision pursuant to which the court ordered Lucas to pay a $154 criminal justice administration fee (former section 29550.1 of the Government Code) was repealed, and Government Code section 6111 was added. (Assem. Bill No. 1869, §§ 11, 24.) Government Code section 6111, subdivision (a), provides that: "On and after July 1, 2021, the unpaid balance of any court-imposed costs pursuant to Section 27712, subdivision (c) or (f) of Section 29550, and Sections 29550.1, 29550.2, and 29550.3, as those sections read on June 30, 2021, is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated."
The Attorney General concedes, and we agree, Lucas is entitled to vacatur of any unpaid balance of his criminal justice administration fee as of July 1, 2021.
DISPOSITION
Any portion of the $154 criminal justice administration fee imposed pursuant to former Government Code section 29550.1 unpaid as of July 1, 2021 is vacated. The judgment as modified is affirmed.
WE CONCUR: IRION, Acting P. J. DATO, J.