Opinion
D072801
02-03-2020
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.
OPINION ON REMAND FROM THE CALIFORNIA SUPREME COURT
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 and remanded with directions. 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. As to the probation conditions, we conclude the electronics search condition is unreasonable under our Supreme Court's recent opinion in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.) but that the residence and employment conditions are constitutional. We therefore reverse the judgment and remand with directions to (1) strike the $820 fine and (2) strike the electronics search condition and consider whether a more narrowly tailored or alternative condition would be reasonable.
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 electronics 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 electronics 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 electronics 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
Electronics Search Condition
Bird contends the electronics search condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally overbroad. Our Supreme Court recently considered the reasonableness of electronics search conditions in Ricardo P., supra, 7 Cal.5th 1113. Applying that decision to the record here, we conclude the broad electronics search condition imposed on Bird is not reasonable. We therefore need not consider Bird's overbreadth argument.
Under Lent, "[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.) "The Lent test 'is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.' " (Ricardo P., supra, 7 Cal.5th at p. 1118.) "On appeal, we ' "review conditions of probation for abuse of discretion." ' [Citation.] Specifically, we review a probation condition 'for an indication that the condition is "arbitrary or capricious" or otherwise exceeds the bounds of reason under the circumstances.' " (Ibid.)
Here, the Attorney General does not contend the electronics search condition would be valid under the first two Lent prongs. Instead, he argues that the electronics search condition is valid under the third Lent prong: whether the condition is reasonably related to future criminality. (Lent, supra, 15 Cal.3d at p. 486.)
Ricardo P. considered the third Lent prong in the context of an electronics search condition imposed on a juvenile probationer. (Ricardo P., supra, 7 Cal.5th at p. 1115.) The juvenile admitted two felony counts of burglary. (Ibid.) "As a condition of his probation, the juvenile court required Ricardo to submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices. Although there was no indication Ricardo used an electronic device in connection with the burglaries, the court imposed the condition in order to monitor his compliance with separate conditions prohibiting him from using or possessing illegal drugs." (Ibid.) Ricardo P. concluded that this rationale was insufficient to justify the broad electronics search condition: "[T]he record here, which contains no indication that Ricardo had used or will use electronic devices in connection with drugs or any illegal activity, is insufficient to justify the substantial burdens imposed by this electronics search condition. The probation condition is not reasonably related to future criminality and is therefore invalid under Lent." (Id. at p. 1116.)
"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.) A broad electronics search condition "significantly burdens [a probationer's] privacy interests" because of the comprehensive nature of the information stored by modern electronic devices such as cell phones. (Id. at p. 1123, citing Riley v. California (2014) 573 U.S. 373, 395.) It therefore requires a correspondingly strong justification for the search condition. But where, as in Ricardo P., the justification for the search condition is mere speculation that the probationer will use his electronic devices to document or discuss drug usage—on the ground that minors typically do so—the justification comes up short. (Ricardo P., at pp. 1122-1123.) As our Supreme Court explained, "This case involves a probation condition that imposes a very heavy burden on privacy with a very limited justification." (Id. at p. 1124.) In other words, "the burden it imposes on Ricardo's privacy is substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society." (Id. at p. 1119.) "This disproportion leads us to conclude, on this record, that the electronics search condition is not ' "reasonably related to future criminality" ' and is therefore invalid under Lent." (Id. at p. 1124.)
Ricardo P. involved a juvenile, but its reasoning applies with equal force here. Indeed, we should be more exacting in our review because the court sentencing Bird did not have the same latitude as a juvenile court in the same situation. " 'A condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.' " (Ricardo P., supra, 7 Cal.5th at p. 1118.)
Under Ricardo P., "there must be information in the record establishing a connection between the search condition and the probationer's criminal conduct or personal history—an actual connection apparent in the evidence, not one that is just abstract or hypothetical." (In re Alonzo M. (2019) 40 Cal.App.5th 156, 166 (Alonzo M.).) For example, in Alonzo M., the record contained evidence of the juvenile's extensive use of electronic devices to communicate with friends and for other purposes. (Id. at pp. 166-167.) The trial court imposed an electronics search condition to "help to ensure that [the juvenile] does not again succumb to the negative influences he blames for the criminal behavior that led to this wardship." (Id. at p. 167.) Because there was a basis in the evidence to believe that the electronics search condition would achieve these purposes, based on the juvenile's extensive use of electronic devices, the reviewing court found that a narrowly tailored search condition would be reasonable. (Id. at p. 168.)
The record here does not reflect any such connection between the electronics search condition at issue and Bird's criminal conduct or personal history. The trial court cited Bird's extensive substance abuse problem, but there is no evidence in the record that monitoring Bird's electronic devices would lead to more effective supervision in this regard. In a supplemental brief, the Attorney General points out that the evidence of Bird's drug abuse was much stronger than in Ricardo P. But the relevant question is not whether combatting Bird's drug abuse is a legitimate justification; it is whether there is any indication beyond speculation that an electronics search condition will be effective in assisting law enforcement in that effort. Where, as here, there is no indication that the defendant used or will use electronic devices in a manner that would lead to effective monitoring, the justification for a broad electronics search condition is lacking. (See Ricardo P., supra, 7 Cal.5th at p. 1116; Alonzo M., supra, 40 Cal.App.5th at p. 167.)
The same reasoning applies to the other justification proffered by the Attorney General, that the electronics search condition will help prevent the criminality that led to Bird's unsuccessful performance on probation in the past. As with the trial court's concern over drug abuse, preventing criminality is a legitimate justification. But, as with drug abuse, there is nothing in the record connecting Bird's use of electronic devices to his future criminality. As one court explained, in a similar context, "Because of the significant burden imposed on [the defendant's] privacy interest and the absence of any information in the record to connect the condition with the goal of preventing future criminality, we again hold that the electronic search condition imposed on [the defendant] is invalid under Lent." (People v. Bryant (2019) 42 Cal.App.5th 839, 847.) The broad electronics search condition at issue here is likewise invalid. (See Ricardo P., supra, 7 Cal.5th at p. 1116.)
We therefore reverse the judgment and remand the matter to the trial court with instructions to strike the electronics search condition. (See People v. Appleton (2016) 245 Cal.App.4th 717, 728-729.) On remand, the court may consider whether to impose a more targeted or alternative condition consistent with this opinion and Ricardo P.
The Attorney General has filed a request for judicial notice of a letter from the San Diego County Probation Department regarding Bird's probationary status. We may judicially notice the existence and contents of the letter, but not its truth. (See People v. Castillo (2010) 49 Cal.4th 145, 157.) Because the letter is relevant only for its truth, we deny the request for judicial notice. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063-1064.) --------
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 People v. Pirali (2013) 217 Cal.App.4th 1341, 1345 (Pirali) ["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 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.
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 People v. Olguin (2008) 45 Cal.4th 375, 383.) 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 therefore direct the trial court on remand to strike the $820 fine under section 672.
DISPOSITION
The matter is remanded to the trial court with directions (1) to strike the $820 fine under Penal Code section 672, (2) to strike the portion of Bird's probation condition requiring him to submit his "computers," "recordable media," and "electronic devices" to warrantless search, (3) to consider whether to impose a more targeted or alternative condition consistent with this opinion and Ricardo P., and (4) to enter a new probation order reflecting the results of these proceedings. In all other respects, the judgment is affirmed.
GUERRERO, J. WE CONCUR: O'ROURKE, Acting P. J. DATO, J.