Opinion
A153686
09-25-2018
In re C.A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. C.A., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. Nos. 17-JW-0111 & 17-JW-0598)
Defendant C.A. challenges the "electronic search" conditions imposed as conditions of his probation in case numbers 17-JW-0111 and 17-JW-0598, following his admission, in case No. 0111 to one count of bringing or possessing weapons on school grounds (Pen. Code, § 626.10, subd. (a)(1)) and misdemeanor exhibiting a deadly weapon (§ 417, subd. (a)(1)), and in case No. 0598 to injuring a girlfriend (§ 273, subd. (a)). He also contends that at the dispositional hearing for the two cases, the juvenile court failed to state the maximum confinement time, a point the Attorney General does not dispute. We conclude defendant forfeited his challenges to the probation conditions by failure to object in the juvenile court and also reject his ineffective assistance of counsel claim. We therefore affirm, but order the juvenile court to specify the maximum confinement time.
All further statutory references are to the Penal Code unless otherwise indicated.
Given the issues defendant has raised on appeal, we need not separately set out the facts of the admitted offenses and turn immediately to the issues proffered on appeal.
We resolve this appeal by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1.
"Electronic Search" Conditions
The juvenile court imposed a series of probation conditions recommended by the probation officer. These included the following conditions, which we will refer to as the "electronic search" conditions, defendant now challenges on appeal:
"Any electronic data storage and/or communication device under the Minor's control and/or which the Minor has shared, partial or limited access, is subject to a full and complete search, by any probation officer, in any manner required to guarantee full disclosure by any probation officer, during the day or night, with or without his consent, with or without a search warrant, and without regard to probable and reasonable cause;
"The Minor shall provide encryption keys or password to the probation officer for any computer or electronic data storage devices, in his possession, custody or control and to which he has sole, shared, partial, or limited access; [¶] . . . [¶]
"The Minor shall not be in possession of any paging devices or any other portable communication equipment, including but not limited to scanners, without the express permission of the probation officer;
"The Minor shall not access or participate in any Social Networking Site, including but not limited to Facebook.com. All internet usage is subject to monitoring by Probation, parents or school officials."
Both defendant and the Attorney General acknowledge that the Courts of Appeal have taken varying views on the validity of electronic search conditions and that the issue of whether such a condition survives examination under People v. Lent (1975) 15 Cal.3d 481 (Lent), superseded by statute on another ground as stated in People v. Brandão (2012) 210 Cal.App.4th 568, 573, is currently pending before our Supreme Court. (See In re Juan R. (2018) 22 Cal.App.5th 1083, 1089 [observing "law in this area is unsettled" and summarizing cases].)
Forfeiture
Defense counsel did not object to these conditions when they were imposed. Accordingly, the Attorney General maintains any Lent or constitutional challenge to them has been forfeited.
It is well-settled that a Lent challenge is forfeited by a defendant's failure to object on that ground in the trial court. (People v. Welch (1993) 5 Cal.4th 228, 237.) Constitutional challenges based on overbreadth or vagueness may be raised for the first time on appeal—but only if they " 'present "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." ' " (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) "An alleged constitutional defect that is 'correctable only by examining factual findings in the record or remanding to the trial court for further findings' is not a facial constitutional challenge, and traditional forfeiture principles apply." (In re I.V. (2017) 11 Cal.App.5th 249, 261.)
Defendant maintains his constitutional overbreadth challenge to the electronic search conditions presents a pure question of law. That is not the case, as the thrust of his argument is that given the circumstances of his offenses and his individual circumstances, the conditions unreasonably impinge on his constitutional rights. It is, thus, a factually based challenge, subject to forfeiture. (In re I.V., supra, 11 Cal.App.5th at pp. 260-261; People v. Kendrick (2014) 226 Cal.App.4th 769, 777-778 (Kendrick) [constitutional overbreadth challenge to electronic usage probation condition was factually-based and thus forfeited on appeal by failure to object in the trial court]; see In re R.S. (2017) 11 Cal.App.5th 239, 245-246, review granted July 26, 2017, S242387 [defendant could not avoid forfeiture doctrine by attempting "to create a facial constitutional challenge"].)
We note, for example, that the circumstances of this case include: another condition of probation, which defendant does not challenge, prohibits him from "having any contact with the victim . . . , directly or indirectly, in person, in writing, by telephone, electronically or through a third person." The victim submitted a letter to the court stating defendant "continuously called me a hundred times or more . . . all times of the day" and that she felt unsafe. The detention report states the victim told police that after she ended her relationship with defendant, he "made several attempts to contact and harass her regarding getting back together," and that defendant told police he felt suicidal and had texted the victim after the incident that he "felt like killing himself." The probation officer testified at the disposition hearing that among the police reports she reviewed in preparing a report for case No. 0111, was one concerning what appeared to be defendant holding a handgun "on a Snapchat video" and that defendant's mother was worried because of the Snapchat videos he and the victim were posting. A probation report prepared for case no. 0111 also stated defendant had been suspended from middle school once "for sending threatening text messages to his girlfriend."
Ineffective Assistance of Counsel
Anticipating the forfeiture problem, defendant asserts ineffective assistance of counsel, claiming there is "no conceivable rational tactical explanation" for his lawyer's failure to object to the electronic search conditions. The Attorney General posits there is a conceivable rational explanation, namely that defense counsel's primary objective was securing a disposition that placed defendant with relatives residing in New Jersey, thereby providing him with a " 'loving' " and " 'stable' " home and with family members committed to helping defendant turn his life around.
Our Supreme Court has stated the obligations of appellate courts in reviewing claims of ineffective assistance of counsel as follows: " ' "Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' " [Citation.] "[W]e accord great deference to counsel's tactical decisions" [citation], and we have explained that "courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight" [citation]. "Tactical errors are generally not deemed reversible, and counsel's decision [] making must be evaluated in the context of the available facts." ' " (People v. Stanley (2006) 39 Cal.4th 913, 954.) "Competent counsel is not required to make all conceivable motions or to leave an exhaustive paper trail for the sake of the record. Rather, competent counsel should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense that, to their best and reasonable professional judgment, seem appropriate under the circumstances. (See generally, People v. Eckstrom (1974) 43 Cal.App.3d 996, 1002-1003. . . .)" (People v. Freeman (1994) 8 Cal.4th 450, 509.) "Because it is inappropriate for a reviewing court to speculate about the tactical bases for counsel's conduct at trial [citation], when the reasons for counsel's actions are not readily apparent in the record, we will not assume constitutionally inadequate representation and reverse . . . unless the appellate record discloses ' "no conceivable tactical purpose" ' for counsel's act or omission. (People v. Hines [(1997)] 15 Cal.4th [997,] 1065, quoting People v. Diaz (1992) 3 Cal.4th 495, 558. . . .)" (People v. Lewis (2001) 25 Cal.4th 610, 674-675.) Accordingly, "[d]efendant's burden is difficult to carry on direct appeal." (People v. Montoya (2007) 149 Cal.App.4th 1139, 1148.)
We agree that defense counsel focused on in-home alternatives to the placement urged by the prosecution and probation at Camp Glenwood, and that counsel could reasonably have concluded this was a better strategy in regards to disposition than challenging proposed probation conditions intended to ensure the oversight required to redirect a young person who was, according to the probation department, "out of control" and whose behavior, as described by both the court and the probation department, "was escalating quickly." (See Kendrick, supra, 226 Cal.App.4th at p. 779 [given counsel's favorable negotiated disposition for defendant, counsel could have believed trial court would not entertain objection to probation condition restricting electronic access].) The challenged probation conditions also appear to be among the probation department's standard conditions, and counsel could reasonably have believed objecting to them would have been fruitless. (See People v. Samayoa (1997) 15 Cal.4th 795, 848 [record failed "to demonstrate affirmatively that counsel's omissions were not based upon a rational tactical basis, such as the reasonable assumption that such objections would be overruled"].)
For example, counsel's examination of the probation officer focused on the officer's consideration of alternatives, and counsel called a private investigator to testify about programs in New Jersey that would support placement with a relative there. Counsel's argument likewise focused on alternative placement.
"If, as here, a satisfactory explanation appears for trial counsel's conduct, then the claim of ineffective assistance of counsel 'is more appropriately decided in a habeas corpus proceeding.' (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267. . . .)" (Kendrick, supra, 226 Cal.App.4th at p. 778, fn. 4.)
Accordingly, we will not examine the merits of defendant's Lent and constitutional overbreadth challenges to the probation conditions on appeal through an ineffective assistance of counsel claim.
Our conclusion that defendant forfeited these claims should not be construed as an endorsement of the reasonableness or breadth of the conditions, particularly those that appear to impose an absolute ban on possessing portable communication devices and using social networking sites.
Confinement Time
The Attorney General correctly observes that at the dispositional hearing the juvenile court did not state on the record the maximum confinement time and agrees the record should be corrected to reflect that the maximum confinement time for defendant is four years, 10 months. Defendant has not taken issue with this time period. We will therefore order the record be corrected to reflect a maximum confinement time of four years, 10 months. (See Welf. & Inst. Code, § 726, subd. (d)(1).)
DISPOSITION
The juvenile court is directed to correct the dispositional orders in case numbers 17-JW-0111 and 17-JW-0598 to state a maximum confinement time of four years, 10 months. In all other respects, the orders are affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.