Opinion
F075768
05-10-2018
THE PEOPLE, Plaintiff and Respondent, v. ISAAC LAMAAR MONTGOMERY, Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F17901316)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. F. Brian Alvarez, Judge. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Peña, J.
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Appellant Isaac Lamaar Montgomery pled no contest to one count of possession of ammunition by a felon, in violation of Penal Code section 30305, subdivision (a) and was placed on probation. He argues the electronic search condition imposed by the trial court is unreasonable because it bears no relation to his offense or future criminality, the condition is unconstitutionally overbroad, and it violates his Fifth Amendment rights against self-incrimination and that his trial counsel was ineffective when he failed to object to the electronic search condition.
All statutory references are to the Penal Code. --------
We reject his constitutional challenges because Montgomery failed to object to the condition in the trial court and thereby forfeited the right to argue on appeal the condition is unconstitutional. We further find Montgomery's trial counsel was not ineffective for not objecting to the search condition, and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On March 2, 2017, Montgomery was pulled over for having an expired registration and for driving a car that was believed to have been involved in an assault with a firearm incident. He gave consent to search the car, and five shotgun shells were found under a seat. Montgomery stated he had bought the shells from a kid.
On March 3, 2017, an information was filed charging Montgomery with one count of possession of ammunition by a felon in violation of section 30305, subdivision (a), and alleging one prior strike conviction pursuant to section 667. On May 9, 2017, Montgomery signed a plea agreement, pleading no contest to one count of violating section 30305, subdivision (a). On June 1, 2017, Montgomery filed a request that the court strike his prior serious felony conviction. On June 7, 2017, Fresno County Superior Court struck Montgomery's prior felony conviction, and sentenced him to three years' formal probation and ordered him to serve 197 days in local custody with credit for 197 days served. Montgomery was released the same day.
The court further imposed a probation term requiring Montgomery to "submit his person, property, vehicle, home and electronic devices to search and seizure at any time of day or night by any law enforcement officer, including probation officer, that's with or without a search warrant or other process." Montgomery's counsel did not object to this condition. The court asked Montgomery if he understood and agreed to the terms and conditions of probation, and Montgomery replied, "Yes, sir."
Montgomery timely appealed on June 8, 2017.
DISCUSSION
Montgomery argues that the probation condition providing for a search of all electronic devices is unreasonable, unconstitutionally overbroad, and violates his Fifth Amendment right against self-incrimination.
When granting probation, the trial court may "impose and require ... reasonable conditions, as it may determine 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 generally and specifically for the reformation and rehabilitation of the probationer ...." (§ 1203.1, subd. (j).)
"The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. [Citation.] 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.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).)
1. Forfeiture
Montgomery's counsel did not object to the electronic search condition at the sentencing hearing. The Attorney General argues this failure results in a forfeiture of the issue on appeal. Montgomery argues the issue is not forfeited because Montgomery's counsel was ineffective when counsel failed to object to the electronic search condition.
"Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal." (In re Sheena K. (2007) 40 Cal.4th 875, 880 (Sheena K.).) " 'The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.' [¶] As a general rule neither party may initiate on appeal a claim that the trial court failed to make or articulate a ' "discretionary sentencing choice[ ]." ' " (Id. at p. 881.)
"Applying the rule to appellate claims involving discretionary sentencing choices or unreasonable probation conditions is appropriate, because characteristically the trial court is in a considerably better position than the Court of Appeal to review and modify a sentence option or probation condition that is premised upon the facts and circumstances of the individual case. Generally, application of the forfeiture rule to such claims promotes greater procedural efficiency because of the likelihood that the case would have to be remanded to the trial court for resentencing or reconsideration of probation conditions." (Sheena K., supra, 40 Cal.4th at p. 885.)
However, "an unconstitutionally vague or overbroad probation condition does not come within the 'narrow exception' to the forfeiture rule made for a so-called unauthorized sentence or a sentence entered in excess of jurisdiction. [Citation.] A sentence is said to be unauthorized if it cannot 'lawfully be imposed under any circumstance in the particular case' [citation], and therefore is reviewable 'regardless of whether an objection or argument was raised in the trial and/or reviewing court.' " (Sheena K., supra, 40 Cal.4th at pp. 886-887.)
Nonetheless, this conclusion "does not apply in every case in which a probation condition is challenged on a constitutional ground. ... [W]e do not conclude that 'all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." [Citation.] In those circumstances, "[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court." ' " (Sheena K., supra, 40 Cal.App.4th at p. 889.)
In this case, Montgomery argues the probation condition is unreasonable as to his specific offense and risk of future criminality. This argument is not a facial challenge to the constitutionality of the electronic search probation condition, but requires an analysis of the facts and circumstances of Montgomery's individual case. Montgomery's argument therefore does not fall within the exception to the forfeiture rule, and we consider his challenge to the electronic search probation condition forfeited for failure to assert this objection at sentencing.
2. Ineffective Assistance of Counsel
Montgomery argues his counsel's failure to object to the electronic search condition constitutes ineffective assistance of counsel, because at the time, In re Erica R. (2015) 240 Cal.App.4th 907 (Erica R.) found this probation condition violated Lent and the constitutionality of the search condition was in question.
"To establish a violation of the constitutional right to effective assistance of counsel, a defendant must show both that his counsel's performance was deficient when measured against the standard of a reasonably competent attorney and that counsel's deficient performance resulted in prejudice to defendant in the sense that it 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' " (People v. Kipp (1998) 18 Cal.4th 349, 366.)
"If, as here, the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate court must reject the claim of ineffective assistance unless there can be no satisfactory explanation for counsel's conduct." (People v. Kendrick (2014) 226 Cal.App.4th 769, 778 (Kendrick).)
Much like in Montgomery's case, in Kendrick, the defendant accepted a plea agreement and was sentenced to five years' formal probation. The superior court imposed a number of probation conditions, including that the defendant not subscribe to or have access to any form of internet service without prior approval. The defendant acknowledged and accepted these conditions. (Kendrick, supra, 226 Cal.App.4th at p. 772.)
After violating probation twice, the defendant appealed. On appeal, he argued the internet access probation condition was unconstitutionally overbroad and unreasonable as applied to him. (Kendrick, supra, 226 Cal.App.4th at p. 776.) Anticipating the forfeiture issue, the defendant further argued his counsel was ineffective for failing to object to the condition at the sentencing hearing. (Id. at p. 778.)
The appellate court denied the defendant relief. First, the court found the defendant did not raise "a pure facial challenge to the constitutionality of the probation condition that can be determined based on abstract or general legal principles." (Kendrick, supra, 226 Cal.App.4th at p. 778.) Rather, he advanced "fact-driven arguments to claim that, given the evidentiary specifics of the crimes, his criminal history, and the probation department's policy, the probation condition is, as applied to him, unconstitutional. [The court concluded] that defendant's failure to raise the constitutional claim in the trial court constitutes a forfeiture of his right to raise it on appeal." (Ibid.)
Turning to the defendant's ineffective assistance of counsel argument, the appellate court found "two satisfactory explanations for trial counsel's decision not to contest the probation condition when defendant was first placed on probation." (Kendrick, supra, 226 Cal.App.4th at p. 779.) In relevant part, the court found "that trial counsel had already negotiated an extremely favorable disposition for defendant" and "could have reasonably concluded that the trial court would not have entertained an objection to the probation condition. This is especially true since by that time case law had upheld Internet access conditioned on a probation officer's approval." (Ibid.)
In Montgomery's case, we are similarly faced with a record that does not shed any light as to why counsel acted or failed to act. Likewise, Montgomery had not only accepted a favorable plea agreement, but the superior court had also dismissed his prior strike conviction. Like in Kendrick, trial counsel in this case could have reasonably concluded that the trial court would not have entertained an objection on the probation condition.
Montgomery is correct that at the time, Erica R. held an electronic search condition requiring the minor defendant to submit " 'any electronic[s] with passwords under [defendant's] control' " to be invalid under Lent. The appellate court noted, however, that their holding was narrow. (Erica R., supra, 240 Cal.App.4th at p. 915.) In reaching its conclusion, the court had analyzed the specific factual circumstances of the defendant's case, and took into consideration that the defendant was a minor who " 'cannot be made subject to an automatic search condition; instead, such condition must be tailored to fit the circumstances of the case and the minor.' " (Id. at p. 914.)
Montgomery was neither a minor, nor was his case factually similar to the circumstances of Erica R. Neither has the electronic search condition been found unconstitutional. Given the state of the law at the time, Montgomery's generous plea agreement, and the superior court dismissing his prior strike, trial counsel's decision not to object to the electronic search condition was not deficient when measured against the standard of a reasonably competent attorney.
3. Fifth Amendment Violation Contention
Montgomery argues the electronic search condition is a violation of his Fifth Amendment rights. He further argues this issue involves a pure question of law that can be resolved without reference to the particular sentencing record, and was, therefore, not forfeited. We agree this issue falls within the constitutional exception to forfeiture, and consider it on its merits.
"The Fifth Amendment provides, in pertinent part, that no person 'shall be compelled in any criminal case to be a witness against himself.' " (Maldonado v. Superior Court (2012) 53 Cal.4th 1112, 1127.) "[A] 'core' Fifth Amendment violation is completed, not merely by official extraction of self-incriminatory answers from one who has not waived the privilege, but only if and when those answers are used in a criminal proceeding against the person who gave them." (Id. at p. 1128.) "[T]he Fifth Amendment privilege against self-incrimination does not target the mere compelled disclosure of privileged information, but the ultimate use of any such disclosure in aid of a criminal prosecution against the person from whom such information was elicited." (Id. at p. 1137.)
In Brown v. Superior Court (2002) 101 Cal.App.4th 313 (Brown), the defendant was subject to a probation condition where he was occasionally subjected to polygraph tests. The defendant argued that imposing polygraph testing as a condition of probation violated his rights and privileges under the Fifth Amendment. The appellate court rejected his argument, finding "a duty to answer the polygraph examiner's question truthfully does not mean his answers are compelled within the meaning of the Fifth Amendment." (Id. at p. 320.)
Further, the court noted the privilege against self-incrimination is not self-executing; rather, it must be claimed. "Thus, unless [the defendant] specially invokes the privilege, shows he faces a realistic threat of self-incrimination and nevertheless is made to answer the question or questions, no violation of his privilege against self- incrimination is suffered. [I]f the State puts questions to a probationer that call for answers that would incriminate him in a pending or later criminal proceeding, and expressly or by implication asserts that invocation of the privilege would lead to revocation of probation, the answers would be deemed compelled under the Fifth Amendment and thus involuntary and inadmissible in a criminal prosecution. [Citations.] On the other hand, if the questions put to the probationer are relevant to his probationary status and pose no realistic threat of incrimination in a separate criminal proceeding, the Fifth Amendment privilege would not be available and the probationer would be required to answer those questions truthfully." (Brown, supra, 101 Cal.App.4th at p. 320.)
We reject Montgomery's argument. The Fifth Amendment does not prevent the state from compelling Montgomery to disclose privileged information, but rather prohibits the use of compelled information in pending or future criminal proceedings against Montgomery. The probation condition does not require Montgomery to forfeit his Fifth Amendment protections because they are not yet even implicated.
DISPOSITION
The judgment is affirmed.