Opinion
D074729
02-07-2020
THE PEOPLE, Plaintiff and Respondent, v. KEVIN RAVIKUMAR, Defendant and Appellant.
Bruce L. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Meredith S. White and Robin Urbanski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD272920) APPEAL from a judgment of the Superior Court of San Diego County, Eugenia A. Eyherabide, Judge. Affirmed. Bruce L. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Meredith S. White and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Kevin Ravikumar guilty of battery with serious bodily injury (Pen. Code, § 243, subd. (d)) and found true the allegation that he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). The trial court placed him on three years' formal probation subject to various terms and conditions.
Statutory references are to the Penal Code unless otherwise indicated.
On appeal, Ravikumar asserts constitutional overbreadth challenges to probation conditions that require him to (1) submit his computers and recordable media to warrantless searches; (2) report certain "contact[s]" (a term he also contends is impermissibly vague) with law enforcement to his probation officer; and (3) comply with a curfew if so directed by his probation officer. Ravikumar did not raise these objections in the trial court and, therefore, has forfeited any as-applied challenges. We conclude his facial challenges are without merit. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
After attacking his treating physician at a hospital, Ravikumar was charged with elder abuse (§ 368, subd. (b)(1)) and battery with serious bodily injury (§ 243, subd. (d)). Each count carried the additional allegation that Ravikumar personally inflicted great bodily injury on a person who is 70 years or older. (§ 12022.7, subd. (c).)
The Prosecution Case
On January 11, 2017, Ravikumar suffered a seizure (his first), fell, and hit his head. He was transported by ambulance to Sharp Memorial Hospital, where he was admitted due to minor bleeding on his brain. Ravikumar was given medications to control pain, seizures, and nausea. The medications typically cause drowsiness, but not mood changes.
About two days later, hospital staff arranged to transfer Ravikumar to Kaiser, where he regularly received medical care. The trauma surgeon overseeing Ravikumar's care (Dr. R.) went to Ravikumar's hospital room and informed him of the move. Ravikumar responded that he wanted to go to Kaiser, and asked Dr. R., "What time am I going?" When Dr. R. responded that he did not know yet, Ravikumar responded angrily, "Do your job, you bitch," and "go find out what time it is and tell me."
Ravikumar shoved Dr. R. backward, causing him to fall onto Ravikumar's bed. Dr. R. yelled for security, then got up and walked past Ravikumar toward the narrow hallway leading out of the room. Ravikumar shoved Dr. R. in the back twice, causing him to hit his head on the wall and fall to the ground. Nurses took Dr. R. to the emergency department in a wheelchair.
Dr. R. sustained a laceration to his face that required stitches, a badly sprained hand that "became very swollen," a torn bicep tendon that "took a long time to get better," and an abrasion on one knee. Dr. R. testified he was 69 years old at the time of the attack.
The Defense Case
Ravikumar was the lone defense witness. He denied he ever touched Dr. R., and claimed Dr. R. was framing him for some unspecified reason. Ravikumar admitted he previously gave the investigating detective a false accounting of what had happened because he "was just kind of messing with her."
Verdicts and Sentencing
The jury found Ravikumar not guilty of elder abuse, guilty of battery with serious bodily injury, and found true the allegation that Ravikumar personally inflicted great bodily injury on Dr. R. The trial court set the matter for sentencing and ordered a probation report.
Based on Dr. R.'s testimony that he was 69 at the time of the attack, the case was submitted to the jury with a general great-bodily-injury enhancement allegation (§ 12022.7, subd. (a) [three-year enhancement]) rather than an allegation based on the victim being 70 or older (§ 12022.7, subd. (c) [five-year enhancement]).
The probation officer interviewed Ravikumar and prepared a report. Ravikumar did not have any prior convictions; however, he sustained a misdemeanor conviction for driving with a measurable blood alcohol content while awaiting sentencing in this case. And although Ravikumar was presumptively ineligible for probation, the probation officer recommended he be placed on formal probation for three years, subject to 240 days in custody and numerous probation conditions, including that Ravikumar be required to do the following:
• "Submit person, vehicle, residence, property, personal effects, computers, and recordable media 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 electronics search condition.)
• "Provide true name, address, and date of birth if contacted by law enforcement. Report contact or arrest in writing to the [probation officer] within 7 days. Include the date of contact/arrest, charges, if any, and the name of the law enforcement agency." (The reporting condition.)
• "Comply with a curfew if so directed by the [probation officer]." (The curfew condition.)
The probation officer wrote in her report that "the general terms and conditions of supervision were explained to [Ravikumar]" and "[h]e indicated he understood and would comply."
At the outset of the sentencing hearing, defense counsel acknowledged he "ha[d] received a copy of the probation report" and "did review it with [Ravikumar]." Counsel urged the court to place Ravikumar on probation so he could pursue counseling for a mental health condition with which he had been diagnosed.
The court placed Ravikumar on three years' formal probation, subject to 180 days in local custody and the conditions quoted above (among others). Ravikumar did not object to these conditions. To the contrary, he told the court he would "accept probation on those terms and conditions."
Ravikumar appeals.
DISCUSSION
Ravikumar contends the challenged probation conditions are all unconstitutionally overbroad, and that the reporting condition is also unconstitutionally vague. He does not challenge the reasonableness of the conditions under People v. Lent (1975) 15 Cal.3d 481 (Lent).
I. Relevant Legal Principles
Although trial courts have broad discretion in imposing probation conditions, the conditions must withstand a reasonableness analysis under Lent, supra, 15 Cal.3d 481. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) Under this standard, " '[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.]' " (Olguin, at p. 379, quoting Lent, at p. 486.)
Probation conditions must also withstand constitutional analysis. (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.); see People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.) " 'A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.' [Citation.] '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.' " (Pirali, at p. 1346.)
Similarly, "[a] probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness." (Sheena K., supra, 40 Cal.4th at p. 890.) "A probation condition is not impermissibly vague ' " 'simply because there may be difficulty in determining whether some marginal or hypothetical act is covered by its language.' " ' " (In re I.V. (2017) 11 Cal.App.5th 249, 261 (I.V.).) We give the condition " 'the meaning that would appear to a reasonable, objective reader.' " (Olguin, supra, 45 Cal.4th at p. 382.)
"As a general rule, failure to challenge a probation condition on constitutional or Lent grounds in the trial court [forfeits] the claim on appeal." (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033; see People v. Welch (1993) 5 Cal.4th 228, 237; Sheena K., supra, 40 Cal.4th at p. 885.) " '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.' " (Sheena K., at p. 881.) We may nevertheless consider a facial challenge first raised on appeal when it presents a pure question of law capable of resolution " ' "without reference to the particular sentencing record developed in the trial court." ' " (Id. at pp. 884, 886-889.)
II. Electronics Search Condition
Ravikumar contends the electronics search condition, which requires him to "[s]ubmit . . . computers . . . and recordable media" to warrantless searches, is unconstitutionally overbroad. He admits, however, that he did not object on this ground in the trial court. He has therefore forfeited the ability to raise an as-applied challenge and may raise only a facial challenge that presents a pure question of law. (Sheena K., supra, 40 Cal.4th at pp. 884, 886-889.)
Because Ravikumar does not assert a Lent challenge to the electronics search condition, we do not address the California Supreme Court's recent decision in In re Ricardo P. (2019) 7 Cal.5th 1113, which addressed only a Lent challenge to a similar condition. (Id. at pp. 1117-1118.)
Ravikumar asserts "there was no discussion regarding this particular condition" at sentencing—the trial court "only referenced marking box six [of the form probation order], without discussing the terms thereunder." To the extent this assertion implies defense counsel was excused from objecting by a lack of notice, it is not well-taken. First, the probation officer stated in her report that she reviewed the proposed conditions with Ravikumar and that he agreed to them. Second, defense counsel represented to the trial court at sentencing that he had received the probation report and had reviewed it with Ravikumar. The report included the proposed order granting probation, which clearly indicated the probation officer was recommending that the court impose all the conditions Ravikumar challenges here. Thus, Ravikumar had sufficient notice on which to object at sentencing.
Although Ravikumar purports to raise only a facial challenge on appeal, his arguments prove otherwise. For example, he argues the electronics search condition is overbroad because "[t]his is an assault case that arose because of a unique set of circumstances," namely, that he "suffered a seizure and traumatic brain injury." (Italics added.) He also argues "there is nothing in the record to suggest that there is a compelling state interest in being able to search [his] computers or recordable media." (Italics added.) "Given his appellate arguments, it is apparent that [Ravikumar] is not raising a pure facial challenge to the constitutionality of the probation condition that can be determined based on abstract or general legal principles. Instead, he advances fact-driven arguments to claim that, given the evidentiary specifics of the crimes[ and] his criminal history, . . . the probation condition is, as applied to him, unconstitutional." (People v. Kendrick (2014) 226 Cal.App.4th 769, 778 [finding challenge to probation condition restricting Internet use was as-applied, not facial, based on the defendant's fact-based arguments on appeal].) By failing to object below, Ravikumar forfeited his ability to raise these case-specific arguments on appeal.
Ravikumar cites People v. Stapleton (2017) 9 Cal.App.5th 989 to support his assertion that "[e]ven a facial challenge . . . must take into account the nature of the case and the goals and needs of probation generally. For example[,] what is constitutional in a drug usage case is not necessarily the same as what is constitutional in a theft related case." (Citations omitted.) To the extent this language conflicts with the parameters for reviewing a facial challenge as enunciated by the Supreme Court in Sheena K. (i.e., to address a pure question of law capable of resolution without reference to the trial court record), we are, of course, bound by our high court's pronouncement. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.) And, in any event, Ravikumar's arguments are not within Stapleton's scope because they are not based on the nature of his offense generally, but on the particular manner in which this particular defendant committed it.
Because Ravikumar has not shown that the electronics search condition is overbroad in the abstract, his facial challenge fails.
III. Reporting Condition
The reporting condition requires that Ravikumar report interactions with law enforcement as follows: "Provide true name, address, and date of birth if contacted by law enforcement. Report contact or arrest in writing to the [probation officer] within 7 days. Include the date of contact/arrest, charges, if any, and the name of the law enforcement agency." Ravikumar argues the term "contact" is unconstitutionally vague, and that if its meaning "is not restricted to arrest-like or investigative situations," it is unconstitutionally overbroad. Although Ravikumar did not object on these grounds below, we will consider them because they present pure questions of law. We conclude that, when read in context, this condition is neither impermissibly vague nor overbroad.
Ravikumar bases his constitutional challenges primarily on People v. Relkin (2016) 6 Cal.App.5th 1188 (Relkin), in which the court considered a probation condition that required the defendant "to 'report to the probation officer, no later than the next working day, any arrests or any contacts with or incidents involving any peace officer.' " (Id. at p. 1196.) The defendant argued that the phrases " 'contacts with' and 'incidents involving' peace officers are uncertain because one cannot determine whether those terms include occasional conversation with a police officer who lives down the street, answering an officer's questions as a witness to a crime, or participation in a demonstration where officers are present." (Id. at pp. 1196-1197.) The defendant further contended the condition was vague "because it is subject to the ' "whim of any police or probation officer," ' and unconstitutionally infringes on [the defendant's] rights under the First Amendment of the United States Constitution." (Id. at p. 1197.)
The Relkin court determined the condition was vague, in part. Specifically, the court found that "the portion of the condition requiring that defendant report 'any contacts with . . . any peace officer' " was vague because it "does indeed leave one to guess what sorts of events and interactions qualify as reportable." (Relkin, supra, 6 Cal.App.5th at p. 1197.) The court reasoned it was not certain the condition would not be triggered "when [the] defendant says 'hello' to a police officer or attends an event at which police officers are present, but would be triggered if [the] defendant were interviewed as a witness to a crime or if his 'lifestyle were such that he is present when criminal activity occurs,' " as the People had argued on appeal. (Ibid.) "The language does not delineate between such occurrences and thus casts an excessively broad net over what would otherwise be activity not worthy of reporting." (Ibid.)
In contrast to the condition at issue in Relkin, the reporting condition's requirement that Ravikumar "[p]rovide true name, address, and date of birth if contacted by law enforcement" would appear to a reasonable, objective reader to refer to contacts initiated by a law enforcement officer in which the officer requests that information from Ravikumar. This would not include mere greetings by law enforcement officers or conversations with officers at events attended by Ravikumar. Further, the requirement that Ravikumar report the "contact or arrest" and include the "name of the law enforcement agency" indicates that the interaction must be of the type and nature that either the law enforcement officer supplied that information to Ravikumar, or that Ravikumar was made aware of this information because the nature of the "contact" was sufficiently meaningful. This, too, indicates that a reasonable reading of the condition sufficiently delineates between casual, random interactions between Ravikumar and a law enforcement officer, including the exchanging of pleasantries, and situations in which Ravikumar is a witness to a crime or is specifically stopped and questioned by a law enforcement officer. The mere fact that there " ' " 'may be difficulty in determining whether some marginal or hypothetical act is covered by [a condition's] language' " ' " does not render the condition "impermissibly vague." (I.V., supra, 11 Cal.App.5th at p. 261.)
Accordingly, we reject Ravikumar's vagueness and overbreadth challenges to this condition.
IV. Curfew Condition
Ravikumar contends the probation condition requiring that he "[c]omply with a curfew if directed by the [probation officer]" is unconstitutionally overbroad. Again, because Ravikumar did not object on this ground in the trial court, he has forfeited an as-applied challenge and may raise only a facial challenge.
Ravikumar's facial challenge fails because it is premature—the record does not indicate that his probation officer ever imposed a curfew. We decline to rule in the abstract that a curfew condition imposed on an adult probationer could never withstand a constitutional overbreadth challenge.
Ravikumar's reliance on People v. Nassetta (2016) 3 Cal.App.5th 699 is misplaced because that court did not address an overbreadth challenge. (See People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10 ["It is axiomatic that cases are not authority for propositions not considered."].) The defendant in Nassetta was arrested at 2:15 a.m. for driving under the influence and possession of a controlled substance for sale. (Nassetta, at pp. 701-702.) After pleading guilty, the defendant objected at sentencing on Lent grounds to a curfew probation condition. (Id. at pp. 702, 707.) The trial court rejected his challenge based on the court's "experience" that " 'about two-thirds of [DUI cases] happen in the middle of the night . . . .' " (Id. at p. 702.) The Court of Appeal reversed, finding the trial court's anecdotal experience was insufficient evidence upon which to uphold the condition. (Id. at pp. 703-704.) The court never addressed constitutional overbreadth. (Id. at p. 707.)
Moreover, Ravikumar's failure to object in the trial court on Lent or overbreadth grounds precluded the development of a sentencing record necessary to conduct an analysis comparable to that conducted by the Nassetta court. Such a record likely would have addressed Ravikumar's conviction for driving with a measurable blood alcohol content and diagnosis with a mental health condition. Without a fully developed record on these points, we cannot meaningfully review Ravikumar's challenge.
DISPOSITION
The judgment is affirmed.
HALLER, J. WE CONCUR: McCONNELL, P. J. GUERRERO, J.