Opinion
D071504
08-23-2017
THE PEOPLE, Plaintiff and Respondent, v. MARK C. WILKERSON, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN355504) APPEAL from a judgment of the Superior Court of San Diego County, Sim von Kalinowski, Judge. Affirmed as modified. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
While working at a hotel, Mark C. Wilkerson took a guest's credit card and used it to make unauthorized purchases. A jury convicted him of two counts of using personal identifying information of another (counts 1 and 3; Pen. Code, § 530.5, subd. (a)) and one count of second degree burglary (count 2; § 459). He admitted to two prison priors and probation denial priors. (§§ 667.5, subd. (b), 668, 1203, subd. (e)(4).) The superior court sentenced Wilkerson to a split term of five years eight months, with Wilkerson serving the first four years in county jail and the remaining one year eight months under mandatory supervision. Among other conditions of the mandatory supervision term, the superior court required Wilkerson to (1) submit to warrantless searches of his person, vehicle, residence, property, personal effects, computers and recordable media; (2) obtain approval of his residence from his probation officer; and (3) provide his true name, address, and date of birth if contacted by law enforcement and report any such contact or arrest in writing to his probation officer within seven days (hereinafter "contact condition").
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, Wilkerson asserts these provisions are invalid because each is either unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent), unconstitutionally overbroad, or unconstitutionally vague. The People assert Wilkerson forfeited these contentions by failing to object to the conditions in the superior court. Wilkerson concedes that he did not object to the conditions, but argues they fall under an exception to the forfeiture rule for facial constitutional challenges or, in the alternative, that his counsel was ineffective for failing to object.
As set forth more fully below, we conclude Wilkerson's arguments based on Lent do not fall under the exception because they are not facial constitutional challenges to the conditions at issue. Regarding his constitutional challenges, we conclude his challenge to the electronics search provision also does not fall under the exception as it is not purely a facial challenge, and that his counsel's failure to object did not amount to ineffective assistance of counsel. However, we conclude the exception does apply to Wilkerson's arguments regarding the residence approval and contact conditions and, on the merits, conclude the residence approval condition is not unconstitutionally overbroad or vague but the contact provision is unconstitutionally vague. We therefore modify the contact provision and affirm the judgment, as modified, in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
In July of 2015, G.K. and his family stayed at a hotel in Oceanside, California. The family arrived at approximately 1:00 a.m. and G.K. gave Wilkerson, the front desk employee on duty at the time, his license and a credit card to pay for the room. Wilkerson completed the check-in process and then handed G.K. the room keys and his license. G.K. did not recall Wilkerson returning his credit card.
G.K. and his family checked out the following afternoon and, about an hour later, Wilkerson used G.K.'s credit card to purchase a meal at a fast food restaurant and a pair of designer headphones at a retail store. Shortly thereafter, G.K. received a notification from his credit card company indicating potentially fraudulent activity. He checked his wallet and realized he no longer had his card. He then called the credit card company and confirmed the charges were unauthorized.
Wilkerson attempted to make additional purchases but the card was declined. The credit card company reported the fraudulent activity and a police detective recovered video surveillance from the fast food restaurant and the retail store confirming Wilkerson had made the purchases using G.K.'s credit card. As a result, Wilkerson was charged and a jury found him guilty of two counts of using personal identifying information of another and one count of second degree robbery. Shortly thereafter, Wilkerson also admitted that he had two prison priors as well as probation denial priors.
Probation Report
Prior to sentencing, the probation department met with Wilkerson and submitted a probation officer's report to the court. The probation report indicated Wilkerson had a long criminal history, including charges and convictions for domestic violence, theft by access to card, use of personal identification of another, and multiple counts of grand theft, theft of a vehicle or auto, and obtaining personal information with the intent to defraud. In at least five previous instances, the court had placed him on probation but then either revoked or modified the probation due to unsatisfactory performance and new law violations, and in at least one prior instance, the court had placed him on mandatory supervision and then revoked it and returned him to custody. Regarding the current offense, Wilkerson denied using G.K.'s card and told the probation department he was upset with the verdict but was ready to get on with sentencing and would comply with the terms of supervision to gain release from jail.
The probation department recommended the court sentence Wilkerson to a split term of five years, with two years in local custody and three years on mandatory supervision. The department also recommended a number of conditions for mandatory supervision, including condition 1(m), requiring Wilkerson to submit to warrantless searches of his person, vehicle, residence, property, personal effects, computers and recordable media; condition 7(g), requiring Wilkerson to obtain approval of his residence from his probation officer; and condition 1(j), requiring Wilkerson to provide his true name, address, and date of birth if contacted by law enforcement and report any such contact or arrest in writing to his probation officer within seven days.
Sentencing Hearing
At the sentencing hearing, the court noted it had read and reviewed the probation report, Wilkerson's sentencing briefing, and a letter Wilkerson had sent the court directly. The court then indicated its tentative ruling was to sentence Wilkerson to an aggregate term of five years eight months, with the concluding one year eight months served on mandatory supervision. Wilkerson's counsel responded by arguing for a reduced sentence overall and a shorter period in custody. He did not address the specific conditions of mandatory supervision.
The court noted Wilkerson had abused his position of trust in his employment when he used a customer's personal identifying information, and that he had numerous prior convictions, had served time in custody, and had not performed adequately on probation in the past. For those reasons, the court declined to reduce its previously contemplated term and sentenced Wilkerson to four years in county jail followed by one year eight months under mandatory supervision, for an aggregate term of five years eight months.
The court asked if Wilkerson's counsel had gone over the specific conditions of mandatory supervision with his client and Wilkerson's counsel responded that he had. It then asked Wilkerson if he understood the terms set out in the order granting mandatory supervision and Wilkerson confirmed that he did. Neither Wilkerson nor his counsel objected to any of the contemplated conditions of supervision. The court then adjusted the term of the mandatory supervision in the order to reflect its ruling, and made a few other modifications to the terms sua sponte, including limiting the electronic data recoverable from electronic devices under condition 1(m) to "evidence of theft or identity theft." It imposed conditions 1(j) and 7(g) without modification, and the hearing concluded without further comment on or objection to any of the conditions, including the three Wilkerson now challenges on appeal.
DISCUSSION
I. Applicable Legal Principles
The imposition of mandatory supervision is not a grant of probation or a conditional sentence, but is instead akin to incarceration in a state prison. (People v. Martinez (2014) 226 Cal.App.4th 759, 763 (Martinez).) A court typically imposes a split sentence requiring the defendant to serve a commitment in county jail followed by a term of mandatory supervision only after it has denied probation. (Id. at pp. 762-763; § 1170, subd. (b).) Thus, the state's interest in supervising a defendant on mandatory supervision is analogous to the state's interest in supervising a parolee—as opposed to a probationer—and the liberties of a defendant on mandatory supervision are limited in a manner similar to those of a prisoner or parolee. (Martinez, at pp. 762-763) Keeping in mind that the scope of permissible conditions of mandatory supervision may therefore exceed the scope of permissible conditions of probation in some instances, we analyze the reasonableness of specific conditions of mandatory supervision using the same three prong test used to analyze probation conditions, and address any constitutional challenges. (Id. at pp. 763-764.)
We review assertions that a specific condition imposed by the sentencing court is unreasonable or unrelated to criminal activity for an abuse of discretion. (Martinez, supra, 226 Cal.App.4th at p. 764; People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) Under the test set forth in Lent, a probation or mandatory supervision condition is valid—and the court does not abuse its discretion in imposing it—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, such that a condition is only invalid if it meets all three prongs of the test. (People v. Moran (2016) 1 Cal.5th 398, 402; Olguin, at p. 379.) Likewise, as the probation officer is responsible for ensuring the defendant refrains from criminal activity and obeys all laws during the supervisory period, the court does not abuse its discretion when it imposes conditions intended to aid the probation officer in supervising the defendant and promoting his or her rehabilitation. (Olguin, at pp. 380-382; People v. Balestra (1999) 76 Cal.App.4th 57, 68.)
We review constitutional challenges de novo. (People v. Appleton (2016) 245 Cal.App.4th 717, 723 (Appleton).) A condition that restricts the exercise of constitutional rights is invalid unless narrowly tailored to the purpose of the condition. (Olguin, supra, 45 Cal.4th at p. 384.) A condition is unconstitutionally vague if it is not sufficiently precise, in the context of the facts and circumstances of the case, for the probationer or any ordinary person to understand what conduct is prohibited or required and for the court to know whether the condition has been violated. (In re Byron B. (2004) 119 Cal.App.4th 1013, 1018; In re Shaun R. (2010) 188 Cal.App.4th 1129, 1144; People v. Lopez (1998) 66 Cal.App.4th 615, 630 (Lopez).) Where we find error, we have the power to modify a condition to bring it into compliance with the law. (In re Sheena K. (2007) 40 Cal.4th 875, 888 (Sheena K.).)
A defendant who believes a proposed probation or mandatory supervision condition is unreasonable or overbroad must timely object to the condition in the trial court, thereby giving the parties an opportunity to provide argument or evidence concerning the need for the condition and the court an opportunity to modify the condition if necessary in light of this argument and evidence. (People v. Welch (1993) 5 Cal.4th 228, 234-235 (Welch).) A defendant who fails to do so typically forfeits any such argument on appeal. (Ibid.) Despite this general rule, a defendant may raise a "facial" constitutional challenge to a condition for the first time on appeal if the challenge involves a pure question of law that can be resolved without any reference to the trial court record. (Id. at p. 235; Sheena K., supra, 40 Cal.4th at pp. 887-889.) This exception does not apply to reasonableness challenges under Lent because Lent requires the court to determine whether the condition relates to the appellant's previous criminal activity, thereby requiring the court to review the record with regard to the defendant's previous crimes. (Welch, at p. 237.)
II. The Electronic Search Condition
Wilkerson contends the electronic search condition, condition 1(m), is invalid under Lent and unconstitutionally overbroad. The People assert Wilkerson forfeited these arguments by failing to object to the condition at sentencing, and that the condition is reasonable and constitutionally valid in any event.
Several cases addressing the constitutionality of electronic search probation conditions are currently pending review in the Supreme Court. (See, e.g., In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923; In re Patrick F. (2015) 242 Cal.App.4th 104, review granted Feb. 17, 2016, S231428; In re Alejandro R. (2015) 243 Cal.App.4th 556, review granted March 9, 2016, S232240; In re Mark C. (2016) 244 Cal.App.4th 520, review granted April 13, 2016, S232849; In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25, 2016, S233932; In re J.E. (2016) 1 Cal.App.5th 795, review granted Oct. 12, 2016, S236628; People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted Dec. 14, 2016, S238210.)
Wilkerson concedes that he did not object to the condition, but argues his contentions challenge the constitutionality of the condition and thus fall under the exception articulated in Sheena K. However, that exception applies only when the court can address the objection without any reference to the record. (Sheena K., supra, 40 Cal.4th at pp. 887-889.) Reasonableness arguments under Lent are not typically facial challenges, as they require a review of the record to determine whether the condition relates to the crimes at issue or the likelihood the condition will deter the defendant from committing future crimes. (See Welch, supra, 5 Cal.4th at p. 235; Sheena K., at pp. 887- 889.) The present case is no exception, as Wilkerson's arguments rely heavily on the particular facts of his crimes, such as his assertion he did not use a computer to carry them out. Similarly, despite being rooted in constitutional grounds, Wilkerson's overbreadth challenge is also dependent on his assertion there is no evidence he used a computer in the commission of the underlying crimes. As such, neither challenge is a purely facial challenge, the exception does not apply, and Wilkerson has forfeited his arguments regarding this condition. (Ibid.)
Wilkerson asserts we should reach the merits of his arguments in any event because his counsel provided ineffective assistance by failing to object to the electronic search condition. We disagree. To prevail on a claim of ineffective assistance of counsel, Wilkerson must show (1) his counsel's performance fell below the objective standard of reasonableness; and (2) he was prejudiced as a result. (People v. Weaver (2001) 26 Cal.4th 876, 961; Strickland v. Washington (1984) 466 U.S. 668, 688.) As an initial matter, Wilkerson makes only a conclusory statement regarding prejudice, and provides no argument or authority to support it, and therefore has not met the second requirement. (See Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 ["[w]hen an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary"].)
Moreover, there is no indication in the record why Wilkerson's counsel did not lodge an objection to the condition and, thus, we reject the claim of ineffective assistance unless there was no rational explanation for the omission. (See People v. Lucas (1995) 12 Cal.4th 415, 442; People v. Mitcham (1992) 1 Cal.4th 1027, 1058.) Here, Wilkerson was facing a lengthy sentence, had prior convictions and previous failure to adhere to the terms of probation, and his counsel therefore focused his argument on obtaining a reduction in the aggregate term and in the term of confinement. In that context, it was reasonable for his counsel to avoid any arguments that might have suggested to the court that Wilkerson was not fully committed to obeying the conditions of mandatory supervision. In addition, the court limited the electronic search condition to evidence of theft or identity theft, such that it was reasonable for Wilkerson's counsel to conclude the court believed it was justified for that purpose and would not likely remove the condition altogether. As there is more than one reasonable explanation for counsel's failure to object to the electronic search condition, we reject Wilkerson's contention that the omission constituted ineffective assistance of counsel.
Regardless, even if we were to reach the merits of Wilkerson's contention that the condition is unconstitutionally overbroad, we would reject it. Wilkerson had a long history of theft crimes, many of which involved fraud or the unauthorized use of another's personal information, and one of which involved a listing on Craigslist, thereby suggesting Wilkerson had used a computer at some point in the commission of at least one previous theft crime. Further, the court also imposed a condition restricting his access to checks, credit cards, access cards, and checking or credit card accounts, with an exception for his own accounts, and Wilkerson does not contend that condition is invalid. It was thus reasonable for the court to give the probation officer the ability to search Wilkerson's electronic devices to ensure he was compliant with the other terms of his supervision, and to deter Wilkerson from committing additional crimes. The court appropriately limited the condition to evidence of theft or identity theft. (See Olguin, supra, 45 Cal.4th at p. 384; Appleton, supra, 245 Cal.App.4th at p. 723.)
III. The Residence Condition
Wilkerson asserts the condition requiring him to obtain approval from his probation officer as to his residence is unconstitutionally overbroad and vague. The People contend he also forfeited this argument and that, in any event, the condition is not overbroad.
Unlike the electronic search condition, Wilkerson's arguments with respect to the residence condition do not require us to turn to the record. His overbreadth argument is limited to a facial challenge that the condition gives the probation officer too much discretion and is thus constitutionally overbroad regardless of the specifics of his individual case, and the vagueness challenge similarly relies only on the words of the condition itself. As such, these arguments present pure questions of law that fall under the exception articulated in Sheena K. and Wilkerson has not forfeited them. (See Welch, supra, 5 Cal.4th at p. 235; Sheena K., supra, 40 Cal.4th at pp. 887-889.)
The People assert Wilkerson does reference the record by asserting the condition is not narrowly tailored but we understand Wilkerson's assertion to be that the condition is not narrowly tailored to the general purpose of the condition, as opposed to the facts of his particular case. To the extent Wilkerson did intend to rely on the facts of his particular case, we would conclude he forfeited any such argument, and that his counsel was not ineffective for failing to object, for the same reasons set forth, infra, in Section II with respect to the electronic search condition.
However, we do not find either argument persuasive on the merits. Turning first to the overbreadth challenge, Wilkerson asserts the residence approval condition is overbroad because it does not provide any standards to guide the probation officer and instead gives the officer unfettered discretion to approve, or disapprove, of his residence. However, the California Supreme Court has established that probation officers do not have such unlimited discretion as they have an inherent obligation to act reasonably in the supervision of probationers or parolees, and in applying all associated conditions. (Olguin, supra, 45 Cal.4th at pp. 380-382.)
Wilkerson relies on People v. Bauer (1989) 211 Cal.App.3d 937 (Bauer), in which the court struck a similar residence condition, but that reliance is misplaced. Bauer was decided before Olguin and, in any event, did not conclude the condition was invalid in any context but instead relied primarily on an analysis of the specific facts of the case and the reasonableness test set forth in Lent. (Bauer, at pp. 944-945; see People v. Stapleton (2017) 9 Cal.App.5th 989 [upholding a similar condition and distinguishing Bauer based on Olguin].) To the contrary here, Wilkerson does not, and indeed cannot, assert the condition is unreasonable under Lent based on the specific facts of his case.
Regardless, we note that Wilkerson had an extensive criminal history and had asserted that he had gotten "involved with a few people who stole stuff" in connection with a previous theft. Thus, the court had a legitimate interest in allowing the probation officer to restrict Wilkerson from living with persons who might hamper his rehabilitation by encouraging him to continue to pursue a criminal lifestyle. (See Lopez, supra, 66 Cal.App.4th at p. 626.) Balancing this interest against Wilkerson's significantly diminished expectation of personal liberties while on mandatory supervision, we conclude the condition is sufficiently tailored to a legitimate state interest and is not unconstitutionally overboard. (See ibid.; Martinez, supra, 226 Cal.App.4th at pp. 763-764.)
Wilkerson also asserts the condition is vague because it does not indicate when Wilkerson must obtain approval as to his residence, but a straightforward reading of the condition suggests Wilkerson must obtain approval before moving to a new residence. It would be illogical for Wilkerson to seek approval only after he had already moved to a new residence, as he would be forced to immediately move back to a previous residence if the probation officer did not approve the new residence. Wilkerson also asserts the condition is confusing because condition 1(i) requires him to report any change of address within 72 hours, but the two conditions are not in conflict. If Wilkerson wishes to move, he must seek approval of his new residence pursuant to condition 7(g), and once he does move, he must report his new address to his probation officer as well as Revenue and Recovery and Court Collections within 72 hours pursuant to condition 1(i). A person of common intelligence would be able to understand both conditions and if Wilkerson has any questions as to timing of the request for approval, he can ask his probation officer. Thus, the condition is not unconstitutionally vague. (See In re Byron B., supra, 119 Cal.App.4th at p. 1018; In re Shaun R., supra, 188 Cal.App.4th at p. 1144; Lopez, supra, 66 Cal.App.4th at p. 630.)
IV. The Contact Condition
As with the residence condition, Wilkerson contends condition 1(j) is unconstitutionally overbroad and vague, and the People assert he forfeited his contentions. Both the overbreadth and vagueness challenges rely on the language of the condition itself, and not on the particular facts of this case. As such, they present pure questions of law that fall under the exception articulated in Sheena K. We will address the merits of each. (See Welch, supra, 5 Cal.4th at p. 235; Sheena K., supra, 40 Cal.4th at pp. 887-889.)
The People generally assert Wilkerson forfeited this condition, along with the electronic search and residence conditions, but do not make any arguments as to why this particular condition does not fall under the exception set forth in Sheena K., supra, 40 Cal.4th at pages 887-889. --------
Wilkerson argues the condition is vague because it does not define "contact" or specify when an interaction with a law enforcement officer is significant enough to require that he report it to his probation officer. To the extent the condition requires him to report any contact with law enforcement, he asserts it is overbroad. He therefore asks us to either strike or modify the condition.
We can think of no legitimate state interest or purpose requiring Wilkerson to report casual contact with a law enforcement officer that is not connected in any way to the officer's law enforcement duties. Indeed, the People do not assert any such interest or purpose, and instead assert the term contact, when read in context, plainly refers to contact "significant enough for appellant to have been asked for his identifying information." However, the condition does not make such a limitation on its face and, particularly in light of the varying tactics used by law enforcement when questioning a witness or suspect, we agree it could become difficult for Wilkerson, or any ordinary person, to determine when a passing conversation becomes significant enough to become "contact" requiring a report. (See People v. Relkin (2016) 6 Cal.App.5th 1188, 1196- 1198 [concluding the same with respect to the use of "contact" in a similar provision].) We therefore modify the condition to clarify that "contact" that must be reported is limited to instances in which law enforcement asks for identification or personal identifying information.
DIPSOSITION
The matter is remanded with instruction to the superior court to modify the mandatory supervision order to clarify that "contact" that must be reported in accordance with condition 1(j) is limited to instances in which law enforcement asks Wilkerson for identification or personal identifying information.
In all other respects, the judgment is affirmed.
HALLER, Acting P. J. WE CONCUR: AARON, J. IRION, J.