Opinion
C083610
10-29-2019
THE PEOPLE, Plaintiff and Respondent, v. CHARLES JAMES DOWELL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE018632)
Defendant Charles James Dowell pleaded no contest to stalking. The trial court placed him on formal probation with various terms and conditions, including an electronics search condition.
Defendant now claims the electronics search condition violates People v. Lent (1975) 15 Cal.3d 481 (Lent). But because he did not assert an objection in the trial court based on Lent, his claim is forfeited. We will affirm the order granting probation.
BACKGROUND
In violation of a temporary restraining order, defendant waited near the victim's workplace and confronted her. He also went to her home, pounded on the door, and did not leave until law enforcement escorted him away. He was charged with stalking (Pen. Code, § 646.9, subd., (b) -- count 1) and violation of a protective order (§ 166, subd. (c)(4) -- count 2). Defendant pleaded no contest to stalking.
Undesignated statutory references are to the Penal Code. --------
The prosecutor filed a written brief asking the trial court to impose the following electronics search condition as a condition of probation: "Defendant shall submit his/her person, place, property, automobile, electronic storage devices, and any object under his/her control, including but not limited to cell phones and computers, to search and seizure by any law enforcement officer or probation officers, any time of the day or night, with or without a warrant, with or without his/her presence or further consent. [¶] Defendant being advised of his/her constitutional and statutory rights pursuant to Penal Code section 1546 et seq. in this regard, and having accepted probation, is deemed to have waived same and also specifically consented to searches of his/her electronic storages devices. [¶] Defendant shall provide access to any electronic storage devices and data contained therein, including disclosing and providing any and all information necessary to conduct a search." (Fns. omitted.)
At the sentencing hearing, the prosecutor explained that defendant had a history of domestic violence offenses and violating protective orders, and that phone calls were involved in the instant stalking case. The prosecutor submitted a declaration from Sacramento County Sheriff's Deputy Sean Smith in support of the electronics search condition.
Defense counsel objected that the electronics search condition was unconstitutionally overbroad, but counsel did not object on the basis of Lent, supra, 15 Cal.3d 481.
The trial court placed defendant on probation for five years with various terms and conditions, including the electronics search condition. The trial court said that based on defendant's history, which included violating court orders and restraining orders, there was a concern for public safety and that a factual basis and nexus supported imposing the electronics search condition as a condition of probation.
DISCUSSION
A trial court has broad discretion to impose reasonable conditions of probation in order to promote the rehabilitation of the probationer and to protect public safety. (§ 1203.1, subd. (j); People v. Olguin (2008) 45 Cal.4th 375, 379.) A trial court does not abuse its discretion unless its determination is arbitrary or capricious or exceeds the bounds of reason. (People v. Welch (1993) 5 Cal.4th 228, 234 (Welch).)
Defendant contends the trial court abused its discretion by imposing the electronics search condition in violation of Lent. Under Lent, a probation condition is invalid if 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.]" (Lent, supra, 15 Cal.3d at p. 486.) In defendant's view, the condition is not related to the crime for which he was convicted, the conduct to which the condition relates is not, in itself, criminal, and the condition is not related to future criminality.
Defendant objected in the trial court that the electronic search condition was constitutionally overbroad, but he does not assert such an argument on appeal. He did not object in the trial court on the basis of Lent, supra, 15 Cal.3d 481 or advance the argument he now asserts on appeal. As a result, his appellate contention is forfeited. (Welch, supra, 5 Cal.4th at pp. 234-238; see also In re P.O. (2016) 246 Cal.App.4th 288, 294.)
Defendant argues his contention presents a question of law based on undisputed facts which may be raised for the first time on appeal. But as the People point out, deciding whether the electronics search condition is reasonable under Lent, supra, 15 Cal.3d 481 would require us to determine whether the necessary proportional connection exists between the condition and defendant's present offense. (See In re Ricardo P. (2019) 7 Cal.5th 1113, 1117.) Such a determination cannot be made without reference to the particular sentencing record developed in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 889.) Because defendant did not give the trial court the opportunity to develop that record based on his current concern under Lent, the contention is forfeited.
DISPOSITION
The order granting probation is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
BUTZ, Acting P. J. /S/_________
HOCH, J.