Opinion
C087339
02-21-2020
THE PEOPLE, Plaintiff and Respondent, v. DANA ROCHELLE HERRON, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17FE023950)
Defendant Dana Rochelle Herron pled no contest to defrauding an innkeeper and identity theft. The trial court suspended imposition of sentence and placed defendant on five years' probation, including an electronic search condition. Defendant made no objection to the probation condition. On appeal, defendant contends the electronic devices search condition is unconstitutionally overboard. We affirm.
BACKGROUND
Defendant unlawfully obtained credit, food, or accommodations at the Embassy Suites Hotel, using false pretenses. She then absconded and removed part of her bags from the hotel without paying what she owed. The value of the accommodations and food were over $950. In addition, defendant unlawfully, and with the intent to defraud, acquired and retained personal identifying information of 10 or more people.
Defendant pled no contest to defrauding an innkeeper (Pen. Code, § 537, subd. (a)(2) -- count one) and identity theft (§ 530.5, subd. (c)(3) -- count four). In exchange for the plea, the remaining charges were dismissed with a Harvey waiver. The trial court suspended imposition of sentence and placed defendant on five years' probation. Among the conditions of probation the trial court imposed was an electronic devices search condition which provided: "PC 1546 searchable -- 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 phone and computers, to search and seizure by any law enforcement officer or probation officer, any time of the day or night, with or without a warrant, with or without his/her presence or further consent.
Undesignated statutory references are to the Penal Code.
People v. Harvey (1979) 25 Cal.3d 754.
"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 storage devices.
"Defendant shall provide access to any electronic storage devices and data necessary to conduct a search[.]
"Defendant shall disclose all email accounts, all internet accounts and any other means of access to any computer or computer network, all passwords and access codes. Defendant shall consent to the search of such email and internet accounts at any time and for the seizure of any information without a search warrant or probable cause.
"Defendant shall not possess any software and/or hardware designed for the purpose of encrypting or decoding computer files."
Defendant did not object to the imposition of this probation condition.
DISCUSSION
Defendant contends the electronic search condition is unconstitutionally overbroad. She argues there were narrower means to prevent her from committing future identity theft crimes and thefts from hotels.
Challenges to probation conditions ordinarily must be raised in the trial court; if they are not, appellate review of those conditions will be deemed forfeited. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) Because defendant did not object to the electronic search condition in the trial court, she has forfeited the ability to challenge both the probation condition's reasonableness and any claim concerning its constitutionality as applied to her. (In re Sheena K. (2007) 40 Cal.4th 875, 889.) However, a defendant who did not object to a probation condition at sentencing may raise a challenge to that condition on appeal if that claim "amount[s] to a 'facial challenge,' " i.e., a challenge that the "phrasing or language . . . is unconstitutionally vague and overbroad" (id. at p. 885), that is, a " ' "pure question[] of law that can be resolved without reference to the particular sentencing record developed in the trial court" ' " (id. at p. 889). Such a claim "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts . . . ." (Id. at p. 885.)
In a facial overbreadth challenge to an electronic search condition, the question is whether the search condition, in the abstract, and not as applied to the particular probationer, is insufficiently narrowly tailored to the state's legitimate interest in reformation and rehabilitation of probationers in all possible applications. (In re Sheena K., supra, 40 Cal.4th at p. 885.) The answer here is "no." Electronic search conditions are not categorically invalid. (In re Ricardo P. (2019) 7 Cal.5th 1113, 1128.) Thus, although application of this search condition could be constitutionally overbroad as applied to certain probationers, in other circumstances it may be entirely appropriate and constitutional. The criminal offense or defendant's personal history may provide a sufficient basis on which to conclude the condition is a proportional means of deterring future criminality. (Id. at pp. 1128-1129.) In those cases, the imposition of such probation conditions would be constitutional. Because there could be circumstances in which such a condition was appropriate, we reject the claim that the electronic search condition is facially overbroad.
Defendant relies on People v. Appleton (2016) 245 Cal.App.4th 717 to support her argument that this condition is facially overbroad. Appleton, however, did not involve a facial challenge to an electronic devices search condition and therefore does not assist defendant. (Id. at pp. 721, 727.) --------
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Butz, J.