Opinion
C080717
03-22-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ALAN HUMPHREYS, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CM043448)
Defendant Robert Alan Humphreys pleaded guilty to misdemeanor infliction of corporal injury on a cohabitant. The trial court placed defendant on probation subject to various terms and conditions, including that he not have any electronic contact with the victim and that he make his electronic devices available for inspection by providing his passwords or unlock codes.
Defendant now challenges the probation condition requiring him to provide his electronic passwords or unlock codes, arguing it is not reasonably related to defendant's crime, use of electronic devices is not criminal, the condition is not reasonably related to preventing future criminality, and it is overbroad. Finding no merit in defendant's arguments, we will affirm the judgment.
BACKGROUND
An argument between defendant and his girlfriend turned physical. He choked her, pushed her onto the bed, and twisted her leg, causing it to pop. She called the police and defendant fled. The girlfriend had scratches on her face, neck, and arm, and a swollen knee.
Defendant pleaded guilty to misdemeanor infliction of corporal injury on a cohabitant with a prior conviction for the same offense within seven years. (Pen. Code, § 273.5, subds. (a), (f)(1).) The trial court suspended imposition of sentence and placed defendant on probation for 36 months subject to various terms and conditions, including the following: a special condition requiring defendant to comply with a criminal protective order prohibiting defendant from, among other things, having any personal, electronic, telephonic, or written contact with the victim; and special condition 65, which provides: "The defendant shall be required to make available for inspection, including providing passwords or unlock codes, any data storage device, including cellular telephones and computers, and any network applications associated with those devices, including social media and remote storage services. All said devices are subject to search by any peace officer upon request."
Defense counsel objected to special condition 65, arguing the condition has no relationship to the case. The trial court overruled the objection.
DISCUSSION
Defendant challenges the probation condition requiring him to provide his electronic passwords and unlock codes, arguing it is not reasonably related to defendant's crime, use of electronic devices is not criminal, the condition is not reasonably related to preventing future criminality, and it is overbroad. He claims his counsel's objection was sufficient to preserve these challenges.
Defendant's counsel did not assert an objection on constitutional grounds in the trial court and thus his constitutional claim that the probation condition is overbroad is forfeited on appeal. (People v. Scott (1994) 9 Cal.4th 331, 352-353.) Defendant argues he has not forfeited the argument because it presents a pure question of law (In re Sheena K. (2007) 40 Cal.4th 875, 888), but we disagree. The claim requires factual determinations, and defendant relies on facts in the record to support his claim that the condition is overbroad. The claim is not a pure question of law but rather a mixed question of law and fact. Defendant's failure to object that the condition is unconstitutionally overbroad in the trial court, thereby foreclosing findings in the trial court on this issue, forfeits the claim on appeal. (Id. at p. 889.)
Defendant also argues the condition is invalid pursuant to People v. Lent (1975) 15 Cal.3d 481. Under Lent, a probation condition will not be 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 . . . .' " (Id. at p. 486 and fn. 1 [all three prongs must be satisfied to invalidate the condition]; see People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) "[E]ven if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (Olguin, at p. 380.)
A trial court exercises broad discretion in imposing reasonable conditions of probation. (Pen. Code, § 1203.1, subd. (j); see also Olguin, supra, 45 Cal.4th at p. 379.) A trial court does not abuse its discretion unless "its determination is arbitrary or capricious or ' "exceeds the bounds of reason, all of the circumstances being considered." ' " (People v. Welch (1993) 5 Cal.4th 228, 234.)
Here, the challenged condition is reasonably related to preventing future criminality. Defendant must comply with court orders prohibiting him from contacting the victim electronically. It is not unreasonable to believe that defendant might attempt to contact the victim using an electronic device. The challenged probation condition allows the probation officer to monitor defendant's compliance with the protective order and his probation conditions. It is reasonable under the circumstances, and the trial court did not abuse its discretion in imposing it. (See People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1172, 1176-1177 [finding electronic password conditions reasonably related to future criminality because such conditions allow a probation officer to monitor the defendant's gang association and activities].)
DISPOSITION
The order of probation is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
BUTZ, J.