Opinion
C084230
03-13-2020
THE PEOPLE, Plaintiff and Respondent, v. XIONG LEE, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F03367)
After a jury found defendant Xiong Lee guilty of making criminal threats (Pen. Code, § 422), misdemeanor false imprisonment (§ 236), misdemeanor assault (§ 240), and domestic battery (§ 243, subd. (e)(1)), the trial court granted him five years' probation and imposed an electronics search condition. On appeal, defendant challenges the validity of the electronics search condition imposed, contending the condition: (1) is facially overbroad; (2) may infringe on privacy interests of third parties; and (3) violates his privilege against self-incrimination. We conclude defendant forfeited the first two claims and there is no merit to the third. Accordingly, we affirm.
Undesignated statutory references are to the Penal Code.
BACKGROUND
Defendant and the victim Sarah Doe had a Hmong cultural marriage for approximately 11 years. In 2015, they separated. A few months later defendant threatened and harassed Doe through text messages.
In one incident, defendant texted Doe and told her if she did not come out of the house he would break her windows. He sent additional text messages calling her a bitch and a liar. She understood the texts to mean defendant was going to harm her and she was frightened. She eventually called the police, but they could not find defendant. The next day, over the course of 12 hours, defendant continued to send Doe threatening text messages. Later that night, someone broke her window. Doe sought a temporary restraining order, in which she indicated defendant had threatened he would kill her and her children if she did not give him her house.
About a week later, before notice of the restraining order was served on defendant, defendant entered Doe's home while she was out. Defendant called Doe and asked her why the garage was locked and why the door knobs were changed. Doe's daughter was at home at the time and texted Doe that defendant was in the house and she needed to hurry home. When Doe arrived, defendant was coming out of the house. He held a knife to her stomach, shoved her against the garage door, and asked why she had not responded to his texts and calls. He threatened to kill her if she moved, then forced her into the house. During the ensuing struggle, defendant strangled Doe with one of his arms around her neck. Doe's daughter distracted defendant and Doe was able to get away and take the knife from defendant. Doe and her daughter ran outside and defendant chased them. They could not drive away because they had left the car keys in the house. Doe's daughter had already called the police and remained on the phone with emergency services. Defendant said he was not afraid of the police because he had done nothing wrong. When Sacramento police officers arrived, Doe told them she had been afraid for her life because of defendant's violent past.
A jury found defendant guilty of making criminal threats, misdemeanor false imprisonment, misdemeanor assault, and domestic battery. The trial court suspended imposition of sentence and placed defendant on five years' probation, including an electronics search condition and a no-contact order which also prohibited electronic communication. Defendant made no objection to the probation condition.
DISCUSSION
I
Defendant contends the electronics search condition is facially overbroad. Defendant argues there were narrower means to ensure he did not violate the criminal protective order and monitor that he not contact Doe. He bolsters this claim by relying on the trial court's statements that his conduct was "situational" and not a pattern of harassment, but that it was a "heat of passion type offense that ran its course over a week."
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 electronics search condition in the trial court, he has forfeited his ability to challenge both the probation condition's reasonableness and any claim concerning its constitutionality as applied to him. (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.)
Although defendant maintains this claim is a facial challenge to the condition, he argues the facts and circumstances of his particular case. Defendant argues he "did not cyberbully anyone, promote a gang via social media, or prey on minors through the Internet. Furthermore, while the evidence during trial showed that [defendant] had threatened [ ] Doe via text messaging a week prior to the incident . . . [defendant] had no contact with [Doe], whatsoever, once the court granted temporary and then permanent restraining orders." The implication of these arguments is that these circumstances could support the application of the electronics search conditions. To assess whether such circumstances exist in this case and review defendant's appellate claim, we would have to look at the record, particularly as it relates to defendant's history and the circumstances of this crime. Since the alleged constitutional defect is correctable only by reference to the factual record, it is not a facial constitutional challenge, and the claim it is overbroad has been forfeited by failing to object in the trial court. (In re I.V. (2017) 11 Cal.App.5th 249, 260-261; People v. Kendrick (2014) 226 Cal.App.4th 769, 777-778.)
Defendant relies largely on People v. Appleton (2016) 245 Cal.App.4th 717 to support his argument that this condition is facially overbroad. Appleton, however, did not involve a facial challenge to an electronic device search condition and therefore does not assist defendant. (Id. at pp. 721, 727.)
To the extent there remains a portion of defendant's claim that is a pure legal question and thus properly raises the claim that the condition is facially overbroad, we reject that contention. In a facial overbreadth challenge to an electronics search condition, the issue 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." Electronics 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 electronics search condition is facially overbroad.
II
Defendant contends the probation condition may infringe on the privacy interests of third parties, as it allows for searches of devices outside his immediate control. Defendant forfeited this argument by failing to raise it in the trial court. (See People v. Trujillo (2015) 60 Cal.4th 850, 856.)
III
Defendant contends the electronics search condition also violates his privilege against self-incrimination. He claims the condition is "tantamount to mandating testimony" by defendant as to "his knowledge of the existence and location of certain personal texts, email and social media accounts, as well as his possession, control, and access to these accounts."
The search of data on defendant's electronic storage devices, subject to a valid warrantless search condition, does not implicate his Fifth Amendment rights. It is a "settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not 'compelled' within the meaning of the privilege [against self-incrimination]." (United States v. Hubbell (2000) 530 U.S. 27, 35-36 [147 L.Ed.2d 24, 35-36].) The Fifth Amendment is not a general protector of privacy. It "protects against 'compelled self-incrimination, not [the disclosure of] private information.' " (Fisher v. United States (1976) 425 U.S. 391, 401 [48 L.Ed.2d 39, 50].)
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Robie, J. /s/_________
Murray, J.