Opinion
D072798
05-29-2018
THE PEOPLE, Plaintiff and Respondent, v. NATALIA MOATEN, Defendant and Appellant.
Jill Kent, 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, Charles C. Ragland, Alana Butler and Marvin E. Mizell, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD263109) APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed. Jill Kent, 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, Charles C. Ragland, Alana Butler and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
Natalia Moaten pleaded guilty to the fraudulent appropriation of property and money by an agent in excess of $950 (Pen. Code, § 508). The remaining counts and allegations were dismissed. Moaten was granted probation on various terms and conditions. Moaten filed a timely appeal and was granted a certificate of probable cause (§ 1237.5).
All further statutory references are to the Penal Code unless otherwise specified. --------
Moaten appeals challenging three probation conditions, although she did not object to the conditions in the trial court. As we will explain, Moaten has forfeited her challenge to the probation conditions for failure to make a timely objection. Accordingly, we will affirm the judgment.
STATEMENT OF FACTS
Since Moaten entered a guilty plea, we will provide only a brief summary of the facts from the probation officer's report to provide context for the discussion which follows.
Moaten worked as a bookkeeper for a company in San Diego from September 2013 to September 2014. Moaten handled the finances and had access to the company's payroll and bank accounts. Moaten set up a QuickBooks payroll account. She also used Chase Quick Pay and had access to the company's American Express card. She made multiple unauthorized transactions and deposited over $32,000 into her bank account. The estimated monetary loss from Moaten's fraudulent transactions was $35,141.81.
DISCUSSION
The trial court placed Moaten on formal probation. The court imposed a number of conditions on the grant of probation, including 6n, which required Moaten to submit to a Fourth Amendment waiver including search of her computers and recordable media; 6l, requiring her to obtain the probation officer's permission to travel outside San Diego County; and 10g, which required her to obtain the probation officer's approval of her residence. Defense counsel did not object to any of the currently challenged conditions.
Anticipating the People's forfeiture argument, Moaten contends she was not required to object to the conditions as they are constitutionally overbroad. We will conclude the conditions are not facially unconstitutional, but would only be so if the record reflected they were too intrusive into protected conduct. By failing to object, we have no way to determine whether the conditions were improper in this case.
A. Legal Principles
1. The Electronic Search Condition
Relying principally on Riley v. California (2014) ___ U.S. ___ , Moaten argues the electronic search condition unnecessarily intrudes on the privacy interests recognized in Riley. The court in Riley dealt with the search of a smart phone incident to lawful arrest. The court concluded such exception to the warrant clause of the Fourth Amendment could not be justified in searching the phone. Such devices are not weapons and do not reasonably present police with the risk of destruction of evidence. Thus, given the substantial privacy interest in electronic devices and that searches could not be justified merely as incident to arrest, the court ruled a search warrant should have been obtained. The Riley case did not address any issues regarding probation and parole search conditions. Therefore, Riley does not control the outcome of this analysis.
The absence of a timely objection has deprived us of a record from which we could fully analyze the impact of the electronic search condition in this case. We are aware however, Moaten's multiple acts of misappropriation were largely accomplished through electronic means. She used QuickBooks payroll and Chase Quick Pay as well as the company's credit card and stolen checks. Monitoring her use of computers and recordable media certainly seems appropriate from the record we do have.
We have previously discussed the electronic search condition in connection with defendants who presented significant supervision issues in probation. In People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted December 14, 2016, S238210 and People v. Trujillo (2017) 15 Cal.App.5th 574, review granted November 29, 2017, S244650, we rejected similar arguments to that presented by Moaten. We are aware the Supreme Court has granted review in those cases and in numerous other cases pending resolution of In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted February 17, 2016, S230923. Pending further guidance from our Supreme Court we continue to adhere to the views expressed in Nachbar and Trujillo.
2. Travel Restrictions
As we have noted, the trial court imposed a condition which required the probation officer's approval for Moaten to travel outside the county and outside the state. Again, we cannot find this condition overbroad in the absence of a factual record regarding the purposes of the restriction and its impact on Moaten's rights.
First, we note that the travel condition here was upheld in People v. Relkin (2016) 6 Cal.App.5th 1188, 1195-1196. There the court found the condition was not constitutionally overbroad and was appropriate for the needed supervision of the defendant.
Again, the absence of a record here limits our review, but we do know that Moaten failed to appear for one of her trial court hearings. On the face of the record we can see why the probation officer would want to limit Moaten's travel and her choice of residence in order to supervise her and to attempt to prevent the repetition of her clandestine criminal activity.
3. Approval of Residence
Like the issues regarding travel, the condition requiring approval of a probationer's residence has been upheld on appeal. In People v. Arevelo (2018) 19 Cal.App.5th 652, 657-658, Division Three of this court found the residence restriction to be valid in the face of a challenge it was overbroad. As with the case of the other conditions we have discussed, Moaten's failure to object has denied this court a proper record from which we could evaluate the related challenges.
As we observed at the outset, Moaten has forfeited her challenges to all three conditions. None of the conditions is facially overbroad such that a constitutional challenge could be resolved without reference to the facts.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: NARES, J. O'ROURKE, J.