Opinion
D071590
09-26-2017
THE PEOPLE, Plaintiff and Respondent, v. DOUGLAS VLADIMIR ROSETTE, Defendant and Appellant.
John L. Staley, under the appointment of Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth Renner, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JCF36455) APPEAL from a judgment of the Superior Court of Imperial County, Ruth B. Montenegro, Judge. Affirmed. John L. Staley, under the appointment of Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth Renner, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Douglas Vladimir Rosette guilty of felony vandalism (Pen. Code § 594, subd. (b)(1)), and the trial court sentenced him to three years of formal probation, subject to various conditions. On appeal, Rosette challenges the probation condition requiring him to submit to warrantless search and seizure. He asserts the condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and is unconstitutionally overbroad. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On March 22, 2016, Vanessa Cruz parked her sports utility vehicle (SUV) next to Rosette's vehicle in a department store parking lot. When Cruz opened her front passenger door to get her diaper bag, the wind blew the open door into Rosette's vehicle. Rosette, who was sitting in the passenger seat of this vehicle, began yelling at Cruz. Feeling afraid, Cruz said nothing to Rosette and proceeded into the store. Once inside, however, Cruz "had a bad feeling." When she returned outside to move her vehicle, she saw Rosette scratching her SUV from side to side. Cruz confronted him and called 9-1-1. As Cruz attempted to take a picture of Rosette's license plate, he sped off, nearly hitting Cruz.
Rosette was convicted of felony vandalism and sentenced to three years of formal probation. The conditions of his probation included an order that he participate in a counseling and educational program. He was prohibited from annoying, harassing, threatening, or otherwise contacting Cruz or any known member of her family. In addition, Rosette was prohibited from possessing any firearms or dangerous weapons.
The trial court also imposed a probation condition requiring Rosette to "[s]ubmit his person and property, including vehicles and place of abode, to warrantless search and seizure at any time of the day or night, with or without probable cause, by the probation officer or by any law enforcement officer." At the probation hearing, Rosette's counsel objected to this condition, stating, "[page 10], Item 7, the Fourth waiver, I would ask the Court not to impose that. This is not a contraband case." The People responded, "[w]ith regard to the Fourth Amendment waiver, given that this is felony probation and this is not the first offense, the People do feel that the Fourth Amendment waiver is appropriate on Item 7." The court imposed the condition.
DISCUSSION
Rosette asserts the court abused its discretion by imposing the search condition. He contends the condition is unreasonable under Lent, supra, 15 Cal.3d 481 because warrantless searches and seizures (1) have no relationship to vandalism, (2) do not relate to conduct which is itself criminal, and (3) do not reasonably relate to future criminality. Alternatively, Rosette contends that the search condition is unconstitutionally overbroad, presuming it applies to cell phones, computers, and other electronic storage equipment.
As an initial matter, Rosette preemptively asserts that his counsel's objection to the search condition at the sentencing hearing was sufficient to preserve his claim on appeal. Generally, failure to challenge a probation condition on constitutional or Lent grounds in the trial court waives the claim on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 889; People v. Welch (1993) 5 Cal.4th 228, 237.) "A timely objection allows the court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case. The parties must, of course, be given a reasonable opportunity to present any relevant argument and evidence." (Id. at p. 235).
A challenge to a probation condition is forfeited when the appellant fails to make any objection to the condition below. (See Welch, supra, 5 Cal.4th at p. 235; In re R.S. (2017) 11 Cal.App.5th 239, 241; In re I.V. (2017) 11 Cal.App.5th 249, 260; In re Vincent G. (2008) 162 Cal.App.4th 238, 246.) However, challenges to search conditions on constitutional or Lent grounds may be preserved for appeal even if the appellant does not specifically use the words "constitutional" or "Lent." (See In re J.E., (2016) 1 Cal.App.5th 795, 803 [holding that reference to defendant's Fourth Amendment rights and a lack of evidence demonstrating the search condition would rehabilitate defendant was sufficient to preserve an overbreadth challenge on appeal].)
Rosette contends he objected to the imposition of the search condition below, preserving the issue for appeal. We agree. Rosette's counsel's reference to "the Fourth waiver" and "[t]his is not a contraband case" at the sentencing hearing put the court and opposing counsel on notice that Rosette was challenging the reasonableness of the search condition. The People were given reasonable opportunity to, and did in fact, present relevant argument.
II
Under Lent, "[w]e review conditions of probation for abuse of discretion. [Citations.] Generally, '[a] condition of probation will not be held 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." ' " (People v. Olguin (2008) 45 Cal.4th 375, 379, quoting Lent, supra, 15 Cal.3d at p. 486.) The Lent test is conjunctive. "[A]ll three prongs must be satisfied before a reviewing court will invalidate a probation term." (Olguin, supra, at p. 379.)
The parties agree the first two prongs of the Lent test are satisfied. The only issue, therefore, is whether the warrantless search condition reasonably relates to future criminality. Rosette asserts the search condition does not reasonably relate to future criminality because there is no factual connection between his act of vandalism and the possibility that he may commit a crime involving concealment in the future. His crime was committed in daylight, in public, and did not involve illegal drugs or contraband.
In People v. Balestra (1999) 76 Cal.App.4th 57 (Balestra), this court interpreted the third prong of the Lent test to mean that insofar as a probation condition is " 'reasonably related to future criminality' [it] may not be held invalid whether or not it has any 'relationship to the crime of which the offender was convicted.' " (Id. at p. 65, quoting Lent, supra, 15 Cal.3d at p. 486). We went on to say that "warrantless search conditions serve a valid rehabilitative purpose, and because such a search condition is necessarily justified by its rehabilitative purpose, it is of no moment whether the underlying offense is reasonably related to theft, narcotics, or firearms." (Balestra, supra, at p. 67.) " ' "The purpose of an unexpected, unprovoked search of defendant is to ascertain whether [the probationer] is complying with the terms of [probation]; to determine not only whether he disobeys the law, but also whether he obeys the law." ' " (People v. Reyes (1998) 19 Cal.4th 743, 752.)
We conclude that the trial court did not abuse its discretion in imposing the warrantless search condition. The condition is reasonably related to ensuring Rosette's compliance with other terms of his probation, in particular, the condition that prohibits Rosette from possessing any firearms or dangerous weapons (which he does not challenge). In its wide discretion, it was appropriate for the court to impose the search condition to assist probation officers in monitoring Rosette's compliance with the firearms condition.
III
Alternatively, Rosette contends that the search condition is unconstitutionally overbroad, presuming it applies to cell phones, computers, and other electronic storage equipment. Rosette argues that electronic devices contain far more information than tangible property, and therefore requests that the search condition be modified to exclude electronic devices.
The constitutionality of including electronics in probation search conditions is currently pending before the California Supreme Court. (See In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923; In re Alejandro R. (2015) 243 Cal.App.4th 556, review granted Mar. 9, 2016, S232240; In re Mark C. (2016) 244 Cal.App.4th 520, review granted Apr. 13, 2016, S232849; In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25, 2016, S233932; In re J.E. (2016) 1 Cal.App.5th 795, 800-802, review granted Oct. 12, 2016, S236628; People v. Nachbar (2016) 3 Cal.App.5th 1122, 1130, review granted Dec. 14, 2016, S238210.) --------
This court has previously held that standard search conditions authorizing searches of a probationer's person, property, and vehicle only apply to tangible physical property and not to electronic data. (In re I.V., supra, 11 Cal. App.5th at p. 262.) Since the standard property search condition originated before the digital era, we concluded it is not reasonable to now construe that same search condition to include electronic data. (Ibid.) Rather, if a court intends to authorize warrantless searches of a probationer's electronic data, it should impose a condition expressly addressing that object. (Ibid.)
Rosette asks this court to modify the search condition to specify that warrantless searches of Rosette's electronic devices are excluded from searches of his person and property. As the search condition inherently excludes the search of electronic data, we are not compelled to modify the condition to " ' make explicit what the law already makes implicit.' " (In re I.V., supra, 11 Cal.App.5th at p. 263, quoting People v. Hall (2017) 2 Cal.5th 494, 503.)
DISPOSITION
The judgment is affirmed.
DATO, J. WE CONCUR: AARON, Acting P. J. IRION, J.