Opinion
D073355
08-14-2018
THE PEOPLE, Plaintiff and Respondent, v. PEGGY SANCHEZ, Defendant and Appellant.
Kent D. Young, 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, Melissa Mandel and Meredith S. White, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD273670) APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed as modified and remanded with directions. Kent D. Young, 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, Melissa Mandel and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
Peggy Sanchez entered into a plea agreement which included a stipulated split sentence and mandatory supervision. Although Sanchez agreed with the terms of her mandatory supervision and made no objection to any of the conditions, on appeal Sanchez now contends four of the conditions are vague or overbroad and should either be stricken or modified. As we will explain below, we agree that one of the conditions is partially vague and must be modified. We will find the challenges to the other three conditions have been forfeited by failure to timely object.
FACTS AND PROCEDURAL BACKGROUND
Sanchez pleaded guilty to one count of taking and driving a vehicle (Veh. Code, § 10851, subd. (a)). Sanchez also admitted she had previously been convicted of vehicle theft (Pen. Code, § 666.5, subd. (a)). The remaining counts and allegations were dismissed with a Harvey waiver. The parties also agreed to a stipulated sentence of three years with the court making the decision as to how to split the sentence as between custody and mandatory supervision. The court sentenced Sanchez in accordance with the agreement, imposing one year in custody and two years under mandatory supervision.
All further statutory references are to the Penal Code unless otherwise specified.
People v. Harvey (1979) 25 Cal.3d 754. --------
The plea agreement shows that Sanchez admitted she "took or drove a motor vehicle without the permission of the owner with the intent to deprive the owner of it."
DISCUSSION
Sanchez challenges the following conditions of mandatory supervision:
1. Conditions 1.d, 8.a and 8.b, which require Sanchez comply with curfews and zones of curfews as directed by the probation officer, and to comply with electronic monitoring, including global positioning system (GPS) monitoring as directed by the probation officer.
2. Condition 1.m which requires Sanchez to "submit person, vehicle, residence, property, personal effects, computers and recordable media ___ to search at any time with or without a warrant, and with or without reasonable cause, when required by the probation officer or law enforcement officer."
3. Condition 1.j, which requires Sanchez to provide identification when contacted by a law enforcement officer and to report all contacts with law enforcement officers to her probation officer.
4. Condition 7.g, which requires Sanchez to seek approval of her residence and employment from her probation officer.
Sanchez did not object to any of the conditions listed above. In fact, the trial court specifically asked Sanchez if she had reviewed all the conditions with her attorney and if she agreed with them. Sanchez replied that she did.
Consistent with People v. Relkin (2016) 6 Cal.App.5th 1188 (Relkin), we will find the term "contact" as contained in condition 1.j to be vague and will direct the trial court to modify the condition. Regarding the other conditions, we will find they are not facially vague or overbroad. Accordingly, the failure of the defense to offer timely objection to those conditions has forfeited these challenges on appeal.
A. Legal Principles
When a defendant is placed on mandatory supervision as part of a split sentence, the court may impose conditions of such release under similar to those imposed as conditions of probation. (People v. Martinez (2014) 226 Cal.App.4th 759, 763; § 1170, subd. (h)(5)(A), (B).) We review conditions of mandatory supervision under the abuse of discretion standard. (People v. Appleton (2016) 245 Cal.App.4th 717, 723.)
As a general proposition, a defendant may not challenge a condition of probation on appeal unless there has been a timely objection raised in the trial court. Failure to make a timely objection may result in forfeiture of the issue on appeal. (People v. Welch (1993) 5 Cal.4th 228, 237.) Such rule is based upon the notion that sentencing issues should first be presented to the trial court. If the challenge is valid, presumably the trial court will correct any error. However, even if the trial court does not change its view, the appellate court will have the benefit of a record in which the basis of the condition has been developed.
An exception to the rule requiring timely objection exists in those cases where the language of the condition indicates, on its face, that the condition is unconstitutionally vague, or that it unnecessarily intrudes on otherwise lawful and protected behavior. (In re Sheena K. (2007) 40 Cal.4th 875, 890.) In such cases the court should be able to discern whether the condition is infirm without reference to the record. In Sheena K., the condition at issue prevented the minor from associating with persons who were not approved by the probation officer. However, the condition did not have a knowledge or scienter requirement. Thus, the minor could be in violation of the condition without knowledge the probation officer disapproved of the person with whom she was associating. The court concluded it could determine the condition was vague without reference to the trial court record.
A trial court may impose conditions of release that intrude upon lawful and protected behavior where such conditions are narrowly tailored to meet the legitimate needs of supervision of the person to be released. (People v. Olguin (2008) 45 Cal.4th 375, 379.)
B. The Conditions of Mandatory Supervision
Condition 1.j, requires, in part, that Sanchez report all contacts with law enforcement officers to her probation officer. She contends the term "contact" is constitutionally vague. We agree the term contact does not give Sanchez notice of what she is supposed to report. As she contends, the term contact with law enforcement officers could include exchanging casual comments, standing in a line with a police officer or many other circumstances having nothing to do with the officer acting in a law enforcement manner regarding Sanchez.
The Third District Court of Appeal dealt with a similar mandatory supervision condition in Relkin, supra, 6 Cal.App.5th 1188, 1196-1197. The court held the term contact lacked sufficient clarity to reasonably inform the defendant of which types of "contact" was required to be reported to the probation officer. Accordingly, the court found the term vague and remanded the case to the trial court with directions to modify the condition to more clearly inform the defendant of what contacts must be reported. We agree with the court in Relkin and we will also remand the case to the trial court to appropriately modify this condition.
As we have discussed, we have found the objections to the remaining conditions have been forfeited for failure to timely object. We will comment briefly regarding the claims of facial invalidity of each below.
Condition 1.m is a Fourth Amendment waiver provision including waiver as to computers and recordable media. We are aware our Supreme Court has granted review in In re Ricardo P. (2015) 241 Cal.App.4th 676 (rev. granted Feb. 17, 2016, S230923), to address the validity of probation and mandatory supervision conditions which have imposed such waivers on defendants. We are also aware the court has granted review in many other cases which have similar probation conditions. At some point the court will provide guidance on the validity of electronic search conditions. In the meantime, we will follow those cases where the courts have found similar conditions not to be facially unconstitutional. (People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1175-1176; In re J.E. (2016) 1 Cal.App.5th 795, 806 (rev. granted Oct. 12, 2016, S236628); People v. Nachbar (2016) 3 Cal.App.5th 1122, 1130 (rev. granted Dec. 14, 2016, S238210).) As is the case with all the conditions we are discussing here, the failure to object has deprived this court of the trial court's analysis of the need for the level of supervision, thus, leaving us to consider the conditions in the abstract, without reference to the record.
Even in the absence of an objection, we know all the parties were concerned with the need to have a longer period of close supervision. Indeed, the trial court limited the custody portion of the sentence to one year in order to provide time for close supervision of Sanchez, consistent with the defense arguments. Sanchez has a lengthy criminal history and for a number of years prior to the current offense has been either committing crimes or been incarcerated. She has been granted probation on multiple occasions and has failed in most cases. She has been sent to prison after some of her failures on probation. On this record, we cannot say that an electronic search condition is not appropriate to the supervision of a very difficult defendant.
Conditions 1.d, 8.a, and 8.b, permit the probation officer to set time and location curfews, or restrictions on Sanchez. She claims the conditions are overbroad and interfere with her right to travel. Again, Sanchez desperately needs close supervision. Probation officers have no authority to set arbitrary limits of lawful behavior. (People v. Stapleton (2017) 9 Cal.App.5th 989, 996-997.) Without any discussion in the record regarding the needs or problems of such conditions we cannot say the conditions are invalid.
Finally, we address condition 7.g, which requires probation officer approval of employment and residence. Again, without a record discussion, Sanchez contends the condition is overbroad and improperly intrudes on protected activity. Like the previous conditions, facially, we do not find the condition overbroad. Sanchez had no residence or employment at the time of sentencing and had a continuous battle with drugs and crimes. The condition has been upheld in appropriate cases before this. (People v. Robinson (1988) 199 Cal.App.3d 816, 818; People v. Lopez (1998) 66 Cal.App.4th 615, 626.)
Sanchez presents a serious problem for probation supervision. While approval of residence or employment might be overbroad in some cases, such finding would require resort to the record and the failure to timely challenge the condition has deprived us of the opportunity for meaningful analysis of the condition as it relates to this defendant.
DISPOSITION
The case is remanded to the superior court with directions to modify condition 1.j, consistent with the views expressed in this opinion. In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. O'ROURKE, J.