Opinion
H046443
09-26-2019
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA ANTHONY SANCHEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1774876)
Pursuant to a plea agreement, defendant Joshua Anthony Sanchez pleaded no contest to two felony counts of committing a lewd and lascivious act upon a 15-year-old female child when he was at least 10 years older than she. (Pen. Code, § 288, subd. (c)(1)). The court imposed a sentence but suspended its execution. Defendant appeals from the order granting probation on certain terms and conditions.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant challenges a probation condition that makes his cell phone "subject to [a] forensic analysis search by any peace officer or any law enforcement agency at any time with or without a warrant" (hereafter forensic analysis search condition). He contends that it is unconstitutionally overbroad because it was not narrowly tailored to serve the compelling state interest in reformation and rehabilitation and that the condition must be stricken or modified. Defendant maintains that he did not forfeit this constitutional claim. However, he also asserts that if this court finds forfeiture, it should nevertheless exercise its inherent power to consider the constitutional challenge. Alternatively, defendant argues that defense counsel provided ineffective assistance by failing to object to the condition on the ground that it was unconstitutionally overbroad. He does not raise a Lent challenge on appeal.
The term "forensic" may be understood to mean "[o]f, relating to, or involving the scientific methods used for investigating crimes." (Black's Law Dict. (11th ed. 2019) p. 791.) We assume that a forensic analysis search of a cell phone involves using technology to extract and analyze data, including information supposedly deleted by the user.
In People v. Lent (1975) 15 Cal.3d 481, 486 (Lent), superseded by proposition on another ground as explained in People v. Moran (2016) 1 Cal.5th 398, 403, fn. 6 (Moran), the California Supreme Court held: "A condition of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 . . . .' [Citation.]" (Ibid.) The court stated that "[c]onversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (Ibid., italics added.)
In the recently decided case of In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), Ricardo challenged an electronics search condition in the trial court, "arguing that it 'is not reasonably related to the crime or preventing future crime.' " (Id. at p. 1117.) Consequently, the contention was not forfeited for appeal. (See People v. Welch (1993) 5 Cal.4th 228, 237; see also Moran, supra, 1 Cal.5th at p. 404, fn. 7; In re Sheena K. (2007) 40 Cal.4th 875, 881-882 (Sheena K.).) The probation condition at issue required Ricardo, who had admitted two counts of felony burglary and indicated to the probation officer that he had smoked marijuana (Ricardo P., supra, at pp. 1115, 1116), "to submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices" (id. at p. 1115). The Supreme Court held that the electronics search condition was "not reasonably related to future criminality and [was] therefore invalid under Lent." (Id. at p. 1116; see id. at pp. 1124, 1128.) Stated another way, the Supreme Court held that the condition did not satisfy Lent's third prong "because, on the record before [it], the burden it impose[d] on Ricardo's privacy [was] substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society." (Id. at p. 1119; see id. at pp. 1120, 1125, 1129.) The record "contain[ed] no indication that Ricardo had used or would use electronic devices in connection with drugs or any illegal activity" (id. at p. 1116). The court held that the record was "insufficient to justify the substantial burdens imposed by [the] electronics search condition." (Ibid.) The Supreme Court recognized, however, that "[i]n certain cases, the probationer's offense or personal history may provide the juvenile court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality. [Citations.]" (Id. at pp. 1128-1129.)
We conclude that defendant forfeited his fact-based challenge to the forensic analysis search condition on the ground of unconstitutional overbreadth and that defendant has not established that defense counsel acted deficiently by not raising such objection. The condition is not overbroad on its face. Accordingly, we will affirm the order granting probation on certain terms and conditions.
I
The Probation Report's Summary of Offenses
The victim of the two offenses to which defendant pleaded no contest was defendant's stepsister, a 15-year-old child. She lived with defendant's father. On August 5, 2017, defendant, who was 25 years old, visited his father's residence. "Between 3:00 p.m. and 4:00 p.m., the defendant and the victim were 'playing around' in the livingroom [sic]." Defendant "slapped the victim's buttocks three times over her clothing. He then took her cell phone and they were wrestling for it. As they wrestled, . . . defendant tickled the victim's torso on both sides and on her inner thigh (near her vagina area) with both hands over her pants. The victim felt uncomfortable. The tickling and the wrestling lasted approximately five minutes. Their 'horse play' stopped when the victim's mother was coming down from upstairs."
"At approximately 11:00 p.m. or midnight, . . . defendant and the victim were watching a movie in the livingroom [sic]. [D]efendant tried to tickle the victim, but she was able to walk away without further incident. The victim went into her bedroom. Approximately 15 minutes later . . . defendant apologized to the victim and asked to enter her bedroom. In the victim's bedroom, she and . . . defendant watched videos."
"At approximately 2:00 a.m. [on Sunday August 6, 2017], they finished watching videos. The victim believed [that] defendant was about to leave her bedroom when . . . defendant put one of his hands down her lower back, inside her pants, touching between her buttocks area skin to skin, and she hit his hand away. [D]efendant also tried to bite her neck. [D]efendant then grabbed . . . the victim's breasts with both hands over her clothing and continuously squeezed them. The victim was unable to say anything because she was 'in shock.' While . . . defendant was squeezing her breasts, he used one hand to grab her vagina area over her clothing. She was able to hit his hand away from her vagina area[,] and . . . defendant put his hands back on the victim's breasts. She tried to pull his hands away from her breasts, but she was unable to do so . . . ."
"[D]efendant eventually released the victim and apologized to her and tried to comfort her by stroking her back . . . ." He "lifted her chin up with his hands." Defendant's father returned home, and defendant left the victim's bedroom.
The victim told her parents about the incident on the morning of Monday, August 7, 2017. On August 8, 2017, the victim and her mother went to the Milpitas Police Department to file a police report.
The victim reported that defendant had communicated with her "via the [I]nternet." "During one of their communications, . . . defendant told the victim [that] he ha[d] liked her for two years and he liked her body." Defendant "told her [that] there were things he wanted to do to her" and that "he fantasized about having sex with her." "The victim told him it was illegal because she [was] his stepsister and he was older." Defendant told her that "they were not blood related, so it was okay." He also said that he was a massage therapist and knew "how to make her feel good with his hands." The victim believed that defendant meant that "he was going to massage her vagina area."
S. Doe, defendant's cousin, was molested by defendant for several months when she was 10 years old. Defendant kept in contact with this victim afterward. The cousin "believed [that] . . . defendant was 'grooming' her for possible future sexual activity . . . ." When the cousin was 18 years old, "defendant was at her residence for a 'get together,' " and he "inappropriately touched her after they had . . . consum[ed] alcohol." He touched her breasts and buttocks area while kissing her. Defendant "tried to talk her into having sex with him."
II
Procedural History
A felony complaint filed January 10, 2018 alleged that "[o]n or about and between August 5, 2017 and August 6, 2017," defendant, who was 25 years old and at least 10 years older than the victim, committed four counts of lewd and lascivious conduct upon the victim, who was 15 years old, in violation of section 288(c)(1).
On March 22, 2018, at a change-of-plea hearing, defendant pleaded no contest to counts 1 and 2 in exchange for a "two-year top." Defense counsel and the prosecutor stipulated to a factual basis for the plea. The court indicated that counts 3 and 4 would be dismissed at the time of sentencing.
On October 11, 2018, the trial court indicated on the record that it had read the probation report and that it would not have accepted the agreed-upon sentence if it had known about the second victim. The court nevertheless indicated that it would honor the "court-indicated offer" that had been made to the parties' counsel.
Defense counsel then objected to the recommended probation conditions concerning cell phones (Nos. 8-10) on the ground that the crimes had occurred in person and defendant had not used a phone to commit them. Defense counsel acknowledged, however, that defendant had communicated with his stepsister or apologized to her by cell phone and through Snapchat. The court overruled the objections, stating that "[e]ven an apology can be a form of grooming." The trial court also overruled defense counsel's objections to the proposed conditions requiring defendant to participate in and complete a sex offender management program and to waive any privilege against self-incrimination and any psychotherapist-patient privilege in connection with that program (Nos. 14-16).
Probation Report's recommendation No. 8 stated: "The defendant shall as a condition of probation give specific consent as that term is defined in Penal Code Section 1546 to any Peace Officer or any law enforcement agency to seize and search all cellular telephones in his possession or under his control to a search of any text messages, voicemail messages, call logs and photographs." Recommendation No. 9 stated: "The defendant shall further agree and specifically consent to provide all passwords necessary to access or search such cellular telephones and understand that refusal to provide the password will constitute a violation of the terms of his probation." Recommendation No. 10 stated: "The defendant's cellular telephones shall be subject to Forensic Analysis search by any Peace Officer or any law enforcement agency at any time with or without a warrant."
After overruling defense counsel's objections to those proposed probation conditions, the court imposed a total term of three years, suspended execution of sentence, and granted probation for three years on certain terms and conditions, including serving one year in county jail. The total term of imprisonment consisted of the upper term of 3 years on count 1 and a concurrent "midterm" on count 2. (See § 288, subd. (c)(1).)
III
Discussion
A. Condition Permitting Forensic Analysis Searches of Defendant's Cell Phone
1. Background
The court told defendant: "Your cell phone shall be subject to Forensic Analysis search by any Peace Officer or any law enforcement agency at any time with or without a warrant." Citing principally People v. Appleton (2016) 245 Cal.App.4th 717 (Appleton), defendant contends that this condition is unconstitutionally overbroad because "it does not carefully tailor the scope of the forensic search to the areas of [his] cell phone which may have prohibited information." Defendant asserts that "[p]robation officers do not have a valid basis to search data unrelated to the crime or rehabilitation" and that condition Nos. 8 and 9 separately provided the authority to access and search his text messages, voice mail messages, call logs, and photographs. He argues that the condition allowing forensic analysis of his cell phone should be stricken or at least "limited to specific applications," such as text messages, voice mail messages, call logs, and photographs.
In Appleton, the defendant "pleaded no contest to false imprisonment by means of deceit." (Appleton, supra, 245 Cal.App.4th at p. 719.) The victim was a 16-year-old male that the defendant had met "through Grindr, a social media application for smartphones." (Ibid.) In the trial court and on appeal, the defendant objected to an electronics search condition on grounds that it was "overbroad, vague, and unrelated to his offense or future criminality." (Id. at p. 719, see id. at pp. 721-722, 724.) That probation condition provided: " 'Any computers and all other electronic devices belonging to the defendant, including but not limited to cellular telephones, laptop computers or notepads, shall be subject to forensic analysis search for material prohibited by law. . . .' " (Id. at p. 721.)
In Appleton, a panel of this court rejected the defendant's Lent challenge, stating: "We agree with [the] defendant that the nexus between the offense and the probation condition is somewhat attenuated. But under the deferential standard of review required in the Lent analysis, we find no abuse of discretion in the trial court's finding that 'either social media or some kind of computer software' was involved in the offense. . . . Because the probation condition must trigger all three Lent factors to be invalid, we conclude the condition is valid under Lent." (Appleton, supra, 245 Cal.App.4th at p. 724; see Ricardo P., supra, 7 Cal.5th at p. 1118, citing with approval Appleton's Lent finding; see ante, fn. 3.) However, the panel found that the electronics search condition was "as worded . . . unconstitutionally overbroad" (Appleton, supra, at p. 727) because "a search of defendant's mobile electronic devices could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity" (id. at p. 725) and "the state's interest [in] monitoring whether defendant uses social media to contact minors for unlawful purposes . . . could be served through narrower means." (Id. at p. 727.) A panel of this court struck the condition and remanded the matter to the trial court to allow it to fashion a more closely tailored condition. (Id. at pp. 728-729; see id. at p. 719.)
2. Only Facial Constitutional Challenge Preserved for Appeal
In Sheena K., the California Supreme Court observed that review of a facial challenge to the "phrasing or language of a probation condition" was "a task that is well suited to the role of an appellate court." (Sheena K., supra, 40 Cal.4th at p. 885.) In contrast, "characteristically the trial court is in a considerably better position than the Court of Appeal to review and modify a . . . probation condition that is premised upon the facts and circumstances of the individual case." (Ibid.) The Supreme Court determined that "a challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law." (Id. at p. 887.) It concluded that Sheena K.'s facial challenge to a probation condition on grounds of vagueness and overbreadth was cognizable on appeal, rather than forfeited, because it presented "an asserted error that [was] a pure question of law, easily remediable on appeal by modification of the condition. [Citations.]" (Id. at p. 888.)
But the Supreme Court also recognized that "a probation condition may not be patently unconstitutional" (Sheena K., supra, 40 Cal.4th at p. 887) and that "in some instances, a constitutional defect may be correctable only by examining factual findings in the record or remanding to the trial court for further findings." (Ibid.) The court did "not conclude that 'all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." [Citation.] In those circumstances, "[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court." [Citation.]' [Citation.]" (Id. at p. 889.)
We reject defendant's argument that the forfeiture rule does not apply because the facts were undisputed and therefore his overbreadth challenge raises a pure question of law. "[A]n unconstitutionally vague or overbroad probation condition does not come within the 'narrow exception' to the forfeiture rule made for a so-called unauthorized sentence or a sentence entered in excess of jurisdiction. [Citations.]" (Sheena K., supra, 40 Cal.4th at pp. 886-887.) In the absence of a constitutional objection to the probation condition based on the case's facts, a prosecutor has no reason to develop the record further to establish the condition's constitutionality. We are not resolving a pure question of law under Sheena K.'s rubric if we consider the particular circumstances of a case in assessing whether a challenged condition requires further tailoring to avoid unconstitutional overbreadth. A facial challenge to a probation condition "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts." (Sheena K., supra, at p. 885.) Accordingly, we reject any suggestion that the forensic analysis search condition is subject to appellate review for unconstitutional overbreadth based on the individual facts and circumstances.
Defendant admits that defense counsel did not object in the trial court to the forensic analysis search condition on the ground that it was unconstitutionally overbroad. In contrast, in Appleton "[t]he Attorney General concede[d] the record show[ed] [that] defendant raised his objections below, and she concede[d] the objections he lodged were identical to the claims raised [on appeal]." (Appleton, supra, 245 Cal.App.4th at p. 722.) That is not true here. (Cf. People v. Guzman (2018) 23 Cal.App.5th 53, 65, fn. 4.)
"As the United States Supreme Court recognized in United States v. Olano [(1993) 507 U.S. 725,] 731 ' "[n]o procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." ' [Citations.] 'The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]' [Citations.]" (Sheena K., supra, 40 Cal.4th at pp. 880-881, fn. omitted.) "[T]he forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error. [Citation.]" (People v. Kennedy (2005) 36 Cal.4th 595, 612, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.)
Defendant forfeited any non-facial challenge to the forensic analysis search condition on the ground of unconstitutional overbreadth. Therefore, we consider on its merits only the claim that the forensic analysis search condition is unconstitutionally overbroad on its face.
3. Challenged Condition is not Unconstitutionally Overbroad on its Face
"A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]" (Sheena K., supra, 40 Cal.4th at p. 890; accord, People v. Olguin (2008) 45 Cal.4th 375, 384 (Olguin).) "A restriction is unconstitutionally overbroad . . . if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' [Citations.] The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
In Olguin, the California Supreme Court stated that "[a] condition of probation that enables a probation officer to supervise his or her charges effectively is . . . 'reasonably related to future criminality.' [Citations.]" (Olguin, supra, 45 Cal.4th at pp. 380-381.) The court further observed that "to ensure that a probationer complies with the terms of his or her probation and does not reoffend, a probation officer must be able to properly supervise that probationer." (Id. at p. 381 [holding that a "condition requiring notification of the presence of pets is reasonably related to future criminality because it serves to inform and protect a probation officer charged with supervising a probationer's compliance with specific conditions of probation"].) The United States Supreme Court has recognized that a general probation search condition may "further the two primary goals of probation[, namely,] rehabilitation and protecting society from future criminal violations." (United States v. Knights (2001) 534 U.S. 112, 119, fn. omitted. (Knights).)
The probation conditions in this case also prohibited defendant from dating, socializing with, or forming romantic relationships with any person who has physical custody of a minor; from becoming an employee of, or doing volunteer work with, any organization that defendant knows involves the supervision of minors; and from residing in a home where minors reside.
We review defendant's cognizable constitutional challenge to the forensic analysis search condition de novo. (See Appleton, supra, 245 Cal.App.4th at p. 723.) We accept that a forensic search of a cell phone may significantly invade a probationer's privacy, but that fact does not by itself resolve whether a forensic analysis search condition is facially unconstitutional. None of the cases cited by defendant stand for the proposition that a probation condition permitting a warrantless, unrestricted forensic analysis search of a cell phone or other electronic device is unconstitutional as a matter of law.
In Riley v. California (2014) 573 U.S. 373, the United States Supreme Court expressed the concern that "a cell phone search would typically expose to the government far more than the most exhaustive search of a house . . . ." (Id. at pp. 396-397.) We point out, however, that Riley involved the search of cell phone seized incident to the arrest of a person who had yet to be convicted (see id. at p. 403 [holding that police must get a warrant "before searching a cell phone seized incident to an arrest"]), while defendant is a probationer convicted by plea.
In In re Malik J. (2015) 240 Cal.App.4th 896 (Malik J.), a juvenile, who had been adjudged a ward for committing a robbery, admitted that he had violated probation by committing three more robberies and possessing marijuana. (Id. at pp. 899-900.) After the prosecutor informed the court that "Malik had been working with two other individuals" (Id. at p. 900.), that a phone had been stolen in one of the robberies, and that "electronic devices might [have been] used to coordinate with other people" (ibid.), the juvenile court imposed an additional probation condition, the written version of which required Malik " 'to provide all passwords to any electronic devices . . . within [his] custody and control' " (ibid.) and to " 'submit such devices to search at any time without a warrant by any peace officer.' " (Ibid.)
The appellate court in Malik J. found that the trial court's oral version of the probation condition, which applied to Malik's family as well as him and additionally required them to provide "any passwords to any social media" (Malik J., supra, 240 Cal.App.4th at p. 900), was overbroad in view of the "significant privacy implications" that were recognized Riley. (Id. at p. 902.) The appellate court indicated that in applying a probation search clause to electronic devices within a probationer's control or possession, "officers must show due regard for information that may be beyond a probationer's custody or control or implicate the privacy rights of the probationer or third parties" (id. at pp. 903-904) and that "[o]fficers should not be allowed to conduct a forensic examination of the device utilizing specialized equipment that would allow them to retrieve deleted information that is not readily accessible to users of the device without such equipment." (Id. at p. 904)
The foregoing comments are dicta and must be understood in the context of the appellate court's concern in Malik J. that "[r]emotely stored information may . . . implicate the privacy interests of third parties who are not otherwise subject to search or court supervision." (Malik J., supra, 240 Cal.App.4th at p. 903.) This court has previously recognized that "any speculative impact on third parties is not a reason to strike [such a] condition since [a] minor [or an adult probationer] lacks standing to assert the constitutional rights of third parties. [Citation.]" (In re Q.R. (2017) 7 Cal.App.5th 1231, 1237 [minor], review granted April 12, 2017, S240222; see People v. Maldonado (2018) 22 Cal.App.5th 138, 145 [adult probationer], review granted June 20, 2018, S248800; see also Cal. Rules of Court, rules 8.1105(e)(1)(B), 8.1115(e).)
We also are cognizant that the California Supreme Court in Ricardo P. recently "decline[d] to read Olguin to categorically permit any probation conditions reasonably related to enhancing the effective supervision of a probationer." (Ricardo P., supra, 7 Cal.5th at p. 1127.) Nevertheless, we cannot say that a condition requiring a probationer to submit to a warrantless forensic analysis search of his or her cell phone is necessarily or always beyond the constitutional pale in the abstract. Particular circumstances may warrant such a condition. Conceivably, a defendant might use a cell phone and the Internet in multifaceted ways, including but not limited to communicating or sending messages through a cell phone and apps. A defendant might access or share child pornography online. In connection with a criminal offense or enterprise, a defendant might use various apps, search the Internet, or engage in an online financial transaction. In appropriate situations, a broad forensic analysis search condition could be a useful, reasonable, and constitutional tool in deterring and detecting crime.
Although the United States Supreme Court has not addressed the exact question we face here, some of its observations are worth remembering. In Griffin v. Wisconsin (1987) 483 U.S. 868, the United States Supreme Court stated: "To a greater or lesser degree, it is always true of probationers . . . that they do not enjoy 'the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions.' [Citation.]" (Id. at p. 874.) "These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large. [Citation.] These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed. Recent research suggests that more intensive supervision can reduce recidivism . . . ." (Id. at p. 875.) "Supervision . . . is a 'special need' of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large." (Ibid.) In Knights, the United States Supreme Court considered "whether a search pursuant to [a] probation condition, and supported by reasonable suspicion, satisfied the Fourth Amendment." (Knights, supra, 534 U.S. at p. 114.) The court determined: "The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined 'by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.' [Citation.] Knights' status as a probationer subject to a search condition informs both sides of that balance." (Id. at pp. 118-119.) The court further observed: "In assessing the governmental interest side of the balance, it must be remembered that 'the very assumption of the institution of probation' is that the probationer 'is more likely than the ordinary citizen to violate the law.' [Citation.] The recidivism rate of probationers is significantly higher than the general crime rate. [Citations.] And probationers have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may be subject to supervision and face revocation of probation, and possible incarceration, in proceedings in which the trial rights of a jury and proof beyond a reasonable doubt, among other things, do not apply[.] [Citations.]" (Id. at 120.) The court concluded that the state's "interest in apprehending violators of the criminal law, thereby protecting potential victims of criminal enterprise, may therefore justifiably focus on probationers in a way that it does not on the ordinary citizen." (Id. at p. 121.)
We are unable to conclude that the forensic analysis search condition was unconstitutionally overbroad on its face. (Cf. In re J.S. (2019) 37 Cal.App.5th 402, 409 ["Although it is readily apparent that application of this [electronic] search condition could be constitutionally overbroad as applied to certain probationers in some circumstances, it is equally apparent that such a search condition may be entirely appropriate, and constitutional, in other circumstances"].) B. Alleged Ineffective Assistance of Counsel
Defendant asserts that defense counsel performed deficiently by failing to object to the forensic analysis search condition on the ground that it was unconstitutionally overbroad as applied to him and that there was no conceivable tactical reason for this failure. He contends that he satisfied the prejudice prong of an ineffective assistance claim because "Appleton was binding precedent on the trial court" and the California Supreme Court has granted review in a number of other electronic search condition cases.
1. Governing Law
The standard for evaluating a claim of ineffective assistance of counsel is well established. It requires a two-prong showing of deficient performance and resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." (Id. at p. 700.)
As to deficient performance, a defendant "must show that counsel's representation fell below an objective standard of reasonableness," as measured against "prevailing professional norms." (Strickland, supra, 466 U.S. at p. 688.) "Judicial scrutiny of counsel's performance must be highly deferential." (Id. at p. 689.) "[E]very effort" must "be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." (Ibid.) "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Ibid.)
The prejudice prong requires a defendant to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.)
"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel [had] acted differently. [Citations.] Instead, Strickland asks whether it is 'reasonably likely' the result would have been different. [Citation.] This does not require a showing that counsel's actions 'more likely than not altered the outcome,' but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters 'only in the rarest case.' [Citation.] The likelihood of a different result must be substantial, not just conceivable. [Citation.]" (Harrington v. Richter (2011) 562 U.S. 86, 111-112 (Harrington).)
2. Analysis
According to the probation report, before defendant committed the lewd acts, he communicated with his 15-year-old stepsister over the Internet, and during their communications he made sexual comments to her. The report further disclosed that defendant had previously molested a cousin when she was 10 years old. As indicated, at the time of sentencing defense counsel acknowledged to the court that defendant had used his cell phone and the Snapchat app to communicate with the victim.
Under those circumstances, defense counsel might have reasonably concluded that further objection to the forensic analysis search condition on the ground of unconstitutional overbreadth was futile. (See People v. Price (1991) 1 Cal.4th 324, 387 ["Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile"].) The following would tend to support such conclusion: defendant had used his cell phone and the Internet to communicate with the victim of his current crimes; the trial court had rejected defense counsel's argument that the three cell phone conditions were inappropriate because defendant had not used his cell phone in lewdly touching the victim; the record supported an inference that defendant had a predatory sexual interest in young girls; and then-existing Supreme Court precedent indicated that probation conditions that facilitated effective probation supervision were reasonable. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction."], 456 ["[W]here there is more than one appellate court decision, and such appellate decisions are in conflict," "the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions"].) Also, defense counsel might have made a reasonable tactical decision not to object because the trial court was unlikely to sustain any overbreadth objection and such an objection might prompt the trial court to change its mind about granting probation, especially if concerned that restricted supervision would be insufficient.
Our "scrutiny of counsel's performance must be highly deferential" (Strickland, supra, 466 U.S. at p. 689), and we must "evaluate the conduct from counsel's perspective at the time" (ibid.) and without "the distorting effects of hindsight." (Ibid.) "It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding. [Citations.]" (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Defendant has not established an effective assistance of counsel claim under the foregoing standard. He has not demonstrated that defense counsel acted deficiently by not challenging the forensic analysis search condition on the ground that it was unconstitutionally overbroad based on individual circumstances.
DISPOSITION
The order granting probation is affirmed.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.