Opinion
C084266
03-13-2020
THE PEOPLE, Plaintiff and Respondent, v. CARL HOWARD SIMMERMACHER, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F07372)
After a jury found defendant Carl Howard Simmermacher guilty of communicating with a child to commit a specified sexual act and misdemeanor child molestation, the trial court granted probation. On appeal, defendant contends his conviction for annoying or molesting a minor must be stricken because it was subject to the one-dismissal rule. Defendant also challenges the validity of the electronics search condition imposed, contending the condition is facially overbroad.
We agree his conviction for annoying or molesting a minor must be stricken; however, we conclude defendant forfeited his claim that the electronics search condition is unconstitutionally overbroad. Accordingly, we strike the conviction for annoying or molesting a minor and otherwise affirm the judgment.
BACKGROUND
Jenifer Doe and defendant exchanged several sexually explicit messages over Facebook in November 2012, when Doe was 13 years old. Defendant admitted wanting to meet with Doe, but said it was because he thought she was 19 years old. The messages between them established that Doe actually told defendant she was 15 years old. The messaging stopped when Doe's mother interceded and asked defendant why he was contacting her 13-year-old daughter.
A subsequent search of defendant's computer revealed pornographic images. Some of that pornography appeared to be child pornography.
In September 2013 the People charged defendant with three misdemeanors: a single count of molesting a minor, and two counts of possessing child pornography. In December 2015, the People dismissed that misdemeanor complaint and filed a felony complaint charging defendant with one count of felony communicating with a minor to commit a specified sexual offense and one count of felony possession of child pornography. That complaint was deemed to be the information.
In January 2017 the court granted the People's motion to amend the information to include a charge of misdemeanor child molestation and striking the charge of felony possession of child pornography. In support of their motion, the People indicated the molestation charge was based on the same set of facts giving rise to the original charge for molestation, dismissed when the misdemeanor complaint was dismissed in December 2015. The court granted the People's motion.
A jury subsequently found defendant guilty of communicating with a minor to commit a specified sexual offense and misdemeanor child molestation; the trial court suspended imposition of judgment and sentence and placed defendant on five years' formal probation with numerous terms and conditions. Included in the terms and conditions of probation was condition No. 9, which requires defendant to "disclose all e-mail accounts, all Internet accounts, and any other means of access to any computer or computer network, all passwords and access codes." Defendant did not object to this condition.
DISCUSSION
A. Conviction for Annoying or Molesting a Minor
Defendant contends the one-dismissal rule codified in Penal Code section 1387, subdivision (a) prohibited the People from refiling the charge of annoying or molesting a minor in count two of the amended information. The People appropriately concede the issue.
Refiling a misdemeanor charge based on the same conduct is prohibited by Penal Code section 1387. (See Burris v. Superior Court (2005) 34 Cal.4th 1012, 1021.) That is precisely what happened here. Accordingly, we accept the People's concession and strike defendant's conviction for misdemeanor child molestation. B. Electronics Search Condition
Defendant contends the electronics search condition is unconstitutionally overbroad. Defendant argues there were narrower means to ensure he did not violate the terms of his probation. Defendant does not identify whether the challenge he raises is facial or as applied but argues his challenge is a pure question of law. We disagree and conclude he forfeited this claim by failing to raise the issue at sentencing.
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 (Sheena K.).) 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.)
Without identifying his claim as a facial challenge, defendant contends his overbreadth challenge is a pure legal question and thus properly raised in this appeal. 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. (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 the 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.
DISPOSITION
The conviction for molesting a minor is stricken; the judgment is otherwise affirmed.
/s/_________
RAYE, P. J. We concur: /s/_________
HULL, J. /s/_________
MAURO, J.