Opinion
C082722
02-15-2017
THE PEOPLE, Plaintiff and Respondent, v. KEITH LASHAY UNDERWOOD, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE012905)
Following his no contest plea to felony identity theft (Pen. Code, § 530.5, subd. (a)), the trial court suspended imposition of sentence and placed defendant Keith Lashay Underwood on formal probation for a term of five years with various conditions, including an electronic search condition. On appeal, defendant challenges the search condition.
Although defendant couches his claim on appeal as a facial challenge to the condition, it is clear the challenge is to the condition as applied to his case. Defendant purported to raise an objection in the trial court to the constitutionality of the condition as applied; however, his filing of a boilerplate motion with no specific argument as to application of the condition at issue to the facts of his case was ineffectual. He presents no valid reason to strike the condition in its entirety, admitting that under some circumstances such a condition may be warranted.
We note that if defendant can specifically articulate how the electronic search condition at issue is constitutionally infirm under the particularized facts of this case, he remains free to file a motion to modify the terms of his probation with the trial court. (See Pen. Code, § 1203.3, subd. (a).) However, defendant cannot appropriately seek a rewrite of the condition at issue for the first time on appeal after failing to make any record in the trial court as to why it should tailor the disputed condition more narrowly to the facts of his case. Consequently, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On July 13, 2016, defendant entered a no contest plea to felony identity theft (with which he and a codefendant were originally charged) and requested to be sentenced immediately. The factual basis for the plea was provided by the prosecutor: "[O]n July 1, 2016, in the county of Sacramento, this defendant committed a felony violation of Section 530.5(a) of the Penal Code; in that he did willfully and unlawfully obtain the personal identifying information of the named victim in Count One -- first name Kuo, last name W-U -- without the victim's authorization and used that information for an unlawful purpose and to attempt to obtain money in the name of the victim without the victim's consent."
This is the only factual basis in the record; defendant waived his rights to a preliminary hearing and preparation of a probation report.
On the same day as he entered his no contest plea and was placed on probation, defendant filed a boilerplate sentencing memorandum with his name and case number added by hand at the top. The memorandum raised numerous and varied objections to any "electronic device search condition." As relevant here, the boilerplate objections included that "even if [the trial court] finds a basis on which to impose a search condition that includes electronic devices, it will be overbroad."
At sentencing, defense counsel stated: "I have an objection to the electronic search of any cell phone." She then clarified the objection was to "condition 19 on page 4." The court then asked the prosecutor for the factual "nexus to [the] electronic search" and the prosecutor explained: "Both defendants had checks that were filled out to each of them. There is evidence that the two of them were working together. In [the codefendant's] purse, there was a booklet with credit card numbers, expiration dates, and security codes, that three-digit number you need to use the credit card. [¶] There was also a laptop found in Defendant Underwood's room. It had Defendant Underwood's picture on it, and on the same desk were completed checks to the defendant. The defendant is on mandatory supervision for identity theft."
The condition reads: "P.C. 1546 searchable -- Defendant shall submit his/her person, place, property, automobile, electronic storage devices, and any object under his/her control, including but not limited to cell phones and computers, to search and seizure by any law enforcement officer or probation officer, any time of the day or night, with or without a warrant, with or without his/her presence or further consent. [¶] Defendant being advised of his/her constitutional and statutory rights pursuant to Penal Code section 1546 et seq. in this regard, and having accepted probation, is deemed to have waived same and also specifically consented to searches of his/her electronic storage devices. [¶] Defendant shall provide access to any electronic storage devices and data contained therein, including disclosing and providing any and all information necessary to conduct a search."
Without referencing the prosecutor's proffer or any other specifics of this case, defense counsel stated that she had filed "the standard points and authorities" regarding her objection to the electronic search condition. The trial court noted in response that the "canned brief on the law isn't very helpful" because there was nothing in it "linking [the condition] to the specific case." At this point counsel submitted. The court then ruled that the electronic search condition was appropriate because it was reasonably related to the underlying conduct giving rise to the identity theft offense (see People v. Lent (1975) 15 Cal.3d 481, 486) and imposed the condition. Defense counsel did not argue at any point that the electronic search condition was constitutionally overbroad, nor did she argue the particular facts of defendant's case.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant challenges the electronic search condition as "unconstitutionally overbroad on its face"; he argues for remand so that the trial court can "narrowly tailor the condition to meet the specific facts of the case." But defendant had the opportunity through counsel to argue the specific facts of his case and ask for any modification to the condition's language in the trial court and failed to do so. Instead, he filed a boilerplate motion with no reference to his actual case or the underlying facts thereof, and did not argue the facts of his case to the trial court or even discuss the constitutionality of the condition during argument. There is nothing in the record on appeal from which we may glean any information as to the facts of defendant's case in order to determine whether the trial court erred in imposing or failing to narrow the condition, other than that provided in the prosecutor's proffer.
Noting the "absolute dearth of any facts" from the trial court proceedings, the Attorney General refers to the probation condition as "apparently overbroad" and "agrees that some narrowing of the probation condition in issue here may be in order." The Attorney General requests that we "remand the matter to the trial court for the limited purpose of modifying the probation condition" but does not address defendant's failure to adequately develop the record in the trial court and to carry his burden on appeal to show error. --------
Any "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." (In re Sheena K. (2007) 40 Cal.4th 875, 890.) " '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.' [Citation.]" (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.)
"Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal." (In re Sheena K., supra, 40 Cal.4th at p. 880.) However, an appellate claim amounting to a " 'facial challenge' " that language of a probation condition is unconstitutionally overbroad can be raised for the first time on appeal. (Id. at pp. 885, 888-889.) Under such circumstances, a challenge to the condition as unconstitutionally overbroad "presents an asserted error that is a pure question of law, easily remediable on appeal by modification of the condition." (Id. at p. 888.) On the other hand, constitutional defects in conditions of probation that do not present " ' "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court," ' " may generally not be raised for the first time on appeal. (Id. at p. 889.)
Here, defendant does not raise a facial challenge to the electronic search condition that presents a pure question of law which may be determined based on abstract or general legal principles. Instead, defendant contends the condition is unconstitutional because it is not narrowly tailored to its purpose, and invites us to remand the matter so the trial court can undertake a fact-driven inquiry regarding the scope of the condition based upon the specifics of his offense, amounting to an argument that "the probation condition is, as applied to him, unconstitutional." (People v. Kendrick (2014) 226 Cal.App.4th 769, 778.) As defendant concedes, electronic search conditions are not unconstitutional as a matter of law; rather, the question is whether the invasion of privacy occasioned by such a condition is justified by countervailing state interests on the particular facts. (See People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1175-1177 [upholding broad search condition allowing searches of a gang member's electronic devices and social media accounts at anytime without a warrant].) Because defendant failed to adequately support his boilerplate as-applied challenge in the trial court, he cannot show that the trial court erred and thus cannot prevail on appeal.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Butz, Acting P. J. /s/_________
Mauro, J.