Filed 12/27/19 P. v. Guerrero-Cuevas CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

MANUEL ANGEL GUERRERO-CUEVAS,

Defendant and Appellant.

C085776

(Super. Ct. No. 62152356)

A jury convicted defendant Manuel Angel Guerrero-Cuevas of manufacturing a controlled substance. The trial court imposed a five-year prison sentence but suspended three years and placed defendant on mandatory supervision for two years with various conditions of supervision, including an electronic device search condition.

Although defendant did not object to the electronic device search condition in the trial court, he now contends the condition is facially overbroad and that his appellate contention is a question of law that is not forfeited. However, in challenging the condition on appeal, he points to the facts and circumstances of his particular case. Because the resolution of his challenge requires reference to the factual record, it is not a facial challenge and the contention is forfeited. (People v. Welch (1993) 5 Cal.4th 228, 234-235; In re I.V. (2017) 11 Cal.App.5th 249, 260-261.)

We will affirm the judgment.

BACKGROUND

During a probation search, defendant was found in possession of marijuana and equipment indicating he was manufacturing concentrated cannabis or “honey oil.” Defendant claimed he was manufacturing concentrated marijuana for personal use. The probation officer warned defendant that making concentrated marijuana with butane was very dangerous and that it would violate his probation if he continued to try to manufacture it.

In a subsequent probation search, defendant was found in possession of 153 grams of marijuana, canisters, filters, glass dishes containing honey oil, a case of unused butane cans, a garbage bag filled with empty butane cans, a hotplate, digital scales, and a pay/owe sheet. There were several text messages related to selling concentrated marijuana on defendant’s cell phone. In an interview, defendant admitted that the lab equipment was his and admitted he sold concentrated marijuana. He admitted he learned how to manufacture concentrated marijuana online.

Following a trial, the jury found defendant guilty of one count of manufacturing a controlled substance, a felony. (Health & Saf. Code, § 11379.6, subd. (a).) The trial court imposed a five-year prison sentence but suspended three years and placed defendant on mandatory supervision for two years with various conditions of supervision, including an electronic device search condition. Special condition No. 22 required defendant to submit his “electronic storage devices” to search and seizure at any time, “including but not limited to cell phones and computers.” Defense counsel did not object to the condition.

DISCUSSION

Defendant contends the electronic device search condition is facially overbroad because it allows for searches of personal information unrelated to defendant’s criminal conduct or his potential for future criminality. Although defendant did not object to the electronic device search condition in the trial court, he claims his contention is a question of law that is not forfeited. The People note that if this court concludes the appeal involves more than just an issue of law, we should find that the contention is forfeited.

Conditions of mandatory supervision and conditions of probation are equivalent for purposes of our inquiry. During mandatory supervision, a defendant is “supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation.” (Pen. Code, § 1170, subd. (h)(5)(B).) 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, supra, 5 Cal.4th at pp. 234-235.) Despite defendant’s failure to object, he may assert for the first time on appeal that a probation condition is facially overbroad if the claim presents a pure question of law without reference to the particular sentencing record developed in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 889.) Here, defendant argues the electronic device search condition is unconstitutionally overbroad on its face. However, in challenging the condition, he points to the facts and circumstances of his particular case. Among other things, he argues there was no indication he engages in social media or online activity to further the manufacturing or selling of concentrated cannabis. Defendant claims the types of electronic data reasonably likely to yield evidence related to manufacturing of concentrated cannabis are limited to his text messages, photographs and browser history, and that other searches, such as of his social media and online dating, would be overbroad. Because the alleged constitutional defect defendant alleges is correctable only by reference to the factual record, it is not a facial overbreadth challenge but a claim that the language is overbroad as applied to defendant. (See In re I.V., supra, 11 Cal.App.5th 249, 260-261.) Under the circumstances, the contention is forfeited.

DISPOSITION

The judgment is affirmed.

/S/

MAURO, J.

We concur:

/S/

RAYE, P. J.

/S/

HULL, J.