Filed 1/22/20 P. v. Jackson CA4/2

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DEONDRE MARQUISE JACKSON,

Defendant and Appellant.

E069751

(Super.Ct.No. FVI17003145)

OPINION

APPEAL from the Superior Court of San Bernardino County. Miriam Ivy Morton, Judge. Affirmed.

Jared G. Coleman, 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, and Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant, Deondre Marquise Jackson, pled guilty to accessory to robbery after the fact. (Pen. Code, § 32, count 2.) The court granted defendant three years of felony probation, a term of which required that he submit to a search and seizure of any electronic device in his possession. On appeal, defendant contended the search condition was unconstitutional. In our original opinion dated November 19, 2018, we affirmed, holding that defendant had waived and forfeited any argument with respect to the validity of the probation condition and that, irrespective, the condition was constitutionally valid.

By order dated October 23, 2019, the California Supreme Court directed us to vacate our decision and reconsider it in light of its decision in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). We have now reconsidered the case in light of Ricardo P. and reaffirm.

I. FACTS AND PROCEDURAL HISTORY

The victim reported to the police that three males walked up to him outside a retail establishment and asked if they could use his cell phone. The victim agreed, but he did not let them hold his phone; instead, he dialed the number, put it on speaker, and held it toward them to allow them to speak. As the phone began ringing, two of the three suspects tried to distract the victim by pointing behind him. The other suspect then forcibly removed the phone from the victim’s hand. All three suspects fled in an awaiting vehicle driven by defendant.

An officer arriving thereafter followed the suspects after the store manager pointed out the vehicle in which they were fleeing. The officer conducted a traffic stop and detained defendant while another officer arrived to detain the remaining suspects. Defendant told another officer he would take him to the area where one of the suspects had thrown the cell phone. Officers were unable to find the cell phone in the area. One of the other suspects admitted to taking the phone from the victim. He took an officer to the area where he said he had thrown the cell phone. The officer was then able to locate the victim’s cell phone.

The People charged defendant by felony complaint with second degree robbery (count 1; § 211) and accessory after the fact (count 2; § 32). Defendant signed and initialed a declaration agreeing to plead guilty to the count 2 offense in return for three years of felony probation. Defendant additionally signed a document titled “Felony Terms and Conditions of Probation.” That document reflected that: “By signing this form, I am agreeing that the Court will withhold pronouncement of judgment in my case, and that I will be granted supervised probation for a period of thirty-six months . . . with the following Terms and Conditions of Probation . . . .” One of the terms of probation required that defendant “[s]ubmit to a search and seizure (electronic device) by a government entity of any electronic device that you are an authorized possessor of pursuant to . . . [section] 1546.1[, subdivision] (c)(10),” i.e., the electronic device search condition.

Defendant pled guilty as recounted ante. In return, the court dismissed the balance of the complaint upon the People’s motion. Pursuant to the plea agreement, the court granted defendant felony probation for a term of three years, including conditions that he serve 180 days in jail and submit to the electronic device search condition.

II. DISCUSSION

A. Waiver and Forfeiture.

Defendant contends the electronic device search condition violates his constitutional rights. The People maintain defendant forfeited any objection to the condition by failing to object below. We hold that defendant waived and forfeited any objection to the condition by expressly agreeing to it.

“Knowing and intelligent waivers are generally required when a criminal defendant gives up ‘any significant right’ [citation], such as . . . constitutional rights . . . .” (People v. Trujillo (2015) 60 Cal.4th 850, 859.) Courts can require that defendants waive constitutional rights as a condition of probation. (People v. Garcia (2017) 2 Cal.5th 792, 798-799 [waiver of patient-therapist privilege for sex offender as a condition of probation not constitutionally infirm]; People v. Bravo (1987) 43 Cal.3d 600, 607 [acceptance of probationary search condition waives expectation of traditional 4th Amend. protection].)

“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. [Citations.] As the United States Supreme Court recognized . . . ‘“[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.”’” (In re Sheena K. (2007) 40 Cal.4th 875, 880-881.) “[A]n adult probationer who elects to receive probation in lieu of incarceration fairly may be charged with the need to timely challenge any conditions imposed . . . .” (Id. at p. 882.) “[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.” (Id. at pp. 886-887.) However, “[a]n obvious legal error at sentencing that is ‘correctable without referring to factual findings in the record or remanding for further findings’ is not subject to forfeiture.” (Id. at p. 887.) A defendant’s failure to object to the imposition of a probation condition requiring the defendant to permit searches of electronic devices in his possession forfeits the issue on appeal. (In re L.O. (2018) 27 Cal.App.5th 706, 711-712.)

 

Here, apparently prior to even orally entering his plea, defendant signed a document agreeing that the court would grant him probation for three years under a number of expressly enumerated terms and conditions. One of those conditions is the very term of which defendant now complains. Defendant initialed a space directly adjacent to the condition, further indicating his acceptance of the term. The minute order of defendant’s plea and judgment expressly indicates: “Defendant accepts Terms & Conditions of Probation.” The court asked defendant: “[Y]ou indicated you reviewed the terms and conditions of probation with your attorney and you understood them. Do you waive the Court formally reading them in open court?” To which defendant responded: “Yes, your Honor.” Thus, defendant knowingly and intelligently waived his right to complain about the electronic device search condition of his probation.

Even if defendant did not waive his right to complain about the condition, he forfeited that right by failing to object below. Here, beyond explicitly agreeing to the condition, defendant did not object to the condition though he had ample opportunity to do so. Unlike defendant, the minor in Ricardo P. expressly objected to the electronics search condition. (Ricardo P., supra, 7 Cal.5th at p. 1117.)

Defendant contends that he was not required to object because the condition is facially, unconstitutionally vague and overbroad. We disagree. First, defendant himself repeatedly maintains the condition was not narrowly tailored or reasonably related to the reformation and rehabilitation of defendant, an argument which necessarily requires resort to the facts underlying defendant’s conviction and is therefore, not reviewable without an objection: “Neither [defendant]’s crime, nor the events preceding it, involved his electronic devices or social media.” “[The People] cite[] no facts or authority showing that the monitoring of these conditions is critical to public safety or [defendant]’s rehabilitation. There is no evidence that [defendant] has alcohol or drug dependencies that require invasive searching of electronic devices.” “[I]f, as in [defendant]’s case, there is nothing in [defendant]’s past or current offenses or personal history that connects his use of electronic devices with criminal activity, there is nothing to justify an electronic search condition.” The breadth of the condition “is not justified by any known risk [defendant] poses to the public and is not at all related to [defendant]’s criminality.”

Second, defendant’s assertion that his crime did not involve electronic devices is not borne by the record. Defendant executed a Harvey waiver as part of his plea agreement. Defendant stipulated that the complaint and police report would provide the factual basis for his plea. The complaint charged defendant with both robbery and accessory after the fact. The police report reflects that defendant was part of a scheme to steal a cell phone, an electronic device, from a person outside a store. Thus, defendant’s crime did involve an electronic device.

 

Third, the court in Ricardo P. indicated that its holding did “not categorically invalidate electronics search conditions.” (Ricardo P., supra, 7 Cal.5th at p. 1128.) It noted, “In 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.” (Id. at pp. 1128-1129.) Thus, electronics search conditions are not facially invalid.

Fourth, defendant’s complaint that “the electronics-search condition does not require that the devices belong to” defendant, that it “only requires that [defendant] have possession” of them is not well taken. As the California Supreme Court stated in People v. Olguin (2008) 45 Cal.4th 375: “A probation condition should be given ‘the meaning that would appear to a reasonable, objective reader.’” (Id. at p. 382.) We view the probation condition here in light of Olguin and presume a probation officer will not interpret it in an irrational or capricious manner. (Id. at p. 383.) The court in People v. Schmitz (2012) 55 Cal.4th.909, presumed that warrantless “searche[s] will not be conducted in an arbitrary, capricious or harassing manner.” (Id. at p. 923.) Moreover, defendant would have no standing to challenge the constitutional rights of third parties. (Rakas v. Illinois (1978) 439 U.S. 128, 134.) Furthermore, one of the very bases of such a search would be to ensure that defendant was not in possession of a stolen cell phone. Thus, defendant forfeited any challenge to the constitutionality of the electronic device search condition by failing to object below.

B. Overbreadth.

Defendant contends, pursuant to Riley v. California (2014) ___ U.S. ___ [134 S.Ct. 2473] (warrantless search of defendant’s cell phone was constitutionally infirm), that the probationary condition requiring that defendant submit electronic devices in his possession to search and seizure by officers is unconstitutionally overbroad. Assuming defendant did not waive or forfeit a challenge to the condition, we hold that it was not unconstitutionally overbroad.

“A probation condition is constitutionally overbroad when it substantially limits a person’s rights and those limitations are not closely tailored to the purpose of the condition.” (People v. Harrisson (2005) 134 Cal.App.4th 637, 641, citing In re White (1979) 97 Cal.App.3d 141, 146 [“‘. . . The Constitution, the statute, all case law, demand and authorize only “reasonable” conditions, not just conditions “reasonably related” to the crime committed.’ [Citation.] [¶] Careful scrutiny of an unusual and severe probation condition is appropriate.”].)

In Ricardo P., supra, 7 Cal.5th 1113, the minor admitted two allegations of felony burglary, and the court placed him on probation with a condition which required him to “‘[s]ubmit . . . electronics including passwords under [his] control to search by [a] Probation Officer or peace office[r] with or without a search warrant at any time of day or night.’” (Id. at pp. 1115-1117.) The court noted that nothing in the record suggested that the minor “ha[d] ever used an electronic device or social media in connection with criminal conduct.” (Id. at p. 1122.) The court held that where the record gave “no indication that [the minor] had used or [would] use electronic devices in connection with . . . any illegal activity, [the record] is insufficient to justify the substantial burdens imposed by [the] electronics search condition.” (Id. at p. 1116.) Nonetheless, the court observed: “Our holding does not categorically invalidate electronics search conditions.” (Id. at p. 1128.) “In certain cases, the probationer’s offense or personal history may provide the . . . 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.” (Id. at pp. 1128-1129.)

Similarly, in People v. Appelton (2016) 245 Cal.App.4th 717 (Appleton), where the defendant pled no contest to imprisonment by means of deceit, the court held that a probationary condition requiring that the defendant’s electronic devices be subject to “Forensic Analysis Search[]” was constitutionally overbroad and struck the condition, but remanded the matter “because the trial court may be able to impose a valid condition more narrowly tailored to the state’s interests . . . .” (Id. at p. 727.)

Here, defendant expressly agreed to the condition that electronic devices in his possession be subject to search and seizure in return for a grant of probation. Unlike the minor in Ricardo P., the offense for which defendant stood convicted involved the theft of an electronic device; thus, the electronics search condition was rationally related to defendant’s personal offense. Moreover, unlike the electronics search conditions in Ricardo P. and Appleton, defendant’s search condition did not require that he turn over his passwords or submit his electronics for a “Forensic Analysis Search[]”; thus, defendant’s search condition was not as “invasive,” “burdensome,” or “intrusive” as those in Ricardo P. and Appleton. (Appleton, supra, 245 Cal.App.4th at pp. 725, 727 and Ricardo P., supra, 7 Cal.5th at p. 1126.)

Additionally, as noted ante, the electronic device search condition is necessary to ensure that defendant does not engage in further thefts of electronic devices. Furthermore, another condition of defendant’s probation prohibits him from contact with his codefendants, with which the electronic device search condition enables the probation officer to ensure defendant’s compliance.

Finally, as noted ante, we presume a probation officer will not interpret the electronic device search condition in an irrational or capricious manner. (People v. Olguin, supra, 45 Cal.4th at p. 383.) If a probation officer does interpret the condition in any arbitrary manner, defendant may then file a petition for modification of his probation condition. (See §§ 1203.2, subd. (b)(1), 1203.3, subd. (a); see also People v. Keele (1986) 178 Cal.App.3d 701, 708 [trial court retains jurisdiction to review probation officer’s actions].) Thus, the electronic device search condition is not constitutionally overbroad.

 

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

MILLER

J.

SLOUGH

J.