Filed 1/17/20 P. v. Wang CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

HAOYU WANG,

Defendant and Appellant.

H044600

(Santa Clara County

Super. Ct. No. C1496361)

Defendant Haoyu Wang pleaded no contest to cruelty to animals (Pen. Code, § 597, subd. (b)). He contends: the trial court erred when it failed to grant his motion to withdraw his plea; and the probation condition authorizing the search of “any property under his control” violates the Fourth Amendment. We affirm the order.

I. Statement of the Case
II.
In October 2016, defendant was charged by information with cruelty to animals. On February 1, 2017, defendant pleaded no contest to the charge with “no promises or agreements about what sentence the court [would] order.” Prior to the sentencing hearing on February 27, 2017, defendant brought a motion to reduce the conviction to a misdemeanor pursuant to section 17. The trial court denied the motion. The trial court suspended imposition of sentence and placed defendant on probation subject to several conditions, including a general search condition.

In April 2017, defendant filed a motion to withdraw his plea. The trial court denied the motion.

III. Statement of Facts
IV.
In April 2014, defendant, who was intoxicated, threw a five-week-old puppy against a wall three times. The puppy suffered “a brain injury, specifically swelling to the brain, central blindness, pulmonary contusions, a partial collapsed lung, fluid in the lungs, a loose tooth, and hemorrhaging to the right eye.” The puppy eventually recovered, but “suffer[s] from anxiety, specifically when it pertains to men.”

III. Discussion

A. Motion to Withdraw Plea
B.
Defendant contends that the trial court erred when it withdrew its indicated sentence without giving him the opportunity to withdraw his plea.

1. Background
2.
On the same day that he entered his no contest plea, defendant signed an advisement of rights, waiver, and plea form. He acknowledged that he was pleading to felony animal cruelty. He also indicated that he understood that the maximum sentence for this offense exposed him to a sentence of three years. He left blank the portion of the form setting forth any sentencing agreements. Defendant further recognized that he was entering into an “Open Plea,” that is, he understood that no promises or agreements were made as to what sentence the court would impose and that the court was “not required to follow any tentative, indicated sentence.” Defendant did not check the box on the form which is applicable to pleas in which “the court has given a non-binding, tentative indicated sentence.”

At the change of plea hearing, the trial court stated: “So it is my understanding that the defendant will change his plea to Count 1 of the information to no contest. There are no conditions to the disposition. We will proceed to a sentencing hearing. I anticipate that at the time of the sentencing the defendant will make a request of the Court to reduce the charge to a misdemeanor violation and to sentence him for a misdemeanor. At that time the People will make their arguments regarding that request and also for appropriate sentencing as well.” The prosecutor also expressed her understanding that defendant was entering into “an open plea . . . .” Defense counsel indicated that she would “submit some written papers to the Court in advance of the sentencing date.” After defendant was advised of and waived his rights, he pleaded no contest to “a felony violation of . . . cruelty to animals.” At no time during the hearing did the trial court take a position on any sentence or on defendant’s anticipated motion to reduce the offense to a misdemeanor.

At the sentencing hearing, the trial court stated that defendant had requested reduction of the offense to a misdemeanor pursuant to section 17. The trial court noted that it had received defendant’s brief with attachments and the prosecution’s opposition to the motion. Following arguments by counsel, the trial court denied the motion.

Two months later, defendant filed a motion to withdraw his plea on the ground that he had entered his no contest plea as a result of mistake. He cited to an attached declaration from defense counsel. The declaration stated: “On information and belief, [defendant] has informed me that he wishes to withdraw his plea. On information and belief, [defendant]’s basis for seeking a plea withdrawal is a mistake stemming from some defect in my representation.” Neither the motion to withdraw the plea nor the supporting declaration mentioned an indicated sentence or suggested that the trial court had expressed any position prior to the sentencing hearing as to any sentence or the anticipated motion for reduction of the offense to a misdemeanor.

At the hearing on defendant’s motion to withdraw his plea, the trial court stated it would hold a closed hearing with defendant and defense counsel based on the nature of the motion. After the courtroom was cleared, defendant told the court that his counsel made insufficient efforts to locate a defense witness and “misled [him] into pleading no contest.” As to the second issue, defendant stated: “She felt that I wanted to have this case come to a close in a speedy manner. So she said that this was the best way to resolve the case and by doing so that I could close this case in a speedy way. I was told that the penalty would be a misdemeanor, community service, counseling, and alcohol counseling.”

In response to defendant’s second issue, defense counsel explained: “We came to this department in a trial posture and discussed potential resolution with the Court. From the very beginning the prosecution has always been vehemently opposed to any resolution of the case, other than for a felony. And from the very beginning when I received this case from private counsel, the primary concern that was expressed to me was an immigration concern.” Based on her evaluation of the strengths and weaknesses of defendant’s defense, defense counsel “thought that there was a risk of being convicted of a felony if [he] went to trial.” Thus, she advised defendant that “if there was a good indication from the Court and based on [her] evaluation . . . it would be more likely that [defendant] could get a misdemeanor from this case from an open plea than from a jury trial.”

Defense counsel referred to her conversation with the trial court in chambers: “My evaluation of what happened in chambers is that the Court indicated that without promising, I don’t believe that the Court made any promises, but my understanding was that there was a misdemeanor indication. That I made it very clear that I would not be advising [defendant] to plead . . . unless I felt confident, again without a promise, but that I was hearing information that would lead me to believe that the Court would sentence [defendant] to a misdemeanor, if the Court didn’t hear any new information. [¶] . . . [¶] An[d] so I advised [defendant] that there was no promises. And that the Court was not permitted to make promises at sentencing and that it was an open plea. But that I trusted this Court and that I had been very clear with the Court about what I thought the issues were and that I thought that this Court wouldn’t make . . . such a clean indication to me . . . unless the Court believed that a misdemeanor . . . was really within the realm of possibility.”

Defense counsel was “surprised” when the trial court denied the section 17 motion. She knew that “there were no promises,” but she had “thought that [a misdemeanor sentence] was possible and [she] . . . thought that it was likely.” “And it turn[ed] out that [she] was wrong about that.” Defense counsel “advised [defendant] of the penalty of what it would be for a felony. [She] advised him of possible consequences for a felony and the possible consequences of a misdemeanor . . . . [She] did say [she] did not know what was going to happen. [She] did say the Court didn’t promise, but [she] did tell him that [her] personal belief based on the indication that the Court would give him a misdemeanor.”

Defendant stated: “[Defense counsel] told me that in conversations with the judge and prosecutor there was a very high probability that [he] would be given a misdemeanor.” In response to the trial court’s questioning, defendant acknowledged that he “would agree that [defense counsel] did not tell [him] that [the trial court] was promising or guaranteeing that [he] would get a misdemeanor, but that in her opinion and her advice to him was that [he] had a high probability of it if [he] chose to plead no contest as opposed to going to trial.”

After defendant made some final comments, the trial court noted that both defendant and defense counsel had been “essentially . . . both telling [the court] the same thing” about their conversations about a possible plea. The trial court stated that defense counsel had advocated “at a very high level of professionalism” on defendant’s behalf. Regarding the plea negotiations, the trial court stated that “it was fair for [defense counsel] to advise [defendant] that [he] had a high likelihood of receiving a misdemeanor, although there was no guarantee.” From the trial court’s perspective, defendant’s “likelihood of receiving a misdemeanor was much higher if [he] pleaded no contest before going to trial than it would have been after trial if the evidence came out in the way that the parties were suggesting to [the court] and the jury found [him] guilty.” The trial court “did not promise you that [it] would reduce the charge to a misdemeanor and [defense counsel] knew that and she told [defendant] that.”

3. Analysis
4.
Defendant argues that he must be given an opportunity to withdraw his plea, because the trial court decided to impose a felony sentence after indicating that it would impose a misdemeanor sentence.

A trial court states an indicated sentence when it “informs a defendant ‘what sentence he [or she] will impose if a given set of facts is confirmed, irrespective of whether guilt is adjudicated at trial or admitted by plea.’ [Citation.]” (People v. Avignone (2017) 16 Cal.App.5th 1233, 1243-1244.)

Here, there is nothing in the record to support defendant’s claim that the trial court indicated that it would impose any particular sentence. Defendant expressly recognized in the plea form that the trial court had not given an indicated sentence. During the change of plea hearing, the trial court gave no indication as to what sentence it would impose or how it intended to rule on the section 17 motion. Defendant does not cite to anything in this portion of the record to support his argument.

Instead, defendant relies on statements made at the hearing on the motion to withdraw his plea. But they do not support his claim. In response to defendant’s statement that she had misled him into pleading no contest, defense counsel stated that she had evaluated the strength of the defense case and advised him that “it would be more likely that [he] could get a misdemeanor from this case from an open plea than from a jury trial.” She “thought that this Court wouldn’t make . . . such a clean indication to me . . . unless the Court believed that a misdemeanor . . . was really within the realm of possibility.” She advised defendant that there were no promises that he would be convicted of a misdemeanor if he entered a plea and she told him that she “did not know what was going to happen.” Though defense counsel thought it was “likely” the motion would be granted, she acknowledged that she was “wrong.” Defense counsel never stated at this hearing that the trial court had given an indicated sentence either to her or to defendant. Defendant himself stated that defense counsel had told him that there was a “very high probability” that the offense would be reduced to a misdemeanor, thus acknowledging that there had been no indicated sentence. Nothing in this transcript establishes that the trial court informed defendant or his counsel that his motion to reduce his offense to a misdemeanor would be successful. Given that we have concluded that there was no indicated sentence in the present case, the issue of whether a defendant was entitled to withdraw his plea on this ground is moot.

Relying on section 1018, defendant next argues that the trial court abused its discretion when it denied his request to withdraw his plea. He asserts that he “only agreed to plead once the court gave what counsel described as ‘such a clean indication.’ ”

Section 1018 provides in relevant part: “On application of the defendant . . . within six months after an order granting probation is made if entry of judgment is suspended, the court may . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.” “ ‘ “[T]the withdrawal of such a plea rests in the sound discretion of the trial court and may not be disturbed unless the trial court has abused its discretion.” [Citation.] . . .’ It is the defendant’s burden to produce evidence of good cause by clear and convincing evidence. [Citation.]” (People v. Wharton (1991) 53 Cal.3d 522, 585.)

Here, defendant’s motion to withdraw his plea was based on ineffective assistance of counsel. Even if the motion had been based on the existence of an indicated sentence, defendant provided no evidence that the trial court informed him or defense counsel of an indicated sentence. Since he failed to show good cause to withdraw his plea, the trial court did not abuse its discretion when it denied the motion.

C. Probationary Search Condition
D.
The trial court imposed the following probation condition: “He shall submit his person, place of residence, vehicle, and any property under his control to search at any time without a warrant by any peace officer or law enforcement agency.” Defendant did not object to this condition.

Defendant contends that the term “property” includes electronic devices, such as cell phones, laptops, and computers, and thus the probation condition is unconstitutionally overbroad on its face because it impinges on his right to privacy

“ ‘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.]” (People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1175 (Ebertowski).) We review the constitutionality of a probation condition de novo. (In re Sheena K. (2007) 40 Cal.4th 875, 889.)

The case of In re I.V. (2017) 11 Cal.App.5th 249 (I.V.) is instructive. In I.V., the minor challenged the probation condition that required him to submit his “ ‘person, property, or vehicle, and any property under [his] immediate custody or control to search at any time, with or without probable cause, with or without a search warrant.’ ” (Id. at pp. 259-260.) He argued that the condition included the searches of electronic devices and data, and thus was unconstitutionally vague and overbroad on its face. (Id. at p. 260.)

The I.V. court concluded that the minor had forfeited his overbreadth claim, because he failed to object at the dispositional hearing, and thus the court was unable to examine the record to determine whether the condition was sufficiently tailored to meet the government’s interest in rehabilitation. (I.V., supra, 11 Cal.App.5th at p. 261.) However, the I.V. court found that the condition was not vague when properly construed. The court reasoned that “probation conditions authorizing searches of a probationer’s person, property, and vehicle are ‘routinely imposed.’ [Citation.] In other wardship proceedings, juvenile courts have expressly imposed specific electronics and password conditions in addition to the standard search condition where they intend to subject a minor’s electronic data to search. [Citations.] There is no indication in this case that in imposing the standard search condition, the juvenile court intended to authorize searches of I.V.’s electronic data.” (Id. at pp. 261-262.) Thus, the court concluded that “[r]easonably construed, the search condition applies only to tangible physical property, and not to electronic data.” (Id. at p. 262.)

Assuming that defendant has not forfeited his overbreadth challenge, we conclude that it has no merit. We agree with the analysis in I.V. The challenged probation condition in this case could not reasonably be construed to require defendant to provide access to any electronic devices in his possession. Though electronic devices fall within the definition of the term “property,” a probationer would not be required to provide a password or other access code to allow for the review of data on the device without an express electronic search probation condition. That courts have imposed electronic search conditions in addition to the standard search conditions indicates an understanding that electronic devices and the data on those devices are to be treated as a distinctive class of property. (See e.g., Ebertowski, supra, 228 Cal.App.4th at pp. 1173-1174; People v. Guzman (2018) 23 Cal.App.5th 53, 57-58.) As in I.V., here, there is also no indication that the trial court intended to authorize searches of defendant’s electronic data when it imposed the standard search condition. Since we conclude that the condition does not authorize the search of electronic devices, defendant’s overbreadth challenge is moot.

IV. Disposition

The order is affirmed.

 

_______________________________

Mihara, J.

WE CONCUR:

______________________________

Premo, Acting P. J.

______________________________

Bamattre-Manoukian, J.

People v. Wang

H044600