Opinion
D073845
11-28-2018
THE PEOPLE, Plaintiff and Respondent, v. OSCAR CASTILLO, Defendant and Appellant.
James M. Crawford, 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, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD270334) APPEAL from a judgment of the Superior Court of San Diego County, Michael S. Groch, Judge. Affirmed. James M. Crawford, 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, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Appellant.
Defendant Oscar Castillo pleaded guilty to one count of felony grand theft by an employee, unlawfully stealing property from his employer in excess of $950. (Pen. Code, § 487, subd. (b)(3).) In exchange for the plea, the prosecutor at sentencing agreed to a grant of formal probation and the reduction of the offense to a misdemeanor upon (i) payment of restitution to defendant's former employer, Nordstrom's, in an amount to be determined, and (ii) a minimum of 24 months of successful probation. The plea agreement further provided that, if and when defendant successfully completed probation and paid restitution, the prosecutor would not oppose a motion by defendant to reduce the conviction to a misdemeanor.
The record shows defendant also went by the name of "Charles D. Reed." Defense counsel represented Oscar Castillo was defendant's "true name," and the felony complaint against defendant stated his name as "Charles Dale Reed . . . aka Oscar Castillo" with a notation of "T/N" after Castillo, ostensibly meaning "true name."
At the plea hearing, the court indicated defendant would face no more than 90 days in custody, "with strong consideration for alternatives to custody or no custody at all." At a subsequent contested restitution hearing, the court found defendant owed $11,836.88 to Nordstrom's.
Defendant timely appealed from the judgment. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), appointed counsel filed a brief on behalf of defendant setting forth the facts of the case and requesting this court review the entire record. Appointed counsel did not include any possible, but not arguable, issues to assist us in conducting our Wende review pursuant to Anders v. California (1967) 386 U.S. 738.
On this court's own June 29, 2018 motion, defendant was notified by letter he had 30 days to file a supplemental brief on his own behalf. On July 30, 2018, this court's letter was returned, stamped: "return to sender, not deliverable as addressed, unable to forward."
In connection with our Wende review, on September 26, 2018, we sought supplemental briefing regarding whether the trial court properly imposed the requirement in probation condition 6n that defendant submit "computers, and recordable media . . . to search at any time with or without a warrant, and with or without reasonable cause" (hereinafter, electronic search condition). The record shows defendant objected to this particular requirement at sentencing, noting as follows: "Under No. 6, if the court is ready for me to address some of the other probation conditions, I would ask that the Fourth Waiver not apply to computers or recordable media. [¶] This case did not involve phones or the Internet or any other type of sophisticated electronic means; so I don't believe that there is any nexus, and I don't believe it meets the [People v.] Lent [(1975) 15 Cal.3d 481, 486, fn. omitted (Lent), superseded on another ground by Proposition 8 as stated by People v. Wheeler (1992) 4 Cal.4th 284, 290-295] requirements to include those with his Fourth Waiver." The record further shows the court did not expressly rule on this objection when imposing this portion of 6n as a condition of probation.
We recognize a somewhat similar issue is currently pending before our high court in such cases as In re Ricardo P. (2015) 241 Cal.App.4th 676 (Ricardo P.) (rev. granted Feb. 17, 2016, S230923) and People v. Trujillo (2017) 15 Cal.App.5th 574 (Trujillo) (rev. granted Nov. 29, 2017).
One day after our September 26 request for supplemental briefing, appointed counsel filed a supplemental brief. Respondent the People filed a supplemental brief on November 9, 2018.
As we explain, we conclude the court properly exercised its discretion in imposing the electronic search condition under the facts of this case. We further conclude, based on our review of the entire appellate record, there are no other arguable issues on appeal. Affirmed.
OVERVIEW
Defendant began working at the fine jewelry counter of Nordstrom's in about September 2016. In December 2016, loss prevention officers became suspicious that defendant was stealing merchandise. On December 27, security footage showed defendant processing a customer return of a ring valued at about $650. Instead of following store policy, which required him to put the ring in the ring box and place it in a secured jewelry case, defendant left the fine jewelry department with both items, and when he returned he threw the ring box in the garbage and ostensibly kept the ring.
On January 11, 2017, while also working in the fine jewelry department, defendant concealed two watches with a combined value of more than $400, and a bracelet worth about $65. Defendant then left the store without paying for the three items. Loss prevention immediately stopped defendant and escorted him back into the store.
The record shows Laurel Townes, a regional investigator for Nordstrom's loss prevention team, interviewed defendant on January 11. Defendant admitted to stealing items from Nordstrom's "to pay bills." At the request of Townes, defendant then completed from memory a handwritten inventory of the items he had stolen, to the best of his recollection, which defendant then signed. From defendant's own inventory, Nordstrom's determined defendant stole items valued at $22,372.49.
After his arrest, defendant waived his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and admitted he stole jewelry from his employer. The record shows he "told the officers that he stole about every other day that he worked and sold the items on [the Internet] and to his friends to help pay his bills. He also admitted that there were items still in his apartment [that he had not yet sold]. He consented to a search of his apartment. The police recovered approximately 21 items from a desk in defendant's apartment. They logged the items as evidence and returned them to Nordstrom," who determined the total value of the recovered items was $10,534.75.
A subsequent "final inventory" of missing merchandise was conducted by Nordstrom's, which it claimed "corroborated the defendant's estimate of what he stole. This inventory, [a]long with the defendant's own calculation of loss, determined that the defendant stole approximately $26,787.49." Although Nordstrom may have sustained losses of $16,252.74 (i.e., the final inventory amount less the value of items recovered), it only requested restitution based on the amount defendant admitted to stealing in connection with his January 11 interview with Townes, less the value of the recovered items. As noted, the court pursuant to former Penal Code section 1202.4, subdivision (f) ordered defendant to pay restitution of $11,836.88, with minimum monthly payments of $50.
Subdivision (f) of former Penal Code section 1202.4 provides in relevant part, "Except as provided in subdivisions (q) and (r), in every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution." Penal Code section 1202.4 was amended effective January 1, 2018. (See Stats.2017, c. 101 (S.B. 756), § 1.) There was no substantive change to former subdivision (f) as a result of this amendment. --------
DISCUSSION
A. The Electronic Search Condition was Reasonably Related to Defendant's Conviction
1. Guiding Principles
As the parties recognize, courts have "broad discretion in fashioning terms of supervised release, in order to foster the reformation and rehabilitation of the offender, while protecting public safety." (People v. Martinez (2014) 226 Cal.App.4th 759, 764 (Martinez).) We review the imposition of a particular probation condition for abuse of discretion. (Ibid.) The trial court abuses its discretion if it imposes a condition that is arbitrary, capricious, or exceeds the bounds of reason. (Ibid.)
A probation condition is not an invalid abuse of discretion "unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .' [Citation.]" (Lent, supra, 15 Cal.3d at p. 486, fn. omitted.) A probation condition is not invalid unless all three prongs are satisfied. (People v. Olguin (2008) 45 Cal.4th 375, 379.)
2. Analysis
Defendant contends the imposition of the electronic search condition under the facts of his case was unreasonable because there was no relationship between his conviction for grand theft by an employee and his use of "electronic storage devices, including, but not limited to, cell phones and computers," and because the condition was not reasonably related to future criminality. Applying the Lent test, because we disagree with defendant's former contention, we need not address the latter issue.
Indeed, the record unambiguously shows that defendant admitted to selling on the Internet "quite a bit of what he had stolen" from the fine jewelry department. Because there was a nexus between defendant's conviction and the imposition of the electronic search condition, we conclude the first prong of the Lent test is not satisfied; and, as such, that the court properly exercised its broad discretion in imposing this condition on defendant. (See Martinez, supra, 226 Cal.App.4th at p. 764; see also People v. Welch (1993) 5 Cal.4th 228, 234 (Welch) [noting a trial court violates the Lent test "when its determination is arbitrary or capricious or ' "exceeds the bounds of reason, all of the circumstances being considered" ' [citation]"].)
B. Defendant Forfeited his Fourth Amendment Challenge to the Electronic Search Condition and his Challenge, in any event, Lacks Merit
1. Guiding Principles
"Following a defendant's conviction of a crime, the sentencing court may choose among a variety of dispositional options. One option is to release the offender on probation. 'Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation.' [Citation.] A grant of probation is 'qualitatively different from such traditional forms of punishment as fines or imprisonment. Probation is neither "punishment" [citation] nor a criminal "judgment" [citation]. Instead, courts deem probation an act of clemency in lieu of punishment [citation], and its primary purpose is rehabilitative in nature [citation].' " (People v. Moran (2016) 1 Cal.5th 398, 402.) That is, "a grant of probation is an act of grace or clemency, and an offender has no right or privilege to be granted such release." (Ibid.) "Stated differently, '[p]robation is not a right, but a privilege.' " (Ibid.)
" '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 constitutionally overbroad.' [Citation.] '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.' " (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.)
Our high court in In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.) considered whether the forfeiture rule applied to a constitutional challenge to a probation condition on its face that was raised for the first time on appeal. (Id. at p. 878.) The Sheena K. court noted that "[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. [Citations.]" (Id. at p. 887.) The court created an exception to the forfeiture rule for a first-time appellate claim that a probation condition was unconstitutionally vague or overbroad on its face. (Id. at pp. 887-889.) The court reasoned that such a challenge poses "an important question of law" (id. at p. 888) and is "easily remediable on appeal by modification of the condition." (Ibid.) In reaching its conclusion, the Sheena K. court recognized that "review of abstract and generalized legal concepts" (id. at p. 885) was a "task that is well suited to the role of an appellate court" (ibid.), and that a reviewing court's consideration of a facial constitutional challenge and possible modification of a probation condition determined to be unconstitutional on its face "may save the time and government resources that otherwise would be expended in attempting to enforce a condition that is invalid as a matter of law." (Ibid.)
Our high court in Sheena K. cautioned, however, that its conclusion did "not apply in every case in which a probation condition is challenged on a constitutional ground." (Sheena K., supra, 40 Cal.4th at p. 889.) The court recognized that some probation conditions "may not be patently unconstitutional but may suffer nonetheless from vagueness or overbreadth," and that some constitutional defects "may be correctable only by examining factual findings in the record or remanding to the trial court for further findings." (Id. at p. 887.) The court thus clarified that not " 'all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." [Citation.] In those circumstances, "[t]raditional objection and [forfeiture] principles encourage development of the record and a proper exercise of discretion in the trial court." [Citation.]' [Citation.]" (Id. at p. 889.)
On appeal, a reviewing court exercises its independent judgment if the issue presents a pure question of law—i.e., it engages in a nondeferential de novo review—such as, on the question whether a probation condition is unconstitutionally overbroad on its face. (See In re Edward B. (2017) 10 Cal.App.5th 1228, 1236-1237; People v. Cromer (2001) 24 Cal.4th 889, 894.)
2. Analysis
For the first time on appeal, defendant contends the electronic search condition in 6n was unconstitutionally overbroad because it allowed "unfettered search and seizure by any law enforcement or probation officer of his electronic storage devices," despite the fact there (allegedly) was no relationship between his conviction in the instant case and such devices, and despite the fact such searches have no relationship to the state's interest in his rehabilitation.
Defendant thus is arguing that, under the particular facts of his case, the challenged electronic search condition is overbroad because there was no nexus between the condition's imposition and his conviction. Defendant, however, is not only incorrect regarding the lack of a nexus between his conviction and the electronic search condition, as we have noted, but he also forfeited this fact-based constitutional challenge by failing to object on those specific grounds in the trial court. (See Sheena K., supra, 40 Cal.4th at pp. 887-889; Welch, supra, 5 Cal.4th at p. 237; see also Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 [noting a "facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual"].)
Indeed, the record clearly shows that at his sentencing, defendant objected to the imposition of the electronic search condition only on the ground that "this case did not involve phones or the Internet or any other type of sophisticated electronic means." Defendant did not object on the basis that the electronic search condition was constitutionally overbroad — that it was not narrowly tailored in violation of his Fourth Amendment rights because it allowed for unfettered access to his electronic devices. For this reason alone, we reject this claim of error. (See Sheena K., supra, 40 Cal.4th at p. 881 [noting the " 'purpose of [the forfeiture] rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected' " in that forum].)
In any event, while the challenged electronic search condition imposed on defendant does not limit the types of searchable data, in our view this circumstance does not necessarily render its imposition facially unconstitutional. As noted, defendant, as a probationer, has a "diminished expectation of liberty and privacy as compared to an ordinary citizen. [Citation.]" (People v. Garcia (2017) 2 Cal.5th 792, 810.) "Inherent in the very nature of probation is that probationers 'do not enjoy "the absolute liberty to which every citizen is entitled." ' [Citation.] Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens." (United States v. Knights (2001) 534 U.S. 112, 119 (Knights).)
With respect to a Fourth Amendment challenge to the search condition, "[t]he touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined 'by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.' [Citation.]" (Knights, supra, 534 U.S. at pp. 118-119.) A defendant's "status as a probationer subject to a search condition informs both sides of that balance." (See id. at p. 119.)
Here, we conclude that, without any consideration of his individual circumstances, which, in any event, support the imposition of the electronic search condition in this case, defendant has not demonstrated the challenged probation condition necessarily imposes impermissible burdens on his constitutional rights.
Defendant contends that his case is similar to People v. Appleton (2016) 245 Cal.App.4th 717 (Appleton), which should inform our decision on this issue. We disagree. In Appleton, the court rejected a similar search condition by relying heavily on Riley v. California (2014) 573 U.S. at p. ___ (Riley), which held that police could not ordinarily search a smartphone incident to arrest, and that, absent other exigent circumstances, a warrant was required to make such a search. Riley therefore did not hold that electronic devices are immune from search, but only that they cannot be searched incident to lawful arrest as an ordinary exception to the warrant requirement. (See Riley, supra, 573 U.S. at p. ___, .)
However, the instant case does not involve an exception to the warrant clause, as was the case in Riley, but instead involves a specific probation condition imposed by the trial court that restricts the exercise of the constitutional rights of defendant, who must be supervised for rehabilitation and prevention of crime. This court in Trujillo, supra, 15 Cal.App.5th 574, and People v. Nachbar (2016) 3 Cal.App.5th 1122 (Nachbar), disagreed with Appleton and its conclusion that the privacy concerns voiced in Riley applied "in the context of evaluating the reasonableness of a probation condition." (Nachbar, at p. 1129.)
As we have noted ante, our high court has granted review in Trujillo and Nachbar pending resolution of Ricardo P., supra, 241 Cal.App.4th 676. Absent further direction, we continue to adhere to the views we expressed in Trujillo and Nachbar. Under the circumstances, even if the issue was not forfeited, we conclude the imposition of the electronic search condition on defendant was reasonable.
Finally, we have reviewed the record in accordance with Wende and have not found any other reasonably arguable appellate issues for reversal on appeal. (See Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
Defendant's judgment of conviction is affirmed.
BENKE, J. WE CONCUR: McCONNELL, P. J. DATO, J.