Opinion
D072470
04-04-2018
THE PEOPLE, Plaintiff and Respondent, v. JEREMY CROWL, Defendant and Appellant.
Sandra Payne Hagood, 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, Arlene Sevidal, Randall Einhorn, and Elizabeth Renner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD271169) APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed. Sandra Payne Hagood, 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, Arlene Sevidal, Randall Einhorn, and Elizabeth Renner, Deputy Attorneys General, for Plaintiff and Respondent.
Jeremy Crowl pleaded guilty to attempted grand theft. (Pen. Code, §§ 487, subd. (a), 664.) The trial court suspended imposition of his sentence for three years and granted formal probation. As a condition of his formal probation, Crowl was required to "[s]ubmit [his] person, vehicle, residence, property, personal effects, computers, and recordable media . . . to search at any time with or without a warrant, and with or without reasonable cause, when required by [the probation officer] or law enforcement officer."
Further statutory references are to the Penal Code.
Crowl appeals. He contends the condition requiring him to submit his "computers" and "recordable media" to warrantless search is unreasonable, unconstitutionally overbroad, and impermissibly burdens the constitutional rights of third parties. We conclude the challenged condition is reasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and Crowl's remaining contentions were forfeited by his failure to raise them in the trial court. We therefore affirm.
FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Because Crowl appeals a judgment following his guilty plea, we draw this statement of facts from the charging document, the plea agreement, and the probation report. Additional facts will be discussed where relevant in the following section.
On March 2, 2017, Crowl went to a Walmart store in Poway, California with another person, Erin Hutchins. They walked around the store and placed approximately $1,100 worth of merchandise in a shopping cart. Hutchins went to a checkout line while Crowl loitered with the shopping cart nearby. Crowl eventually attempted to leave the store with the cart, but he was met by a Walmart greeter who asked for his receipt. Crowl went back toward the checkout lines with the cart, but he eventually headed for a different exit. Two Walmart employees greeted Crowl and asked again for his receipt. Crowl left the store without the cart. Meanwhile, Hutchins purchased three items and left the store as well. In his guilty plea, Crowl admitted that he "entered a Walmart and attempted to take items valued more than $950 with intent to permanently deprive them [from their] owners."
According to his probation report, Crowl suffered two juvenile adjudications. As to the second, Crowl performed unsatisfactorily on probation and admitted probation violations six times over three years. These violations included failure to remain law abiding, failure to attend school, failure to report to his probation officer, curfew violations, and testing positive for marijuana. Later, as an adult, Crowl pleaded guilty to first degree robbery (§§ 211, 212.5, subd. (a)) and was sentenced to four years in prison.
The probation report noted that Crowl "is likely to have a better chance of success in the community if [he] is managed on formal probation with intensive monitoring and case planning to address identified needs." These needs included being more aware of the feelings and rights of others, avoiding exposure to high risk situations, and maintaining employment.
DISCUSSION
I
At sentencing, Crowl objected to the electronic search condition because there was no relationship between the crime and "recordable media." The prosecutor responded that the electronic search condition was warranted because Crowl committed his crime with an accomplice and accomplices often communicate through electronic devices. The prosecutor acknowledged there was no evidence of such communication in this case, but she believed the condition was nonetheless warranted. The court agreed with the prosecutor: "I think there should be a Fourth waiver, a full Fourth waiver in effect. It's true this was a case involving Mr. Crowl and one other person, and I think that the Fourth waiver should apply to everything that he's in possession of, because he has a pretty extensive criminal history now. And law enforcement should have the opportunity to check that if they wish."
"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.' " (People v. Moran (2016) 1 Cal.5th 398, 402 (Moran).)
"When an offender chooses probation, thereby avoiding incarceration, state law authorizes the sentencing court to impose conditions on such release that are 'fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and . . . for the reformation and rehabilitation of the probationer.' (§ 1203.1, subd. (j).) Accordingly, [the Supreme Court has] recognized a sentencing court has 'broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to . . . section 1203.1.' [Citation.] But such discretion is not unlimited: '[A] condition of probation must serve a purpose specified in the statute,' and conditions regulating noncriminal conduct must be ' "reasonably related to the crime of which the defendant was convicted or to future criminality." ' [Citation.] 'If the defendant finds the conditions of probation more onerous than the sentence he would otherwise face, he may refuse probation' [citation] and simply 'choose to serve the sentence' [citation]." (Moran, supra, 1 Cal.5th at pp. 402-403.)
II
Crowl first challenges the electronic search condition as unreasonable under Lent, supra, 15 Cal.3d 481. Although Crowl objected below only to the inclusion of "recordable media," we will consider his reasonableness challenge to both portions of the electronic search condition ("computers" and "recordable media") in the absence of any argument by the Attorney General that he has forfeited his contention in this regard. (See Moran, supra, 1 Cal.5th at p. 404, fn. 7.)
We review the reasonableness of probation conditions for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) "That is, a reviewing court will disturb the trial court's decision to impose a particular condition of probation only if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable." (Moran, supra, 1 Cal.5th at p. 403.)
"Generally, '[a] condition of probation will not be held invalid 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.]' [Citation.] This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (Olguin, supra, 45 Cal.4th at pp. 379-380; see Lent, supra, 15 Cal.3d at p. 486.)
Here, we need not consider the first two Lent prongs because we conclude the electronic search condition does not satisfy the third Lent prong under the circumstances of this case. The third Lent prong covers probation conditions that are not reasonably related to future criminality. (Olguin, supra, 45 Cal.4th at p. 379; Lent, supra, 15 Cal.3d at p. 486.) Outside the digital context, it is well settled that search conditions are permissible under this prong because they deter future criminality and allow for more effective supervision of probationers. "For example, probation conditions authorizing searches 'aid in deterring further offenses . . . and in monitoring compliance with the terms of probation. [Citations.] By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers.' [Citation.] A condition of probation that enables a probation officer to supervise his or her charges effectively is, therefore, 'reasonably related to future criminality.' " (Olguin, at pp. 380-381.)
The issue of whether and to what extent electronic search conditions are reasonable under the third Lent prong is currently pending before the Supreme Court. (See, e.g., In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923.) Pending further guidance from the Supreme Court, we will adhere to this court's recent discussion of the third prong in People v. Trujillo (2017) 15 Cal.App.5th 574, review granted November 29, 2017, S244650 (Trujillo), which affirmed imposition of an electronic search condition under similar circumstances.
Trujillo explained that the reasonableness of an electronic search condition, under the third Lent prong, will depend on the particular facts surrounding the crimes at issue and the defendant's history. "The primary focus of Lent's third-prong jurisprudence has been on the particular facts and circumstances of the case before the court, rather than on establishing bright-line rules. [Citations.] This makes sense given that the appropriateness of a particular probation condition necessarily depends on a myriad of tangible and intangible factors before the trial court, including the defendant's particular crime, criminal background, and future prospects. It is for the trial court, with the assistance of the probation officer and other experts, to determine the probation conditions that will permit effective supervision of the probationer." (Trujillo, supra, 15 Cal.App.5th at p. 584, review granted.)
In affirming the electronic search condition at issue in that appeal, Trujillo emphasized the particular facts in the record that supported the need for intensive monitoring while the defendant was on probation: "Although these were first-time offenses, the record shows Trujillo has substantial risk factors relevant to reoffending, including significant untreated alcohol abuse, social isolation, family history of suicide (one of which he witnessed), family members who had been gang members, and economic stress. As reflected in the probation reports, this young man appears to be at a crossroads. He can choose law-abiding behavior or he can slip into continued criminal conduct that presents a substantial danger to public safety. The court imposed the electronics-search condition with the awareness of these facts and the probation department's conclusion that Trujillo was at risk and would require close supervision of his daily activities to support a successful probation." (Trujillo, supra, 15 Cal.App.5th at p. 583, review granted.)
Here, Crowl's need for intensive supervision while on probation is even more apparent than in Trujillo. Crowl has suffered two juvenile adjudications and an adult conviction for a serious and violent felony, unlike the first-time offender in Trujillo. While a juvenile, Crowl was placed on probation, but he proved unable to comply with his probation conditions. He admitted six probation violations over three years. His current offense, as well as his prior crimes, appear to have involved accomplices. The probation report in this case noted that Crowl required "intensive monitoring" to promote his specific goals of being more aware of the feelings and rights of others, avoiding exposure to high risk situations, and maintaining employment. As the court explained, Crowl "has a pretty extensive criminal history," and his probation officers should have the opportunity to monitor his activities to ensure he does not commit further crimes or violate his other conditions of probation. Under these circumstances, we cannot say the trial court abused its discretion by imposing an electronic search condition. (See Trujillo, supra, 15 Cal.App.5th at p. 584, review granted ["The trial court had a reasonable basis to conclude the most effective way to confirm Trujillo remains law abiding is to permit his electronic devices to be examined, rather than relying on a meeting or a telephone conversation."]; see also In re J.E. (2016) 1 Cal.App.5th 795, 801, review granted Oct. 12, 2016, S236628 (J.E.) [affirming imposition of electronic search condition on minor who required "intensive supervision"].)
Crowl's reliance on In re Erica R. (2015) 240 Cal.App.4th 907 (Erica R.), in which the court reversed the imposition of an electronic search condition under Lent, is unavailing. Erica R. involved a minor who admitted misdemeanor possession of ecstasy. (Id. at p. 909.) The minor does not appear to have had any criminal history. (See id. at p. 910.) The juvenile court imposed an electronic search condition because it believed many minors tend to post information about their drug use on social media and the electronic search condition would be a way to monitor the minor's drug use. (Ibid.) The reviewing court found the electronic search condition unreasonable under Lent. As to Lent's third prong, the relationship to future criminality, the court noted that the record did not reflect any facts regarding the minor's use of social media. (Id. at p. 913.) It reasoned, "Accordingly, '[b]ecause there is nothing in [Erica's] past or current offenses or [her] personal history that demonstrates a predisposition' to utilize electronic devices or social media in connection with criminal activity, 'there is no reason to believe the current restriction will serve the rehabilitative function of precluding [Erica] from any future criminal acts.' " (Ibid., quoting In re D.G. (2010) 187 Cal.App.4th 47, 53.)
We disagree with Erica R. to the extent it requires a specific showing that electronic devices would likely be used in connection with future criminal activity under the third Lent prong. Instead, as our Supreme Court has held, "A condition of probation that enables a probation officer to supervise his or her charges effectively is . . . 'reasonably related to future criminality.' " (Olguin, supra, 45 Cal.4th at pp. 380-381; Trujillo, supra, 15 Cal.App.5th at p. 584, review granted; J.E., supra, 1 Cal.App.5th at p. 801, review granted; In re P.O. (2016) 246 Cal.App.4th 288, 295 (P.O.).) Where, as here, the probationer requires intensive supervision to monitor his compliance with the terms of probation, an electronic search condition may be reasonable even without evidence that an electronic device is likely to be used in connection with future criminal activity. Crowl has not shown the electronic search condition is unreasonable under the circumstances here.
III
Crowl also contends the electronic search condition is unconstitutionally overbroad. " 'A probation condition may be "overbroad" if in its reach it prohibits constitutionally protected conduct.' [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.' " (In re R.S. (2017) 11 Cal.App.5th 239, 246, review granted July 26, 2017, S242387 (R.S.).)
As an initial matter, we must consider the Attorney General's argument that Crowl forfeited his contention by failing to object on constitutional grounds in the trial court. For reasons we will explain, we agree that this contention has been forfeited.
"In general, the forfeiture rule applies in the context of sentencing as in other areas of criminal law." (In re Sheena K. (2007) 40 Cal.4th 875, 881 (Sheena K.).) Even constitutional challenges are forfeited unless they mount a facial challenge, i.e., "a challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed in the trial court[.]" (Id. at p. 887; see People v. Pirali (2013) 217 Cal.App.4th 1341, 1345 ["A Court of Appeal may review the constitutionality of a probation condition, even when it has not been challenged in the trial court, if the question can be resolved as a matter of law without reference to the sentencing record."].)
Crowl does not contend the electronic search condition is facially unconstitutional. Instead, he argues, "because the appellant's crime had nothing to do with computers, cell phones, or social media, the only conceivable purpose of the electronic search condition is to monitor the defendant in furtherance of the general purposes of probation . . . . But such a general purpose can be accomplished by less intrusive means . . . ." Because Crowl's challenge requires examination of the record to determine whether the electronic search condition is overbroad under the circumstances here, it is not a facial challenge and can be forfeited by failure to object in the trial court.
Crowl did not raise a constitutional objection in the trial court. He claims that his objection to the electronic search condition as unreasonable under Lent was sufficient to preserve his constitutional argument as well. We disagree. The two challenges implicate different principles. A Lent challenge, as we have discussed, focuses on the reasonableness of the condition in light of the purposes of probation. An overbreadth challenge focuses on the closeness of the fit between the legitimate purpose of the condition and the burden it imposes on the defendant's constitutional rights. Because Crowl did not object on overbreadth grounds, the trial court did not have the opportunity to consider any burden on Crowl's constitutional rights and no record on that issue was developed. The record is silent, for example, on the number and type of computers and recordable media that would be subject to the condition, what Crowl stores on those devices, and how Crowl uses those devices. Crowl therefore forfeited his argument by failing to object in the trial court. (See R.S., supra, 11 Cal.App.5th at p. 247, review granted; People v. Smith (2017) 8 Cal.App.5th 977, 987 (Smith).)
Crowl claims that the prosecution understood that his objection "encompass[ed] an objection on Fourth Amendment grounds as well" because the prosecution stated that Crowl "should in fact waive his Fourth Amendment rights to cell phones." But the prosecution's general reference to the Fourth Amendment merely reflected that a search condition was at issue, not that the prosecution (or the court) understood that Crowl had objected on grounds of overbreadth. Crowl also relies on People v. Valdivia (2017) 16 Cal.App.5th 1130, review granted February 14, 2018, S245893 (Valdivia), but that opinion did not consider forfeiture of an overbreadth objection. --------
Crowl also claims that he was not required to object in the trial court because any objection would have been futile in light of the trial court's rejection of his Lent challenge. (See In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033 ["[W]here an objection would have been futile, the claim is not waived."].) Crowl has not shown a constitutional objection would have been futile. The trial court considered his Lent objection thoughtfully, and there is no indication it would not have given due consideration to a constitutional challenge as well. And, as noted, the principles of each are distinct. A trial court could find a probation condition valid under Lent but unconstitutionally overbroad under the facts of a given case. (See, e.g., P.O., supra, 246 Cal.App.4th at p. 298.) An objection on constitutional grounds would not have been futile.
Because we conclude Crowl has forfeited his constitutional challenge, we need not consider the United States Supreme Court's discussion of the unique issues raised by searches of modern cell phones in Riley v. California (2014) ___ U.S. ___ . The record does not show that Crowl owns a cell phone, let alone what may be stored on it. We note that if further information comes to light that would render the electronic search condition unconstitutional, Crowl may petition the trial court to modify the condition. (§ 1203.3, subd. (a); see J.E., supra, 1 Cal.App.5th at p. 806, review granted.)
IV
Crowl further contends the electronic search condition impermissibly affects the constitutional rights of third parties. For the same reasons as explained directly above, Crowl has forfeited this contention by failing to object in the trial court. (Valdivia, supra, 16 Cal.App.5th at p. 1139, review granted; see Sheena K., supra, 40 Cal.4th at p. 881; R.S., supra, 11 Cal.App.5th at p. 247, review granted; Smith, supra, 8 Cal.App.5th at p. 987.) Crowl has not developed any record that would demonstrate a burden on third parties based on the electronic search condition at issue here. Moreover, "any speculative impact on third parties is not a reason to strike the condition since [Crowl] lacks standing to assert the constitutional rights of third parties." (In re Q.R. (2017) 7 Cal.App.5th 1231, 1237, review granted Apr. 12, 2017, S240222.)
DISPOSITION
The judgment is affirmed.
GUERRERO, J. WE CONCUR: NARES, Acting P. J. AARON, J.