Opinion
D072175
02-06-2018
THE PEOPLE, Plaintiff and Respondent, v. NEXSAN GOWOLO, Defendant and Appellant.
Ashley N. Johndro, 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, A. Natasha Cortina, Annie Featherman Frasier and Lynne G. McGinnis, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD270518) APPEAL from a judgment of the Superior Court of San Diego County, Kathleen M. Lewis, Judge. Affirmed. Ashley N. Johndro, 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, A. Natasha Cortina, Annie Featherman Frasier and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Nexsan Gowolo of unlawful taking and driving a vehicle (Veh. Code, § 10851, subd. (a)). He admitted two prison prior convictions, although one was ultimately stricken. (Pen. Code, § 667.5, subd. (b).) The court denied probation and sentenced Gowolo to a split sentence in local custody pursuant to section 1170, subdivision (h)(5)(B). Gowolo was sentenced to the upper term of three years plus one year for a prison prior. The sentence was to be served with 30 months in custody, followed by 18 months under mandatory supervision.
All further statutory references are to the Penal Code unless otherwise specified.
Gowolo appeals challenging only two of the conditions of mandatory supervision. Although Gowolo objected to two different conditions in the trial court, he did not object to the two conditions about which he currently complains. Gowolo now challenges that portion of a search waiver which includes computers and recordable electronic media. He also challenges a condition which requires approval of the probation officer for travel out of the county and out of the state. Both conditions are claimed to be constitutionally overbroad.
We will reject Gowolo's facial challenge to the two conditions identified here. Neither is facially overbroad and any such challenge would require resort to the facts of the offense and Gowolo's extensive criminal record, and gang involvement. We will find both challenges have been forfeited by failure to timely object in the trial court.
STATEMENT OF FACTS
Gowolo does not challenge the admissibility or sufficiency of the evidence to support his conviction. We will include only a brief summary of the evidence to provide background for our discussion which follows.
In January 2017, K.W. lived in an apartment complex in San Diego. K.W. owned a 2015 Nissan Versa which she parked in the apartment complex's parking structure. The evening of January 11, K.W. arranged to meet a friend at a bar called the Lucky Lady. K.W. drove to the bar. The friend was waiting for her in his car outside of the bar. Gowolo, who K.W. recognized from college, was in the car with the friend.
When the three went into the bar, two Somali men, who K.W. did not know, joined them. Appellant and the men then said they had to leave because they brought drinks from outside into the bar. After discussing what they were going to do, K.W. and Gowolo went down the street, purchased some marijuana, and went to K.W.'s apartment. The friend and the two Somali men bought drinks and met them there.
At some point, K.W. told the men she was tired; it was time for them to leave. The men kept stalling. Around 11:30 p.m., K.W. said, "It's almost midnight. You guys got to leave." The men complained that they did not have a ride, and asked K.W. to take them home. K.W. refused, telling them they needed to find a Lyft or Uber to take them home. K.W. handed Gowolo her phone, and he ordered Lyft from the phone. K.W. told the men she was going to bed, went to her bedroom, and slammed the door shut. The men left. A few minutes later, K.W. received a text message from Lyft stating the men did not show up and Lyft was charging her a $5.00 cancellation fee.
The next morning, when K.W. got ready for work, she looked for her car keys, which she had left on the kitchen counter. K.W. could not find her keys anywhere in the apartment. She went to the parking structure. Her car was gone.
K.W. got Gowolo's phone number from her friend. She called him a few times but he did not answer. Gowolo finally called her back and told her, "I ain't got your shit. You need to go to Mexico. Don't call me no more. Leave me alone. I'm going to come where you live at. I know your name." Frightened, K.W. called the police. Appellant then sent her several text messages. One said, "You the police. Don't call me. I don't know shit. Feel me, bitch. Word on the street is your [car] is in TJ so go to Mexico and look for your shit. Don't text or call me. I don't fuck with you. If the police question me. You triv [crazy] and snitch. I know your full name and address, bitch." A second text message said, "[K.W.'s full name], like I told you, I don't have your shit. If the police question me on some bullshit, I told all my family and homies it's over for you. And I don't know who you got threatening me on Snapchat, but tell them it's mob game pistol play. Pull up."
Detectives from the San Diego Police Department obtained surveillance footage from the parking structure of K.W.'s apartment complex and from the Mexican border. The footage from the apartment complex shows that at 11:20 p.m., Gowolo and two other men are in the parking garage, walking towards K.W.'s car. Gowolo is holding K.W.'s car keys. A few minutes later, the car left the structure. The border footage shows K.W.'s car entering Mexico around midnight on January 12. Three African-American men are in the car.
On March 9, 2015, a Mexican citizen bought K.W.'s car after responding to an advertisement on Facebook. He did not know the car was stolen until Customs and Border Patrol agents stopped him on March 17 while he was crossing the border into California.
DISCUSSION
When the court imposed the split sentence in this case, Gowolo objected to two conditions of mandatory supervision, one relating to gang activity and one dealing with undocumented persons. His objections were overruled. Gowolo does not challenge the trial court's ruling on those objections. Significantly, the trial court and the probation officer determined Gowolo had been involved in gang activity in the past, a fact he does not challenge on appeal.
Gowolo now objects to the electronic portion of the search condition and to limitations on his ability to travel. He did not object to either condition in the trial court.
Recognizing the issue of forfeiture because of his failure to object, Gowolo now contends each condition is constitutionally overbroad. We will reject Gowolo's facial challenge to the conditions here. As we will explain, given Gowolo's long term and persistent problems with the law, his repeated failures to comply with probation conditions and his gang ties, we cannot say the conditions are facially overbroad. Gowolo certainly knew how to object to conditions he deemed inappropriate, but did not challenge the current conditions, with which he has agreed to abide. Gowolo's failure to object has deprived this court of a record from which we could rationally access the question of overbreadth. Accordingly, we will find the challenges to the two conditions forfeited for failure to object.
A. Legal Principles
When a court places a defendant on mandatory supervision as part of a split sentence, the court may impose conditions for that period of supervision by the probation officer. (§ 1170, subd. (h)(5)(A), (B); People v. Cruz (2012) 207 Cal.App.4th 664, 671.) Mandatory supervision after the custodial portion of a split sentence is thought to be more akin to parole than probation. However, conditions of such release are examined by the standards for probation supervision. (People v. Martinez (2014) 226 Cal.App.4th 759, 763.)
The grant of probation, or release under mandatory supervision is an act of leniency by the court. Its purpose is to aid in the defendant's rehabilitation and to prevent recidivist behavior. (People v. Moran (2016) 1 Cal.5th 398, 402.) Under People v. Lent (1975) 15 Cal.3d 481, "[a] condition of probation will not be 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 . . . .' " (Id. at p. 486; People v. Olguin (2008) 45 Cal.4th 375, 379.)
Where a condition of release imposes burdens on the exercise of constitutional rights, such condition must be reasonably tailored to serve the purpose of the condition without unnecessarily limiting otherwise lawful activity. The determination of overbreadth requires examination of the closeness of the fit between the legitimate purpose of the condition and the burden it places on the defendant's exercise of constitutional rights. (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.)
As an ordinary proposition, a defendant must timely object to probation (or conditional release) conditions in order to preserve the issue for review. (People v. Welch (1993) 5 Cal.4th 228, 237 (Welch).) Failure to timely object prevents the creation of a factual record of the issues surrounding the trial court's decision to impose the condition, and deprives the trial court of the opportunity to correct any errors. Thus, following the holding in Welch, appellate courts may apply the doctrine of forfeiture to decline to reach the merits of the newly raised challenge.
The principal exception to the timely objection rule of Welch, supra, 5 Cal.4th 228, is the case where the language of the condition itself reveals it is either vague or overbroad. (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) In Sheena K., the court dealt with a probation condition which forbid the minor from associating with persons disapproved of by the probation officer. The condition did not contain a knowledge or scienter provision; thus, the minor would not necessarily know who such persons might be, or with whom she was forbidden to associate. The court found such condition presented an issue of law which could be decided without reference to the factual record on appeal. The court also restated its position that the general rule requires timely objection to probation conditions. (Ibid.)
We generally review the trial court's imposition of conditions of release under the abuse of discretion standard. (People v. Appleton (2016) 245 Cal.App.4th 717, 723.)
B. Analysis
None of the conditions challenged here suffer from the facial defect as did the condition in Sheena K., supra, 40 Cal.4th 875. As we will discuss with each of the conditions, we cannot tell if the condition is overbroad without examining its purpose as it relates to Gowolo, and what burdens it might place on his otherwise lawful exercise of his rights. The lack of timely objection has denied us the record we need to make an as applied evaluation. However, we do have a substantial amount of information about Gowolo generally.
We know Gowolo has been constantly in conflict with the law since he was a juvenile. He has had multiple grants of probation and many violations of his probation. He was twice sent to prison after multiple revocations.
The combination of lengthy and persistent criminal activity, gang ties, threats of violence in the past and the current offense clearly demonstrate the need for intensive supervision of Gowolo when he is released from custody. On this record, we cannot resolve the issue of potential overbreadth without reference to the facts of the offense and Gowolo's background, which were not raised in the trial court.
1. The Electronic Search Condition
Relying principally on Riley v. California (2014) ___ U.S. ___ , Gowolo argues the electronic search condition unnecessarily intrudes on the privacy interests recognized in Riley. The court in Riley dealt with the search of a smart phone incident to lawful arrest. The court concluded such exception to the warrant clause of the Fourth Amendment could not be justified in searching the phone. Such devices are not weapons and do not reasonably present police with the risk of destruction of evidence. Thus, given the substantial privacy interest in electronic devices and that searches could not be justified merely as incident to arrest, the court ruled a search warrant should have been obtained. The Riley case did not address any issues regarding probation and parole search conditions. Therefore, Riley does not control the outcome of this analysis.
We have previously discussed the electronic search condition in connection with defendants who presented significant supervision issues in probation. In People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted December 14, 2016, S238210 and People v. Trujillo (2017) 15 Cal.App.5th 574, review granted November 29, 2017, S244650, we rejected similar arguments to that presented by Gowolo. We are aware the Supreme Court has granted review in those cases and in numerous other cases pending resolution of In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted February 17, 2016, S230923. Pending further guidance from our Supreme Court we continue to adhere to the views expressed in Nachbar and Trujillo.
2. Travel Restrictions
As we have noted, the trial court imposed a condition which required the probation officer's approval for Gowolo to travel outside the county and outside the state. Again, we cannot find this condition overbroad in the absence of a factual record regarding the purposes of the restriction and its impact on Gowolo's rights.
We do know that in the present case, Gowolo took the stolen car to Mexico where he left it to ultimately be sold to an innocent buyer in Mexico. We also know he regularly failed to report to probation officers in the past and has repeatedly violated probation. Absent objection and the creation of a record in the trial court, we cannot determine that the travel restrictions in this case were not appropriately tailored to the goal of supervision of this defendant.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. I CONCUR: NARES, J. Aaron, J., Concurring in the result.
I agree with the majority that the conditions of mandatory supervision at issue, the search waiver of computers and recordable electronic media and the condition requiring appellant's probation officer's approval for travel out of the state and out of the country, are not facially overbroad.
I would conclude that appellant has forfeited any "as applied" challenge to the conditions because he failed to object to the conditions at the time the court imposed them. I would not address the merits of appellant's challenges.
I specifically do not join in parts B.1 and B.2 of the majority opinion.
AARON, J.