Opinion
D072359
04-19-2018
THE PEOPLE, Plaintiff and Respondent, v. FRANKIE KIRVEN, Defendant and Appellant.
Lindsey M. Ball, 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, Barry Carlton and Mary Katherine Strickland, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCE369129) APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed. Lindsey M. Ball, 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, Barry Carlton and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
Frankie Kirven pleaded guilty to second degree robbery. The court sentenced him to 365 days in county custody and three years' formal probation. On appeal, Kirven challenges two probation conditions: (1) a waiver of his Fourth Amendment rights pertaining to electronic devices; and (2) a prohibition from possessing "any instrument used as a weapon." These challenges are without merit.
FACTUAL AND PROCEDURAL BACKGROUND
Current Robbery Offense
In March 2017, Kirven went to a convenience store, took a beer bottle, and put it in his pants. When the clerk told Kirven to put back the beer, he left the store. The clerk followed, demanding that he return the beer. The beer bottle then fell down one of Kirven's pant legs. Kirven picked up the bottle and swung it at the clerk. Kirven said, "Bitch, if you don't back up I'm going to bust you in the head with this bottle." The clerk called 911. Kirven fled. When he was arrested shortly after, officers found a beer bottle in Kirven's possession.
At the time of the robbery, Kirven was intoxicated and on summary probation. He pleaded guilty to second degree robbery in exchange for a stipulated sentence of 365 days in county jail. The prosecution also agreed not to charge a prior strike offense.
Probation Report
According to the probation report, 32-year-old Kirven has a lengthy criminal history dating back to 2003, and he repeatedly reoffended during formal and summary probation periods. In 2010, Kirven was sentenced to state prison, and following his release in July 2013 he was successfully supervised on parole for one year. However, after the parole period, he resumed his criminal conduct, including misdemeanor battery, possessing controlled substances, petty theft, and receiving stolen property. Kirven was on summary probation at the time of the current offense. Despite this extensive criminal history and that he was presumptively ineligible for probation based on his felony criminal record (Pen. Code, § 1203, subd. (e)(4)), the prosecution and defense agreed to a grant of formal probation.
A probation risk assessment study identified multiple factors relevant to the likelihood that Kirven would reoffend, including "Criminal Opportunity, Residential Instability, Social Adjustment Problems." The assessment recommended that Kirven have "intensive monitoring and case planning" to provide him with the best chance of "success in the community."
During his interview with the probation officer, Kirven acknowledged his history of being arrested when he has been drinking alcohol. However, he downplayed the seriousness of his current crime, and suggested it was "overcharged." Kirven asked to be placed into a structured residential program, rather than "being released and being homeless first."
After considering all relevant information, the probation officer opined that "based on [Kirven's] criminal record, his own admission of numerous alcohol related arrests, and his assessed level of risk for recidivism, [Kirven] could benefit from intensive monitoring and case planning to address his needs." (Italics added.) To achieve this goal, the probation officer recommended numerous probation conditions, including that Kirven participate in treatment as directed by his probation officer; seek employment; attend substance-abuse and anger-management programs; refrain from alcohol use; attend self-help meetings; and submit to chemical tests to determine blood alcohol content.
The probation officer also recommended the two probation conditions at issue here: (1) a Fourth Amendment waiver: "Submit 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"; and (2) a weapons prohibition: "Do not knowingly own, transport, sell or possess any weapon, firearm, replica firearm or weapon, ammunition, or any instrument used as a weapon." (Italics added.)
Sentencing Hearing
At the sentencing hearing, defense counsel objected to the portion of the Fourth Amendment waiver condition requiring Kirven to waive his Fourth Amendment rights relating to his "computers and recordable media" (electronics-search condition). Counsel said: "I do not believe there is any nexus to the alleged offense in this case. It was an Estes [(People v. Estes (1983) 147 Cal.App.3d 23, 27-28)] robbery, and so I would object to that portion of [the Fourth Amendment search waiver]." The court replied that it was evaluating Kirven's record to "see if there is something to suggest that I would delete that or I would keep it." At the conclusion of the hearing, the court rejected the challenge and imposed the full Fourth Amendment waiver condition.
Kirven also challenged the portion of the weapons-prohibition condition precluding him from possessing "any instrument used as a weapon." Defense counsel argued this language is "vague, because anything could potentially be a weapon." The court responded that the phrase meant Kirven could not "use" any object as a weapon, but it did not prohibit him from possessing items (such as a pen or a bottle) that are not typically considered to be weapons. The court thus rejected Kirven's vagueness objection and imposed the recommended condition.
DISCUSSION
I. Electronics-search Condition
Kirven contends the court erred in imposing the electronics-search condition because it is unreasonable under the California Supreme Court's standards (see People v. Lent (1975) 15 Cal.3d 481 (Lent)), and constitutionally overbroad under the reasoning of Riley v. California (2014) ___ U.S. ___ (Riley).
Similar issues are currently pending before the California Supreme Court in In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted February 17, 2016, S230923, and many other cases, including this court's decisions 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 cite to the Nachbar and Trujillo decisions solely for their persuasive value. (Cal. Rules of Court, rule 8.1115(e).)
A. Reasonableness Under Lent Standard
1. Legal Principles
Probation is not a right, but an act of leniency allowing a defendant to avoid imprisonment. (People v. Moran (2016) 1 Cal.5th 398, 402.) When imposing probation, "courts have broad discretion to impose [probation] conditions to foster rehabilitation and to protect public safety . . . ." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).)
But this broad discretion "is not without limits." (Carbajal, supra, 10 Cal.4th at p. 1121.) A probation condition "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.' " (Ibid.) In Lent, the California Supreme Court held a probation condition is "invalid" under this standard only if the condition " '(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 . . . .' " (Lent, supra, 15 Cal.3d at p. 486.) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) We apply an abuse-of-discretion standard in reviewing the trial court's application of this test. (Ibid.)
2. Analysis
The parties agree the electronics-search condition has no relationship to the crime to which Kirven pled guilty (second-degree robbery), and the condition relates to conduct that is not criminal. Therefore, the issue is whether the condition is "reasonably related to future criminality" (the third Lent factor). (Lent, supra, 15 Cal.3d at p. 486.) After Lent, the California Supreme Court clarified that a probation condition "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, italics added; accord, In re P.O. (2016) 246 Cal.App.4th 288, 295 (P.O.).) Because the probation officer is responsible for ensuring the probationer refrains from criminal activity and obeys all laws during the probationary period, the court may appropriately impose conditions intended to aid the probation officer in supervising the probationer and promoting his or her rehabilitation. (Olguin, at pp. 380-381; People v. Balestra (1999) 76 Cal.App.4th 57, 67.) "This is true 'even if [the] condition . . . has no relationship to the crime of which a defendant was convicted.' " (P.O., at p. 295, quoting Olguin, at p. 380.)
The factual record supports that the electronics-search condition is reasonably related to preventing Kirven's future criminality. Kirven pleaded guilty to committing robbery against a store clerk, and claimed to have done so because of alcohol intoxication. While taking the property away from the store, he acted in a violent manner and threatened the store clerk. The record shows Kirven has substantial risk factors relevant to reoffending, including significant untreated alcohol abuse, social isolation, lack of housing, a lengthy criminal history, and repeated failures while on probation, particularly on summary probation. The court imposed the electronics-search condition with the awareness of these facts and the probation department's conclusion that Kirven would require particularly close supervision of his daily activities to support a successful probation, and that this monitoring should include access to Kirven's electronic devices and activities.
The court acted within its discretion. Because a defendant's email and Internet use can provide important insight into his daily activities, the court had a reasonable basis to permit warrantless searches of Kirven's electronics to provide the necessary close supervision to ensure he is remaining sober, not continuing to engage in property-theft crimes, and is abiding by the other probation conditions, such as attending treatment programs. It is common for a person to conduct routine activities related to these conditions through electronic means (such as registering for classes, applying for jobs, seeking housing, purchasing goods and services), and therefore it is reasonable for the probation department to seek to monitor this conduct. Although the probation department could also supervise Kirven through face-to-face meetings, telephone conversations, and physical searches, the court could fairly conclude random electronic searches would provide an additional highly effective tool to deter Kirven from reoffending and ensure he remained law abiding. (See Trujillo, supra, 15 Cal.App.5th at pp. 582-584, rev.gr.; P.O., supra, 246 Cal.App.4th at p. 295; see also Olguin, supra, 45 Cal.4th at p. 382.)
Kirven argues this case is unlike other Court of Appeal decisions that have upheld the reasonableness of an electronics-search condition based on facts showing a connection between the defendant's past criminal conduct and the need to monitor Internet use or social media accounts. (See, e.g., People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1176-1177 [facts showed defendant promoted gang affiliation using social media]; In re George F. (2016) 248 Cal.App.4th 734, 740-741, review granted Sept. 14, 2016, S236397 [monitoring Internet use would deter minor's attempts to contact children and/or to download child pornography].)
However, a sufficient connection exists in this case. As explained in Olguin, our role in evaluating the third Lent factor is to determine whether there is a reasonable factual basis for the trial court to decide that the probation condition will assist the probation department to supervise the defendant. (Olguin, supra, 45 Cal.4th at pp. 380- 381; accord, Trujillo, supra, 15 Cal.App.5th at pp. 582-584, rev.gr.; P.O., supra, 246 Cal.App.4th at pp. 293-296.) It was reasonable for the trial court to conclude that allowing the probation officer to monitor email communications, Internet use, and social media accounts would assist the probation department in supervising Kirven and assuring that Kirven—who had a lengthy history of committing criminal offenses while on probation, particularly when intoxicated—was maintaining sobriety and remaining law-abiding.
B. Constitutional Overbreadth Challenge
Kirven alternatively contends the electronics-search condition is unconstitutionally overbroad because it allows for searches of private information unrelated to his criminal conduct or future criminality and "there is no legitimate relationship between [his] utilizing computers and his criminal behavior."
1. Forfeiture
Kirven forfeited this contention by failing to raise it in the trial court. With the exception of facial challenges, constitutional challenges to probation conditions must be asserted in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 881 (Sheena K.); see People v. Pirali (2013) 217 Cal.App.4th 1341, 1345 (Pirali).) Kirven's overbreadth contention requires an analysis of the particular facts of the case, including the type of computers and recordable media that would be subject to the condition, what Kirven stores on those devices, and how Kirven uses those devices.
Although Kirven challenged the electronics-search condition on the ground that there was no "nexus to the alleged offense," this did not fairly alert the court to the constitutional overbreadth challenge. 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. (Pirali, supra, 217 Cal.App.4th at p. 1346.) Because Kirven did not object on overbreadth grounds, the trial court did not have the opportunity to consider the claimed burden on Kirven's constitutional rights or develop a record on the issue. Kirven therefore forfeited this argument. (See People v. Smith (2017) 8 Cal.App.5th 977, 987.)
We nonetheless address the merits of the constitutional overbreadth issue because the Attorney General failed to assert that the contention was forfeited on appeal.
2. Factual Record does not Support a Constitutional Overbreadth Finding
" '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.' " (Pirali, supra, 217 Cal.App.4th at p. 1346; accord, Sheena K., supra, 40 Cal.4th 875, 890.)
To show the electronics-search condition is overbroad, Kirven relies on Riley, supra, 134 S.Ct. 2473. In Riley, the United States Supreme Court rejected the government's argument that law enforcement may, without a warrant, search a cell phone seized from an arrested individual. The court discussed the fact that a modern cell phone can hold an immense amount of confidential information, including past and current medical records, past and current financial records, Internet searches involving highly personal issues, personal diaries, photographs, and intimate correspondence. (Id. at pp. 2489-2491.) The court balanced the strong privacy intrusion arising from a search of this type of information against the law enforcement justifications for dispensing with the warrant requirement, and found the arrestee's privacy concerns outweighed the law enforcement justifications. (Id. at pp. 2485-2493.) But the court made clear it was not holding "a cell phone is immune from search" (id. at p. 2493), and recognized its ruling would not necessarily extend to other situations in which law enforcement needs are stronger. (Id. at pp. 2493-2494.)
Relying on Riley, the Court of Appeal in People v. Appleton (2016) 245 Cal.App.4th 717 concluded an electronics-search probation condition was constitutionally overbroad because it would allow the search of "vast amounts of personal information unrelated to defendant's criminal conduct or his potential for future criminality" (id. at p. 727), and remanded for the trial court to fashion a more narrowly tailored electronics-search condition (id. at pp. 724-727; accord, P.O., supra, 246 Cal.App.4th at pp. 297-298).
In two recent decisions, this court found Appleton's analysis unpersuasive on the specific facts before us. (Trujillo, supra, 15 Cal.App.5th at pp. 587-589, rev.gr.; Nachbar, supra, 3 Cal.App.5th at pp. 1128-1130, rev.gr.) We explained that although Riley's description of the general privacy concerns pertaining to cell phones informed our decisionmaking, Riley's ultimate conclusion regarding the need for a warrant does not necessarily apply in the probation condition context without specific facts showing a heightened privacy interest. (Trujillo, at pp. 587-589; Nachbar, at p. 1129; accord In re J.E. (2016) 1 Cal.App.5th 795, 803-807, review granted Oct. 12, 2016, S236628.) We emphasized a probationer's reduced privacy rights (as compared to an arrestee's rights); the existence of facts showing the need for intensive supervision; the absence of any evidence showing the probationer's electronics contained the type of sensitive information identified in Riley; and the fact that neither defendant established the electronic searches would be materially different from a search of their homes and/or challenged the Fourth Amendment waiver as to their residences. (Trujillo, at pp. 586-589; Nachbar, at pp. 1128-1129.) While Nachbar and Trujillo remain pending before the California Supreme Court, we continue to find their reasoning persuasive, absent a contrary direction from the high court. (See Cal. Rules of Court, rule 8.1115(e).)
The record here does not contain the necessary particularized information supporting the need for a more narrowly tailored Fourth Amendment waiver condition. Most important, there are no facts showing Kirven uses his electronic devices to hold the type of sensitive medical, financial, or personal information described in Riley and Appleton. In the proceedings below, Kirven did not identify any particular category of private information contained on his electronic devices or devices he uses that should be off-limits to a probation officer. Additionally, there is no information that Kirven had a "smart phone," which is the type of instrument that the United States Supreme Court described as having a "broad range of . . . functions based on advanced computing capacity, large storage capacity and Internet connectivity." (Riley, supra, 134 S.Ct. at p. 2480.)
There are also no facts in the record showing a search of Kirven's electronics would be any more invasive than an unannounced, without-cause, warrantless search of his residence, a highly-intrusive condition he has not challenged on appeal. As in Trujillo, there is nothing in the record showing there would be any particular information on Kirven's electronics that requires protection from the government because it is more private than items in his residence.
Any concerns regarding the potential invasiveness of the electronics-search condition in this case would be ameliorated by the restriction against arbitrary, capricious, or harassing probation searches. (See People v. Woods (1999) 21 Cal.4th 668, 682; People v. Cervantes (2002) 103 Cal.App.4th 1404, 1408.) Further, if Kirven adds information to his electronic devices that would invoke stronger privacy protections beyond a warrantless search of his home and would be unrelated to his criminality or future criminality, Kirven would have the right to seek to modify the probation condition to protect the privacy of this information. (See Pen. Code, § 1203.2, subd. (b); Olguin, supra, 45 Cal.4th at p. 379.)
II. Weapons-prohibition Probation Condition
A. Parties' Contentions
The court's probation order included the following probation condition: "Do not knowingly own, transport, sell or possess any weapon, firearm, replica firearm or weapon, ammunition or any instrument used as a weapon." (Italics added.) Kirven contends the "any instrument used as a weapon" prohibition is unconstitutionally vague because it appears to broadly restrict him from possessing any instrument that could be used as a weapon, such as a "baseball bat, a kitchen knife, [or] a ballpoint pen."
The Attorney General counters that the written prohibition is not vague because a person would reasonably understand that "any instrument used as a weapon" includes only instruments generally used as weapons such as firearms. The Attorney General states, however, that the trial court's comments confused matters, and impermissibly included a prohibition against any object that could potentially be used as a weapon. The Attorney General thus suggests that we modify the weapons prohibition by adding the word "commonly" into the condition, so it would now read: "Do not knowingly own, transport, sell, or possess any weapon, firearm, replica firearm or weapon, ammunition, or any instrument commonly used as a weapon." (Italics added.)
In rejecting Kirven's challenge to this probation condition, the court stated the "any instrument used as a weapon" phrase meant Kirven could not "use" any object as a weapon, but it did not prohibit him from possessing items (such as a pen or a bottle) not typically considered to be weapons. --------
B. Analysis
Under the constitutional vagueness doctrine, the government is barred "from enforcing a provision that 'forbids or requires the doing of an act in terms so vague' that people of 'common intelligence must necessarily guess at its meaning and differ as to its application.' [Citations.] To withstand a constitutional challenge on the ground of vagueness, a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition." (People v. Hall (2017) 2 Cal.5th 494, 500 (Hall).) But a probation condition must be considered in context. (Id. at pp. 500-501.) "[A] probation condition should not be invalidated as unconstitutionally vague ' " 'if any reasonable and practical construction can be given to its language.' " ' " (Id. at p. 501.)
The weapons-prohibition condition is not vague. As this court held more than two years ago, no reasonable person would interpret this provision to mean that the probationer is forbidden from possessing or using an ordinary object for its normal purposes, e.g., a baseball bat, kitchen knife, or ballpoint pen. (People v. Forrest (2015) 237 Cal.App.4th 1074, 1082 (Forrest).) Under the plain meaning of this condition, Kirven is forbidden from possessing these commonplace items only if he uses them as weapons or intends to use them as weapons. (Ibid.; see People v. Hall, supra, 2 Cal.5th at pp. 501, 503.) For example, "a probationer . . . would not be in violation of [this] condition . . . by carrying a bat to baseball practice, but would be in violation of that condition if [he] or she possessed a baseball bat in the context of being a member of a gang on the way to a gang-related confrontation." (Forrest, at p. 1082.)
Contrary to the Attorney General's assertions, the court's comments did not create any uncertainty or change the meaning of this plainly-worded weapons prohibition. The court's comments were consistent with the reasonable interpretation that a knowing possession of an ordinary object would not violate the condition unless there were additional facts showing the item was possessed for a weapons-related purpose. (Forrest, supra, 237 Cal.App.4th at p. 1082.) There was no ambiguity requiring a modification of the standard condition.
DISPOSITION
Affirmed.
HALLER, J. I CONCUR: McCONNELL, P. J. I CONCUR IN THE RESULT: IRION, J.