Opinion
D071026
07-31-2017
THE PEOPLE, Plaintiff and Respondent, v. FAUSTINO M. MILAN, Defendant and Appellant.
Patrick Dudley, 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, Charles C. Ragland and Stephanie H. Chow, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN352579) APPEAL from a judgment of the Superior Court of San Diego County, Sim von Kalinowski, Judge. Affirmed. Patrick Dudley, 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, Charles C. Ragland and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
Faustino M. Milan sold approximately one ounce of methamphetamine to an individual cooperating with the Drug Enforcement Agency (DEA), a jury found him guilty of one count of sale of a controlled substance (Health & Saf. Code, § 11379, subd. (a)), and the superior court sentenced him to formal probation for a term of three years. Among other conditions of Milan's probation, the superior court required Milan to submit to warrantless searches of his computers and recordable media and to obtain approval of his residence and employment from his probation officer. On appeal, Milan asserts the electronic search condition is unreasonable in accordance with People v. Lent (1975) 15 Cal.3d 481 (Lent) and both conditions are unconstitutionally overbroad. We conclude Milan forfeited these arguments by failing to raise them in the superior court and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2015, DEA special agent Chad Plennes received information from a confidential source that Milan had been selling methamphetamine for a number of years. Plennes conducted surveillance on Milan's residence and observed what he believed to be hand-to-hand drug transactions between Milan and at least two other individuals. He did not arrest Milan at that time, but instead arranged for the confidential source to make a controlled purchase of methamphetamine from Milan.
At Plennes's direction, the confidential source called Milan to set up a purchase of one ounce of methamphetamine at a predetermined location on June 10, 2015. Before the source left to meet Milan, Plennes searched him and his vehicle to ensure he did not have any drugs or contraband, and gave him marked bills to use to purchase the methamphetamine. Plennes then followed the source to the meeting location and observed from a distance as the source gave Milan the agreed-upon purchase price of $650. Milan left for approximately 20 minutes and returned with a brown paper bag that he handed to the source. The source left with the bag and Plennes followed him to a previously agreed-upon location about a mile away. Once there, Plennes immediately took possession of the bag, which contained approximately one ounce of methamphetamine.
Plennes continued to investigate Milan and, in November 2015, executed a search warrant on Milan's home. During the search, detectives found scales and a pay/owe ledger of the type frequently used by drug dealers to track what is owed to them. Plennes arrested Milan and he admitted using methamphetamine but denied selling it. Milan was charged with and a jury found him guilty of one count of sale of a controlled substance based on the June 10, 2015, sale of methamphetamine.
Prior to sentencing, the probation department recommended Milan be placed on probation for a term of three years and recommended a number of conditions. In particular, the probation report recommended the court impose probation condition 6(n), requiring Milan 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 [probation officer] or law enforcement officer." The probation report also recommended the court impose condition 10(g), requiring Milan to "[o]btain [probation officer] approval as to residence [and] employment."
Milan said he would comply with the suggested terms of probation "with pleasure" and did not object to any of the recommended conditions. After reviewing the probation report and several letters submitted on Milan's behalf, and hearing brief statements by the parties, the superior court concluded the probation department's recommendation was appropriate and sentenced Milan to probation for a term of three years under the proposed conditions, with minor exceptions related to certain conditions concerning alcohol use. The court addressed the electronic search condition and stated, "[t]he court specifically finds, as to phones and computers, that this crime involved the use of phones through communication for the drug sales. That it is typical for drug sales to utilize phones and computers, and that phones and computers, therefore, would contain evidence of contacts for drug sales, whether it be from a distributor or to purchasers or other communications with them." At the conclusion of the hearing, the court asked Milan if he accepted the terms and conditions of probation and he said, "Yes."
DISCUSSION
On appeal, Milan asserts both the electronic search condition and the residence and employment condition are unconstitutionally overbroad, and that the electronic search condition is unreasonable under Lent. The People assert he has forfeited these arguments by failing to object to them during sentencing in the superior court. I. General Principles
Probation is not a right, but an act of leniency that allows a defendant to avoid imprisonment. (People v. Moran (2016) 1 Cal.5th 398, 402.) As such, the trial court has broad discretion in determining the conditions of probation necessary to serve the primary goals of probation: promoting rehabilitation and protecting the safety of the public. (Id. at pp. 402-403; People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) The court's discretion is not without limits, though, and any conditions regulating otherwise legal conduct must be "reasonably related to the crime of which the defendant was convicted or to future criminality." (Lent, supra, 15 Cal.3d at p. 486.) Moreover, conditions that restrict the exercise of constitutional rights are invalid unless narrowly tailored to the purpose of the condition. (People v. Olguin (2008) 45 Cal.4th 375, 384 (Olguin).)
A defendant who believes a proposed probation condition is unreasonable or overbroad must timely object to the condition in the trial court, thereby giving the parties an opportunity to provide argument or evidence concerning the need for the condition and the court an opportunity to modify the condition if necessary in light of such argument and evidence. (People v. Welch (1993) 5 Cal.4th 228, 234-235 (Welch).) A defendant who fails to do so typically forfeits any such argument on appeal. (Ibid.) Despite this general rule, a defendant may raise a facial constitutional challenge to a probation condition for the first time on appeal if the challenge involves a pure question of law that can be resolved without any reference to the trial court record. (Id. at p. 235; In re Sheena K. (2007) 40 Cal.4th 875, 887-889 (Sheena K.).) This exception does not apply to reasonableness challenges under Lent because Lent requires the court to determine whether the condition relates to the appellant's previous criminal activity, thereby requiring the court to review the record with regard to the defendant's previous crimes. (Welch, supra, 5 Cal.4th at p. 237.) II. Residence and Employment Condition
We turn first to Milan's contention the residence and employment condition of his probation is constitutionally overbroad. Milan concedes he did not object to this condition in the superior court, but asserts his challenge falls under the exception articulated in Sheena K. We disagree. As discussed, that exception applies only when the court can address the objection without any reference to the record (see Sheena K., supra, 40 Cal.4th at pp. 887-889) and, here, Milan concedes the condition is not necessarily overbroad in the abstract and "cannot be assessed without at least a glance at the record." As such, the challenge is not a purely facial challenge, the exception does not apply, and Milan has forfeited his argument regarding this condition. (See Welch, supra, 5 Cal.4th at p. 235; Sheena K., at pp. 887-889.)
Milan argues courts have not limited the exception so strictly in practice, and thus this court should not do so either, but the cases he relies on do not support his assertion. In People v. Contreras (2015) 237 Cal.App.4th 868, the appellate court considered the "fact" that the defendant did not live in a small town when it addressed the constitutionality of a condition restricting the defendant's access to certain stores despite the defendant's failure to object to the condition in the trial court. (Id. at p. 883.) However, the court in Contreras did not need to look to the record to determine the size of the town at issue, and there is no indication it did so, because the probation condition referred on its face to the city where the stores at issue were located. (Id. at pp. 877 ["[i]n its written minute order, the court directed defendant to '[s]tay away . . . from the Sears in Northridge Mall of Salinas, CA' "], 879.) In the other case Milan relies on, the court found the defendant had forfeited his constitutional overbreadth argument because the probation condition at issue required the court to look to the record to determine what medications fell under the provision. (In re Luis F. (2009) 177 Cal.App.4th 176, 182.)
The court In re Luis F. went on to address the merits because it was "troubled by the breadth" of the condition at issue. (In re Luis F., supra 177 Cal.App.4th at p. 183.) We recognize it was within that court's discretion to do so, but decline to exercise our discretion to reach the merits of Milan's arguments here. (See, e.g., Sheena K., supra, 40 Cal.4th at p. 887, fn. 7; People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.)
Moreover, even were we to reach the merits of Milan's objection to the residence and employment condition, we would not conclude it is overbroad. The record indicates Milan had been selling drugs for some time and, as such, the condition is sufficiently tailored to the legitimate purpose of allowing the probation officer to restrict him from living or working with persons who might hamper his rehabilitation by encouraging him to continue to pursue a criminal lifestyle. (See People v. Lopez (1998) 66 Cal.App.4th 615, 626; see also Olguin, supra, 45 Cal.4th at p. 384 [probation officers do not have unlimited discretion but do have an inherent obligation to act reasonably in supervision of probation and all associated conditions].) III. Electronic Search Condition
As with the residence and employment condition, Milan concedes that he did not object to the electronic search condition in the superior court and that his challenge is not a purely facial challenge, but asks us to consider his arguments in any event. We decline to do so.
The court in Sheena K. emphasized the importance of objecting to a proposed probation condition to permit the trial court to consider any concerns raised and, if appropriate, modify the provision to address those concerns. (Sheena K., supra, 40 Cal.4th at p. 889.) That rationale is directly applicable here. Milan admits that he used a phone to arrange the methamphetamine sale at issue, but argues the electronic search condition is overbroad and infringes his right to privacy insofar as it extends to computers and recordable media. The People assert, as the court recognized, drug dealers commonly use electronic means to communicate and thus the condition is necessary to preclude Milan from engaging in further criminal activity. Because Milan did not object, though, the record is devoid of any information regarding the type of phone Milan used—including whether it was a smartphone that might itself qualify as a computer or recordable media device; whether Milan used an electronic device other than his phone to effectuate methamphetamine sales; what other computers or recordable media devices he has; or what type of private information he has on any such devices. Had Milan made a timely objection, the court could have asked the parties to address these issues and made an informed decision regarding the appropriate scope of the provision. As Milan failed to do so, the record on appeal is incomplete and insufficient to adequately address the constitutionality of the provision. (See Sheena K., supra, 40 Cal.4th at p. 889.)
Milan also asserts there is a sufficient record for this court to review the electronic search condition because the superior court set forth its rationale for imposing the condition; however, as discussed, Milan's failure to object precluded the superior court from addressing a number of additional issues essential to a complete analysis. --------
Moreover, the constitutionality of the same, or similar, provision is currently pending review in the California Supreme Court in several cases. (See, e.g., In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923; In re J.E. (2016) 1 Cal.App.5th 795, review granted Oct. 12, 2016, S236628; People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted Dec. 14, 2016, S238210.) Consequently, Milan should have been aware of the issues raised by the electronic search provision, should have objected, and should have been prepared to discuss them in the superior court. Absent such a complete record, it is advisable for this court to exercise restraint in declining to decide the issue on a constitutional basis. (See California Teachers Assn. v. Board of Trustees (1977) 70 Cal.App.3d 431, 442 [encouraging judicial self-restraint where a constitutional issue can be decided on other grounds].)
We therefore conclude Milan forfeited any argument regarding the reasonableness or constitutionality of the electronic search condition and decline to address the merits of his arguments. (See Welch, supra, 5 Cal.4th at p. 235; Sheena K., supra, 40 Cal.4th at pp. 887-889.)
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.