Opinion
D071038
12-28-2017
THE PEOPLE, Plaintiff and Respondent, v. CRISTIAN ANTHONY PUENTE, Defendant and Appellant.
Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Peter Quon, Jr., and Stacy Tyler, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD266034) APPEAL from an order of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed. Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Cristian Anthony Puente of carrying a loaded firearm on his person in a public place (Pen. Code, § 25850, subd. (a)) and found true an allegation he was not the registered owner of the firearm (§ 25850, subd. (c)(6)). The court granted Puente formal probation for three years under certain terms and conditions.
All further statutory references are to the Penal code unless otherwise indicated.
On appeal, Puente challenges three probation conditions: (1) condition 10.g. requiring the probation officer's approval of his residence and employment, (2) condition 6.n. requiring submission of "personal effects, property, computers, and recordable media" to search upon request, and (3) condition 6.k. requiring him to report " 'contact' with law enforcement." Puente contends the first two conditions are unconstitutionally overbroad and not reasonably related to his crime or to prevent future criminality and the third is unconstitutionally vague and overbroad. Recognizing he did not object to these probation conditions, he contends we should review the constitutional challenges as a matter of law. He alternatively contends his counsel was ineffective by failing to object to these conditions. We conclude the conditions are not unconstitutional on their face and Puente forfeited his claims by failing to object at the time the conditions were imposed. We reject Puente contention his trial counsel was ineffective. We, therefore, affirm the order.
BACKGROUND
A
Because Puente does not challenge the sufficiency of the evidence to support his conviction, we draw the factual summary from the respondent's brief.
On February 28, 2016, Puente was involved in an altercation with other patrons at a bar and restaurant in Pacific Beach. When the restaurant's security manager attempted to eject Puente from the restaurant, Puente said, "You are not going to make me leave. I have a gun." Puente grabbed a bottle of champagne, poured its contents onto a table, threw the bottle on the table, and shattered a champagne glass.
When the security manager tried to shove Puente out the door, Puente reached for his belt or waistband, causing the manager to think Puente had a gun. As the two struggled, a handgun fell to the floor at Puente's feet. An employee of the restaurant picked up the gun as several security guards took Puente outside, restrained him, and called the police.
As they waited for the police officers, Puente offered the security guards money to let him go. He told one of the guards the firearm was not his, which the guard understood to mean the weapon was not registered to Puente.
The handgun contained an ammunition clip loaded with rounds of ammunition. The serial numbers were partially scratched off. The handgun belonged to an officer with the Federal Bureau of Prisons, who had the gun stolen from a vehicle a couple of weeks earlier.
B
The probation department recommended formal probation. The probation officer reviewed the standard conditions of probation with Puente and he expressed willingness to comply with them should the court place him on probation. At the sentencing hearing, the People asked the court to follow the probation department's recommendation for formal probation, but asked the court to impose a 365-day custodial sanction in addition to the terms and conditions of probation. This request was based upon the facts surrounding Puente's possession of the firearm and his refusal to take responsibility for his actions.
The court stated it thought the People's request for a custodial sanction was reasonable because it was "everybody's good fortune ... the potential for a tragedy didn't occur[,] ... in a place like that, under those circumstances, with a loaded weapon." The court decided not to impose a custodial sanction, but stated: "Well, Mr. Puente, I hope you appreciate that the Court—I wouldn't lose any sleep at all, frankly, at following the People's recommendation that you spend a year in custody or some substantial period of time. But I think, as indicated in the probation report, that's going to be there if you don't comply with these other conditions. And I think you should consider yourself fortunate that the Court's not imposing some significant time in custody.
"You created a situation that was just—the potential was frightening as to what might have happened with that loaded weapon there. So I've given you the benefit of every doubt, but next time around, myself or some other judge, I think, will not be so inclined so—but I am mindful that this conviction itself is going to have a significant impact, probably, on what you intended to be, or at least at this point in your life, intended to be your career. So I do have that in mind."
The court then asked Puente, "So are you willing to accept probation on all those conditions and the other conditions that will be in the order that you'll get a copy of? If you're not, just tell me right now." Puente immediately responded, "Yes, your Honor."
DISCUSSION
I
General Principles
Trial courts enjoy wide discretion when determining the conditions and scope of probation. (§ 1203.1 et seq.) A trial court may impose any "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, ..., and generally and specifically for the reformation and rehabilitation of the probationer." (§ 1203.1, subd. (j).) A condition will only be invalid if it is: (1) not reasonably related to the defendant's crime, (2) conduct that is otherwise legal, and (3) not reasonably related to preventing future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486.) A party seeking to invalidate a condition must show each of the three prongs is satisfied. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).)
When a probation condition imposes limitations on a constitutional right, the limitations must be closely tailored to the purpose of the condition to avoid being unconstitutionally overbroad. (Olguin, supra, 45 Cal.4th at p. 384.) "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. E.O. (2010) 188 Cal.App.4th 1149, 1153.) "If a probation condition serves to rehabilitate and protect public safety, the condition may 'impinge upon a constitutional right otherwise enjoyed by the probationer, who is "not entitled to the same degree of constitutional protection as other citizens." ' " (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355.)
Probation is not an inherent right; it is an act of leniency. (People v. Wardlow (1991) 227 Cal.App.3d 360, 365.) The purpose of probation is to serve as a "period of genuine rehabilitation." (Griffin v. Wisconsin (1987) 483 U.S. 868, 875.) In California, probationers may consent to limit their constitutional rights in preference to incarceration. (Olguin, supra, 45 Cal.4th at p. 384.) If a condition appears too onerous, a defendant may choose to serve the prison sentence instead. (Id. at p. 379.)
Generally, we review conditions of probation for abuse of discretion. (Olguin, supra, 45 Cal.4th at p. 379.) However, when a probation condition is challenged on constitutional grounds, we review the condition de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
Challenges to probation conditions are generally forfeited if not raised when they are imposed (People v. Welch (1993) 5 Cal.4th 228, 234-235), unless they are facial constitutional challenges presenting pure questions of law. (In re Sheena K. (2007) 40 Cal.4th 875, 887.) However, 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, "traditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court." [Citation.]' [Citation.] ... [G]enerally, given a meaningful opportunity, the probationer should object to a perceived facial constitutional flaw at the time a probation condition initially is imposed in order to permit the trial court to consider, and if appropriate in the exercise of its informed judgment, to effect a correction." (Id. at p. 889; People v. Stapleton (2017) 9 Cal.App.5th 989, 994 (Stapleton) [forfeiture applies "if the objection involves a discretionary sentencing choice or unreasonable probation conditions 'premised upon the facts and circumstances of the individual case' "]; People v. Kendrick (2014) 226 Cal.App.4th 769, 777 [a constitutional challenge "that cannot be resolved 'without reference to the particular sentencing record developed in the trial court' " does not present a pure question of law].)
II
Application
A
Puente contends condition 10.g. requiring approval of his residence and employment is unconstitutionally overbroad because it infringes on his constitutional rights of freedom of association and freedom of travel and did not relate to his crime or future criminality. Conditions requiring approval of residence and employment are not unconstitutional on their face. There are circumstances where the state has legitimate interests to infringe upon constitutional rights of travel and association. In Stapleton, supra, 9 Cal.App.5th 989, the appellate court upheld a residency condition because the condition aided probationer's rehabilitation. (Id. at pp. 995-996.) Similarly, approval of employment may aid in rehabilitation. "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.)
Here, the probation officer noted residential instability as a potential factor that needed to be addressed to prevent recidivism. Puente split his time between staying with his mother and working in her barber shop in northern California and staying with friends in San Diego where he had an interest in another barber shop. Residence and employment in separate cities could complicate probation supervision. Additionally, Puente had a spotty employment history working intermittently as a roofer, in a retail store, as a security guard, and as a salesperson for several companies. His longest period of employment was just over one year. He cut hair "on the side for the past year." The court and counsel discussed concerns about whether Puente could maintain employment as a licensed barber, or ownership of a barber shop, with a felony conviction.
Thus, an analysis of the relationship of the conditions to the state's interests requires consideration of the facts of this case. According to Sheena K., such a factual analysis is best reserved for the trial court to " 'encourage development of the record and a proper exercise of discretion.' " (Sheena K., supra, 40 Cal.4th at p. 889.) Therefore, the challenges to these conditions do not present a pure question of law and Puente forfeited them by failing to raise objections or specific concerns with the sentencing judge.
B
Puente contends condition 6.n. allowing warrantless searches of his property and electronic devices is also unconstitutionally overbroad on its face and as applied because it grants probation officers the ability to search for things other than weapons or controlled substances.
"[P]robation 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, supra, 45 Cal.4th at pp. 380-381.)
Puente relies on Riley v. California (2014) ___ U.S. ___ for the proposition that a warrantless search of electronic devices is unconstitutional. Riley held a warrant is generally required to search a cell phone seized pursuant to an arrest. The holding does not apply to the constitutionality of probation conditions. (Id. at p. 2493.)
In re I.V. (2017) 11 Cal.App.5th 249 held an overbreadth challenge to a probation condition allowing warrantless searches of property, including electronic devices, was not unconstitutional on its face and the challenge was forfeited. (Id. at pp. 255-256.) An analysis of the closeness of fit between the state interest and the constitutional burden would require an inquiry into the record to determine whether the condition was tailored to the state interests. (Id. at pp. 260-261.) Such an analysis is inconsistent with Sheena K., supra, 40 Cal.4th 875, which restricts review to pure questions of law. Further, we are mindful we should avoid adding to a constitutional issue pending before the California Supreme Court. (California Teachers Assn. v. Board of Trustees (1977) 70 Cal.App.3d 431, 442 ["Courts should follow a policy of judicial self-restraint and avoid unnecessary determination of constitutional issues"].)
See, In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted February 17, 2016, S230923; In re Patrick F. (2015) 242 Cal.App.4th 104, review granted February 17, 2016, S231428; In re Alejandro R. (2015) 243 Cal.App.4th 556, review granted March 9, 2016, S232240; In re Mark C. (2016) 244 Cal.App.4th 520, review granted April 13, 2016, S232849; In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25, 2016, S233932; In re J.E. (2016) 1 Cal.App.5th 795, review granted October 12, 2016, S236628; People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted December 14, 2016, S238210; In re R.S. (2017) 11 Cal.App.5th 239, review granted July 26, 2017, S242387. --------
Therefore, the challenged search conditions are not overbroad on their face. Although there was no explicit discussion about the search condition, Puente acknowledges a search condition, at least related to weapons or controlled substances, is appropriate. Puente reviewed and agreed to abide by all the conditions of probation in lieu of a custodial sanction. He did not object to the scope of the search condition or raise privacy concerns. As such, forfeiture is appropriate.
III
Puente contends condition 6.k. requiring him to report to the probation officer "contact" as opposed to arrests with law enforcement is unconstitutionally vague as well as overbroad. We disagree.
" 'The underlying concern of the vagueness doctrine is the core due process requirement of adequate notice ... .' [Citation.] A probation condition which either forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application, violates due process. To avoid being void for vagueness, a probation condition ' "must be sufficiently precise for the probationer to know what is required of him." ' " (People v. Freitas (2009) 179 Cal.App.4th 747, 750, overruled on other grounds People v. Hall (2017) 2 Cal.5th 494, 503, fn. 2.)
Puente relies upon People v. Relkin (2016) 6 Cal.App.5th 1188 (Relkin), which held a probation condition requiring a defendant to report "any contacts ... involving any peace officer" was "vague and overbroad" and left "one to guess what sorts of events and interactions qualify as reportable." (Id. at pp. 1196-1997.) Relkin is inapposite.
In contrast to Relkin, the condition here is not unconstitutionally vague or overbroad on its face when read in its entirety. Condition 6.k. requires Puente to: "Provide true name, address, and date of birth if contacted by law enforcement. Report contact or arrest in writing to the P.O. within 7 days. Include the date of contact/arrest, charges, if any, and the name of the law enforcement agency." The first part of the condition requires Puente to cooperate and provide certain identifying information "if contacted by law enforcement." The next portion of the condition then requires Puente to report that contact or arrest following the contact within a specified time with certain information about the contact or arrest. In proper context, the condition involves more than a passing greeting with a law enforcement officer on the street or at an event and implies a contact related to law enforcement or investigation activities. It adequately informs Puente of his duty to cooperate if he is contacted by law enforcement and asked for information, and it further informs him of his duty to report such contact to his probation officer.
Therefore, condition 6.k. is not facially unconstitutional and Puente forfeited his right to challenge the condition as overbroad by failing to raise a timely objection at the time of sentencing.
IV
Finally, we reject Puente's contention we should review his challenges notwithstanding his forfeiture based on ineffective assistance of his trial lawyer in failing to object to the challenged conditions. " 'Failure to object rarely constitutes constitutionally ineffective legal representation ... .' [Citation.] Moreover, '[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.' " (People v. Huggins (2006) 38 Cal.4th 175, 206.)
The record establishes Puente's counsel reviewed with Puente the probation officer's report and recommendation, including the specific conditions recommended for probation. Additionally, the probation officer reviewed the proposed probation conditions with Puente. Puente expressed willingness to abide by the proposed conditions.
Despite the probation department's recommendation for probation, the People sought imposition of an additional sanction of one year in custody. The court was deeply concerned about the circumstances of the crime and indicated it thought the request for time in substantial custodial time was reasonable. Nevertheless, the court granted Puente probation under the specified terms and conditions admonishing him to consider himself fortunate the court did not impose time in custody. The court asked Puente if he was willing to accept probation based on the terms and conditions or invited him to tell the court if he was not. Puente immediately responded in the affirmative. Under these circumstances, we conclude a tactical decision not to challenge certain conditions to preserve the favorable disposition would not have been irrational.
DISPOSITION
The order is affirmed.
MCCONNELL, P. J. WE CONCUR: HUFFMAN, J. AARON, J.