Opinion
D074526
11-19-2019
THE PEOPLE, Plaintiff and Respondent, v. CARA JOY SACHS, Defendant and Appellant.
Cherise Bacalski, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Steve Oetting, Kristen Ramirez and Daniel Hilton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCE378770) APPEAL from a judgment of the Superior Court of San Diego County, Robert O. Amador, Judge. Affirmed. Cherise Bacalski, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Steve Oetting, Kristen Ramirez and Daniel Hilton, Deputy Attorneys General for Plaintiff and Respondent.
Cara Joy Sachs pleaded guilty to one count of identity theft (Pen. Code, § 530.5, subd. (a)), admitting she willfully obtained a check belonging to another person and used it for an unlawful purpose without his permission. The trial court suspended imposition of sentence and placed Sachs on formal probation for three years with certain conditions, including (1) an electronic search requirement that Sachs "[s]ubmit [her] 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 [a probation officer] or law enforcement officer" and (2) a requirement that Sachs obtain her probation officer's approval as to her residence and employment.
Undesignated statutory references are to the Penal Code.
On appeal, Sachs contends the court erroneously denied her motion under section 459.5 to resentence her identity theft conviction to a conviction for misdemeanor shoplifting, because the act she committed—attempting to cash a forged check in an amount under $950—constitutes shoplifting under People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales) and other appellate decisions. She asks this court to strike the electronic search condition as unconstitutionally overbroad in part under Riley v. California (2014) 573 U.S. 373. She contends the residence and employment approval condition is likewise overbroad, and also violates her constitutional rights to freedom of travel and association. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2018, the District Attorney charged Sachs in a complaint with felony identity theft (§ 530.5, subd. (a); count 1) and possession of a forged check (§ 470, subd. (d); count 2), a misdemeanor. According to her probation report, in February 2018, Sachs attempted to pass a fraudulent check for $384 at a La Mesa bank, but staff verified the account had been closed due to fraud and that the check was fraudulent. Sachs was on two grants of summary probation for two prior misdemeanor convictions (driving under the influence in 2014 and identity theft in 2017) at the time of her offenses. She admitted to a probation officer that she was also under the influence of methamphetamine at the time, and smoked it daily. The probation report indicates that at the time of her offense in this case, Sachs was a transient. The probation officer reported that she would be transient upon release. Sachs had a history of substance abuse.
Section 530.5, subdivision (a) provides in part: "Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense . . . ." A violation of section 530.5, subdivision (a) is a "wobbler" offense, chargeable as either a misdemeanor or felony and punishable accordingly. Sachs was charged and convicted of felony identity theft.
In April 2018, Sachs entered a guilty plea to the count 1 felony identity theft charge. As part of her plea agreement, she admitted that she "willfully obtained a check belonging to John [T.] and used it for an unlawful purpose without his permission."
Several months later, Sachs moved under section 1170.18, Proposition 47, the Safe Neighborhoods and Schools Act, to reduce the section 530.5 conviction to a misdemeanor and/or reclassify it to be shoplifting, a violation of section 459.5. She argued that because her offense involved the use of a forged check in an amount under $950, the court had discretion to reduce and/or reclassify the offense to shoplifting under Gonzales, supra, 2 Cal.5th 858, and People v. Jimenez (2018) 22 Cal.App.5th 1282, review granted July 25, 2018, S249397. The People opposed the motion, arguing that identity theft was an exception to Proposition 47 and Sachs misconstrued Gonzales, which did not reduce all identity theft crimes to misdemeanors or preclude prosecutors from charging a felony section 530.5 offense committed by a defendant before, during or after a shoplifting offense. The People relied on People v. Sanders (2018) 22 Cal.App.5th 397, review granted July 25, 2018, S248775, to argue section 530.5 was not a form of theft and theft was not an element of that offense, and thus the offense was not eligible for reclassification under Proposition 47. (See Sanders, at p. 403 ["[W]e are satisfied that section 530.5, subdivision (a) is not a theft based offense. Theft is not an element of the offense. It is the use of the victim's identity that supports the application of the statute"].)
In August 2018, the court denied Sachs's motion, following People v. Sanders, supra, 22 Cal.App.5th 397 (rev. gr.), and declining to reduce her conviction to a misdemeanor. It suspended imposition of sentence and placed Sachs on three years formal probation. As conditions of her probation, the court ordered that Sachs (1) "[s]ubmit [her] 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 [a probation officer] or law enforcement officer" and (2) obtain her probation officer's approval as to her residence and employment. Sachs filed this appeal, which she states is "based on the sentence or other matters occurring after the plea that do not affect the validity of the plea."
DISCUSSION
I. Motion to Reduce Identity Theft Charge to Misdemeanor Shoplifting
Asserting the trial court imposed an unauthorized sentence by denying her motion, Sachs contends under Gonzales, supra, 2 Cal.4th 858 that her act in attempting to cash a forged check under $950 constitutes shoplifting, which is defined by conduct and must be charged as shoplifting according to section 459.5. She maintains that Gonzales holds that "where the defendant's conduct fits the crime of shoplifting, '[a] defendant must be charged only with shoplifting' " and resentencing is " 'required.' " Sachs relies on People v. Jimenez, supra, 22 Cal.App.5th 1282 (rev.gr.), People v. Brayton (2018) 25 Cal.App.5th 734, review granted October 10, 2018, S251122, and People v. Garrett (2016) 248 Cal.App.4th 82, which either upheld the reduction of a defendant's felony identity theft convictions to misdemeanor shoplifting (Jimenez, at pp. 1291, 1289-1290 [use of stolen checks]), or held defendants were eligible for resentencing under Proposition 47 to reduce convictions to misdemeanor shoplifting. (Brayton, at pp. 739-740 [use of stolen driver's license to obtain store credit]; Garrett, at pp. 87-90.)
The California Supreme Court granted review in Garrett, supra, 248 Cal.App.4th 82, and held the case pending its decision in Gonzales, supra, 2 Cal.5th 858. After deciding Gonzales, the court dismissed its grant of review and remanded the matter to the appellate court for issuance of the remittitur. Garrett is now final and citable as precedent. (Cal. Rules of Court, rule 8.528(b)(3).)
"The applicable standard of review varies by issue. The order denying [Sachs's] eligibility for Proposition 47 relief ' " 'is presumed correct; all intendments are indulged in to support it on matters as to which the record is silent, and error must be affirmatively shown.' " [Citation.] In addition, we must " 'view the record in the light most favorable to the trial court's ruling.' " ' [Citation.] Where we are called upon to address ' "the interpretation of a statute enacted as part of a voter initiative, the issue . . . is a legal one, which we review de novo." ' [Citation.] But '[w]here the trial court applies disputed facts to such a statute, we review the factual findings for substantial evidence and the application of those facts to the statute de novo.' " (People v. Simms (2018) 23 Cal.App.5th 987, 994.) A. Proposition 47
"In 2014, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act, which reclassified as misdemeanors certain drug-related and theft-related offenses that had previously been classified as felonies or wobblers. As relevant here, Proposition 47 added a section to the Penal Code creating a new offense of misdemeanor shoplifting. Section 459.5, subdivision (a) provides, in pertinent part: 'Notwithstanding Section 459 [the burglary statute], shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary.' With certain exceptions not relevant here, the offense is punishable as a misdemeanor. (Pen. Code, § 459.5, subd. (a).)[] Subdivision (b) limits a prosecutor's discretion in charging: 'Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.' The effect of the provision is to reclassify as misdemeanors certain crimes that were formerly punishable as felony burglary." (People v. Colbert (2019) 6 Cal.5th 596, 599; see also People v. DeHoyos (2018) 4 Cal.5th 594, 597.) Under the law, even if the elements of a theft offense could be met by an act that also meets the definition of shoplifting under section 459.5, subdivision (a), then the prosecution is prohibited from charging the defendant with that separate offense instead of, or in addition to, the offense of shoplifting. (See People v. Hernandez (2019) 38 Cal.App.5th 260, 266-267.)
"Proposition 47 also includes two sets of detailed provisions setting out the terms under which retrospective relief is available to persons who were serving, or who had already completed, felony sentences for offenses now redefined as misdemeanors." (People v. DeHoyos, supra, 4 Cal.5th at p. 598, italics added.) Section 1170.18, subdivision (a) provides: "A person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act." Subdivision (f) of the same section provides: "A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." (§ 1170.18, subd. (f).)
"Sentences yet to be imposed," on the other hand, are controlled by the substantive offenses as amended or added by the proposition. (See People v. DeHoyos, supra, 4 Cal.5th at p. 601, citing Pen. Code, §§ 459.5, subd. (a), 473, subd. (b), 476a, subd. (b), 490.2, subd. (a), 496, subd. (a), 666, subd. (a); Health & Saf. Code, §§ 11350, subd. (a), 11377, subd. (a).) In People v. Lara (2019) 6 Cal.5th 1128, the court described these as Proposition 47's "ameliorative provisions" (id. at p. 1135), which "apply directly in trial and sentencing proceedings held after the measure's effective date, regardless of whether the alleged offense occurred before or after that date." (Ibid.) B. Analysis
There are two independent bases to uphold the court's order denying Sachs's motion. We discuss each in turn.
1. Sachs is Not Entitled to Proposition 47's Retrospective Relief for Her Crime Committed and Charged After Proposition 47's November 2014 Effective Date
Sachs touches on this first basis in a footnote of her opening brief, in which she points out her counsel mistakenly asked for resentencing under section 1170.18, Proposition 47's retroactivity provision. Sachs argues she is eligible for resentencing under section 459.5, which defines the crime of shoplifting, and her trial counsel "conveyed to the court the gist of Ms. Sachs's argument—that her offense was a misdemeanor offense under section 459.5, not a felony identity theft offense under section 530.5."
Of course, to the extent this argument is one that attacks the validity of her plea to felony identity theft, it would be barred for Sachs's failure to obtain a certificate of probable cause. Likewise, to the extent Sachs maintains the court imposed an unauthorized sentence, it is barred for the same reason. (See People v. Zuniga (2014) 225 Cal.App.4th 1178, 1186 [principle that an unauthorized-sentence claim is cognizable on appeal despite a lack of objection below cannot be employed to sidestep the additional hurdle of section 1237.5, which is triggered by entry of a guilty or no contest plea].)
Because Sachs had not committed the crimes charged at the time Proposition 47 went into effect, the resentencing provisions in section 1170.18 are unavailable to her. (Accord, People v. Lara, supra, 6 Cal.5th at p. 1135 [where defendant had not been charged when Proposition 47 became effective, the resentencing provision in section 1170.18 by its terms did not apply to him]; People v. DeHoyos, supra, 4 Cal.5th at p. 598; People v. Gutierrez (2018) 20 Cal.App.5th 847, 855 [pointing out "[t]he parties have mistakenly conflated the retrospective and prospective applications of Proposition 47"].) "The issue in this case is not whether [Sachs] should be resentenced under . . . section 1170.18, but whether [s]he was properly convicted of a felony . . . violation [of section 530.5]." (Gutierrez, at p. 855.)
We recognize that the People did not make this argument below and the trial court did not consider the question. Nor do the People raise it in their responding brief on appeal. But a trial court ruling that is correct in law will not be disturbed on appeal merely because given for a wrong reason. If right " ' " 'upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.' " ' " (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145.) On this ground, the trial court did not err by denying Sachs's motion made under section 1170.18.
2. Sachs's Section 530 .5 Conviction Is A Nontheft Offense and Is Not Eligible for Reclassification Under Proposition 47
Even assuming Sachs could invoke Proposition 47 relief, her conviction does not qualify for reclassification to shoplifting under that scheme. This court has previously held that convictions under section 530.5, subdivision (a) for using personal identifying information for an unlawful purpose without the victim's consent, like Sachs's conviction here, is not a theft offense despite it being colloquially referred to as "identity theft." (People v. Sanders, supra, 22 Cal.App.5th at pp. 400, 404, rev. gr.; People v. Weir (2019) 33 Cal.App.5th 868, 873-874 [plain language of the section 530.5 designates a violation of the section a nontheft offense], review granted June 26, 2019, S255212.) "Theft is not an element of the offense. It is the use of the victim's identity that supports the application of the statute." (Sanders, at p. 403.) "The basic problem is appellant's acts of stealing from merchants do not amount to a theft from the cardholder. The cardholder was harmed by the unlawful use of her card and thefts from the merchants do not make the cardholder a victim of those thefts." (Ibid.) The offense "seeks to protect the victim from the misuse of his or her identity." (Id. at p. 405.) Thus, shoplifting does not encompass the crime of identity theft under section 530.5. (Id. at pp. 405-406.)
Sachs urges us to apply Gonzales, supra, 2 Cal.5th 858, stating the facts of her case "align completely with the facts at issue" in that case. We disagree. Gonzales involved a defendant who pleaded guilty to felony burglary for cashing stolen checks at a bank. (Id. at p. 862.) The court rejected the People's hypothetical argument that the defendant would not be eligible for Proposition 47 relief for the burglary charge under an alternate theory that the defendant also entered the bank with the intent to violate section 530.5, subdivision (a). (Id. at p. 876.) In dicta, the court stated that section 459, subdivision (b) would have precluded a burglary charge based on an entry with intent to commit identity theft because the conduct underlying such a charge, namely theft by cashing a stolen check, would have been the same as that involved in the charged shoplifting. (Id. at pp. 876-877; see People v. Hernandez, supra, 38 Cal.App.5th at p. 267; People v. Weir, supra, 33 Cal.App.5th at p. 877, fn. 10, rev. gr.) The comment was not necessary to the court's holding and focused on theft from the merchant rather than harm to the individual account holder. And the defendant in Gonzales was not charged with a violation of section 530.5, subdivision (a) for use of the account holder's personal identifying information, but had pleaded guilty to second degree burglary. (Gonzales, at p. 862.) Sachs was not charged with a theft offense, unlike the defendant in Gonzales, and the factual basis for her plea was simply that she used the personal identifying information (a check) of the victim for an unlawful purpose without his permission. Gonzales does not control. (Accord, Weir, at p. 877, fn. 10, rev.gr.)
We acknowledge the California Supreme Court will ultimately resolve the split in authority among the appellate courts on this issue. (See People v. Weir, supra, 33 Cal.App.5th at pp. 879-880 [identifying cases], rev. gr.; People v. Chatman (2019) 33 Cal.App.5th 60, 62, review granted June 26, 2019, S255235.) In the interim, we see no compelling reason to depart from People v. Sanders, supra, 22 Cal.App.5th 397 (rev. gr.), and, pending further guidance from the Supreme Court, we follow its reasoning. Sachs was properly charged and pleaded guilty under section 530.5 to using the personal identifying information of another. The misdemeanor offense of shoplifting as defined by section 459.5 does not apply to her conviction.
II. Challenged Probation Conditions
A. Standard of Review
"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, . . . 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." ' " (People v. Moran (2016) 1 Cal.5th 398, 402-403.)
Appellate courts generally review probation conditions for abuse of discretion. (People v. Moran, supra, 1 Cal.5th at p. 403; see People v. Anderson (2010) 50 Cal.4th 19, 32.) But constitutional challenges, such as a claim made by Sachs here that her conditions are overbroad, are reviewed de novo so long as they " 'present "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." ' " (In re Sheena K. (2007) 40 Cal.4th 875, 889; see also People v. Acosta, at p. 229; People v. Arevalo (2018) 19 Cal.App.5th 652, 656; People v. Stapleton (2017) 9 Cal.App.5th 989, 993.) "An alleged constitutional defect that is 'correctable only by examining factual findings in the record or remanding to the trial court for further findings' is not a facial constitutional challenge, and traditional forfeiture principles apply." (In re I.V. (2017) 11 Cal.App.5th 249, 261.) B. Legal Principles for Claims of Overbroad Probation Conditions
Pointing out Sachs did not object to her probation conditions when the court imposed them, the People argue that Sachs forfeited her overbreadth challenges because they are as-applied challenges that require an examination of the record to determine the factual basis for the condition. They maintain that absent a contemporaneous objection in the superior court, the challenge is not preserved for appeal. Sachs disputes the People's argument, pointing out they have cited another defendant's appellate brief in characterizing her position. She argues her challenges rely strictly on case law and the language of the probation conditions and thus are facial in nature, permitting her to challenge them on appeal despite not objecting below. Sachs is correct that the People appear to have cited from a different appellate brief as the quoted language does not appear in her papers. To the extent Sachs limits her challenge to the facial constitutionality of the two disputed conditions, we will consider her arguments.
"Not all [probation conditions] that require a defendant to give up a constitutional right are per se unconstitutional. [Citation.] '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.' " ' [Citation.] [¶] . . . 'A restriction is unconstitutionally overbroad . . . if it (1) "impinge[s] on constitutional rights," and (2) is not "tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation." [Citations.] 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.' " (People v. Arevalo, supra, 19 Cal.App.5th at pp. 656-657.) Thus, "a facial overbreadth challenge is difficult to sustain." (Williams v. Garcetti (1993) 5 Cal.4th 561, 577.) A facial challenge does not take into account the individual facts of the probationer and instead considers more broadly the nature of the case and the goals and needs of probation in general. (People v. Stapleton, supra, 9 Cal.App.5th at p. 993.) "For example, what is constitutional in a case involving drug usage is not necessarily the same as what is constitutional in a theft-related case. This broad consideration of the nature of the case must inform all decisions about whether the condition has been 'narrowly tailored,' even where, as here, we do not reach the personal circumstances of the probationer." (Id. at pp. 993-994.) C. Probation Condition Including Searches of Computers and Recordable Media
Sachs contends the condition permitting warrantless searches of her computer or recordable media is unconstitutionally overbroad and that this court should strike it. She maintains, based in part on People v. Appleton (2016) 245 Cal.App.4th 717, 727, which in turn relies on Riley v. California, supra, 573 U.S. 373, that the condition violates her constitutionally protected expectation of privacy in her electronic data and her Fourth Amendment right against unreasonable searches and seizures. She further contends the condition is not carefully and reasonably tailored to the government's interest in her reformation and rehabilitation.
In Appleton, the court found the state had an interest in preventing the defendant from "us[ing] social media to contact minors for unlawful purposes." (People v. Appleton, supra, 245 Cal.App.4th at pp. 721, 727.) Given that limited justification, the court struck a general electronic device search condition (subjecting defendant's electronic devices "to forensic analysis search for material prohibited by law") and remanded the matter to the trial court to craft a narrower condition. (Id. at p. 721.) Though the California Supreme Court has since decided In re Ricardo P. (2019) 7 Cal.5th 1113, addressing the reasonableness of an electronic search condition in a juvenile case, it did not address issues of overbreadth. (Id. at p. 1116 [court "granted review to decide whether an electronics search condition like the one at issue here is ' "reasonably related to future criminality" ' " under People v. Lent, supra, 15 Cal.3d 481].)
We reject Sachs's overbreadth challenge on its premise, that is, that Riley's analysis of Fourth Amendment protections applies to her. In Riley, the court held the warrantless search of an arrestee's cell phone implicated and violated the individual's Fourth Amendment rights. (Riley v. California, supra, 573 U.S. 373 at p. 403.) The court explained that modern cell phones, which have the capacity to be used as mini-computers, can potentially contain sensitive information about a number of areas of a person's life. (Id. at pp. 393-394.) The court emphasized, however, that its holding was that cell phone data is subject to Fourth Amendment protection, "not that the information on a cell phone is immune from search." (Riley, at p. 401.) 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. 387-401.) The court made clear its ruling would not necessarily extend to other situations in which law enforcement needs are stronger. (Id. at pp. 401-403.)
Unlike the defendant in Riley who had not been convicted of a crime and was still protected by the presumption of innocence, Sachs is under probation supervision, and thus her privacy rights are diminished and may more readily be burdened by restrictions that serve a legitimate purpose. (See United States v. Knights (2001) 534 U.S. 112, 119 [probationer does not " 'enjoy "the absolute liberty to which every citizen is entitled" ' "].) Riley does not support a conclusion that a probation condition permitting searches of computers and recordable media is facially unconstitutional in that it is unwarranted in the abstract, and in all possible applications. Riley's ultimate conclusion regarding the need for a warrant to search an arrestee's phone does not necessarily apply in the probation condition context without specific facts showing a heightened privacy interest.
Here, Sachs's crime involved her acquisition of another person's personal identifying information and using it unlawfully without his permission. The search condition promotes the state's interest in her, as it relates to the identity theft crime she admitted committing. Electronic devices, and computers in particular, are useful in obtaining or manufacturing the kinds of materials useful in committing identity theft offenses. Thus, a probationer whose underlying crime involves the use of another person's identifying information may constitutionally be subjected to some electronics search condition. (See People v. Patton (2019) ___Cal.App.5th ___, ___ [2019 WL 5781909 *6].) Sachs does not challenge the probation condition authorizing officers to conduct random and unlimited searches of her residence at any time and for no stated reason, and she made no showing that a search of her computer or other electronic devices would be any more invasive than an unannounced, without-cause, warrantless search of her residence. Here, the record supports a conclusion that the challenged search condition is necessary to protect public safety and to ensure Sachs's rehabilitation during her supervision period, and a routine search of her electronic data is relevant to the probation department's supervisory function. We see no reasoned basis to conclude the condition is constitutionally overbroad or to remand for the court to consider a more narrowly-drawn condition. On this record, the burden on Sachs's privacy is insufficient to show overbreadth, given the legitimate penological purpose for searching her electronic devices. D. Residence and Employment Condition
Because we reject Sachs's overbreadth claim on its premise, we do not address the People's footnoted contention that the overbreadth doctrine does not apply outside the First Amendment context. (Compare Schall v. Martin (1984) 467 U.S. 253, 268, fn. 18 ["[O]utside the limited First Amendment context, a criminal statute may not be attacked as overbroad"] with Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1095, fn. 15 [limitation of overbreadth claims to First Amendment violations "is not invariably observed"].)
Sachs contends the probation condition requiring her to obtain her probation officer's approval of her residence and employment is overbroad and violates her constitutional rights to freedom of travel and association. Her sole point is that the condition is "neither carefully tailored nor reasonably related to [her] reformation and rehabilitation" because her situation is like that in People v. Bauer (1989) 211 Cal.App.3d 937, in which the appellate court struck a residence approval condition on a record where there was no basis to conclude the defendant's home life contributed to his crimes or that his residence was reasonably related to future criminality. (Id. at pp. 943-944.) Sachs argues that as in Bauer, nothing in the record indicates her living situation contributed to her crime or would contribute to her future criminality.
We do not consider the latter argument, as it depends on a review of the circumstances of Sachs's living arrangements or tendency to commit future crimes. Such an analysis does not present a pure question of law, but instead, requires review of the record. To preserve that sort of argument, Sachs was required to raise her challenge in the lower court so as to allow it to consider the specific argument with reference to her personal circumstances, rather than ask this court to address the claim on an undeveloped record. (See In re Sheena K., supra, 40 Cal.4th at pp. 888-889.) However, as we have stated, while we do not consider individual facts related to Sachs, we nevertheless may consider "the nature of the case and the goals and needs of probation in general." (People v. Stapleton (2017) 9 Cal.App.5th 989, 993-994.)
Proceeding to her facial challenge, we reject it. The condition is not per se unconstitutional. "A trial court may impose probation conditions that place limits on constitutional rights if they are reasonably necessary to meet the twin goals of rehabilitation of the defendant and protection of the public." (People v. Arevalo, supra, 19 Cal.App.5th at p. 657.) Further, in deciding whether a probation condition is sufficiently narrowly tailored to meet constitutional muster, we give the challenged probation condition " 'the meaning that would appear to a reasonable, objective reader.' " (People v. Olguin (2008) 45 Cal.4th 375, 382.) We "presume a probation officer will not withhold approval for irrational or capricious reasons." (People v. Stapleton, supra, 9 Cal.App.5th at p. 996 [court can presume probation officer will not withhold residence approval for irrational or capricious reasons].) Thus, contrary to Sachs's contention, a residence approval condition does not give a probation officer unfettered power over where Sachs resides, or permit him or her to arbitrarily disapprove of her place of residence. (Id. at pp. 996-997.) If the officer disapproves of a particular residence for arbitrary reasons, Sachs may petition for modification of the condition. (§§ 1203.2, subd. (b)(1) & 1203.3, subd. (a); Arevalo, supra, 19 Cal.App.5th 652, 658.)
We see nothing unconstitutionally overbroad about the residence approval condition imposed on Sachs, who committed her crime while under the influence of methamphetamine. The California Supreme Court has pointed out that imposing limitations on a probationer's movements facilitates supervision and rehabilitation. (People v. Moran, supra, 1 Cal.5th at p. 406.) The government has a legitimate interest in reformation and rehabilitation, and residency approval can play a role in effectuating that goal, by keeping probationers from areas where they may get in further trouble or tempt them into drug use. It can ensure a probationer who is otherwise difficult to contact and supervise lives in a location known to the probation officer who has approved the location. The restriction serves rehabilitation and reformation.
Sachs's situation is unlike that in Bauer. In People v. Bauer, supra, 211 Cal.App.3d 937, the appellate court rejected a residence approval requirement—designed to prevent the defendant from living with his parents—in part because the defendant's probation report did not suggest his home life contributed to the crime of which he was convicted or was reasonably related to future criminality. (Id. at p. 944.) The court held the condition was unreasonable and also impinged on the defendant's constitutional right to travel and freedom of association. (Bauer, at p. 944.) According to the court, it was extremely broad since it gave the probation officer the power to forbid the defendant "from living with or near his parents—that is, the power to banish him." (Ibid.) Since Bauer, the "legal landscape has changed" to allow us to presume the probation officer will not withhold approval for irrational or capricious reasons. (People v. Arevalo, supra, 19 Cal.App.5th at p. 658.) In any event, unlike the condition in Bauer, the residence condition imposed here is not designed to prevent Sachs from living where she pleases or "banish" her. (Accord, Arevalo, at p. 657.) Moreover, unlike the defendant in Bauer, Sachs has a drug use history. Thus, where she lives may negatively affect her rehabilitation. (Accord, Arevalo, at p. 658 ["Living in an area having easy access to drug suppliers could negatively affect [the defendant's rehabilitation"].) The probation officer can limit her exposure to sources of temptation for future criminality by, for example, not approving residences in close proximity to drug dealers or areas of frequent drug sales. (Ibid.) Without a limitation placed by the residence condition or without supervision, Sachs may opt to live where drugs are used, sold, or manufactured. A probation officer supervising a person like Sachs must reasonably know where she resides and with whom she is associating to deter future criminality.
Considering the nature of this case and the goals of probation, the condition requiring approval of Sachs's residence is not unconstitutional as a matter of law.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: McCONNELL, P. J. BENKE, J.