Opinion
D072040
02-21-2018
THE PEOPLE, Plaintiff and Respondent, v. LISA SHEPARD, Defendant and Appellant.
Cathryn Lintvedt Rosciam, 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, Eric A. Swenson, Kristine A. Gutierrez and Felicity Senoski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN355440) APPEAL from a judgment of the Superior Court of San Diego County, Carlos O. Armour, Judge. Affirmed. Cathryn Lintvedt Rosciam, 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, Eric A. Swenson, Kristine A. Gutierrez and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Lisa Shepard of possession of methamphetamine (meth) for sale (Health & Saf. Code, § 11378). Shepard was sentenced to a split term in local custody (Pen. Code, § 1170, subd. (h)(5)(B)). Shepard was sentenced to 18 months in custody to be followed by 18 months of mandatory supervision. A number of conditions of mandatory supervision were imposed without objection by the defense.
All further statutory references are to the Penal Code unless otherwise specified.
Shepard now challenges several of the conditions contending they are constitutionally overbroad and must be stricken, and that she was not required to raise any objections in the trial court to preserve the issues for appeal. We will find all of the challenges have been forfeited by failure to object below. Given Shepard's long and dismal history of criminal offenses, substance abuse and violations of probation we will find this appeal does not raise legitimate facial challenges to the conditions. In order to determine if the conditions are overbroad we would have to look to factual matters in the record and not merely examine the text of the challenged conditions. Accordingly, we will affirm the judgment in its entirety.
STATEMENT OF FACTS
Shepard does not challenge the admissibility or sufficiency of the evidence to support her conviction. The only challenges raised relate to mandatory supervision conditions. We will set forth a brief factual summary taken from the respondent's brief merely to give context to the discussion which follows.
On January 30, 2016, appellant was contacted by police at a casino in Valley Center in connection with an assault with a deadly weapon investigation. Appellant informed the police that she had a "4th waiver" and admitted that she had meth in her purse. The police searched appellant's purse and located a pink baggie that contained five smaller baggies, totaling 16.52 grams of meth. Appellant also had a digital scale and what appeared to be a pay and owe sheet. When the police asked appellant why she had such a large quantity of meth, she stated that she planned to be at the casino for the weekend and liked to party. During a search incident to her arrest, the police found an additional two baggies of meth in appellant's bra, totaling over five grams, and a glass pipe.
DISCUSSION
The court imposed a split sentence with 18 months to be served in mandatory supervision by the probation officer. Prior to agreeing to the proposed conditions of mandatory supervision, Shepard asked to speak with trial counsel. Following her private conversation with counsel, Shepard advised the court she agreed to abide by the conditions of mandatory supervision. Shepard now objects to three of the conditions: (1) a search condition which includes computers and other electronic devices (1m); (2) a requirement that she obtain the probation officer's approval as to her residence and employment (7g), and (3) a requirement she obtain the probation officer's consent before traveling outside San Diego County (1k).
Recognizing the issue of forfeiture because of the absence of any objection in the trial court, Shepard now contends each of the listed conditions is constitutionally overbroad. We will reject Shepard's facial challenge to the listed conditions. As we will explain, given Shepard's long term and persistent problems with substances and multiple violations of probation, we cannot say the conditions are facially overbroad. Such challenge to the conditions would depend on an examination of the record beyond the mere language of the conditions. Shepard's agreement to the conditions and failure to timely object has deprived this court of a record from which we could rationally assess the question of overbreadth. Accordingly, we will find the challenges to the three conditions to be forfeited for failure to timely object.
A. Legal Principles
When a court places a defendant on mandatory supervision as part of a split sentence, the court may impose conditions for that period of supervision by the probation officer. (§ 1170, subd. (h)(5)(A), (B); People v. Cruz (2012) 207 Cal.App.4th 664, 671.) Mandatory supervision after the custodial portion of a split sentence is thought to be more akin to parole than probation. However, conditions of such release are examined by the standards for probation supervision. (People v. Martinez (2014) 226 Cal.App.4th 759, 763.)
The grant of probation, or release under mandatory supervision is an act of leniency by the court. Its purpose is to aid in the defendant's rehabilitation and to prevent recidivist behavior. (People v. Moran (2016) 1 Cal.5th 398, 402.) Under People v. Lent (1975) 15 Cal.3d 481, 486, "[a] condition of probation will not be invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .' " (People v. Olguin (2008) 45 Cal.4th 375, 379.)
Where a condition of release imposes burdens on the exercise of constitutional rights, such condition must be reasonably tailored to serve the purpose of the condition without unnecessarily limiting otherwise lawful activity. The determination of overbreadth requires examination of the closeness of the fit between the legitimate purpose of the condition and the burden it places on the defendant's exercise of constitutional rights. (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.)
As an ordinary proposition, a defendant must timely object to probation (or conditional release) conditions in order to preserve the issue for review. (People v. Welch (1993) 5 Cal.4th 228, 237 (Welch).) Failure to timely object prevents the creation of a factual record of the issues surrounding the trial court's decision to impose the condition, and deprives the trial court of the opportunity to correct any errors. Thus, following the holding in Welch, appellate courts may apply the doctrine of forfeiture to decline to reach the merits of the newly raised challenge.
The principal exception to the timely objection rule of Welch, supra, 5 Cal.4th 228, is the case where the language of the condition itself reveals it is either vague or overbroad. (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) In Sheena K., the court dealt with a probation condition which forbid the minor from associating with persons disapproved of by the probation officer. The condition did not contain a knowledge or scienter provision; thus, the minor would not necessarily know who such persons might be, or with whom she was forbidden to associate. The court found such condition presented an issue of law which could be decided without reference to the factual record on appeal. The court also restated its position that the general rule requires timely objection to probation conditions. (Ibid.)
We generally review the trial court's imposition of conditions of release under the abuse of discretion standard. (People v. Appleton (2016) 245 Cal.App.4th 717, 723.)
B. Analysis
None of the conditions challenged here suffer from the facial defect as did the condition in Sheena K., supra, 40 Cal.4th 875. As we will discuss with each of the conditions, we cannot tell if the condition is overbroad without examining its purpose as it relates to Shepard, and what burdens it might place on her otherwise lawful exercise of her rights. The lack of timely objection has denied us the record we need to make an as applied evaluation. However, we do have a substantial amount of information about Shepard generally.
We know Shepard has been constantly in conflict with the law since 2001. She has had multiple grants of probation and many, many violations of her probation. At one point, she was sent to prison after multiple revocations. We know she absconded from the trial and was convicted in absentia. She hid from police, living in her car to avoid arrest and had to be arrested to be brought to court. She was on formal probation with a Fourth Amendment waiver when arrested in this case and had two other probation cases at that time. In short, we know the probation officer reasonably assessed her as not suitable for probation, requiring very close supervision. Given Shepard's complete failure to raise any of the issues in this case in the trial court, we find she has forfeited each issue on appeal.
Out of an abundance of caution, we will discuss the three conditions challenged here.
1. The Electronic Search Condition
Relying principally on Riley v. California (2014) 134 S.Ct. 2473 , Shepard argues the electronic search condition unnecessarily intrudes on the privacy interests recognized in Riley. The court in Riley dealt with the search of a smart phone incident to lawful arrest. The court concluded such exception to the warrant clause of the Fourth Amendment could not be justified in searching the phone. Such devices are not weapons and do not reasonably present police with the risk of destruction of evidence. Thus, given the substantial privacy interest in electronic devices and that searches could not be justified merely as incident to arrest, the court ruled a search warrant should have been obtained. The Riley case did not address any issues regarding probation and parole search conditions. Therefore, Riley does not control the outcome of this analysis.
We have previously discussed the electronic search condition in connection with defendants who presented significant supervision issues in probation. In People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted December 14, 2016, S238210 and People v. Trujillo (2017) 15 Cal.App.5th 574, review granted November 29, 2017, S244650, we rejected similar arguments to that presented by Shepard. We are aware the Supreme Court has granted review in those cases and in numerous other cases pending resolution of In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted February 17, 2016, S230923. Pending further guidance from our Supreme Court we continue to adhere to the views expressed in Nachbar and Trujillo as applied to this case.
2. Residence, Employment and Travel
As we have noted, the trial court imposed conditions of mandatory supervision which require probation officer's approval of Shepard's residence, employment and travel outside San Diego County. Again, we cannot find these conditions overbroad in the absence of a factual record regarding their purposes and their impacts on Shepard's exercise of her rights.
We do know Shepard has been involved in repeated sales of drugs, and apparently does not have her own residence. She was living in her car while hiding from authorities at one point. She has not had employment since at least 1997 and receives disability funds. Given Shepard's long history of substance abuse and sales of illegal substances, the court could have reasonably believed these conditions were necessary for her supervision and rehabilitation once she is conditionally released from the custodial part of her sentence. Absent objection and the needed discussion of these conditions which would have occurred upon an objection, we cannot determine that these conditions are not appropriately tailored to the goal of supervision of this defendant.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: NARES, J. GUERRERO, J.