People v. Castellanos

• Citation: 265 Cal.Rptr.3d 47,51 Cal.App.5th 267
• Decision Date: 26 June 2020
• Docket Number: H045792
• Parties: The PEOPLE, Plaintiff and Respondent, v. Frank Jonathan CASTELLANOS, Defendant and Appellant.
• Court: California Court of Appeals

51 Cal.App.5th 267

265 Cal.Rptr.3d 47

The PEOPLE, Plaintiff and Respondent,

v.Frank Jonathan CASTELLANOS, Defendant and Appellant.

H045792

Court of Appeal, Sixth District, California.

Filed June 26, 2020

Attorney for Defendant and Appellant Frank Jonathan Castellanos: J. Wilder Lee, Sixth District Appellate Program

Attorneys for Plaintiff and Respondent The People: Xavier Becerra, Attorney General of California, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Dorian Jung, Deputy Attorney General

Greenwood, P.J.

This case concerns the validity of a waiver of the right to appeal where the claim on appeal—a challenge to an electronic search probation condition—depends on a post-waiver change in the law. (See In re Ricardo P. (2019) 7 Cal.5th 1113, 251 Cal.Rptr.3d 104, 446 P.3d 747 ( Ricardo P. ) [invalidating electronic search probation condition].)

Castellanos pleaded no contest to transporting a controlled substance in March 2018. He signed a plea form purportedly waiving "all rights regarding state and federal writs and appeals," including "the right to appeal [his] conviction, the judgment, or any other orders previously issued by this court."

The trial court granted a three-year term of probation in April 2018. The court imposed an electronic search probation condition requiring Castellanos to provide law enforcement with access to any electronic device, including all passwords to any social media accounts and applications. On appeal, Castellanos claims the condition is unconstitutionally overbroad. The trial court granted his request for a certificate of probable cause.

After Castellanos filed his opening brief, the California Supreme Court struck down a similar electronic search condition as overbroad. (Ricardo P., supra , 7 Cal.5th 1113, 251 Cal.Rptr.3d 104, 446 P.3d 747.) Castellanos now contends the search condition imposed on him is overbroad for the reasons set forth in Ricardo P. The Attorney General contends Castellanos waived his right to bring this claim on appeal. The Attorney General further argues the probation condition is not overbroad under Ricardo P.

Because Castellanos's claim relies on a post-waiver change in the law, we hold Castellanos did not enter a knowing and voluntary waiver of the right to appeal from the challenged probation condition. ( People v. Wright (2019) 31 Cal.App.5th 749, 242 Cal.Rptr.3d 837 ( Wright ) [defendant did not waive the right to appeal future sentencing error based on a change in the law of which he was unaware at the time he entered his plea].) On the merits of the claim, we hold the search condition is not overbroad under Ricardo P. We will affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural Background

The prosecution charged Castellanos with two counts: Count 1—transporting a controlled substance from one county to another noncontiguous county ( Health & Saf. Code, § 11352, subd. (b) ); and count 2—possession of a controlled substance for sale ( Health & Saf. Code, § 11351 ). In March 2018, Castellanos pleaded no contest to count 1 in exchange for a three-year term of probation and the dismissal of count 2.

Castellanos signed and initialed a plea form including the following preprinted waiver language: "(Appeal and Plea Withdrawal Waiver ) I hereby waive and give up all rights regarding state and federal writs and appeals. This includes, but is not limited to, the right to appeal my conviction, the judgment, and any other orders previously issued by this court. I agree not to file any collateral attacks on my conviction or sentence at any time in the future. I further agree not to ask the Court to withdraw my plea for any reason after it is entered." In the plea colloquy, the trial court asked Castellanos if he gave up those rights, and he answered affirmatively. The court found that Castellanos knowingly, intelligently, and voluntarily waived his rights.

In April 2018, the trial court suspended the imposition of sentence, granted Castellanos a three-year term of probation, and imposed the following electronic search condition: "You are to provide the probation officer or any peace officer with access to your cellphone or any electronic device for the purpose of searching social media accounts, applications, photographs, video recordings, email messages, text messages, and voice messages. [¶] Such access includes providing all passwords to any social media accounts and applications upon request. [¶] And you shall submit to such accounts and applications to search at any time without a warrant by law enforcement or any probation officer."

Defense counsel objected to the condition as overbroad as written, adding, "I think if the Court were to modify it, it may not be." The court overruled the objection, finding the search condition "relevant to the charges in this matter as a number of cellphones were located. This is a transportation case. And the Court finds that transportation and possession for sale are items of criminal conduct that frequently involve the use of cellphones as is shown in this matter."

Castellanos timely appealed and requested a certificate of probable cause to challenge the electronic search condition. After the trial court denied his request, we granted his petition for a writ of mandamus and issued an alternative writ. The trial court then granted his request for a certificate of probable cause.

B. Facts of the Offense

A police officer stopped Castellanos for speeding.¹ Castellanos's girlfriend was a passenger in the car. The officer saw three cell phones in the center console. Castellanos admitted two of the phones were his.

After a K9 search of the car, the officer found a package of 329.9 grams of cocaine in the trunk. Castellanos admitted he was transporting the cocaine to someone in Salinas. In the passenger's purse, the officer found a package of 4.1 grams of cocaine, seven ecstasy pills, a glass pipe, and $83 in currency. She admitted the drugs in the purse were hers and she said she intended to sell them. According the probation report, "She stated that investigators would locate[ ] messages from people asking to buy cocaine," but the report does not make clear whether this statement referred to messages on Castellanos's phones.

II. DISCUSSION

Castellanos contends the electronic search probation condition is unconstitutionally overbroad under the Lent² test as applied by Ricardo P., supra , 7 Cal.5th at p. 1128, 251 Cal.Rptr.3d 104, 446 P.3d 747. The Attorney General contends Castellanos expressly waived the right to bring this claim, such that we must dismiss the appeal. As to the merits of the claim, the Attorney General argues that the probation condition was reasonable under Lent and Ricardo P. because the offense involved the use of cell phones. For the reasons below, we hold Castellanos did not waive his right to bring this claim on appeal, but we conclude the probation condition was not overbroad.

A. Validity of the Appellate Waiver

1. Legal Principles Governing Waiver of Appellate Rights

Waiver is the voluntary, intelligent, and intentional relinquishment of a known right or privilege. ( Estelle v. Smith (1981) 451 U.S. 454, 471, fn. 16, 101 S.Ct. 1866, 68 L.Ed.2d 359, quoting Edwards v. Arizona (1981) 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 ; People v. Panizzon (1996) 13 Cal.4th 68, 80, 51 Cal.Rptr.2d 851, 913 P.2d 1061 ( Panizzon )). " ‘[T]he valid waiver of a right presupposes an actual and demonstrable knowledge of the very right being waived. [Citations.]’ "

( People v. Vargas (1993) 13 Cal.App.4th 1653, 1662, 17 Cal.Rptr.2d 445 ( Vargas ), quoting Jones v. Brown (1970) 13 Cal.App.3d 513, 519, 89 Cal.Rptr. 651.)

A general waiver of the right to appeal does not preclude an appeal from an unforeseen error that occurs after the waiver is entered because such a waiver is not knowing and intelligent. ( People v. Mumm (2002) 98 Cal.App.4th 812, 815, 120 Cal.Rptr.2d 18 ; People v. Sherrick (1993) 19 Cal.App.4th 657, 659, 24 Cal.Rptr.2d 25 ; Vargas, supra , 13 Cal.App.4th at p. 1662, 17 Cal.Rptr.2d 445.) The same rule applies where the "error" is a ruling contravened by a subsequent change in law. While we construe plea agreements according to general contract principles, a plea is generally deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws. ( Doe v. Harris (2013) 57 Cal.4th 64, 66, 158 Cal.Rptr.3d 290, 302 P.3d 598.) "That the parties enter into a plea agreement thus does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them." ( Ibid. )

The burden is on the party claiming the existence of the waiver to prove it was clearly established by evidence in the record. ( Wright, supra , 31 Cal.App.5th at p. 754, 242 Cal.Rptr.3d 837 ; Vargas, supra , 13 Cal.App.4th at p. 1662, 17 Cal.Rptr.2d 445.) "The voluntariness of a waiver is a question of law which appellate courts review de novo." ( Panizzon, supra , 13 Cal.4th at p. 80, 51 Cal.Rptr.2d 851, 913 P.2d 1061.)

2. Castellanos Did Not Waive His Right to Appeal the Probation Condition

The language of the waiver here purported to preclude "all rights" to appeal, including the right to appeal the conviction, the judgment, and any other orders previously issued by the court. For the purposes of appellate waiver analysis, this language sets forth a nonspecific, general waiver. (See Panizzon, supra , 13 Cal.4th at p. 85, fn. 11, 51 Cal.Rptr.2d 851, 913 P.2d 1061 ["I waive my appeal rights," or "I waive my right to appeal any ruling in this case" are examples of general appellate waivers].)

The Attorney General argues that the scope of the waiver expressly includes a challenge to probation conditions, such that the appeal must therefore be dismissed. (See People v. Becerra (2019) 32 Cal.App.5th 178, 188, 243 Cal.Rptr.3d 657 ( Becerra ) [defendant was required to...