People v. Cervantes
| Decision Date | 11 May 2018 |
| Docket Number | E068256 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JOSE FRANCISCO CERVANTES, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from the Superior Court of San Bernardino County. Stephan G. Saleson, Judge. Affirmed as modified.
Aaron J. Schechter, 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, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Jose Francisco Cervantes beat his girlfriend during an argument. Pursuant to a plea agreement, defendant pled no contest to infliction of corporal injury on a cohabitant within seven years of a prior domestic violence conviction. (Pen. Code,1 § 273.5, subds. (a) & (f)(1).) In return, defendant was placed on formal probation for a period of three years with various terms and conditions of probation. On appeal, defendant challenges four of his probation conditions, claiming they are unconstitutionally overbroad and/or vague, and should be stricken or modified. Specifically, he argues (1) the electronics-search condition is unconstitutionally overbroad because it impermissibly restricts his First and Fourth Amendment rights, and (2) the residential search condition, the weapons condition, and the change of residence condition are unconstitutionally vague and overbroad. We agree modification is required as to some of the challenged probation conditions, but reject defendant's remaining arguments.
II
FACTUAL AND PROCEDURAL BACKGROUND2
On March 18, 2017, defendant and his girlfriend of four years got into an argument. During the argument, defendant struck his girlfriend at least six times in herface and mouth and kicked her twice on her side and shoulder. As a result, defendant's girlfriend sustained a black eye, bruising on both of her arms, and scratches on her face. Defendant's girlfriend reported that defendant had injured her before in a previous domestic violence incident, resulting in her being left unconscious in a street outside of their residence. Based on the severity of the previous incident, defendant's girlfriend did not want defendant placed in custody out of fear of what he would do to her upon his release.
On March 21, 2017, a felony complaint was filed charging defendant with inflicting corporal injury on a cohabitant or girlfriend within seven years of a prior domestic violence conviction. (§ 273.5, subds. (a) & (f)(1).) Defendant's prior domestic violence conviction under section 273.5, subdivision (a), occurred on October 27, 2015, in San Bernardino County Superior Court, case No. FSB1503135. At the time of the instant case, defendant was on probation in connection with his prior domestic violence conviction.
On March 29, 2017, pursuant to a plea agreement, defendant pled no contest to the charge and admitted to violating probation in case No. FSB1503135.
On April 27, 2017, the trial court granted defendant formal probation for a period of three years with various terms and conditions of probation, including term Nos. 008A (), 008F (residence search condition), 009 (weapons condition), 010B (electronics-search condition). Defendant was also ordered to serve 210 days in county jail, with credit for time served, and to pay various fines and fees. Duringthe hearing, defense counsel objected to the electronics-device search condition, arguing the condition had no relationship to the offense and violated defendant's due process rights.3 The prosecutor responded that many domestic violence offenders use cellphones to harass, threaten, stalk, and annoy their victims, and that the electronics-device search condition would allow probation to effectively monitor whether defendant was using his cellphone to contact the victim. The trial court agreed with the prosecutor, reasoning that the condition would allow probation to "properly monitor domestic violence situations."
On May 1, 2017, defendant filed a timely notice of appeal.
III
DISCUSSION
Defendant challenges four of his probation conditions, arguing they are unconstitutionally overbroad and/or vague, and should be stricken or modified.
"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.' " (People v. Moran (2016) 1 Cal.5th 398, 402-403, quoting § 1203.1, subd. (j).) Thus, "a sentencing court has 'broad discretion to impose conditions to foster rehabilitation and to protect publicsafety pursuant to Penal Code section 1203.1.' " (Moran, at p. 403, quoting People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) "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 (O'Neil), quoting People v. Lopez (1998) 66 Cal.App.4th 615, 624 (Lopez).)
Judicial discretion in selecting the conditions of a defendant's probation "is not unlimited." (O'Neil, supra, 165 Cal.App.4th at p. 1355.) A probation condition is unreasonable and will not be upheld if it (1) has no relationship to the crime of which the defendant was convicted, (2) relates to conduct that is not criminal, and (3) requires or forbids conduct that is not reasonably related to future criminality. (People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin); O'Neil, at p. 1355.) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (Olguin, at p. 379.) Thus, as a general rule, "even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (Id. at p. 380.)
However, "[j]udicial discretion to set conditions of probation is further circumscribed by constitutional considerations." (O'Neil, supra, 165 Cal.App.4th at p. 1356.) Under this second level of scrutiny, if an otherwise valid condition of probation impinges on constitutional rights, the condition must be carefully tailored so as to bereasonably related to the compelling state interest in the probationer's reformation and rehabilitation. (Ibid.; People v. Bauer (1989) 211 Cal.App.3d 937, 942 (Bauer); In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.); In re Victor L. (2010) 182 Cal.App.4th 902, 910.) "The essential question . . . 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.)
Challenges to probation conditions ordinarily must be raised in the trial court or appellate review of those conditions will be deemed forfeited. (People v. Welch (1993) 5 Cal.4th 228, 234-235 [].) However, the forfeiture rule does not apply, and a defendant who did not object to a probation condition at sentencing may do so on appeal if the appellate claim "amount[s] to a 'facial challenge' " that challenges the condition on the ground its "phrasing or language . . . is unconstitutionally vague or overbroad" and the determination whether the condition is constitutionally defective "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court." (Sheena K., supra, 40 Cal.4th at pp. 885, 887.) Thus, a challenge to a probation condition on the ground it is unconstitutionally overbroad or vague "that is capable of correction without reference tothe particular sentencing record developed in the trial court can be said to present a pure question of law" (id. at p. 887, italics omitted), and such a challenge is reviewable on appeal even if it was not raised in the trial court (id. at p. 889). To the extent defendant raises a facial challenge to the constitutional validity of the residence reporting condition, the claim is not forfeited by defendant's failure to raise it below. (Ibid.)
"Generally, we review the court's imposition of a probation condition for an abuse of discretion." (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143, citing Carbajal, supra, 10 Cal.4th at p. 1121.) However, we independently review constitutional challenges to a probation condition. (In re Shaun R., at p. 1143.) Based on the foregoing, we address the merits of defendant's arguments post.
Defendant's electronics-search condition here provided as follows: "Submit to search and seizure by a government entity of any electronic device that you are an authorized possessor of pursuant to PC 1546.1(c)(10)." Defendant...
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