People v. Lynch

• Decision Date: 11 January 2018
• Docket Number: D071882
• Parties: THE PEOPLE, Plaintiff and Respondent, v. PAUL LYNCH, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. PAUL LYNCH, Defendant and Appellant.

D071882

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

January 11, 2018

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD265745)

APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed as modified.

Patrick Dudley, 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, A. Natacha Cortina and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.

Paul Lynch pleaded guilty to one count of assault by means likely to cause great bodily injury (Pen. Code,¹ § 245, subd. (a)(4)). The trial court sentenced him to credit for time served and placed him on three years of formal probation with multiple conditions. Lynch challenges four of the probation conditions, contending they are overbroad, unreasonable, and/or violate his constitutional rights. The People concede that one of the conditions—barring Lynch's presence at places where alcohol is the main item for sale—should be stricken. We agree, and modify the probation order to strike that condition. We otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND²

In February 2016, Lynch hit his long-time neighbor in the face with a glass bottle after they argued and the neighbor called him vulgar names. When police arrived, Lynch was uncooperative and unwilling to leave his residence. The neighbor admitted to "start[ing] the whole thing" after getting "pissed" and "belligerent," and related that Lynch wanted to be left alone and did not want problems. Lynch stated he hit the neighbor in self-defense.

Following Lynch's guilty plea, the probation officer issued a report recounting Lynch's acceptance of responsibility for the present offense as well as his lengthy juvenile and adult criminal history. He stated Lynch was presumptively ineligible for probation given his previous felony convictions. The officer nevertheless pointed out that the parties had stipulated to a grant of probation, and he recommended Lynch be placed on three years of formal probation with various conditions, including that Lynch obtain probation officer approval as to his residence (condition 10g), and submit his person, vehicle, residence, property, personal effects, computers, and recordable media to search at any time (condition 6n). The probation officer additionally recommended some alcohol and marijuana conditions, specifically, that Lynch not knowingly use or possess alcohol if directed by his probation officer (condition 8b) or be in places other than in the course of employment where alcohol is the main item for sale (condition 8h), that Lynch submit to chemical testing for blood alcohol content upon request (condition 8f), and that he not use marijuana at all, with or without a prescription or recommendation (condition 14a).

The probation officer evaluated Lynch under the COMPAS (Correctional Offender Management Profiling for Alternative Sanctions) assessment tool. The assessment found Lynch "would benefit from some guidance and monitoring in the community via probation supervision and referrals to community resources," and factors to be addressed were his history of noncompliance and violence, his current violence, and his "criminal personality."

At Lynch's sentencing hearing, the court considered Lynch's counsel's arguments concerning the probation officer's recommended probation conditions. Defense counsel did not object to the alcohol use restriction or requirement for chemical testing for blood alcohol content, but did object to conditions 6n and 8h on grounds they had no nexus to the case, and also to condition 14a, asking the court to permit Lynch to use marijuana if Lynch was determined to have a medical condition requiring a recommendation for such use. As for condition 6n's requirement for searches of Lynch's computers and recordable media, the court stated, "[W]ithout even knowing if your client has a computer or whatever, that's a standard term and condition of probation to monitor probationers." It invited Lynch to put the issue on calendar if a specific problem arose, and observed in response to counsel's further arguments that the issue might become moot depending on legal developments. The court overruled the remaining objections, and ordered that Lynch be subject to all of the probation conditions described above. Lynch accepted probation on all the imposed terms and conditions.

DISCUSSION

I. Legal Principles and Standard of Review

A grant of probation " 'is not a right, but a privilege' " (People v. Moran (2016) 1 Cal.5th 398, 402) and a trial court has broad discretion to choose probation in sentencing a criminal offender. (Ibid.) Reviewing courts defer to the court's choice absent a manifest abuse of that discretion. (Ibid.)

"When an offender chooses probation, thereby avoiding incarceration, state law authorizes the sentencing court to impose conditions on such release that are 'fitting andproper 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, supra, 1 Cal.5th at pp. 402-403.) Our state's high court has stated that a probation condition " 'will not be held 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 (Olguin), quoting People v. Lent (1975) 15 Cal.3d 481, 486 (Lent); People v. Trujillo (2017) 15 Cal.App.5th 574, 583 (Trujillo), review granted Nov. 29, 2017, No. S244650; In re J.B. (2015) 242 Cal.App.4th 749, 754.) A reviewing court can invalidate the condition only if all three prongs—referred to as the Lent factors—are met. (Olguin, at p. 379.)

A reviewing court can also invalidate probation conditions if they are unconstitutionally overbroad, that is, if they impose limitations on a person's constitutional rights that are not closely tailored to the purpose of the condition. (See In re Sheena K. (2007) 40 Cal.4th 875, 890; People v. Stapleton (2017) 9 Cal.App.5th 989, 993.) " 'A restriction is unconstitutionally overbroad . . . if it (1) "impinge[s] onconstitutional 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.' " (Stapleton, at p. 993; People v. Appleton (2016) 245 Cal.App.4th 717, 723.)

Appellate courts generally review probation conditions for abuse of discretion. (People v. Moran, supra, 1 Cal.5th at p. 403; People v. Appleton, supra, 245 Cal.App.4th at p. 723.) "That is, a reviewing court will disturb the trial court's decision to impose a particular condition of probation only if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable." (Moran, at p. 403.) But constitutional challenges, such as a claim that a condition is overbroad, are reviewed de novo. (People v. Stapleton, supra, 9 Cal.App.5th at p. 993; Appleton, at p. 723.)

II. Residence Approval Condition

Lynch contends probation condition 10g, which requires him to obtain probation officer approval of his residence, is overbroad and impinges on his right to travel and freedom of association under the First Amendment. Lynch admits he did not object to the probation officer's recommendation for the condition or its imposition by the trial court. He nevertheless contends that his constitutional challenge is not forfeited because it is a pure question of law that can be resolved without regard to his sentencing record. The People respond that Lynch forfeited the claim by his failure to object; that in order todetermine whether the condition is overbroad, this court must refer to the record including his criminal and social history.

We agree with the People. The mere fact that Lynch has advanced a constitutional challenge does not permit us to review it for the first time on appeal. We acknowledge that the California Supreme Court has recognized that the general forfeiture rule does not apply to a facial challenge to the constitutionality of a probation condition. (In re Sheena K., supra, 40 Cal.4th at pp. 887-889.) However, it cautioned that its conclusion "does not apply in every case in which a probation condition is challenged on a constitutional ground. . . . [W]e do not conclude that '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...