THE PEOPLE, Plaintiff and Respondent, v. KAYVON PATTON, Defendant and Appellant.
D074344
(Super. Ct. No. SCD275677)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 11/6/19
Opinion following rehearing
CERTIFIED FOR PUBLICATION
Leslie Ann Rose, 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 Yvette M. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
In our initial opinion, we rejected the People‘s argument that Patton‘s appeal should be dismissed for failure to obtain a certificate of probable cause. We then concluded the electronics search condition was valid under Lent and not overbroad. After our decision, the California Supreme Court issued In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), clarifying when an electronics search condition is reasonably related to the probationer‘s future criminality under Lent. We granted Patton‘s petition for rehearing and allowed both parties to file supplemental briefs concerning the effect of Ricardo P.2
Upon rehearing we conclude, as before, that Patton did not need a certificate of probable cause to challenge the electronics search condition on appeal. Despite a boilerplate waiver of appellate rights in his plea agreement, he did not waive his right to challenge a later-imposed condition of probation that was not referenced in that agreement. Accordingly, his appeal is based on “[g]rounds that arose after entry of the
Turning to the merits of Patton‘s appeal, Ricardo P. “does not categorically invalidate electronic search conditions. In certain cases, the probationer‘s offense or personal history may provide the . . . court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality.” (Ricardo P., supra, 7 Cal.5th at pp. 1128–1129.) For example, the Supreme Court approved of In re Malik J. (2015) 240 Cal.App.4th 896 (Malik J.), in which a tailored electronics search condition was reasonably imposed on a probationer given his history of robbing people of their cell phones. (Ricardo P., at p. 1129.)
As we explain, the electronics search condition was validly imposed under Lent‘s first prong because it relates to his underlying crime. Ricardo P. does not alter this analysis. Moreover, because the nature of Patton‘s offense means that some electronics search condition could constitutionally be imposed consistent with Malik J., the condition is not facially overbroad. Any challenge to the closeness of fit between the condition and facts related to Patton‘s crime or history is an as-applied constitutional claim, forfeited by Patton‘s failure to object on that basis before the trial court. Accordingly, we affirm.
On January 19, 2018 around 4:30 p.m., officers with the San Diego Police Department responded to a reported theft at Hit Mobile Store. Store employee Miguel O. had been helping a female customer at the front counter when two men entered the store, followed by two more men. At some point he heard a loud crack and saw the four men pulling electronic devices off security cords attached to the wall. They ran out of the store with three iPhones, two Apple Watches, an iPad Pro, a Samsung S7, and Samsung gear VR.
When officers arrived, they discovered a smudged fingerprint on a Samsung phone that was dropped by one of the men on his way out of the store.4 A lab report identified the fingerprint as belonging to defendant Kayvon Patton. Video from the store‘s surveillance camera confirmed Patton as one of the four men.
The San Diego County District Attorney charged Patton with felony grand theft of personal property (
At the sentencing hearing in July 2018, the judge imposed three years of formal probation under various conditions with a stay of 240 days in local custody pending successful completion of probation. The probation conditions included limitations on drug and alcohol possession and an order to stay away from the other unidentified perpetrators. Another condition required that Patton “submit person, vehicle, residence, property, personal effects, computers, and recordable media including electronic devices 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.” (Italics added.) Patton‘s appeal challenges this condition. He did not request a certificate of probable cause.
DISCUSSION
A. Failure to Obtain a Certificate of Probable Cause
The People contend we should not reach the merits of Patton‘s appeal because he did not obtain a certificate of probable cause under
The People do not dispute that the specific grounds for Patton‘s appeal—a condition of probation imposed at sentencing two months after his plea—“arose after entry of the plea” within the meaning of
The People‘s first argument need not detain us long. The mere fact that Patton knew some unspecified “reasonable” restrictions or requirements could be imposed as a condition of his probation does not mean he was agreeing to accept anything the court decided to include, regardless of how unreasonable he thought it was. The People‘s reliance on People v. Panizzon (1996) 13 Cal.4th 68 (Panizzon) is misplaced. In that case, the defendant challenged the specific sentence to which he had agreed as part of his plea agreement, “as opposed to a matter left open or unaddressed by the deal.” (Id. at
The boilerplate appellate waiver included on the plea form likewise does not preclude Patton‘s appeal. As this court has previously observed, “[a] defendant may waive the right to appeal as part of a plea bargain where the waiver is knowing, intelligent and voluntary. [Citation.] A broad or general waiver of appeal rights ordinarily includes error occurring before but not after the waiver because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error. [Citation.] Thus, a waiver of appeal rights does not apply to ’ “possible future error” [that] is outside the defendant‘s contemplation and knowledge at the time the waiver is made.’ ” (People v. Mumm (2002) 98 Cal.App.4th 812, 815 (Mumm), quoting Panizzon, supra, 13 Cal.4th at p. 85; accord, People v. Vargas (1993) 13 Cal.App.4th 1653, 1662–1663 (Vargas) [general waiver of appeal rights does not constitute “a specific waiver of future sentencing error“]; People v. Sherrick (1993) 19 Cal.App.4th 657, 659 [general waiver of right to ” ‘appeal any ruling in this case’ ” does not preclude argument that sentencing court decided his eligibility for probation ” ‘on a patently erroneous standard’ “]; In re Uriah R. (1999) 70 Cal.App.4th 1152, 1160 [a general waiver does not preclude attacks on subsequent errors that are unforeseen or unforeseeable at the time the waiver was made]; People v. Kennedy (2012) 209 Cal.App.4th 385, 391 [under Panizzon, “waiver will not be construed to bar the appeal of sentencing errors occurring subsequent to plea especially when the defendant is
In Espinoza, supra, 22 Cal.App.5th 794, the appellate court relied on Justice Marvin Baxter‘s unusual concurring opinion to his own majority opinion in People v. Buttram (2003) 30 Cal.4th 773 (Buttram). The holding of Buttram is unremarkable and fully consistent with prior case law. The defendant pleaded guilty in exchange for an agreed maximum sentence, or “lid.” (Id. at p. 776.) There was nothing in the plea agreement affirmatively waiving his right to appeal any sentencing issue that arose after the plea. (Id. at p. 778.) Nonetheless, the People argued that a certificate of probable cause was required because “when a defendant negotiates a maximum sentence in return for his plea,” any appellate challenge to a sentence imposed within the maximum “is an attack on the validity of the plea itself, and thus requires a certificate of probable cause.” (Id. at p. 780.) Rejecting this argument, the Supreme Court held that “absent contrary provisions in the plea agreement itself,” no certificate of probable cause was required for defendant to appeal the trial court‘s discretionary decision to impose the maximum allowable sentence rather than some lesser punishment. (Id. at p. 790.)
Noting that the plea agreement in Buttram did not address defendant‘s ability to attack a sentence within the allowable sentencing range, Justice Baxter‘s concurring opinion urged parties in future cases to expressly negotiate that issue (30 Cal.4th at p. 791 (conc. opn. of Baxter, J.)), inferentially advocating that criminal defendants be encouraged to waive their appellate rights if the trial court imposed a sentence within the agreed-upon range. He suggested that with such an express waiver, “an attempt to appeal
Espinoza sought to apply Justice Baxter‘s recommendations to a defendant‘s post-plea appeal challenging a condition of probation. In Espinoza, the defendant “broadly waived her ‘right to appeal the judgment and any rulings of the court.’ ” (22 Cal.App.5th at p. 801.) The court found this “broad[]” waiver sufficient to invoke Justice Baxter‘s concurring comments and preclude defendant‘s appeal in the absence of a certificate of probable cause.5 (Id. at p. 803.)
Whatever the merits of Espinoza‘s analysis, its premise depends on the defendant‘s express waiver of the right to appeal a discretionary decision on probation conditions that is made after entry of the plea. As a result, the first issue we must address is the scope of the appellate waiver in this case. (See Vargas, supra, 13 Cal.App.4th at p. 1661; People v. Becerra (2019) 32 Cal.App.5th 178, 188 (Becerra).) Here, the provision in the plea agreement purporting to waive Patton‘s appellate rights is decidedly different—and significantly narrower—than the comparable provision in Espinoza.
In waiving his right to appeal “any sentence stipulated herein,” Patton‘s plea agreement referred to the terms of the sentence that were included in the agreement itself. (Italics added.) We construe that language to apply to the specifics of the stipulated sentence specified in his plea agreement. By its terms, the scope of the waiver is limited; it did not encompass provisions (such as particular conditions of probation) that were yet to be determined in future proceedings. (Becerra, supra, 32 Cal.App.5th at p. 188 [no certificate required “[i]f the defendant‘s claim is not within the scope of an appellate waiver“].) Thus, Patton‘s appeal in no way attacks the plea or affects its validity, and
B. Validity of the Electronic Device Search Condition
Patton argues, as he did below, that the electronics search condition cannot validly be imposed under Lent, supra, 15 Cal.3d 481. He also raises a facial overbreadth challenge for the first time on appeal. We reject both contentions.
1. Additional Background
Patton went with friends to a Hit Mobile Store during business hours and stole four cell phones, two Apple Watches, an iPad, and a virtual reality headset valued in the aggregate at $4,620. He pleaded guilty to felony grand theft. Before Patton‘s sentencing, the store manager told the probation department that he believed the same individuals had burglarized the store a second time months after the admitted theft. The probation department also interviewed Patton telephonically. He claimed he “was just following” friends from school and “the streets” and had pawned the phone he stole for $550 to purchase “Norcos.”
At sentencing, Patton‘s counsel challenged the electronics search condition, arguing there was an insufficient nexus under Lent. The trial court expressed surprise: “So, Counsel, you don‘t believe that in a case where he‘s being charged with . . . stealing from a store that sells telephones and electronic devices, and working with a group of people that did that to the tune of $4,600 there is a nexus to the extension of the fourth waiver to electronics?” In response, counsel indicated there was enough of a nexus to justify an “external search” of an electronic device, but not to “searching the internals of
“Clearly there was a theft of a cell phone here. And he was part of a ring where people were stealing these, clearly selling them or doing something. Because it‘s unclear why he needed as many phones as he was taking. [¶]
“He also has a longstanding drug problem that we‘re going to try to curtail. Probation can hopefully monitor that and monitor his phone and make sure he‘s not purchasing cocaine that he first used at 15 years old, or marijuana that he started using at 15 years old or, in fact, abusing cough syrup or using alcohol at all, given he‘s 20 years old and not able to legally drink alcohol. And there‘s going to be a condition that he not drink. [¶]
“We‘re also going to . . . attempt to monitor any no-contact order he has with the other individuals that were involved in this. And a no-contact with the store that he stole from.”
As a condition of probation, Patton must “submit [his] person, vehicle, residence, property, personal effects, computers, and recordable media including electronic devices 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.”
2. The Condition is Reasonable Under Lent
Consistent with his argument before the trial court, Patton claims the electronics search condition is unreasonable under Lent, supra, 15 Cal.3d 481. A sentencing court has “broad discretion” to fashion appropriate conditions of probation that facilitate rehabilitation and foster public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) We review the conditions imposed for abuse of discretion. (People v. Olguin
The parties agree that Lent‘s second prong is met: use of electronic devices is not inherently criminal. They disagree as to the first and third prongs. Patton contends the electronics search condition does not relate to his crime merely because he happened to steal electronics. He claims there must be indication he used an electronic device to commit, plan, or discuss criminal activity. The People disagree, focusing on Patton‘s admitted theft of $4,620 in electronics from an electronics store to argue the condition relates to his crime. The parties likewise disagree as to Lent‘s third prong, offering competing interpretations of Ricardo P., supra, 7 Cal.5th 1113, and disagreeing whether the burdens imposed by the electronics search condition are proportional to a legitimate rehabilitative aim.
We end our inquiry at Lent‘s first prong and have no need to scrutinize Ricardo P. Patton and his companions stole four cell phones and other electronic devices from an electronics store. According to the presentence probation report, Patton was with his friends from school and “the streets,” and the same individuals may have burglarized the same store a second time a few months later. Patton calls it a “red herring” that he and his companions happened to steal cell phones, and suggests the essence of his crime was
Given the nature of Patton‘s offense, there is a relationship between theft of electronic devices and the imposition of an electronic device search condition. Although we do not reach its analysis of Lent‘s third prong, it is noteworthy that Ricardo P. approved of Malik J., supra, 240 Cal.App.4th 896, where the court upheld an electronics search condition as to a defendant convicted of stealing cell phones, finding the condition enabled probation officers to determine whether a cell phone on his person was stolen.
In short, the first prong of Lent is not satisfied. There is a relationship between the electronics search condition and Patton‘s felony grand theft conviction. Accordingly, the condition is valid under Lent.
3. Some Electronics Search Condition May Constitutionally Be Imposed, and Patton Forfeited Any As-Applied Challenge
Patton next claims the electronics search condition is unconstitutionally overbroad. He is correct that the warrantless search of electronic devices “significantly burdens privacy interests.” (Ricardo P., supra, 7 Cal.5th at pp. 1122−1123.) By citing Riley v. California (2014) 573 U.S. 373, 393−395 and
The People argue Patton forfeited his overbreadth challenge by failing to raise it before the trial court. An as-applied constitutional challenge is forfeited unless previously raised. (Sheena K., supra, 40 Cal.4th at p. 889.) ” ‘The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so they may be corrected.’ ” (Id. at p. 881.) However, the forfeiture rule does not extend to facial constitutional challenges presenting pure questions of law that can be resolved without referring to the particular sentencing record developed below. (Id. at pp. 885, 889.) A facial challenge “does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts.” (Id.any valid application, without relying on any facts in the sentencing record. (See, e.g., People v. Pirali (2013) 217 Cal.App.4th 1341, 1347.)
A probationer whose underlying crime involved stealing cell phones may constitutionally be subjected to some electronics search condition. Malik J. approved a
Importantly though, Malik J. involved an as-applied challenge. The court reviewed the sentencing record to evaluate whether the electronics search condition was sufficiently tailored to the reasonable goal of determining if cell phones on the
As Sheena K. observed, “in some instances, a constitutional defect may be correctable only by examining factual findings in the record or remanding to the trial court for further findings.” (40 Cal.4th at p. 887.) That is the scenario here. Patton argues his crime and social history do not justify so broad an intrusion on his privacy. This is a classic as-applied claim. Had he raised a constitutional challenge at sentencing, the court might have asked whether he had used electronic devices to coordinate the burglary with friends or to buy drugs. Or the court could have asked questions to focus the condition on search efforts that would help officers discover if electronic devices in Patton‘s possession were stolen. Because no constitutional objection based on privacy interests was raised, the court had no occasion to conduct such an inquiry.
In short, Malik J., supra, 240 Cal.App.4th 896 demonstrates on similar facts that some electronics search condition could constitutionally be imposed. The closeness of fit between the condition imposed and defendant‘s rehabilitation veers into as-applied territory. Patton forfeited that claim by failing to raise a constitutional objection before the trial court.
The judgment is affirmed.
DATO, J.
I CONCUR:
HUFFMAN, Acting P. J.
I agree with the majority‘s conclusions that a certificate of probable cause is not required and the challenged probation condition was proper. I write separately to clarify my views on the necessity of obtaining a probable cause certificate before challenging a probation condition as unreasonable. In particular, I agree with the analysis in People v. Espinoza (2018) 22 Cal.App.5th 794 (Espinoza), but find the decision distinguishable. Although the distinction is subtle, it is critical for appellate counsel to understand this difference when deciding whether to seek a probable cause certificate and in briefing the issue on appeal.1
An exception to the probable cause certificate requirement after a guilty plea applies when the appellant raises “[g]rounds that arose after entry of the plea and do not affect the plea‘s validity.” (
In Espinoza, the defendant‘s plea agreement included her waiver of the ” ‘right to appeal the judgment and rulings of the court.’ ” (Espinoza, supra, 22 Cal.App.5th at pp. 797, 801.) In a criminal case, judgment is rendered when the trial court orally pronounces sentence. (See Becerra, supra, 32 Cal.App.5th at p. 189.) In challenging the probation condition imposed at sentencing, the Espinoza defendant did not dispute that the challenge fell within the scope of her appellate waiver in the plea agreement. (Espinoza, at p. 801.) But she argued her “waiver was not knowing and intelligent” and thus she was not required to obtain a probable cause certificate. (Ibid.) In support of this contention, she relied on ” ‘post-plea events’ ” (the imposition of the probation conditions). (Id. at p. 802.)
In Panizzon, the defendant was challenging the constitutionality of his agreed-upon sentence based on events occurring after the sentence was imposed. (Panizzon, supra, 13 Cal.4th at pp. 74, 77–78.) In Espinoza, the defendant was challenging the validity of her agreement to waive her right to appeal, which she conceded included “herright to appeal the imposition of probation terms.” (Espinoza, supra, 22 Cal.App.5th at p. 801.) In both situations, the court held a probable cause certificate was required because the challenge sought to attack matters within the scope of the plea agreement. (Panizzon, at pp. 74–79, 89; Espinoza, at pp. 798–803.)
These holdings do not bar a defendant from claiming on appeal that a waiver of the right to appeal was not knowing or intelligent, and, if he or she prevails on this argument, from challenging the reasonableness of the later-imposed probation conditions. But they do bar a defendant from making these arguments when challenging a matter
This case is different from Espinoza because Patton‘s appeal waiver was narrower. Patton agreed to waive his right to appeal (1) the denial of his
HALLER, J.