Filed 9/18/18 P. v. Brown CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Introduction

Defendant was convicted by a jury of one count of making a criminal threat (Pen. Code, § 422, subd. (a)).[1] The trial court imposed three years’ probation, subject to various terms and conditions, including that defendant submit to warrantless searches and seizures of his home, car, and person. On appeal, defendant challenges the warrantless search condition, contending it is unreasonable under Lent[2] and unconstitutionally overbroad. Additionally, defendant contends, and the Attorney General agrees, the January 27, 2017, clerk’s minutes of the sentencing hearing and the order of probation should be modified to state defendant may not “possess or control any firearm.” We order the modification, and otherwise affirm.

Background

Defendant and his (now ex) wife got into an argument one night. After fighting for several minutes, defendant told his wife he wanted a divorce. The argument persisted, particularly after his wife suggested she was the sole owner of their home. While it is disputed how many times defendant went into the garage and then back into the house, at some point, he returned to the house carrying a bottle of lighter fluid. According to his wife, defendant, while flailing his arms with the fluid in his hands, threated to burn down the house, his wife, and their dog. They exchanged more words, and defendant eventually took the lighter fluid back into the garage, but not before he had spilled some on his wife.

Unbeknownst to defendant, sometime during the argument, his wife called the police. When defendant returned to the house after returning the lighter fluid to the garage, he heard a knock at the door and opened it to find two police officers. One officer entered the home to speak with defendant’s wife, and the other stayed outside with defendant, who was handcuffed.

Defendant was arrested and charged with assault with caustic chemicals (§ 244–count 1), making a criminal threat (§ 422, subd. (a)–count 2), and dependent elder abuse (§ 368, subd. (b)(1)–count 3). A jury convicted him of count 2, making a criminal threat, and acquitted him of counts 1 and 3. The trial court sentenced him to 120 days in the county jail, required him to complete a 52-week batterer’s program and 40 hours of community service, and placed him on three years’ probation subject to numerous terms and conditions, including that he submit to warrantless searches and seizures. Defendant made no objection to this condition.

Discussion

The Probation Condition

The challenged condition requires that defendant “submit his person, his residence, his vehicle, [and] any personal property under his control to search and seizure at any time of the day or night by any law enforcement officer. . . .” Defendant contends this standard search condition fails under Lent. He further asserts the condition is unconstitutionally overbroad and impinges on his Fourth Amendment rights.

Forfeiture

As we have recited, defendant made no challenge to the search condition when he was sentenced. Accordingly, the Attorney General maintains he has forfeited both his Lent challenge and his constitutional overbreadth challenge. The Attorney General is correct.

Our Supreme Court has unequivocally held that “failure to timely challenge a probation condition on ‘Bushman/Lent’^[[3]] grounds in the trial court waives the claim on appeal.” (People v. Welch (1993) 5 Cal.4th 228, 237 (Welch); People v. Barajas (2011) 198 Cal.App.4th 748, 753 [“A Court of Appeal will review the reasonableness of a probation condition only if the probationer has questioned it in the trial court.”].)

“Applying the [forfeiture] rule to appellate claims involving discretionary sentencing choices or unreasonable probation conditions is appropriate, because characteristically the trial court is in a considerably better position than the Court of Appeal to review and modify a . . . probation condition that is premised upon the facts and circumstances of the individual case.” (In re Sheena K. (2007) 40 Cal.4th 875, 885 (Sheena K.).) “A rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis.” (Welch, supra, 5 Cal.4th at p. 235.)

Constitutional challenges to probation conditions are also forfeited where they involve a fact-specific inquiry. (See Sheena K., supra, 40 Cal.4th at pp. 888–889 [no forfeiture if facial constitutional challenge presents only question of law]; People v. Kendrick (2014) 226 Cal.App.4th 769, 777–778 [constitutional challenge “that cannot

be resolved ‘without reference to the particular sentencing record developed in the trial court’ ” does not present a pure question of law].) Here, defendant’s overbreadth argument is based on his claim that the search condition is “not specifically tailored to [defendant’s] rehabilitative needs” given the circumstances of the crime and defendant’s background. He is therefore advancing a fact-specific claim, which he was required to raise in the first instance in the trial court.

Ineffective Assistance of Counsel

Anticipating a forfeiture problem, defendant advances an ineffective assistance of counsel (IAC) claim.

The law governing IAC claims is well-settled. The federal and state Constitutions guarantee criminal defendants the right to adequate representation by counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Mendoza (2000) 78 Cal.App.4th 918, 924.) To prevail on a claim of ineffective assistance of counsel, a defendant must show both “that counsel’s performance was deficient,” such that “counsel was not functioning as the ‘counsel’ [constitutionally] guaranteed,” and “that the deficient performance prejudiced the defense.” (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Centeno (2014) 60 Cal.4th 659, 674.)

To establish the first Strickland prong, a defendant must show that “counsel’s performance . . . fell below an objective standard of reasonableness under prevailing professional norms.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) In evaluating this prong, “a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance.” (Ibid.) Because the presumption of counsel’s competence can typically be rebutted only with evidence outside the record, a reversal on direct appeal is not warranted unless “(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.” (Ibid.; People v. Lucas (1995) 12 Cal.4th 415, 442 [IAC claim will succeed on appeal only where there is “no rational tactical purpose for counsel’s omissions”].) Counsel is not ineffective in failing to raise meritless or fruitless objections. (People v. Ochoa (1998) 19 Cal.4th 353, 463; People v. Jackson (1989) 49 Cal.3d 1170, 1189.)

Defendant has no IAC claim here because the search condition is not unreasonable under Lent, nor is it constitutionally overbroad.

Lent Challenge

A probation condition is unreasonable under Lent only if: (1) the condition has no relationship to the convicted crime; (2) the condition “relates to conduct which is not in itself criminal”; and (3) the condition “requires or forbids conduct which is not reasonably related to future criminality. . . .” (Lent, supra, 15 Cal.3d at p. 486, quoting People v. Dominguez (1967) 256 Cal.App.2d 623, 627.) A probation condition must meet all three of these factors before it will be stricken. (People v. Olguin (2008) 45 Cal.4th 375, 379–380.) Thus, even if a condition has no relationship to the crime of which a defendant was convicted and involves conduct that is not, itself, criminal, the condition will be upheld as long as it is reasonably related to preventing future criminality. (Id. at p. 380.)

Regardless of whether the search condition at issue here meets the first two prongs of Lent, it does not meet the third prong because it is reasonably related to preventing future criminality, as many cases have held.

“[A] warrantless search condition is intended and does enable a probation officer ‘ “to ascertain whether [the defendant] is complying with the terms of probation . . . [so] [i]nformation obtained . . . [is] a valuable measure of the effectiveness of the supervision given the defendant and his amenability to rehabilitation.” ’ ” (People v. Adams (1990) 224 Cal.App.3d 705, 712, quoting People v. Mason (1971) 5 Cal.3d 759, 763–765, disapproved on other grounds as stated in Lent, supra, 15 Cal.3d at p. 486, fn. 1 [upholding search condition in burglary case].) “[A] warrantless search condition is intended to ensure that the subject thereof is obeying the fundamental condition of all grants of probation, that is, the usual requirement . . . that a probationer ‘obey all laws.’ Thus, warrantless search conditions serve a valid rehabilitative purpose, and because such a search condition is necessarily justified by its rehabilitative purpose, it is of no moment whether the underlying offense is reasonably related to theft, narcotics, or firearms. . . .” (People v. Balestra (1999) 76 Cal.App.4th 57, 67 (Balestra); id. at pp. 61, 68 [upholding search condition in elder abuse case where daughter threatened and assaulted her mother].)

Accordingly, there is no merit to defendant’s claim that the standard search condition fails under Lent. Indeed, we observe that defendant is subject to a no-firearm condition, which he has not challenged, and the search condition plainly enhances probation’s ability to ensure compliance with that condition.

Defendant’s reliance on In re Martinez (1978) 86 Cal.App.3d 577 (Martinez), People v. Keller (1978) 76 Cal.App.3d 827, and People v. Bryant (2017) 10 Cal.App.5th 396, review granted June 28, 2017, S241937 (Bryant), is misplaced.

In Martinez, a habeas proceeding, the defendant pleaded guilty to misdemeanor battery for throwing a bottle of beer at a police car. (Martinez, supra, 86 Cal.App.3d at pp. 578–579.) The Court of Appeal concluded the search condition was unreasonable because the offense was “of only misdemeanor gravity” and, given the “entire circumstances of [the defendant’s] background and the crime for which he was convicted,” there was no reason to conclude the search condition was related to future criminality. (Id. at pp. 583–584.) The court emphasized that the facts of the “particular case” before it were “unique,” noting the defendant had simply lobbed a beer bottle and had not used or possessed a firearm or any other commensurate dangerous or deadly weapon. (Id. at pp. 579, 582.) The court cautioned, however, it was not endorsing any per se rule that, even in a simple assault case involving a “common article[]” whose “generic nature . . . is not dangerous,” a search condition could never be reasonable. (Id. at p. 581.) The facts and circumstances of defendant’s crime here are more egregious than those in Martinez—defendant was convicted of a felony and he splashed his wife with lighter fluid, a potentially highly injurious substance.

Furthermore, Martinez is an outdated case that does not accurately reflect the Lent analysis. Martinez endorsed a “ ‘gloss’ ” on the third prong of Lent that had been articulated in Keller, supra, 76 Cal.App.3d 827, and which added “an overall requirement of reasonableness in relation to the seriousness of the offense for which [the] defendant was convicted.” (Martinez, supra, 76 Cal.App.3d at p. 583.) Keller was subsequently disapproved by the same court that decided it in Balestra, supra, 76 Cal.App.4th at pages 66–68. In Balestra, the court characterized Keller as having gone “far beyond the Lent test to list a total of seven factors we would require to uphold a probation condition.” (Balestra, supra, 76 Cal.App.4th at p. 66.) “It is clear,” said the Balestra court, “that Keller is inconsistent with the Fourth Amendment jurisprudence since the date of that decision. As our Supreme Court has recently (and repeatedly) made clear, a warrantless search condition is intended to ensure that the subject thereof is obeying the fundamental condition of all grants of probation, that is, the usual requirement (as here) that a probationer ‘obey all laws.’ Thus, warrantless search conditions serve a valid rehabilitative purpose, and because such a search condition is necessarily justified by its rehabilitative purpose, it is of no moment whether the underlying offense is reasonably related to theft, narcotics, or firearms. . . .” (Balestra, at p. 67.)

Bryant, in turn, concerned an electronic search condition—an entirely different context and one that has received much recent attention from the Courts of Appeal. (Bryant, supra, 10 Cal.App.5th at pp. 398–399, rev. gr.; see People v. Valdivia (2017) 16 Cal.App.5th 1130, 1144, review granted Feb. 14, 2018, S245893 (Valdiva) [ “it is abundantly clear that a probation condition that authorizes the warrantless search of an electronic storage device . . . carries the potential for a significant intrusion into defendant’s private affairs—even more so than the standard condition authorizing the search of defendant’s ‘person, place, property. . . .’ ”].) As defendant observes, the reasonableness of electronic search conditions is pending before our Supreme Court in In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted February 17, 2016, S230923. This constellation of cases is of no assistance to defendant here. In any case, this court has held that electronic search conditions survive a Lent challenge because they are reasonably related to future criminality. (In re P.O. (2016) 246 Cal.App.4th 288, 295–296; accord Valdiva, at pp. 1137–1139.)

Because the standard search condition is reasonable under Lent, defense counsel’s failure to object to the condition is not, and cannot be, the basis of an IAC claim.

The Constitutional Challenge

Defendant’s overbreadth argument is essentially a retooling of his Lent argument. He asserts the search condition is overbroad given the circumstances of the crime and his personal background—none of which, he claims, suggests a propensity for criminal behavior that might be revealed by a warrantless search.[4]

What defendant’s argument boils down to is that even though standard search conditions have repeatedly been held to be a reasonable means of ensuring that a probationer abides by all the terms and conditions of his or her probation, including the fundamental condition to obey all laws, that justification, alone, is constitutionally insufficient. Apart from the discredited Keller case, defendant cites no case suggesting standard search conditions are constitutionally infirm for that reason.

Defendant’s reliance on cases addressing electronic search conditions, as we have stated, is misplaced. None of these cases grounded overbreadth holdings on the theory that the rehabilitative justification for a search condition is, itself, constitutionally insufficient. Rather, these cases have focused on the breadth of information that can be stored on and accessed through a device and the fact some of this data may be highly personal and have no reasonable bearing on the lawfulness of the defendant’s conduct. (E.g., Valdiva, supra, 16 Cal.App.4th at pp. 1141–1147, rev. gr.; In re P.O., supra, 246 Cal.App.5th at p. 298.)

Because the search condition is not constitutionally infirm, defense counsel’s failure to object to the condition is not, and cannot be, the basis of an IAC claim.

Modification of Firearm Condition

At the sentencing hearing, the trial court ordered defendant not to possess any firearms. However, the clerk’s minutes of the hearing and the written order of probation states defendant may not “possess or control any firearm or weapon.” (Italics added.) Both parties agree the clerk’s minutes from the January 27, 2017, hearing and the order of probation should be modified to reflect the court’s oral pronouncement.

If a discrepancy arises between the clerk’s minutes of the oral pronouncement and the oral pronouncement, itself, we defer to the oral pronouncement and assume the clerk’s minutes are in error. (See People v. Gabriel (2010) 189 Cal.App.4th 1070, 1073; see also People v. Mitchell (2001) 26 Cal.4th 181, 185–187.) We will therefore direct that the minutes and the order be modified to read defendant may not “possess or control any firearm.”

Disposition

The trial court is directed to modify the January 27, 2017 clerk’s minutes and the order of probation to reflect its oral pronouncement that “defendant may not possess or control any firearm.” In all other respects, the judgment is affirmed.

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Banke, J.

We concur:

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Humes, P.J.

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Dondero, J.