Filed 5/23/18 P. v. Rodriguez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL JAMES RODRIGUEZ,

Defendant and Appellant.


E067719

(Super.Ct.No. 16CR055865)

O P I N I O N


APPEAL from the Superior Court of San Bernardino County. Bridgid M. McCann, Judge. Affirmed.
Forest M. Wilkerson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant to a plea agreement, defendant and appellant, Michael James Rodriguez, pled no contest to possession of child pornography. (Count 1; Pen. Code, § 311.11, subd. (a).) In accordance with the plea agreement, the court sentenced defendant to three years of formal probation. On appeal, defendant contends a condition of his probation is unconstitutionally vague and overbroad. We affirm.
I. FACTS AND PROCEDURAL HISTORY
The social media site Tumblr reported to authorities that 49 images of what appeared to be child pornography had been uploaded to its server. An Ontario police officer reviewed the images, which included video and photographs containing child pornography. One video depicted a naked adolescent female, five to six years old, sitting on her knees between an adult male’s legs, the man is holding his erect penis, and putting his penis in the adolescent’s mouth several times. A series of 12 images depicted a naked male with an erect penis with a female, approximately five to seven years old, licking his penis; another picture showed the male inserting his erect penis into the girl’s vagina.
A query for the Internet service provider number from which the video and images had been uploaded reflected a subscriber living at a particular address in Ontario. A records search of the address revealed records for defendant.
The officer spoke with defendant during a traffic stop. Defendant said child pornography would just pop up accidentally on his computer. Defendant said he was molested as a child by his father and cousin. When asked if that might be why he watched child pornography, he responded: “‘I don’t know, I am always stuck in this fucked up mind and I don’t know what the fuck is wrong.’”
The officer asked if she looked on his phone whether she would find “something” on it; defendant responded “‘[p]robably.’” The officer asked if the pictures they found on his Tumblr account were posted by him; he responded that they were. Defendant had apparently posted the images so that they could be shared with other Tumblr users; defendant had “a lot of followers on his Tumblr account.”
The People charged defendant by felony information with possession of child pornography. (Count 1; § 311.11, subd. (a).) Defendant pled no contest as recounted above. The court sentenced defendant to three years of formal probation on various terms and conditions, including that he “[n]either use nor possess any computer or internet device except in the course of employment with the employer’s knowledge of the nature of the offense and with prior approval of the probation officer.”
II. DISCUSSION
Defendant contends that the probation condition that he “[n]either use nor possess any computer or internet device except in the course of employment with the employer’s knowledge of the nature of the offense and with prior approval of the probation officer” is unconstitutionally vague and overbroad. The People maintain that defendant waived the issue, forfeited the issue, that the condition is not unconstitutionally vague or overbroad, and that the condition is reasonably related to defendant’s offense. We agree with the People.
A. Waiver and Forfeiture
The People contend defendant waived any challenge to the constitutionality of the probation condition by expressly waiving any right to appeal as part of his plea agreement. Defendant responds that the waiver of his right to appeal cannot be applied prospectively to conditions of probation imposed on a later date and of which he was unaware when he signed the plea agreement. We agree with defendant. However, we hold that defendant either waived or forfeited any challenge to the constitutionality of the probation condition by expressly agreeing to the condition or, at a minimum, by neglecting to object to the condition at the sentencing hearing.
As part of his plea, defendant initialed a box on the plea form reflecting: “I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain.” After taking entry of his plea, the court continued the matter for the preparation of a probation officer’s report. In the probation officer’s report filed two days before sentencing, the officer recommended the imposition of the precise term of which defendant now complains on appeal.
At the sentencing hearing, the court asked defendant: “[Y]ou had a chance to go over all the terms of probation you’re going to have to follow?” Defendant responded that he had. The court asked defendant if he had any questions about what any of them meant. Defendant responded that he did not.
Defense counsel requested the court to strike or reduce some of the fines recommended by the probation officer. The court reduced the monthly payment for fines and fees from the $98 recommended by the probation officer to $27. The court struck and revised several of the recommended terms and conditions of probation, apparently upon defense counsel’s objections which had occurred off the record. The court ordered imposition of certain terms and conditions of probation as recommended over defense counsel’s objections. The court then asked defendant: “Do you accept probation on those terms?” Defendant responded that he did.
“Knowing and intelligent waivers are generally required when a criminal defendant gives up ‘any significant right’ [citation], such as . . . constitutional rights . . . .” (People v. Trujillo (2015) 60 Cal.4th 850, 859.) “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.’ [Citations.]” (People v. Mumm (2002) 98 Cal.App.4th 812, 815.)
“Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal. [Citations.] As the United States Supreme Court recognized . . . ‘“[n]o procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.”’ [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 880-881.) “[A]n adult probationer who elects to receive probation in lieu of incarceration fairly may be charged with the need to timely challenge any conditions imposed . . . .” (Id. at p. 882.) “[A]n unconstitutionally vague or overbroad probation condition does not come within the ‘narrow exception’ to the forfeiture rule made for a so-called unauthorized sentence or a sentence entered in excess of jurisdiction. [Citations.]” (Id. at pp. 886-887.) However, “[a]n obvious legal error at sentencing that is ‘correctable without referring to factual findings in the record or remanding for further findings’ is not subject to forfeiture.” (Id. at p. 887.)
The People maintain defendant waived his right to challenge the probation condition by initialing the portion of his plea agreement which waived his right to appeal. However, that waiver was initialed, and the plea agreement signed, prior to even the recommendation, let alone the imposition of the probation condition at issue here. Thus, defendant’s waiver of his right to appeal as part of his plea agreement cannot be construed as to apply to a probation condition of which he had no notice when he signed the plea agreement.
Nevertheless, defendant subsequently did receive notification of the exact language of the probation condition prior to its imposition. The court asked if defendant had gone over the recommended probation conditions. Defendant responded that he had. The court asked if he had any questions regarding them. Defendant responded that he did not. Most importantly, the court asked if defendant accepted probation on those terms; defendant responded that he did. Thus, defendant knowingly, intelligently, and voluntarily waived his right to challenge the condition at issue here because he expressly agreed to the term prior to its imposition.
Defendant contends that he was not required to object because the condition is facially unconstitutionally vague and overbroad. We disagree. First, defendant himself maintains the condition was not narrowly tailored or reasonably related to the reformation and rehabilitation of defendant, an argument which necessarily requires resort to the facts underlying defendant’s conviction: “Nothing in [defendant’s] case makes it an unusual case where an absolute ban on accessing the internet would be appropriate.” Second, as the California Supreme Court stated in People v. Olguin (2008) 45 Cal.4th 375: “A probation condition should be given ‘the meaning that would appear to a reasonable, objective reader.’ [Citation.]” (Id. at p. 382.) We view the probation conditions here in light of Olguin and presume a probation officer will not interpret them in an irrational or capricious manner. (Id. at p. 383.) Thus, we do not believe the condition would be interpreted, as defendant suggests, to apply to “smart” televisions, refrigerators, watches, and/or purchases made by a credit card, unless such uses provided defendant with access to the Internet sufficient to potentially access pornography. Thus, defendant waived any challenge to the constitutionality of the probation condition.
For similar reasons, even if defendant did not waive the challenge, he forfeited it. Here, defendant had more than sufficient opportunity to challenge the language of the condition. Defendant had been notified of the language of the condition prior to the hearing at which it was imposed. Defendant indicated he had read and understood the condition. Defendant agreed to its imposition. Defense counsel had the opportunity to object, and actually did object, to the language of some of the probation conditions. The court struck some conditions and revised others. Defense counsel requested the court to strike or reduce fines recommended by the probation officer. The court significantly reduced the recommended monthly fine payments. Thus, defendant forfeited any challenge to the language of the condition by failing to object to it below.
B. Vagueness and Overbreadth
Assuming defendant did not waive or forfeit a challenge to the probation condition, we hold that it was not unconstitutionally vague or overbroad. Moreover, the condition was reasonably tailored to defendant’s reformation and rehabilitation.
“Our analysis begins with the void-for-vagueness doctrine. This doctrine, which derives from the due process concept of fair warning, bars the government from enforcing a provision that ‘forbids or requires the doing of an act in terms so vague’ that people of ‘common intelligence must necessarily guess at its meaning and differ as to its application.’ [Citations.] To withstand a constitutional challenge on the ground of vagueness, a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition. [Citations.] In determining whether the condition is sufficiently definite, however, a court is not limited to the condition’s text. [Citation.] We must also consider other sources of applicable law [citation], including judicial construction of similar provisions. [Citations.] Thus, a probation condition should not be invalidated as unconstitutionally vague ‘“‘if any reasonable and practical construction can be given to its language.’”’ [Citation.]” (People v. Hall (2017) 2 Cal.5th 494, 500-501.) “California case law already articulates not only a general presumption that a violation of a probation condition must be willful, but also specifically provides that probation conditions barring possession of contraband should be construed to require knowledge of its presence and its restricted nature. [Citation.]” (Id. at 501.) “A probation condition is constitutionally overbroad when it substantially limits a person’s rights and those limitations are not closely tailored to the purpose of the condition.” (People v. Harrisson (2005) 134 Cal.App.4th 637, 641, citing In re White (1979) 97 Cal.App.3d 141, 146 [“‘. . . The Constitution, the statute, all case law, demand and authorize only “reasonable” conditions, not just conditions “reasonably related” to the crime committed.’ [Citation.] [¶] Careful scrutiny of an unusual and severe probation condition is appropriate [citation].”].)
“Generally speaking, conditions of probation prohibiting Internet access have been upheld in cases that involved use of the Internet in the underlying crimes, such as child pornography cases. [Citation.] Some of these have incorporated exceptions with the parole or probation officer’s prior approval. [Citations.] Other such cases, however, have held a complete ban on Internet use to be overbroad, even in cases involving child pornography. [Citations.] This was especially true if the defendant needed to use a computer in connection with his work.” (In re Victor L. (2010) 182 Cal.App.4th 902, 923.) “The courts seem most willing to condone a complete ban on Internet access if the defendant’s conduct went beyond merely accessing child pornography, such as using the Internet to lure a minor into a sex act [citation], advocating or instructing others on how to access children for sex [citation], or using the Internet to plan predatory or violent acts [citation].” (Id. at p. 923 [probation conditions requiring no access to social networking sites or Internet access without supervision upheld against facial, unconstitutional challenges against a juvenile who pled no contest to possession of illegal weapons, but condition prohibiting access to a computer found invalid as conflicting with the other two conditions].)
Here, as noted above, the challenged probation condition is not so vague, particularly when it is presumed that it will not be interpreted in an irrational or capricious manner (People v. Olguin, supra, 45 Cal.4th at p. 383), such “that people of ‘common intelligence must necessarily guess at its meaning and differ as to its application.’ [Citations.]” (People v. Hall, supra, 2 Cal.5th at p. 500.) Defendant may not have, use, or access any computer or device which would allow him to view, download, receive, or share anything of a pornographic nature. If the probation officer does interpret the conditions in any arbitrary manner, defendant may then file a petition for modification of his probation condition. (See §§ 1203.2, subd. (b)(1), 1203.3, subd. (a); see People v. Keele (1986) 178 Cal.App.3d 701, 708 [trial court retains jurisdiction to review probation officer’s actions].)
As reflects upon the condition’s purported overbreadth, we note that although some courts have rejected complete bans on Internet access (In re Victor L., supra, 182 Cal.App.4th at p. 925), defendant’s condition is not a complete ban. It permits access if required in the course of his employment, with the employer’s knowledge of the nature of the offense for which he has been convicted, and with the prior approval of his probation officer. (Ibid. [courts “have tended to reject complete Internet bans except in the most aggravated cases, unless they contain a clause allowing Internet access with prior approval of the supervising authority.”].) Unlike the offenses for which the allegations were found true in In re Victor L., which had no relation to the Internet or child pornography, defendant stands convicted of possession of child pornography which consisted of, at a minimum, a video involving an approximately five to six year old engaged in oral copulation with an adult man and numerous images of an approximately five to seven year old engaged in oral copulation and intercourse with an adult male which were stored on his social media account. Defendant not only downloaded and viewed the materials, but made them available for others to view and download online. Thus, the condition was reasonably tailored to defendant’s offense to aid in his rehabilitation and reformation.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.


We concur:

RAMIREZ
P. J.

FIELDS
J.