Filed 10/13/17 P. v. Toledo CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Patricia K. Cookson, Judge. Affirmed as modified.

Theresa Osterman Stevenson, 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, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

Erick Toledo was charged with one felony count of resisting an executive officer. (Pen. Code, § 69.)[1] The jury found him guilty, and the trial court granted him three years' formal probation with 365 days in custody. On appeal, Toledo contends the trial court erred by failing to instruct the jury sua sponte on assault and battery as lesser included offenses, and by imposing an allegedly invalid probation condition that requires him to obtain consent from his probation officer before leaving San Diego County. He also asks us to independently review the trial court's proceedings on his motion to discover law enforcement personnel records (see Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)), and to correct a discrepancy between the oral pronouncement of a probation condition regarding marijuana use and the subsequent written probation order. We find no reversible error and affirm the judgment, as modified to resolve the discrepancy on the marijuana-use probation condition.

FACTUAL AND PROCEDURAL BACKGROUND

Campground Staff Call 911

Toledo and a group of about 20 to 30 friends were camping at several contiguous campsites in the Lake Jennings Campground in Lakeside over a weekend in July and August 2015. On August 1, Toledo smoked marijuana in the morning (he testified he has a medical marijuana card for insomnia and anxiety), then drank beer and cognac throughout the day. He was admittedly drunk. Although his friends described him as "a happy drunk," Toledo was "blurting out" inside jokes and "making people feel uncomfortable."

Between 4:00 and 5:00 p.m., Toledo wandered away from his campsite alone to use a campground restroom. He testified one of the sink faucets "wasn't turning off," so he decided to notify a camp host[2] and to tell her he could fix it himself (despite admitting he doesn't "do a lot of plumbing work on [his] own"). When Toledo located a host and asked for a tool kit or scissors to repair a leak, the host asked for the location of the leak. The host testified Toledo began waving his hands and saying "two pair, two pair," which Toledo testified was one of the inside jokes he had been blurting out earlier. The host "thought something was a little off with" Toledo. Toledo left without any tools, and walked back to his campsite. The host followed him.

At Toledo's campsite, the host told a member of the group that Toledo was " 'acting a little strange,' " and asked if the group could keep Toledo at their campsites so he would not disturb other campers. One of Toledo's friends agreed to do so. The host left and sat in her golf cart near the campground's front kiosk. Within about two minutes, Toledo approached the host alone, moved a hat from the passenger seat of the golf cart, and sat down next to her. He sat silently, stared straight ahead for about 15 seconds, then got out of the cart and walked away. The host suspected Toledo was "on something."

The host entered the kiosk, where her husband (also a camp host) was closing up for the night. From there, the wife saw one of Toledo's friends come "as if to try to coax him back" to his campsite. According to the wife, Toledo began punching the friend in the face "pretty hard." The situation "appeared very serious" and "was scary looking."[3] A third camp host ran to the kiosk door and told the husband to call 911, which he did. After "scuffl[ing]" for about four or five minutes, Toledo and his friend returned to their campsite.

Sheriff's Deputies Detain Toledo at the Campsite

Three sheriff's deputies (Steven Cagigas, David Sanchez, and James Morgan) responded to the 911 call around 8:00 p.m. One of the camp hosts led the deputies to Toledo's campsite. There, the deputies observed Toledo "sprawled out" on his back in the dirt. Deputies Cagigas and Sanchez approached Toledo, while Deputy Morgan spoke to members of Toledo's group and assessed the crowd.

Deputy Cagigas twice asked Toledo if his name was Erick, but Toledo just stared at the sky and did not respond. After being asked a third time, Toledo responded, "but of course." Based on the camp host's report and his own observations, Deputy Cagigas suspected Toledo was under the influence of alcohol or some other substance. The deputy handcuffed Toledo for "everybody's safety" as he investigated further. It is undisputed that, up to this point, Toledo was compliant and the deputies had not mistreated him.

Sheriff's Deputies Question Toledo on the Driveway

Deputy Cagigas escorted Toledo to the street and sat him on the ground in front of one of the cars parked at one of the group's campsites. The deputies asked Toledo questions about his level of intoxication, but he did not respond. The deputies decided "it would be best" to arrest Toledo for disorderly conduct,[4] and to "let him sober up for [eight] to 12 hours" in a "sobering cell" before releasing him with "no further proceedings." Deputy Morgan informed Toledo's group of the plan. Deputies Cagigas and Sanchez began escorting Toledo to one of the patrol cars, while Deputy Morgan went ahead to unlock the doors. It is undisputed that Toledo was still compliant, and that the deputies still had not allegedly mistreated him.

Events at the Patrol Car

The parties' accounts of what happened next differ greatly.

Prosecution Evidence

According to the prosecution evidence, Toledo was standing facing the rear of the patrol car with his hands cuffed behind his back; Deputy Cagigas was behind him to the right, and Deputy Sanchez was behind him to the left. As Deputy Cagigas reached down across the front of Toledo to remove his belt as a safety precaution, Toledo quickly hopped about six to 12 inches away from Deputy Cagigas, then hopped back toward him. Deputy Cagigas told Toledo to "just relax" and explained he was simply trying to remove his belt. When Deputy Cagigas again reached down to remove Toledo's belt, Toledo again hopped to the left and then back to the right. Deputy Cagigas warned, "Hey, man, stop messing around. I'm just taking your belt off." As Deputy Cagigas reached down in a third attempt to remove Toledo's belt, Toledo bent forward at the waist and "violently reared back" in an apparent attempt to head-butt Deputy Sanchez.

Deputies Cagigas and Sanchez pushed Toledo against the side of the patrol car to limit his motion. Toledo pushed back. Deputy Sanchez felt a "jerking motion" or "tug" on his duty belt. He looked down and saw Toledo's hands on the grip of his service pistol, pulling at it. Deputy Sanchez yelled, "He's got my gun." As Deputies Cagigas and Morgan began to draw their service weapons, Deputy Sanchez turned away and hit Toledo's hands, breaking his grip. By the time Deputies Cagigas and Morgan looked, they did not see Toledo's hands on Deputy Sanchez's gun. Deputy Sanchez yelled, "He just had the handle."

Deputy Cagigas attempted to place a department-approved "carotid restraint" on Toledo, which would have caused him to temporarily lose consciousness. Toledo began to cough, which indicated Deputy Cagigas had an "improper hold." As Deputy Cagigas attempted to readjust his hold, Deputy Morgan pepper-sprayed Toledo in the face, inadvertently also hitting Deputy Cagigas in one eye and Deputy Sanchez in the face.

Toledo and Deputies Cagigas and Sanchez ended up on the ground, with Toledo landing facedown on the asphalt. Deputy Sanchez tried to secure Toledo's feet, but Toledo was kicking the deputy's legs. Toledo also tried "to scrunch up his knees to get up, bucking his hips up off the ground." The deputies told him to stop resisting, and pushed down on him, but Toledo kept "wriggling and twisting and kicking." When Toledo rolled onto his side, Deputy Cagigas ordered him to get back on his stomach. When Toledo did not comply, the deputy delivered three knee strikes to Toledo's midsection. Toledo "somewhat" rolled to his stomach again, but continued "writhing."

Deputy Morgan attempted to straddle Toledo's midsection to pin him down. Toledo grabbed the deputy's testicles and pulled, which the deputy testified was "extremely painful." Deputy Morgan alerted the other deputies to what was happening. Deputy Cagigas repeatedly ordered Toledo to stop, and delivered three or four knee strikes to Toledo's torso. Deputy Morgan punched Toledo in the face three times. Toledo let go of the deputy.

As Deputy Morgan repositioned himself over Toledo, Toledo grabbed and squeezed the deputy's inner thigh. Deputy Morgan responded by pepper-spraying Toledo in the face from fairly close range, but it had no effect. When Toledo grabbed the deputy's thigh a second time, the deputy responded by pressing on a "pressure point" behind Toledo's ear, "which had absolutely no effect."

A crowd from Toledo's group had gathered and was yelling at the deputies to get off Toledo. Some of the observers became unruly. One of the deputies radioed for "code cover," summoning all available nearby law enforcement officers regardless of agency. Ultimately, more than 30 law enforcement officers responded, including a canine unit and a helicopter. As the officers were controlling the crowd, one officer pepper-sprayed a member of Toledo's group who was clenching his fists and advancing on the scene.

Deputy Sanchez eventually restrained Toledo with a "max restraint" device used for "combative" suspects. Paramedics arrived and took Toledo to the hospital for treatment of scrapes and bruises he sustained on his face during the struggle. Deputy Morgan accompanied Toledo to the hospital, where Toledo asked what had happened and apologized to Morgan.

Deputies Cagigas, Morgan, and Sanchez testified at trial that they did not hear Toledo struggling to breathe or calling out for help. However, the first deputy who responded to the call for backup testified that while he was working crowd control with his canine he heard Toledo yell "ahhhh" at least twice.[5]

The husband and wife camp hosts testified they did not believe the deputies used excessive force. The wife also testified Toledo was the initial aggressor.

Defense Evidence

According to Toledo, as two deputies were escorting him from the street near his campsite to the patrol car, the deputies "all of a sudden" began "trying to take [him] down and punch[ed] [him] in the back of the head for what [he] felt was no apparent reason." Toledo testified nothing occurred that led to the officers to take him to the ground, but he "guess[ed]" they were retaliating for his failure to respond to their questions. He did not remember anyone attempting to remove his belt, nor did he remember attempting to head-butt anyone.

Toledo acknowledged he may have touched Deputy Sanchez's gun as he was being taken to the ground, but he claimed it was not "knowing" or "intentional"—he was just grabbing at anything to steady himself. When Toledo heard the deputy say, "He's got my gun," Toledo "let go of all items that [he] may have been holding onto and hit the floor." Toledo did not think the deputies pepper-sprayed him at this point.

Once on the ground, the three deputies had "all their body weight" on Toledo, showing him "zero mercy." Toledo thought the deputies were trying to "torture," rather than "control," him. He admitted "thrashing around," but said all his "body movements were involuntary" responses to the force the deputies were applying. Toledo did not remember grabbing Deputy Morgan's testicles or thigh, but acknowledged it could have occurred when he was involuntarily "reaching for whatever [he] could."

Toledo testified that when he was eventually able to "quiet [his] reflexes to remain silent and not thrash about anymore," one of the deputies pepper-sprayed him in the eyes. Toledo was initially "kind of like asphyxiating," then he started crying and calling out for his mother even though she was not there. Toledo thought the deputies only pepper-sprayed him one time. After about 20 to 45 minutes of being on the ground, Toledo was placed on a stretcher and taken to the hospital. Toledo acknowledged he was discharged with only a prescription for ibuprofen; he did not sustain any broken bones or internal injuries, and his wounds did not require stitches or bandages.

Toledo admitted he apologized to one of the deputies at the hospital, but explained he did so "[m]ostly . . . to calm things down so there wasn't a second episode."

Toledo also admitted using marijuana on the morning of his arrest, and acknowledged marijuana can affect one's short-term memory.

The defense called six members of Toledo's camping group as percipient witnesses. To the extent they were able to observe the relevant events, they uniformly testified Toledo was compliant with the deputies leading up to the altercation. But, in what Toledo characterized as "a coincidence," none of the defense witnesses happened to be looking when the altercation began. Some of the defense witnesses said they heard Toledo yell; others said they did not.

One of the defense witnesses used her phone to video-record two portions of Toledo's interaction with law enforcement, but she acknowledged it was difficult to see Toledo in the videos. The videos were played for the jury.

Jury Verdict and Sentence

After deliberating for no more than 85 minutes, the jury returned a guilty verdict.

The parties filed sentencing memoranda, and the probation officer filed a report. The probation report disclosed that in December 2014 (about eight months before Toledo committed the instant offense) Toledo was arrested for having nearly 1.5 pounds of marijuana in his car. He was charged with transportation of more than 28.5 grams of marijuana, possession of marijuana for sale, and possession of more than 28.5 grams of marijuana. As part of a plea bargain, Toledo pleaded guilty to the latter two counts and was granted felony probation in January 2015.

Based on Toledo's probation status at the time of the instant offense, his grabbing of Deputy Sanchez's service pistol, and his grabbing of Deputy Morgan's testicles, the court granted Toledo three years' formal probation and required that he serve 365 days in custody.

DISCUSSION

I. Instruction Regarding Lesser Included Offenses

Toledo contends the court erred prejudicially by not instructing the jury sua sponte that assault (§ 240)[6] and battery (§ 242)[7] are lesser included offenses of resisting an executive officer (§ 69) as alleged in the People's complaint. The Attorney General acknowledges that assault and battery can be lesser included offenses, but maintains substantial evidence did not support instructing the jury on those offenses. Alternatively, the Attorney General argues any instructional error was not prejudicial. We conclude substantial evidence supported instructing the jury on assault and battery as lesser included offenses, but further conclude the error in failing to instruct the jury in this regard was not prejudicial.

"A trial court has a sua sponte duty to 'instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser.' " (People v. Shockley (2013) 58 Cal.4th 400, 403 (Shockley); see People v. Smith (2013) 57 Cal.4th 232, 239-240 (Smith); People v. Brown (2016) 245 Cal.App.4th 140, 151-152 (Brown).) "Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense." (Shockley, at p. 403; see People v. Cole (2004) 33 Cal.4th 1158, 1218.) "[T]he court is not obliged to instruct on theories that have no such evidentiary support." (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) We review de novo whether the trial court erred by failing to instruct on a lesser included offense. (People v. Licas (2007) 41 Cal.4th 362, 366.)

"To determine if an offense is lesser and necessarily included in another offense for this purpose, we apply either the elements test or the accusatory pleading test. 'Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.' " (Shockley, supra, 58 Cal.4th at p. 404.)

Section 69, subdivision (a) provides: "Every person who [1] attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or [2] who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment." "The statute sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty." (In re Manuel G. (1997) 16 Cal.4th 805, 814; see Smith, supra, 57 Cal.4th at p. 240; Brown, supra, 245 Cal.App.4th at p. 151.)

One way in which the lesser included offenses of assault and battery may arise is in the context of a defendant's claim of self-defense. A person may use reasonable force to defend himself against an officer's use of excessive force. (Brown, supra, 245 Cal.App.4th at p. 154; CALCRIM No. 2670.)[8] However, if a person responds to an officer's use of excessive force with excessive force of his own, the person may be guilty of assault or battery, but not of violating section 69. (Brown, supra, 245 Cal.App.4th at p. 154; People v. Castain (1981) 122 Cal.App.3d 138, 145 ["even if the officer is not acting within the scope of his duties because of his use of excessive force, the defendant may still be guilty of simple battery if he responds with excessive force"].)

The prosecution proceeded under the second theory of resisting an officer (resisting by force). The court instructed the jury on this theory and on a person's right to defend himself against excessive force. The parties thus agree that assault and battery are potentially lesser included offenses of the second means of violating section 69 under the accusatory pleading test. (See Brown, supra, 245 Cal.App.4th at p. 153.) However, the parties disagree about whether substantial evidence supported instructing the jury on the lesser offenses.

Brown, supra, 245 Cal.App.4th 140 is instructive. There, the prosecution and defense accounts of the events leading to the alleged section 69 violation were "a matter of some dispute." (Brown, at p. 146.) According to the prosecution evidence, a police officer tackled the defendant off of his bicycle, taking him to the ground. (Ibid.) The defendant became combative and swung a clenched fist at the officer. (Ibid.) The officer delivered a compliance strike to the defendant's torso, but the defendant continued to swing at the officer. (Id. at pp. 146-147.) Another officer, seeing the defendant reach for something in his waistband, kneed the defendant once in the ribs and punched him twice in the head. (Id. at p. 147.) This subdued the suspect, who was taken into custody. (Ibid.)

According to the defendant, he hit a curb with his bicycle and fell to the ground while fleeing. (Brown, supra, 245 Cal.App.4th at p. 147.) Then, while the defendant was lying facedown and neither fleeing nor resisting, one of the officers, "without any kind of warning," dived onto the defendant's back "with enormous force, 'like Superman,' " and punched the defendant in the head three times. (Ibid.) The defendant denied swinging at either officer. (Ibid.)

A jury found the defendant guilty of violating section 69. (Brown, supra, 245 Cal.App.4th at p. 150.) On appeal, the defendant argued the trial court should have sua sponte instructed the jury on assault as a lesser included offense of section 69 (under the same, second theory on which the prosecution proceeded here). (Brown, at p. 151.) The Court of Appeal agreed substantial evidence supported giving the instruction. (Id. at pp. 153-155.) The court explained "the jury was not required to choose and fully credit only one of the two versions of the . . . incident that were presented to it." (Id. at p. 154.) Thus, for example, the jury could have believed the portion of the defendant's account in which the officers initiated the encounter with excessive force (thereby entitling the defendant to defend himself with reasonable force), but also believed the portion of the officers' account in which the defendant responded with excessive force of his own. (Ibid.) This would have justified a guilty verdict for assault, but not for violating section 69. (Brown, at p. 154.) Accordingly, the Brown court concluded the jury should have been instructed on assault as a lesser included offense. (Ibid.)

Similarly, here the jury could have believed the portion of Toledo's account in which one of the deputies was the initial aggressor and used excessive force by repeatedly punching Toledo in the back of the head without provocation. This would have justified Toledo's use of reasonable force to defend himself. The jury could also have believed the portion of the deputies' account in which Toledo tried to head-butt Deputy Sanchez, grabbed Deputy Sanchez's gun, and squeezed Deputy Morgan's testicles and thigh. If the jury concluded this response was excessive in light of the deputies' alleged conduct, the jury could have found Toledo guilty of assault and/or battery, but not of violating section 69. Thus, substantial evidence supported instructing the jury on the lesser included offenses.

Having found instructional error, we must determine whether it was prejudicial. We will reverse a judgment based on the failure to instruct on a lesser included offense "only if, 'after an examination of the entire cause, including the evidence' [citation], it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred [citation]." (Breverman, supra, 19 Cal.4th at p. 178, citing People v. Watson (1956) 46 Cal.2d 818, 836.) " 'The question is not what a jury could have done, but what a jury would likely have done if properly instructed.' " (People v. Larsen (2012) 205 Cal.App.4th 810, 831.) In making that determination, we may consider the relative strengths and weaknesses of the evidence supporting the greater and lesser offenses, the jury instructions as a whole, the jury's findings, and the closing arguments of counsel. (Ibid.; see Breverman, at pp. 177-178.)

Based on our review of the entire record, we conclude it is not reasonably probable Toledo would have obtained a more favorable outcome had the jury been instructed on assault and battery as lesser included offenses. For the jury to find Toledo committed the lesser, but not greater, offenses, it would have to have found that Toledo used excessive force only in response to the officers' prior use of excessive force. (See Brown, supra, 245 Cal.App.4th at p. 154.) The jury was unlikely to reach such a conclusion on this record.

First, Toledo's defense was inconsistent with the lesser included offenses. He did not argue he used excessive force in response to the deputies' prior use of excessive force. To the contrary, he minimized his conduct by characterizing it as "not intentional," "involuntary," "a knee-jerk reaction," and "for the most part . . . survival reflexes."

Second, even if Toledo's defense had been consistent with the lesser included offenses, it is not likely the jury would have found it credible. Toledo was impeached with his recent felony conviction. He admitted he was drunk at the time of the instant offense, and that he had smoked marijuana that morning, which he acknowledged can affect short-term memory. His testimony that the deputies were the initial aggressors was wholly uncorroborated, even by his six percipient witnesses, all of whom were "coinciden[tally]" looking away at the critical moment the altercation began. Toledo's testimony was not only uncorroborated, it was also contradicted by the most disinterested witness—the female camp host—who testified Toledo was the initial aggressor and who opined the deputies did not use excessive force.

Third, by contrast, the deputies' testimony was corroborated by other evidence and inferences. Most notably, Toledo did not deny he grabbed Deputy Sanchez's gun or Deputy Morgan's testicles and thigh. Toledo also admitted apologizing at the hospital, as Deputy Morgan testified. In addition, the fact the deputies felt compelled to call for "code cover" inferentially supports their testimony that Toledo was actively resisting the deputies, and was not merely reacting involuntarily as he claimed. Additionally, the fact the deputies detained Toledo in front of a large group of his friends, at least one of whom was video-recording portions of the interaction, tends to corroborate the deputies' testimony that Toledo was the initial aggressor and that they did not use excessive force.

Finally, although the jury's guilty verdict on the greater offense is not probative of how the jury would have found on a lesser included offense (Brown, supra, 245 Cal.App.4th at p. 156 ["[t]o hold otherwise would undermine the very purpose of the sua sponte rule"]), the jury here deliberated for only 85 minutes and asked no questions.

On balance, we conclude that although the trial court erred by failing to instruct the jury on assault and battery as lesser included offenses of section 69 under the accusatory pleading test (see Brown, supra, 245 Cal.App.4th at p. 153), it is not reasonably probable the error affected the outcome of the trial.

II. Pitchess Review

Toledo filed a Pitchess motion to determine whether any of the arresting deputies' personnel files revealed prior complaints of excessive force. A custodian of records for the sheriff's department who had "unfettered access" to the arresting deputies' files testified in sealed in camera proceedings. The trial court then announced in open proceedings that it found "there are no reports due to reveal."

Toledo has asked us to independently review the sealed Pitchess proceedings to determine whether the trial court complied with proper procedures or abused its discretion in concluding there are no discoverable materials in the deputies' files. The Attorney General has no objection to our doing so.

We have independently reviewed the sealed Pitchess proceedings and find the trial court complied with proper procedures and did not abuse its discretion in reaching its conclusion there are no discoverable materials in the deputies' files.

III. Probation Condition Regarding Leaving San Diego County

Toledo contends a probation condition that requires him to obtain his probation officer's "consent before leaving San Diego County" is unconstitutionally overbroad and vague. The Attorney General contends Toledo forfeited these challenges by failing to object when the trial court imposed this condition. We agree.

A. Background

The probation officer's report recommended that Toledo be granted three years' formal probation, with 365 days in custody. The report contained many proposed probation conditions, including paragraph 6(l), which requires Toledo to obtain his probation officer's "consent before leaving San Diego County" (the travel condition).

At the sentencing hearing, the court asked Toledo's counsel, "Have you gone over his probation conditions with him . . . ?" Counsel said he had. The court then orally stated the conditions of Toledo's probation, including the travel condition. The court asked Toledo, "Do you understand your probation terms?" Toledo responded, "Yes, ma'am." The court then asked, "And are you willing to follow them?" Toledo responded, "Yes, Your Honor." Toledo never objected to the travel condition.

B. Relevant Legal Principles

"Following a defendant's conviction of a crime, the sentencing court may choose among a variety of dispositional options. One option is to release the offender on probation. 'Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation.' [Citation.] A grant of probation is 'qualitatively different from such traditional forms of punishment as fines or imprisonment. Probation is neither "punishment" [citation] nor a criminal "judgment" [citation]. Instead, courts deem probation an act of clemency in lieu of punishment [citation], and its primary purpose is rehabilitative in nature [citation].' " (People v. Moran (2016) 1 Cal.5th 398, 402 (Moran).) Accordingly, "a grant of probation is an act of grace or clemency, and an offender has no right or privilege to be granted such release." (Ibid.) "Stated differently, '[p]robation is not a right, but a privilege.' " (Ibid.)

Consequently, a sentencing court may impose conditions to further the rehabilitative and protective purposes of probation. (Moran, supra, 1 Cal.5th at pp. 402-403.) Under People v. Lent (1975) 15 Cal.3d 481, " '[a] condition of probation 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, quoting Lent, at p. 486.) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (Olguin, at p. 379; Moran, at p. 403.)

" 'A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as constitutionally overbroad.' [Citation.] '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.' " (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.)

"As a general rule, failure to challenge a probation condition on constitutional or Lent grounds in the trial court waives the claim on appeal." (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033; People v. Welch (1993) 5 Cal.4th 228, 237; In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) " 'The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]' " (Sheena K., at p. 881.)

In Sheena K., the California Supreme Court recognized an exception to the general forfeiture rule for facial challenges to the constitutionality of probation conditions. (Sheena K., supra, 40 Cal.4th at pp. 887-889.) The court reasoned that whereas a trial court is "characteristically . . . 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," a facial challenge that requires only "the review of abstract and generalized legal concepts" is a "task that is well suited to the role of an appellate court." (Id. at p. 885.)

Applying these principles, the Sheena K. court found the defendant had not forfeited her challenge to a probation condition that she "not 'associate with anyone disapproved of by probation' " (Sheena K., supra, 40 Cal.4th at p. 880) because her challenge presented "a pure question of law"—whether, in the abstract, such a condition was overbroad without a knowledge requirement (id. at pp. 885, 888). But the Sheena K. court issued this caveat:

"We caution, nonetheless, that our conclusion does not apply in every case in which a probation condition is challenged on a constitutional ground. As stated by the court in [In re Justin S. (2001) 93 Cal.App.4th 811], we 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 that can be resolved without reference to the particular sentencing record developed in the trial court." [Citation.] In those circumstances, "[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court." [Citation.]' (Justin S., supra, 93 Cal.App.4th at p. 815, fn. 2.) We also emphasize that generally, given a meaningful opportunity, the probationer should object to a perceived facial constitutional flaw at the time a probation condition initially is imposed in order to permit the trial court to consider, and if appropriate in the exercise of its informed judgment, to effect a correction." (Sheena K., supra, 40 Cal.4th at p. 889.)

C. Analysis

We find Toledo forfeited his challenge to the travel condition by failing to object to it below. We further find his challenge does not fall within Sheena K.'s facial-challenge exception to the forfeiture rule.

First, in distinguishing this case from those the Attorney General cites in his appellate brief, Toledo implicitly acknowledges the validity of a travel condition depends on case-specific facts. For example, the court in People v. Relkin (2016) 6 Cal.App.5th 1188 upheld a travel condition where the probationer was convicted of transporting and possessing drugs for sale, finding "[t]here is a direct relationship between the sale and transport of drugs and the exercise of the right to travel." (Id. at p. 1195.) Relkin is particularly instructive because at the time Toledo committed the instant offense, he was on felony probation for having nearly 1.5 pounds of marijuana in his car. We could not properly evaluate the validity of the travel condition without examining the sentencing record in this regard. Moreover, Toledo precluded further development of the record by failing to object below.

Second, Toledo's own argument regarding case-specific facts belies his claim that his challenge to the travel condition is purely facial. Specifically, Toledo argues in his reply brief that the travel condition is overly broad and vague because the probation report shows he "is employed by a sub-contractor who delivers furniture." However, the portion of the appellate record Toledo cites to support this assertion does not indicate whether his furniture-delivery duties require that he leave San Diego County. In any event, this further demonstrates Toledo's challenge to the travel condition cannot be properly resolved without reference to the sentencing record, thus taking the challenge beyond Sheena K.'s facial-challenge exception to the forfeiture rule.

IV. Probation Condition Regarding Marijuana Use

At the sentencing hearing, the court orally imposed a probation condition that Toledo "not . . . use marijuana without a recommendation." (Italics added.) However, paragraph 14(a) of the written probation order provides that Toledo "not use marijuana with or without a recommendation." (Italics added.) Toledo asks that we modify the written condition to conform to the oral pronouncement. The Attorney General agrees modification is appropriate. There being no indication in the record that the trial court intended that its written order modify the oral pronouncement, we will modify probation condition 14(a) to conform to the oral pronouncement.

DISPOSITION

Probation condition 14(a) is modified to provide that Toledo "shall not use marijuana without a recommendation." As so modified, the judgment is affirmed.

HALLER, Acting P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.