Filed 3/8/18 P. v. Huntley CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR


THE PEOPLE,
Plaintiff and Respondent,
v.
JOHNTA HUNTLEY,
Defendant and Appellant.
A150446

(Contra Costa County
Super. Ct. No. 5-161127-6)



I.
INTRODUCTION
Appellant Johnta Huntley appeals from an order suspending imposition of a criminal sentence and imposing three years of formal probation. The sole issue raised on appeal is her constitutional challenge to one of the terms of probation that requires her to submit to drug and alcohol testing as directed by the probation department. We conclude the challenge has been forfeited due to the failure of appellant to object to the condition of probation in the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The Contra Costa County District Attorney filed an information on July 6, 2016, charging appellant with felony second degree burglary (Pen. Code, § 459), and felony grand theft (§ 487, subd. (a)), arising out of her alleged theft of merchandise from a Macy’s store on July 29, 2015. After pleading not guilty to the charges, the case proceeded to a jury trial commencing on November 21, 2016. At the conclusion of the evidence, the jury returned guilty verdicts on both counts. Prior to sentencing, the county probation department submitted a Probation Officer’s Report and Recommendation. The report confirmed the 25-year-old appellant was convicted of theft with another woman of approximately 65 men’s shirts from a display table in a Macy’s store. A review of the store’s video surveillance confirmed appellant was one of the two females involved. Following her arrest, appellant confessed her involvement in the crimes.
Although appellant told the probation officer that she was not under the influence of drugs or “anything else” at the time of the offense, she later admitted that she smoked marijuana every day, and occasionally drank alcohol. She was the sole caregiver for her two sons, age five and two years old, although their father had visitation rights.
The report included references to appellant’s criminal record both as a juvenile and as an adult. Her juvenile record spanned the years 2007 to 2009, and included a wardship resulting from true findings for a number of offenses including possession of a weapon, assault with a deadly weapon, battery, and vandalism. As an adult, appellant was convicted in 2012 of grand theft (§ 487, subd. (c)), and of a misdemeanor theft crime in Texas in 2011.
Based on appellant’s daily use of marijuana, the probation report specifically recommended that the court consider making drug testing a condition of any probation.
A sentencing hearing was held on December 16, 2016. The court stated at the outset that it had read and considered the probation report. Appellant’s counsel argued that she be placed on electronic home detention. No objection was made to any of the proposed terms of probation recommended in the probation report. The court then ordered appellant be placed on three years of formal probation. The terms of probation included, as is relevant here, that appellant submit to drug or alcohol testing as directed by her probation officer. No objections thereafter were made by appellant to any of the terms of probation.
III.
LEGAL ANALYSIS
Appellant challenges the imposition of drug and alcohol testing as a condition of probation on the ground that it is “unconstitutionally overbroad.” She correctly points out that such probation conditions must be narrowly tailored to serve the interests of public safety and rehabilitation, and must be tailored to “the individual probationer.” However, as we noted earlier, there was no objection made to the imposition of that probation condition in the trial court. A defendant who contends that a probation condition is overbroad must object in the trial court thereby allowing the parties the opportunity to present evidence and arguments as to the need for the condition, and to allow the court the opportunity to consider modifying it. The failure to object typically forfeits any such objection or challenge on appeal. (People v. Welch (1993) 5 Cal.4th 228, 234–235 (Welch).)
The exception to this forfeiture rule is when the constitutional challenge to the probation condition presents a “pure question of law” that can be decided without reference to the trial court record. (In re Sheena K. (2007) 40 Cal.4th 875, 887–888.) Appellant attempts to argue this narrow exception applies here requiring that we order the trial court to delete the condition’s reference to “alcohol testing.” But, in presenting this argument, appellant herself twice references the record and the facts as they apply to her.
The first reference to the record appears in appellant’s opening brief while introducing the issue on appeal:
“The trial court did not order Ms. Huntley to abstain from alcohol (CT 203), and there was no indication that Ms. Huntley’s theft offense involved alcohol or that she had an alcohol problem. She informed the probation department that she drank alcohol occasionally, and probation did not recommend Ms. Huntley be tested for alcohol as a condition of probation. (CT 209.) The court did not articulate any reason for ordering that Ms. Huntley be required to submit to alcohol tests while on probation.”
The second reference appears in the course of her argument that the condition of probation constituted an impermissible infringement of her rights:
“Here, the condition significantly infringes on Ms. Huntley’s constitutional
rights, and there is no corresponding reason for the infringement. [Citations.] The use of alcohol is not illegal, and no probation condition was imposed that prohibited Ms. Huntley from using alcohol. (RT 202; CT 203.) Nor could a no-alcohol provision have been legitimately imposed, as there was no indication that Ms. Huntley had an alcohol problem or that alcohol was involved in her theft offense. Though a trial court may impose an alcohol testing condition in some circumstances, the trial court here made no findings that indicated any reason for mandatory alcohol testing. [Citation.]
“The drug and alcohol testing condition appears to have been a standardized condition that the court read into the record and checked on the Order of Probation without any determination that the alcohol testing portion of the condition was applicable in this case. (RT 202; CT 2013.) Because the alcohol testing condition
is not narrowly tailored to any legitimate interest, it is overbroad. [Citation.]”
In discussing application of the forfeiture rule in the context of constitutional challenges to probation conditions, our Supreme Court in In re Sheena K. noted important distinctions between a facial challenge, which is not dependent on a review of the record, and an overbroad or vagueness challenge that is dependent on the underlying facts:
“We are not persuaded that application of the forfeiture rule in the present context [involving a facial challenge] would produce the results predicted by the Attorney General. Applying the 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 sentence option or probation condition that is premised upon the facts and circumstances of the individual case. Generally, application of the forfeiture rule to such claims promotes greater procedural efficiency because of the likelihood that the case would have to be remanded to the trial court for resentencing or reconsideration of probation conditions.
“In contrast, an appellate claim—amounting to a ‘facial challenge’—that phrasing or language of a probation condition is unconstitutionally vague and overbroad because, for example, of the absence of a requirement of knowledge as in the present case, does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court. Consideration and possible modification of a challenged condition of probation, undertaken by the appellate court, may save the time and government resources that otherwise would be expended in attempting to enforce a condition that is invalid as a matter of law.” (In re Sheena K., supra, 40 Cal.4th at p. 885; see also, Welch, supra, 5 Cal.4th at pp. 234–235; In re Spencer S. (2009) 176 Cal.App.4th 1315, 1329–1330.)
Plainly in this case appellant is not making a facial challenge to the drug and alcohol testing condition of probation despite her assertion to the contrary. We cannot make a determination whether that condition was improperly imposed without an examination of the record. Indeed, as we have pointed out, even appellant herself references the record evidence several times in discussing her “facial” challenge. This being the case, we conclude that her objection to that condition was forfeited.
IV.
DISPOSITION
The judgment is affirmed.








_________________________
RUVOLO, P. J.


We concur:


_________________________
STREETER, J.


_________________________
SCHULMAN, J.*



















* Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

A150446, People v. Huntley