Filed 12/11/18 P. v. Bolds CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Martin Larry Herscovitz, Judge. Dismissed.

Andrea Keith, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Kenneth C. Byrne and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.

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Following revocation of probation, Mikaela Tyrona Bolds (defendant) was sentenced to two years in county jail. On appeal, defendant challenges a probation condition requiring her to disclose her internet account passwords to her probation officer. Defendant contends this probation condition violated her right to privacy under the Fourth Amendment and was unconstitutionally overbroad. We dismiss this appeal as untimely.

BACKGROUND

On May 14, 2014, defendant pled no contest to falsifying a check. (Pen. Code, § 470, subd. (d).)[1] At the time, defendant was also on probation on another matter, Los Angeles Superior Court, case No. LA070094, and therefore her plea resulted in a probation violation in that case. The trial court sentenced defendant to a total term of two years eight months in county jail, comprised of the midterm of two years for her current case, plus an additional and consecutive eight months for the probation violation in case No. LA070094.

Execution of that sentence was suspended and defendant was placed on three years of probation subject to various terms and conditions. Relevant to this appeal is defendant’s probation condition which required her “to disclose to the probation department all electronic mail accounts and internet accounts for access, all passwords and access codes to financial institutions” (electronic search probation condition).[2] Defendant did not object to this probation condition when it was imposed and did not appeal her sentence.

In January 2017, the probation department indicated defendant was in violation of her probation for failing to complete 90 days of Probation Adult Alternative Work Services (P.A.A.W.S.). The trial court revoked defendant’s probation and issued a warrant for her arrest.

Defendant was picked up on the bench warrant, and a probation violation hearing was scheduled for January 31, 2018. Following a contested hearing, the trial court concluded defendant was in violation of her probation for failing to complete P.A.A.W.S. The trial court ordered defendant’s probation “permanently revoked” and imposed a two-year sentence.[3] That same date, defendant filed a notice of appeal.

DISCUSSION

Defendant’s sole issue on appeal is whether the electronic search probation condition violated her right to privacy under the Fourth Amendment and was unconstitutionally overbroad. We need not reach the merits of this issue because defendant’s appeal is untimely.

“[A] notice of appeal . . . must be filed within 60 days after the rendition of the judgment or the making of the order being appealed.” (Cal. Rules of Court, rule 8.308(a).) “A timely notice of appeal, as a general matter, is ‘essential to appellate jurisdiction.’ [Citation.] It largely divests the superior court of jurisdiction and vests it in the Court of Appeal. [Citation.] An untimely notice of appeal is ‘wholly ineffectual: The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion or on its own motion.’ [Citation.] The purpose of the requirement of a timely notice of appeal is, self-evidently, to further the finality of judgments by causing the defendant to take an appeal expeditiously or not at all.” (People v. Mendez (1999) 19 Cal.4th 1084, 1094 (Mendez).)

An order granting probation is an appealable order. (§ 1237, subd. (a); People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 (Ramirez).) “Thus, a defendant who elects not to appeal an order granting or modifying probation cannot raise claims of error with respect to the grant or modification of probation in a later appeal from a judgment following revocation of probation. [Citations.]” (Ramirez, supra, at p. 1421.)

Here, the trial court imposed the electronic search probation condition at defendant’s initial sentencing on May 14, 2014. Although defendant could have appealed and challenged the condition within 60 days after it was imposed, she did not do so. (Cal. Rules of Court, rule 8.308(a).) Thus, defendant’s challenge to the electronic search probation condition is untimely.

Recognizing this problem, defendant contends her appeal must still be heard because an exception to the rule applies when an appeal is based on a constitutional issue. Defendant’s reliance on People v. Munoz (1975) 51 Cal.App.3d 559, 563 and People v. Silva (1966) 241 Cal.App.2d 80, 82–83 for this proposition is without merit. Neither of these cases hold that the 60-day time limit to appeal is excused for constitutional arguments. And both cases precede our Supreme Court’s ruling in Mendez, which made clear that a timely notice of appeal is “‘essential to appellate jurisdiction’” and “‘cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief.’” (Mendez, supra, 19 Cal.4th at p. 1094.) Accordingly, the appropriate disposition in this case is dismissal.

DISPOSITION

The appeal is dismissed.

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ASHMANN-GERST, J.

We concur:

________________________, P. J.

LUI

________________________, J.

HOFFSTADT