People v. Kersten CA3 ( 2020 )

Filed 11/13/20 P. v. Kersten CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C090437
Plaintiff and Respondent, (Super. Ct. No. 17F1635)
v.
VICTOR SAGE KERSTEN,
Defendant and Appellant.
Defendant Victor Sage Kersten received probation after pleading no contest to
several firearm-related offenses. One of the probation terms requires defendant to make
his electronic devices that are capable of communication available for warrantless
searches in order to enforce a protective order. On appeal, defendant challenges this
search condition as unreasonable and constitutionally overbroad. We affirm.
FACTS
J.Y. saw defendant driving on a highway one night and began tailgating him in
order to confront him about a threat defendant had made. M.P., J.Y.’s girlfriend, had told
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J.Y. that defendant had threatened K.F., M.P.’s friend. After defendant and J.Y. pulled
over to the side of the highway, J.Y. went to open his passenger-side door and he heard
gunshots. J.Y. drove off and defendant began chasing him; J.Y. heard additional
gunshots while trying to evade defendant. Defendant was later arrested and admitted to
shooting at J.Y.’s car but claimed he was very scared by J.Y.’s aggressive driving and
thought he was going to be shot. Sheriff’s deputies recovered bullet fragments from the
frame of J.Y.’s vehicle and the passenger-side headrest.
Defendant was charged with premeditated attempted murder, assault with a
firearm with a personal use of a firearm enhancement, shooting at an occupied motor
vehicle, shooting from a motor vehicle, and two counts of resisting an officer. Defendant
pleaded no contest to assault with a deadly weapon, modified from assault with a firearm,
that he personally used a firearm to commit the assault, and the two counts of resisting an
officer.
The court suspended imposition of defendant’s sentence for three years and put
defendant on probation for three years. The court also imposed a protective order that
prohibited defendant from contacting J.Y., M.P., and K.F., including “electronic,
telephonic, or written contact.” At the sentencing hearing defendant challenged, for lack
of nexus to the offense as well as being overbroad, probation term No. 16, which required
he submit to warrantless searches of his property at any time and “provide any password
or combination necessary to access any electronic device or service during the
warrantless search process.” In response to the objection, the court modified term No. 16
to limit it to only assisting in enforcing no contact orders and for devices capable of
communication. The modified term No. 16 stated: “That [defendant] submit his person,
property, vehicle and residence to warrantless search at any time, with or without
probable cause, by any peace officer or probation officer and that he provide any
password or combination necessary to access any electronic device capable of
communication or service during the warrantless search process for the purpose of
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assisting in enforcing term #11 by probation and law enforcement.” (Italics added.)
Probation term No. 11 mirrored the protective order prohibiting contact “in any manner”
with J.Y., M.P., and K.F. Defendant’s counsel did not object to the modified probation
term No. 16.
DISCUSSION
Defendant challenges the electronics search condition for being unreasonable and
unconstitutionally overbroad. He argues the condition is not tailored carefully to the
government’s legitimate interest in his rehabilitation.
Challenges to probation conditions ordinarily must be raised in the trial court; if
they are not, appellate review of those conditions will be deemed forfeited. (People v.
Welch (1993) 5 Cal.4th 228, 234-235.) Though defendant objected to the original
electronic search term, he did not object to the modified term, so he has forfeited the
ability to challenge both the modified probation term No. 16’s reasonableness and any
claim concerning its constitutionality as applied to him. (In re Sheena K. (2007)
40 Cal.4th 875, 889.) However, a defendant who did not object to a probation condition
at sentencing may raise a challenge to that condition on appeal if that claim “amount[s] to
a ‘facial challenge,’ ” i.e., a challenge that the “phrasing or language . . . is
unconstitutionally vague and overbroad” (id. at p. 885), that is, a “ ‘ “pure question[] of
law that can be resolved without reference to the particular sentencing record developed
in the trial court.” ’ ” (Id. at p. 889.) Such a claim “does not require scrutiny of
individual facts and circumstances but instead requires the review of abstract and
generalized legal concepts . . . .” (Id. at p. 885.)
In a facial overbreadth challenge to an electronic search condition, the question is
whether the search condition, in the abstract, and not as applied to the particular
probationer, is insufficiently narrowly tailored to the state’s legitimate interest in
reformation and rehabilitation of probationers in all possible applications. (In re Sheena
K., supra, 40 Cal.4th at p. 885.) The answer here is no. Electronic search conditions are
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not categorically invalid. (In re Ricardo P. (2019) 7 Cal.5th 1113, 1128.) Thus, although
application of this search condition could be constitutionally overbroad as applied to
certain probationers, in other circumstances it may be entirely appropriate and
constitutional. The criminal offense or defendant’s personal history may provide a
sufficient basis on which to conclude the condition is a proportional means of deterring
future criminality. (Id. at pp. 1128-1129.) In those cases, the imposition of such
probation conditions would be constitutional. Because there could be circumstances in
which such a condition was appropriate, we reject any claim that the electronic search
condition is facially overbroad.
DISPOSITION
The judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
HULL, Acting P. J.
/s/
RENNER, J.
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