People v. Tobar CA1/2 ( 2021 )

Filed 4/9/21 P. v. Tobar CA1/2
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 TWO
THE PEOPLE,
Plaintiff and Respondent,
A155289
v.
GUILLERMO ALFREDO TOBAR, (San Mateo County
Super. Ct. No. 16SF004152)
Defendant and Appellant.
Guillermo Alfredo Tobar appeals from orders placing him on supervised
probation following his conviction of assault by means of force likely to
produce great bodily injury. He challenges several of the conditions of his
probation as unreasonable and overbroad.1 He also contends the term of
probation must be reduced pursuant to legislation enacted subsequent to
sentencing. We agree with the latter contention and will order the term of
probation reduced to two years.
Appellant initially challenged the trial court’s imposition of a $300
1
restitution fine, $30 court facilities fee, and $40 court operations fee without
first determining appellant’s ability to pay, based upon People v. Dueñas
(2019) 30 Cal.App.5th 1157. He subsequently withdrew this claim, conceding
the record indicates he has the ability to pay the fine and fees.
1
BACKGROUND
About 12:50 p.m. on September 5, 2015, on a street in Redwood City,
appellant knocked Jaime Torres to the ground, hit him in the head a number
of times, and left him unconscious. The assault occurred in the intersection
of Woodside Road (a multilane, divided roadway) and Hudson Street.
Torres, who was unemployed and homeless, testified that on the
morning of the incident, he had had two 24-ounce cans of beer and was “a
little bit buzzed” but not drunk. He had gone to a tattoo studio to say hello to
the owner, and when he went outside to smoke a cigarette, appellant, who
was outside Villa Roma bar about two doors down, “wanted to pick a fight.”
Torres had never seen appellant before. Torres was about five foot nine
inches tall, weighed about 125 pounds and was not in good physical health:
He had had two stress fractures and had just gotten out of a wheelchair that
same weekend.
As appellant approached him, Torres started to leave, crossing
Woodside Road toward a Shell gas station. Appellant ran toward him and
started hitting him, and the next thing Torres knew, he woke up on the
ground. He denied punching or kicking appellant.
Torres suffered a broken nose and what he believed was a “little
fracture” of his jaw, neither of which required surgery. For about a month
and a half after the incident, his nose was swollen, chewing was painful, and
he took prescribed pain medication; at the time of trial in 2018, he still could
not breathe as clearly through his nose as he had been able to before. He
testified that his tooth was chipped during the incident, but hospital records
indicated he had no chipped teeth. Hospital records showed Torres’s blood
alcohol level was 0.263.
2
A woman stopped at the traffic light at the intersection of Woodside
and Hudson saw an “older gentleman” walking “normally” across the street
and a younger person walking fast behind him, yelling, and appearing angry.
The younger person caught up to the older one in front of the woman’s car,
hit him “very strongly” and threw him to the ground. She testified, “You
could tell he was very angry, very upset. They were blows like he couldn’t
control himself. They were not little blows.” The younger man kneeled down
and hit the older one in the face eight to ten times; the older man “was hiding
himself” and “pulling his hands so he would not get hit,” and did not defend
himself or say anything. The woman honked her horn repeatedly, then got
out of her car, telling the younger man to stop and asking what happened,
but he “was not listening to reasons,” seemed to have “lost control” and kept
hitting the other man for a few more seconds. He said the other man had
insulted him and said things about his family. As other people got close, the
younger man walked away. The older man, on the ground, was unconscious.
An off-duty California Highway Patrol officer who was driving by saw
two people running through the intersection, initially about five or six feet
from each other. The one in front was smaller and skinnier and looked
frightened, while the one behind, who was going faster, was larger and looked
very angry. When the second man caught up to the first, the latter dropped
to the ground on his back as the larger man kneeled over him and struck his
face repeatedly. The officer did not hear any words exchanged, and did not
see the smaller man do anything. As the officer called 911, the man who had
been doing the punching stood up and started walking away, and the officer
parked his vehicle and walked in the direction the man had gone. He saw the
man walking east, his gait “a little bit faster than a walk” but not running,
3
and followed until the man went over a barbed wire fence topped with spiral
razor wire.
A witness who was walking across Woodside Road saw a man step from
the sidewalk into the crosswalk as another man ran toward him from the far
side of Woodside, grabbed and threw him to the ground and hit him forcefully
eight or nine times. Another witness noticed a group of people outside a
tattoo parlor engaged in a loud and angry conversation, then saw a man walk
from the tattoo parlor across the intersection, yelling, and another person
walk or run across, knock the first man down, hit him hard in the head four
or five times, then get up and walk or run away.
A Redwood City police officer who was looking for the suspect described
in the reported battery saw appellant crossing a street a short distance from
the intersection. Appellant was not wearing a shirt and was bleeding from
his arm and leg. The officer activated his patrol vehicle’s emergency lights
and appellant, who was looking toward the vehicle, ran down an alley
between two houses. The officer drove to the next street, where he saw
appellant exiting a driveway and ordered him to stop and get on the ground.
Appellant cooperated.
Appellant testified that on the morning of September 5, 2015, after
drinking a screwdriver at the Villa Roma bar, he went to the tattoo shop with
his friend. Someone behind appellant—Torres—said, “Giants are a bunch of
. . . fagots” and “[a]nyone that’s from San Francisco is a bunch of fagots.”
Appellant thought the comment was directed at him because he was wearing
a Giants hat. Torres was asked to leave the shop but stayed in front of the
window outside. As appellant and his friend left to return to the Villa Roma,
Torres came at appellant, saying, ‘I put spics like you in the ground,” and
they both fell against the glass window. People from the tattoo parlor came
4
out and “formed a wall,” escorting Torres off the property while Torres tried
to “push and fight his way through, screaming, ‘I’m going to fucking kill you.
I’m going to fucking stab you.’ ” Appellant went into the bar with his friend.
He was confused and “kind of scared” but not angry, and did not yell
anything at Torres.
When appellant left to do errands 10 or 15 minutes later, he did not see
Torres outside. Appellant walked to the crosswalk and saw Torres on the
street yelling, “I’m going to fucking kill you” and waving his hand, then
pointing at appellant while making a gesture that looked to appellant like
“slit your throat.” Appellant assumed Torres had a knife because he had said
he was going to stab appellant, and was afraid Torres might come after him if
he ran away, so he “confronted him, put him down to the ground, made sure
he wouldn’t come up and get me.” Appellant said he hit Torres four or five
times, then got up and went to Petco. He heard what sounded like someone
chasing him, thought it was Torres or his friends, and wanted to avoid
confrontations and get somewhere safe. He left Petco, went to the nursery,
and jumped the fence, cutting his wrist and leg on the razor wire on top. He
then heard sirens coming, went toward them and surrendered to the police.
Appellant denied seeing a police car with its lights on and testified that what
the officer described about him looking at the patrol vehicle and then running
down an alley never happened.
Appellant’s friend Samuel White supported appellant’s account of the
first part of the incident. He testified that he recognized the man in the
tattoo parlor, who appeared intoxicated and said, “ ‘F the Giants,’ ” as a
“vagrant” and “local at the liquor store.” The man was told to leave and
escorted out, but remained outside the window. As White and appellant
walked back to Villa Roma, the man was “talking trash” and they ignored
5
him. White heard a thump against the glass and saw the man bump into
appellant. Appellant did not appear to be angry. White remained in the bar
when appellant left to do errands and did not see the assault.
Torres completely denied appellant’s account of the events preceding
the assault. He testified that he did not see appellant in the tattoo shop and
was not kicked out of the shop; denied calling Giants fans or people from San
Francisco “fagots” and testified the Giants are his favorite baseball team and
he has “Giants” tattooed on his hand. He denied saying, “I put spics like you
in the ground,” saying, “I’m Mexican. Why would I say something like that?”
He denied threatening to kill appellant and his family, yelling at appellant
from the street or drawing his finger across his throat and, shown a video
taken by the surveillance camera at the Shell station, said his hand gesture
was trying to tell appellant to leave him alone. He denied attacking
appellant outside the tattoo shop and testified his only involvement in fights
in his life had been to defend himself, never to start a fight, but
acknowledged having been convicted of domestic violence offenses in 2006
and 2008.
Appellant was charged by information filed on November 7, 2016, with
one count of felony assault by means of force likely to produce great bodily
injury (Pen. Code, § 245, subd. (a)(4)),2 with an alleged enhancement for
personal infliction of great bodily injury upon the victim (§ 12022.7,
subd. (a)). A jury found him guilty of the assault but found the great bodily
injury enhancement not true. The court suspended imposition of sentence
and placed appellant on four years’ supervised probation.
This timely appeal followed.
2 Further unspecified statutory references are to the Penal Code.
6
DISCUSSION
Appellant challenges probation conditions prohibiting him from using
or possessing marijuana, prohibiting him from possessing any dangerous or
deadly weapon, requiring him to submit to chemical testing for the detection
of marijuana, and requiring him to submit to warrantless searches. He
contends all four conditions are unreasonable under People v. Lent (1975)
15 Cal.3d 481 (Lent), and the chemical testing and search conditions are also
unconstitutionally broad.
I.
“ ‘The primary goal of probation is to ensure “[t]he safety of the
public . . . through the enforcement of court-ordered conditions of probation.”
(Pen. Code, § 1202.7.)’ (People v. Carbajal (1995) 10 Cal.4th 1114, 1120
(Carbajal).) Accordingly, the Legislature has empowered the court, in
making a probation determination, to impose any ‘reasonable conditions, as it
may determine are fitting and proper to the end that justice may be done,
that amends may be made to society for the breach of the law, for any injury
done to any person resulting from that breach, and generally and specifically
for the reformation and rehabilitation of the probationer. . . .’ (Pen. Code,
§ 1203.1, subd. (j).)” (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).)
“Generally, ‘[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. . . .” [Citation.]’
(Lent, supra, 15 Cal.3d at p. 486.) This test is conjunctive—all three prongs
must be satisfied before a reviewing court will invalidate a probation term.
(Id. at p. 486, fn. 1; see also People v. Balestra (1999) 76 Cal.App.4th 57, 68–
69 (Balestra).) As such, even if a condition of probation has no relationship to
7
the crime of which a defendant was convicted and involves conduct that is not
itself criminal, the condition is valid as long as the condition is reasonably
related to preventing future criminality. (See Carbajal, supra, 10 Cal.4th at
1121.)” (Olguin, supra, 45 Cal.4th at pp. 379–380.)
Appellant argues the four probation conditions at issue meet all three
prongs of the Lent test. First, he maintains the marijuana and weapons
conditions are not reasonably related to his offense because there is no
evidence either played a role in that offense; the chemical testing condition is
unrelated because it was imposed only to monitor for marijuana use; and the
search condition is unrelated because the offense did not involve weapons or
any concealed items. Second, the conditions relate to conduct not in itself
unlawful: As an adult, appellant is legally permitted to use marijuana
(Health & Saf. Code, § 11362.1); possession of a deadly or dangerous weapon
is not necessarily unlawful (In re Martinez (1978) 86 Cal.App.3d 577, 581
(Martinez)); and appellant has a right to refuse to submit to warrantless and
unreasonable searches. Third, appellant argues there is an insufficient
relationship between the conditions and preventing future criminality to
satisfy the last prong of the Lent test, which “requires more than just an
abstract or hypothetical relationship.” (In re Ricardo P. (2019) 7 Cal.5th
1113, 1121 (Ricardo P.).)
Appellant did not challenge the probation conditions in the trial court,
and he acknowledges that failure to do so generally forfeits the issue for
appeal. (People v. Welch (1993) 5 Cal.4th 228, 237.) He urges us to exercise
our discretion to hear the merits (People v. Williams (1998) 17 Cal.4th 148,
161, fn. 6) or, alternatively, find his attorney was ineffective for failing to
object that the conditions were invalid under Lent.
8
Appellant does not make a compelling case for exercising our discretion
to excuse his forfeiture. His argument that a favorable decision would
eliminate burdensome conditions he is currently required to comply with does
not distinguish him from any other probationer. His other argument is that
the California Supreme Court’s decision in Ricardo P., demonstrates the law
is still evolving with respect to when a probation condition is reasonably
related to future criminality, and we could offer “post-Ricardo P. guidance” on
the issue. The issues in Ricardo P., which examined the propriety of
requiring juvenile probationers to submit to searches of their electronic
devices, differ considerably from those involved in the relatively standard
probation conditions at issue here.
As for ineffective assistance of counsel, it is appellant’s burden to
“ ‘demonstrate that (1) counsel’s representation was deficient in falling below
an objective standard of reasonableness under prevailing professional norms,
and (2) counsel’s deficient representation subjected the [defendant] to
prejudice, i.e., there is a reasonable probability that, but for counsel’s failings,
the result would have been more favorable to the [defendant]. (Strickland v.
Washington (1984) 466 U.S. 668, 687; In re Wilson (1992) 3 Cal.4th 945, 950.)
“A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” (Strickland, . . . at p. 694.)’ (In re Neely (1993) 6 Cal.4th
901, 908–909.)” (In re Jones (1996) 13 Cal.4th 552, 561.) There is “a ‘strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance’ ” (People v. Lucas (1995) 12 Cal.4th 415, 436, quoting
Strickland, at p. 689) and on direct appeal we will reverse only if the record
“ ‘ “affirmatively discloses that counsel had no rational tactical purpose for
[his or her] act or omission.” ’ ” (Lucas, at p. 437, quoting People v. Zapien
(1993) 4 Cal.4th 929, 980.)
9
Here, the record offers no explanation for defense counsel’s failure to
object to the probation conditions appellant now challenges. Counsel appears
to have represented appellant diligently: He argued vigorously for the court
to reduce appellant’s offense to a misdemeanor, portraying the assault as
“aberration” that would not recur, and objected to a restitution order even
after, in response to his attempt to ask a question about the alcohol condition,
the court admonished him for not raising his questions when the court asked
for comments before imposing sentence. With the prosecutor pursuing a
prison term and disagreeing with the probation department’s assessment
that appellant showed remorse for his conduct, defense counsel may have
considered it prudent to accede to the imposition of standard probation
conditions such as the ones at issue here in order to increase the likelihood of
the court granting probation. Or counsel may have considered it likely the
trial court would view any objection to these conditions as meritless. (People
v. Ochoa (1998) 19 Cal.4th 353, 463.) “Counsel is not required to proffer
futile objections.” (People v. Anderson (2001) 25 Cal.4th 543, 587; People v.
Jackson (1989) 49 Cal.3d 1170, 1189.)
Viewing an objection to the conditions as futile would not have been
unreasonable, as the conditions imposed appear to be within the trial court’s
discretion. The marijuana prohibition is part of a condition requiring
appellant to “abstain from the use, possession, custody, and control of all
alcohol and controlled substances including marijuana.” There is no evidence
marijuana played any role in the current offense, and the only reference to
marijuana in the probation report is to appellant’s statement that “he started
using marijuana and alcohol at age 17, but he has never used these
substances regularly.” Notably, however, appellant does not challenge the
alcohol condition, which is plainly related to the offense and future
10
criminality. Appellant told the probation officer he currently drinks alcohol
“on occasion,” but “ ‘never’ drinks at home.” But he was convicted of
misdemeanor alcohol-related reckless driving in 2011, after being charged
with driving under the influence and possession of controlled substance
paraphernalia, and the record reflects that he was drinking with friends at
the Villa Roma bar just before the incident—albeit, by his own report, a
single screwdriver.
Cases have recognized a connection between alcohol and drugs with
respect to probation conditions, upholding alcohol prohibitions in cases where
the defendant’s offense related to drug use because of alcohol’s similar effects
in impairing judgment and the ability to control behavior. (People v. Smith
(1983) 145 Cal.App.3d 1032, 1034–1035 [commenting on similarity of effects
of alcohol to effects of marijuana and other drugs, including “lessening of
internalized self-control”]; People v. Lindsay (1992) 10 Cal.App.4th 1642,
1645 [impairment of judgment due to alcohol consumption could reduce drug
addict’s willpower to refrain from drug use]; People v. Beal (1997) 60
Cal.App.4th 84, 87 [alcohol use related to future criminality where defendant
has history of substance abuse]; People v. Malago (2017) 8 Cal.App.5th 1301,
1308 [avoiding alcohol would increase defendant’s ability to avoid drug use].)
Appellant argues that any limited role of alcohol in the present case
falls far short of the level of substance abuse that justified the probation
conditions in the cited cases. But the critical point is not the degree of
substance abuse; it is the effect of drugs or alcohol on judgment and self-
control. Appellant committed a violent assault that the trial court viewed as
clearly reflecting an absence of self-control. While there was no evidence one
way or the other as to appellant’s level of intoxication at the time, he
admitted having had a drink just before the incident, and his conviction for
11
alcohol-related reckless driving certainly suggests a lack of control tied to
alcohol. Requiring appellant to avoid substances with a tendency to impair
his judgment and self-control—marijuana as well as alcohol—was not an
abuse of discretion.
Appellant’s reliance upon People v. Burton (1981) 117 Cal.App.3d 382 is
not persuasive. Burton invalidated a probation condition prohibiting use of
“intoxicants” in the case of a defendant who assaulted a co-worker with a lead
pipe, finding the record “devoid of any evidence that [the defendant] had
consumed alcoholic beverage prior to, during, or after the assault” and no
evidence he “had ever been convicted of an alcohol-related offense and/or that
he had manifested a propensity to become assaultive while drinking.” (Id. at
p. 390.) As we have indicated, the record here is not similarly devoid of
evidence that alcohol played some role in appellant’s offense and past
misconduct, and the prohibition against marijuana use is justifiable based on
that evidence.
Appellant’s challenge to the chemical testing condition fails because it
is dependent upon his view that the marijuana condition was invalid, which
we have rejected.
With respect to the weapons and search conditions, appellant relies
heavily upon Martinez, supra, 86 Cal.App.3d 577. The defendant in Martinez
was part of a crowd yelling obscenities and throwing beer cans and bottles at
police officers impounding an illegally parked vehicle. (Id. at p. 579.) He
pled guilty to misdemeanor battery on a police officer based on having thrown
a beer bottle at a police car, and challenged a probation condition requiring
him to submit to warrantless searches. (Ibid.) Acknowledging that
“indiscriminate searching of all persons for weapons could abstractly be
related to preventing future crime,” the Martinez court struck the search
12
condition, stating that the test “is more precise” and requires a “factual
‘nexus’ between the crime, defendant’s manifested propensities, and the
probation condition,” and nothing in the defendant’s history or circumstances
of the offense “indicate a propensity on the part of the defendant to resort to
the use of concealed weapons in the future. (Id. at p. 583.) Although the
defendant did not challenge a probation condition prohibiting possession of
dangerous or deadly weapons, in rejecting the Attorney General’s argument
that a search condition can reasonably be imposed whenever a concealable
weapons condition is validly imposed, the court observed that the weapons
prohibition was not related to the defendant’s crime. (Id. at pp. 581–582.)
The reasoning of Martinez is undermined by the court’s reliance upon a
case, People v. Keller (1978) 76 Cal.App.3d 827 (Keller), that has since been
disapproved by the court that wrote it, finding it went “far beyond the Lent
test” and was inconsistent with subsequent Fourth Amendment
jurisprudence. (Balestra, supra, 76 Cal.App.4th at pp. 66–67.)3 The Martinez
3 As described in Balestra, supra, 76 Cal.App.4th at page 66, Keller
“went far beyond the Lent test to list a total of seven factors we would require
to uphold a probation condition, including what we deemed a constitutional
‘mandate’ that a probation ‘condition[ ] be reasonable, reasonable in
proportion, as well as reasonably related, to the crime committed.’ ([Keller,
supra, 76 Cal.App.3d] at p. 838.)” The fundamental problem in Keller was
that imposing a warrantless search condition in that case, where the
defendant was convicted of petty theft for stealing a 49 cent ball point pen,
was “like ‘the use of a Mack truck to crush a gnat.’ ” (Balestra, at p. 66,
quoting Keller, at p. 840.) Martinez stated its approval of the approach taken
in Keller, which it described as having “placed a ‘gloss’ on the three-pronged
Lent test by adding an overall requirement of reasonableness in relation to
the seriousness of the offense for which defendant was convicted,” and as
holding that, in addition to failing the Lent test, the search condition was “in
any event unreasonable in a case of such minor importance.” (Martinez,
supra, 86 Cal.App.3d at p. 584.)
13
court’s emphasis on the required “factual ‘nexus’ ” to the offense is also
undermined by Ricardo P. Responding to the argument that Lent’s third
prong requires “ ‘a nexus between the probation condition and the
defendant’s underlying offense or prior offenses,” the Supreme Court stated,
“We would not go that far. Requiring a nexus between the condition and the
underlying offense would essentially fold Lent’s third prong into its first
prong. We have said that ‘conditions of probation aimed at rehabilitating the
offender need not be so strictly tied to the offender’s precise crime’ ([People v.]
Moran [(2016)] 1 Cal.5th [398,] 404–405) so long as they are ‘reasonably
directed at curbing [the defendant’s] future criminality’ (id. at p. 404).”
(Ricardo P., supra, 7 Cal.5th at p. 1122.)
In any event, Martinez is plainly distinguishable from the present case.
As the Martinez court noted, the facts of that case were “unique.” (Martinez,
supra, 86 Cal.App.3d at p. 582.) The defendant’s offense was a misdemeanor
that did not involve use of a deadly or dangerous weapon and did not result
in injury, he had no criminal history, and the probation officer described his
conduct as “ ‘an isolated situation.’ ” (Ibid.) Even as Martinez rejected the
proposition that prohibiting possession of dangerous or deadly weapons is
reasonable in “all cases of assault by any means,” the court declined to hold
“that in all cases where a defendant is convicted of an assault not involving
the use of dangerous or deadly weapons, imposition of such a condition would
per se be unreasonable,” and acknowledged that “the propensities of the
People v. Burton, supra, 117 Cal.App.3d at pages 391 and 392, relied
upon both Keller and Martinez. Whatever question might be raised about its
reasoning on that basis, however, Burton was cited in Ricardo P., supra,
7 Cal.5th at pages 1121 and 1122, as one example of cases recognizing that
“Lent’s third prong requires more than just an abstract or hypothetical
relationship between the probation condition and preventing future
criminality.”
14
individual defendant as manifested by the present offense and past
behavior[] may justify such a condition in order to deter future criminality.”
(Id. at p. 581.)
Here, appellant committed a violent assault that caused the victim to
lose consciousness and resulted in injuries that were significant despite the
jury’s conclusion that they did not amount to great bodily injury. Appellant
was described by witnesses as acting in an uncontrolled rage, and the court
viewed his conduct as an inexplicable response to the words of a known
“drunk” and “transient.” In these circumstances, the weapons condition can
reasonably be seen as a means of protecting against the potential for an even
more serious assault in the future.
The Martinez court’s invalidation of the warrantless search condition in
that case was obviously influenced by the court’s conclusion that the weapons
condition was invalid. Here, the enforcement of several properly imposed
probation conditions would be served by the search condition, including the
marijuana and weapons prohibitions, as well as the unchallenged alcohol
prohibition. “[A] warrantless search condition is intended to ensure that the
subject thereof is obeying the fundamental condition of all grants of
probation, that is, the usual requirement (as here) that a probationer ‘obey all
laws.’ Thus, warrantless search conditions serve a valid rehabilitative
purpose, and because such a search condition is necessarily justified by its
rehabilitative purpose, it is of no moment whether the underlying offense is
reasonably related to theft, narcotics, or firearms: ‘The threat of a
suspicionless search is fully consistent with the deterrent purposes of the
search condition. “ ‘The purpose of an unexpected, unprovoked search of
defendant is to ascertain whether [the probationer] is complying with the
terms of [probation]; to determine not only whether he disobeys the law, but
15
also whether he obeys the law. Information obtained under such
circumstances would afford a valuable measure of the effectiveness of the
supervision given the defendant . . . .’ ” [Citations.]’ (People v. Reyes (1998)
19 Cal.4th 743, 752, italics added.)” (Balestra, supra, 76 Cal.App.4th at p. 67,
fn. omitted.)4
Appellant urges that the California Supreme Court, in Ricardo P.,
“firmly rejected the argument that a finding of reasonableness under Lent’s
third prong is compelled whenever a probation condition might aid a
probation in ascertaining the probationer’s compliance with other conditions
of supervision.” To the extent appellant means to suggest the search
condition here cannot be justified by reference to enforcement of the weapons,
marijuana and alcohol conditions, his reliance upon Ricardo P. misses the
mark. What Ricardo P. rejected was the proposition that “any probation
conditions reasonably related to enhancing the effective supervision of a
probationer” is necessarily permissible. (Ricardo P., supra, 7 Cal.5th at
p. 1127.) At issue in Ricardo P. was an electronic device search condition
imposed to monitor the minor’s compliance with probation conditions
prohibiting him from possessing or using illegal drugs despite the absence of
4 Respondent’s argument that the search condition is justified by
appellant’s criminal history of being dishonest or uncooperative with police
officers is not particularly convincing. Respondent points to the evidence that
appellant initially fled from the police in the present case and to a prior
misdemeanor conviction for providing false information to a police officer.
The prior was 20 years old at the time of sentencing. Even assuming
appellant’s explanation of his initial flight lacked credibility, the record
reflects that he cooperated when the officer stopped him a block away, and
was cooperative with the officer who interviewed him later and with the
probation officer. The evidence of dishonesty or uncooperativeness was thus
quite weak and, in any event, respondent does not explain how it would
justify a warrantless search condition that was not otherwise justified by the
circumstances of the case.
16
any evidence he had ever used an electronic device or social media in
connection with the offense (burglary). (Id. at p. 1115.) Emphasizing the
immense amount of personal information accessible through a search of
electronic devices and social media accounts, Ricardo P. held the condition
imposed a burden on the minor’s privacy “substantially disproportionate to
the legitimate interests in promoting rehabilitation and public safety.” (Id. at
p. 1129.)
The standard search condition imposed in the present case is quite
different. Indeed, Ricardo P. pointed out “the potentially greater breadth of
searches of electronic devices compared to traditional property or residence
searches[,]” noting the United States Supreme Court’s observation that “ ‘[a]
cell phone search would typically expose to the government far more than the
most exhaustive search of a house: A phone not only contains in digital form
many sensitive records previously found in the home; it also contains a broad
array of private information never found in a home in any form—unless the
phone is.’ ” (Ricardo P., supra, 7 Cal.5th at p. 1127, quoting Riley v.
California (2014) 573 U.S. 373, 393.) “[P]robation is a privilege and not a
right,” and “adult probationers, in preference to incarceration, validly may
consent to limitations upon their constitutional rights—as, for example, when
they agree to warrantless search conditions.” (Olguin, supra, 45 Cal.4th at
p. 384.)
In sum, the marijuana, chemical testing, weapons, and search
conditions imposed in the present case are reasonably related to future
criminality and therefore valid under Lent. Defense counsel’s failure to object
to the conditions was not deficient representation, and appellant suffered no
prejudice.
17
II.
Appellant additionally challenges the chemical testing and search
conditions as unconstitutionally overbroad. “ ‘[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
unconstitutionally overbroad.’ ” (Olguin, supra, 45 Cal.4th at p. 384, quoting
In re Sheena K. (2007) 40 Cal.4th 875, 890.) “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.” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
An overbreadth challenge to a probation condition may be raised on
appeal despite the failure to object at trial where it is claimed to be overbroad
on its face and is “capable of correction without reference to the particular
sentencing record developed at trial.” (In re Sheena K., supra, 40 Cal.4th at
pp. 887–889.) That is not the case here: Appellant contends the conditions
are overbroad based on the facts of his offense and history, not facially
overbroad. Accordingly, his failure to object at trial forfeited the issue for
appeal.
Appellant’s argument that he received ineffective assistance of counsel
is unavailing because the conditions do not appear to be overbroad. With
respect to the chemical testing condition, appellant argues only that the
testing condition’s intrusion into his Fourth Amendment interests outweighs
its promotion of legitimate governmental interests because (in his view) the
marijuana condition is not reasonably related to his offense or future
criminality. Our rejection of the premise necessarily defeats the argument.
18
Similarly, appellant’s argument that the search condition is overbroad
is largely based on his view that any search condition is unwarranted by the
circumstances of his offense and history. As earlier explained, the search
condition is reasonable as a means to monitor appellant’s compliance with
several specific conditions of his probation, as well as the general condition
that he obey all laws. (Balestra, supra, 76 Cal.App.4th at p. 67.) Appellant
has not demonstrated that defense counsel’s failure to object to this standard
probation condition fell below “an objective standard of reasonableness under
prevailing professional norms” (Strickland v. Washington, supra, 466 U.S. at
p. 687), or that there is any reasonable probability the trial court would not
have imposed the condition if counsel had objected.
III.
As earlier indicated, appellant was placed on probation for a period of
four years. At the time of sentencing, the trial court had discretion to order
probation “for a period of time not exceeding the maximum possible term of
the sentence” or, where the maximum possible term was five years or less, for
a maximum of five years. (Former § 1203.1, subd. (a).) While this appeal
was pending, the Legislature enacted Assembly Bill No. 1950 (Assembly Bill
1950), amending section 1203.1, subdivision (a), to limit felony probation to a
maximum term of two years, absent circumstances not applicable here.
(Stats. 2020, ch. 328, § 2, eff. Jan. 1, 2021.) Appellant argues this legislation
is ameliorative and therefore applies to his case pursuant to the reasoning of
In re Estrada (1965) 63 Cal.2d 740.5 In accordance with recent cases holding
5 Appellant first raised this claim in a petition for rehearing after we
filed an opinion affirming his conviction, arguing rehearing was required to
preserve his constitutional right to effective assistance of counsel and
forestall a petition for writ of habeas corpus based on ineffective assistance of
19
Assembly Bill 1950 applies retroactively (People v. Sims (2021) 59
Cal.App.5th 943; People v. Quinn (2021) 59 Cal.App.5th 874; People v. Burton
(2020) 58 Cal.App.5th Supp. 1 [Assem. Bill 1950 limitation on duration of
misdemeanor probation]), respondent agrees. Respondent argues, however,
that we should remand for the trial court to reduce the term of probation
rather than simply striking the portion of the probation term exceeding two
years.
Respondent contends remand is the appropriate remedy for pending
cases because it allows the trial court to adjust terms of probation so they can
be completed before the termination of probation and to determine whether
probation has been completed successfully. Respondent points out that the
status of probation at termination is relevant if a probationer seeks
expungement of the record of conviction pursuant to section 1203.4, which he
or she may do “at any time after the termination of the period of probation.”
(§ 1203.4, subd. (a).)6
counsel. Assembly Bill 1950 was signed by the Governor on September 30,
2020, some two and a half months after appellant’s attorney filed the reply
brief on this appeal. Counsel did not seek leave of court to file a
supplemental brief arguing appellant was entitled to the shortened period of
probation. (Cal. Rules of Court, rule 8.200(a)(4).) We granted rehearing to
permit consideration of this claim.
6 Section 1203.4, subdivision (a), provides that a probationer who has
fulfilled the conditions of probation for the entire period of probation, or
whose early fulfillment of probation conditions results in early termination of
probation, is entitled to expungement of the record of conviction “ ‘as a matter
of right.’ ” (People v. Covington (2000) 82 Cal.App.4th 1263, 1266, quoting
People v. Chandler (1988) 203 Cal.App.3d 782, 787; People v. Seymour (2015)
239 Cal.App.4th 1418, 1429–1430; People v. Johnson (2012) 211 Cal.App.4th
252, 264.) Relief under section 1203.4, subdivision (a), may also be available,
subject to the trial court’s discretion, “ ‘in any other case in which a court, in
20
As appellant was placed on probation on August 31, 2018, the two-year
maximum probation period ended on August 31, 2020. Accordingly, no useful
purpose would be served by remand. The remaining portion of the originally
ordered probation term must be stricken.
DISPOSITION
Appellant’s probation is reduced to a term of two years. In all other
respects, the judgment is affirmed.
its discretion and the interests of justice, determines that a defendant should
be granted the relief available under’ section 1203.4.” (Seymour, at p. 1430.)
21
_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Stewart, J.
People v. Tobar (A155289)
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