People v. Maynard CA3

Filed 5/7/21 P. v. Maynard 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Placer)
----
THE PEOPLE, C092175
Plaintiff and Respondent, (Super. Ct. No. 62162820)
v.
JACOB RYAN MAYNARD,
Defendant and Appellant.
Defendant Jacob Ryan Maynard appeals from a June 2020 order reinstating all
prior terms and conditions of probation, claiming an electronic search condition imposed
in 2019 is unconstitutional. We affirm, because we agree with the People that defendant
cannot challenge the probation condition in this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
We do not discuss the underlying facts of defendant’s crime of conviction, as it is
irrelevant to our resolution of this appeal.
Pursuant to a negotiated disposition in May 2019, defendant pled no contest to one
count of assault with a deadly weapon, and the trial court placed him on formal probation
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for five years with various conditions, including that he obey all laws and “submit his/her
person, place[,] property, automobile, electronic storage devices . . . to search and seizure
by an [sic] law enforcement officer or probation officer, any time of the day or night,
with or without a warrant . . . .”
The trial court asked defendant if he accepted the terms and conditions of
probation. Defendant replied, “Yes, sir,” and did not file a direct appeal challenging the
general search condition.
In May 2020, after a contested hearing, the trial court concluded defendant
violated the “obey all laws” condition of probation, and revoked probation.
Later, after the prosecution urged the trial court not to reinstate probation, but
instead to sentence defendant to an aggravated term of incarceration for the assault, the
trial court explained that it “would be willing to reinstate probation” if defendant were to
waive some custody credits and accept the trial court’s “add[ing] drug, narcotic and
alcohol testing by probation.”
After conferring with defendant, counsel for defendant told the trial court that
defendant “accept[ed] the modified terms of probation.” The trial court asked defendant
if he had any questions before the hearing continued. Defendant said he did not have any
questions “that [he] car[ed] to mention.”
After more discussion, the trial court said it would “reinstate probation on all prior
terms and conditions. We are adding terms and conditions of probation. They will
include that you submit to drug, narcotic and alcohol testing . . . .” (RT 119) The trial
court explained other aspects of new terms and conditions (RT 119-122), and then the
following colloquy occurred between the trial court and defendant:
“[The trial court]: So sir, will you accept those additional terms and conditions of
probation as I’ve indicated them to you?
“[Defendant]: Yes, Your Honor.
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“[The trial court]: And I should note that the prior order to stay away from the
victim in this matter remains the [c]ourt’s order. Do you understand that . . . ?
“[Defendant]: I understand that.
“[The trial court]: Give me just a moment. That includes -- so your prior orders
are to submit to search and seizure. That includes electronic devices. And . . . including
providing passwords. Do you understand that?”
Defendant told the trial court he understood.
Defendant timely appealed.
DISCUSSION
On appeal, defendant challenges the constitutionality of the electronic search
condition of his probation. He argues it is facially overbroad. The People argue
defendant’s claim is “barred by his failure to appeal the original 2019 order in which the
condition was imposed and is forfeited by his failure to object at any time.”
(Capitalization and bolding omitted.)
We agree defendant may not now challenge the electronic search condition.
Even assuming that defendant’s challenge to the constitutionality of the probation
condition raises a purely legal issue not requiring any scrutiny of the individual facts of
his case, which ordinarily does not forfeit the issue (In re Sheena K. (2007) 40 Cal.4th
875, 885, 889), we reject his challenge, because he did not appeal from the initial order
granting probation.
In general, an appealable order from which a litigant does not take direct appellate
review becomes final and binding and may not be attacked subsequently on an appeal
from a later appealable order or judgment. (People v. Ramirez (2008) 159 Cal.App.4th
1412, 1421.) An order granting probation is appealable (whether it is the imposition or
execution of sentence being suspended). (Id. at p. 1421.) “Thus, a defendant who elects
not to appeal an order granting . . . probation cannot raise claims of error with respect to
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the grant . . . of probation in a later appeal from a judgment following revocation of
probation.” (Ibid.)
Here, as there is no dispute that defendant did not appeal the order granting
probation, though he could have, he cannot now challenge that order in the instant appeal.
Defendant’s invocation of In re Sheena K. for the proposition that we have
discretion to consider his claim is unpersuasive. In that case, the juvenile did challenge
the relevant probation condition in her first opportunity to appeal from the order. (In re
Sheena K., supra, 40 Cal.4th at p. 878.) In that context, our Supreme Court explained “a
challenge to a term of probation on the ground of unconstitutional vagueness or
overbreadth that is capable of correction without reference to the particular sentencing
record developed in the trial court can be said to present a pure question of law” and thus
may be reviewed on appeal despite the failure to object in the trial court. (Id. at p. 887,
italics omitted.) Here, the different procedural posture of this case is dispositive.
Given our preceding holding, we need not decide whether defendant forfeited
appellate review of the electronic search condition by failing to object to it.
DISPOSITION
The judgment (order reinstating probation) is affirmed.
/s/
Robie, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Renner, J.
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