P. v. Cavalier

Filed 1/17/18 P. v. Cavalier CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MARCOS CAVALIER,
Defendant and Appellant.
D071517
(Super. Ct. No. SCN350362)
APPEAL from a judgment of the Superior Court of San Diego County, Timothy
M. Casserly, Judge. Affirmed as modified with directions.
Cathryn Lintvedt Rosciam, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland,
Assistant Attorneys General, Collette C. Cavalier and Adrian R. Contreras, Deputy
Attorneys General, for Plaintiff and Respondent.

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Marcos Cavalier pleaded guilty to smuggling a controlled substance into jail.
(Pen. Code,1 4573.) The People dismissed three charges of possession of drugs and drug
paraphernalia as well as charges in a different case (case No. SCN350153) with a waiver
under People v. Harvey (1979) 25 Cal.3d 754 (Harvey). The court suspended imposition
of sentence and granted probation for three years, adding conditions that are the subject
of this appeal. First, the court ordered Cavalier to submit his person, vehicle, residence,
property, personal effects, computers and recordable media devices for search at any time
with or without a warrant (condition 6n). Second, based on the Harvey waiver, the court
imposed a $615 drug program fee. (Health & Saf. Code, § 11372.7.) Third, and again
based on the Harvey waiver, it imposed a $205 laboratory analysis fee. (Health & Saf.
Code, § 11372.5.)
Cavalier contends condition 6n is overbroad, unreasonable, and/or violates his
constitutional rights. He further contends that both fees were improper because under
Harvey, he was not "convicted" under the corresponding statutes.
The People have moved to dismiss the appeal, contending it is untimely as
Cavalier did not appeal the original judgment; rather, following Cavalier's probation
violations, the court has reinstated the same conditions five times. Cavalier concedes he
has appealed only the most recent imposition. Although we conclude his claims are
untimely, in the interest of justice we exercise our discretion to address the issues on the
1 All statutory references are to the Penal Code unless otherwise stated.

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merits. We order the drug program and the laboratory analysis fees stricken, and
otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND2
The probation officer recommended a three-year grant of probation for Cavalier,
adding: "Because [Cavalier] has what can be considered a severe addiction to illicit
substances, Probation recommends that he be order[ed] to attend and complete a
residential drug treatment program. A [Fourth Amendment] waiver, full-time work or
school, full substance abuse and alcohol abuse conditions are recommended."
The probation officer recommended various conditions of probation, including
that Cavalier obtain probation officer approval as to his residence (condition 10g), and
condition 6n. The probation officer additionally recommended some alcohol and
marijuana conditions, specifically, that Cavalier not knowingly use or possess alcohol if
directed by his probation officer (condition 8b) or be in places other than in the course of
employment where alcohol is the main item for sale (condition 8h), and that Cavalier
submit to chemical testing for blood alcohol content upon request (condition 8f).
The probation officer evaluated Cavalier under the COMPAS (Correctional
Offender Management Profiling for Alternative Sanctions) assessment tool. The
assessment found Cavalier "is likely to have a better chance of success in the community
2 The factual basis for the plea is that in September 2015, Cavalier "knowingly and
unlawfully brought a controlled substance into a jail facility—useable quantity of
methamphetamine." Additional background facts regarding the underlying conviction
are not relevant to the issues on appeal.

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if [he] is managed on formal probation with intensive monitoring and case planning to
address identified needs."
The probation officer summarized Cavalier's criminal record: "[Cavalier] has a
lengthy history dating back to 1996. As a juvenile, [he] has four prior felony true
findings resulting in a commitment to [a juvenile facility]. As an adult, [he] has eight
prior felony convictions and two prior misdemeanor convictions. He has also been
granted probation on six occasions. Despite prior court ordered sanctions to include
prison sentences, it has done little to alter [Cavalier's] behavior. In light of the above
information coupled with [Cavalier's] continued criminality, his prior performance on
probation can be classified as poor."
Cavalier concedes he did not appeal from the original judgment or from four other
impositions of the same probation conditions: "Following the initial grant of probation,
Cavalier admitted he was in violation of his probation on four occasions . . . . The
violations were for failing to report to probation, and on February 17, 2016, for failing to
register as a narcotics offender. . . . Each time the court revoked and reinstated probation
and ordered the same probations conditions to remain in effect. . . . Cavalier did not
appeal the initial grant of probation, nor any of the four subsequent violations. [¶] On
October 28, 2016, Cavalier was alleged to have violated his probation a fifth time, for
failing to follow the directions of the probation officer; specifically, for leaving the
probation office without providing the requested urine sample for drug testing."
Under the circumstances, we regard Cavalier's challenge to the probation
conditions as untimely. "A criminal appeal must generally be filed within 60 days of the

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making of the order appealed. . . . [¶] An order granting probation and imposing
sentence, the execution of which is suspended, is an appealable order. . . . [¶] In
general, an appealable order that is not appealed becomes final and binding and may not
subsequently be attacked on an appeal from a later appealable order or judgment.
[Citation.] 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." (People
v. Ramirez (2008) 159 Cal.App.4th 1412, 1420-1421.)
We nonetheless address Cavalier's contentions on the merits to address a
constitutional issue and correct a legal error regarding the fees imposed. "[O]bvious legal
errors at sentencing that are correctable without referring to factual findings in the record
or remanding for further findings are not waivable." (People v. Smith (2001) 24 Cal. 4th
849, 852.)
DISCUSSION
I. Computers and Recordable Media Search (Condition 6n)
A grant of probation " 'is not a right, but a privilege' " (People v. Moran (2016) 1
Cal.5th 398, 402) and a trial court has broad discretion to choose probation in sentencing
a criminal offender. (Ibid.) Reviewing courts defer to the superior court's choice absent
a manifest abuse of that discretion. (Ibid.)
"When an offender chooses probation, thereby avoiding incarceration, state law
authorizes the sentencing court to impose conditions on such release that are 'fitting and
proper to the end that justice may be done, that amends may be made to society for the

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breach of the law, for any injury done to any person resulting from that breach, and . . .
for the reformation and rehabilitation of the probationer.' (§ 1203.1, subd. (j).)
Accordingly, . . . a sentencing court has 'broad discretion to impose conditions to foster
rehabilitation and to protect public safety pursuant to . . . section 1203.1.' [Citation.] But
such discretion is not unlimited: '[A] condition of probation must serve a purpose
specified in the statute,' and conditions regulating noncriminal conduct must be
' "reasonably related to the crime of which the defendant was convicted or to future
criminality." ' " (People v. Moran, supra, 1 Cal.5th at pp. 402-403.) The California
Supreme Court has stated that a probation condition " '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." ' " (People v. Olguin (2008) 45 Cal.4th 375,
379, quoting People v. Lent (1975) 15 Cal.3d 481, 486 (Lent); People v. Trujillo (2017)
15 Cal.App.5th 574, 583 (Trujillo), review granted Nov. 29, 2017, No. S244650; In re
J.B. (2015) 242 Cal.App.4th 749, 754.) A reviewing court can invalidate the condition
only if all three prongs—referred to as the Lent factors—are met. (Olguin, at p. 379.)
A reviewing court can also invalidate probation conditions if they are
unconstitutionally overbroad, that is, if they impose limitations on a person's
constitutional rights that are not closely tailored to the purpose of the condition. (See In
re Sheena K. (2007) 40 Cal.4th 875, 890; People v. Stapleton (2017) 9 Cal.App.5th 989,
993.) " 'A restriction is unconstitutionally overbroad . . . if it (1) "impinge[s] on
constitutional rights," and (2) is not "tailored carefully and reasonably related to the

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compelling state interest in reformation and rehabilitation." [Citations.] 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.' " (Stapleton, at p. 993; People v.
Appleton (2016) 245 Cal.App.4th 717, 723.)
Appellate courts generally review probation conditions for abuse of discretion.
(People v. Moran, supra, 1 Cal.5th at p. 403; People v. Appleton, supra, 245 Cal.App.4th
at p. 723.) "That is, a reviewing court will disturb the trial court's decision to impose a
particular condition of probation only if, under all the circumstances, that choice is
arbitrary and capricious and is wholly unreasonable." (Moran, at p. 403.) But
constitutional challenges, such as a claim that a condition is overbroad, are reviewed de
novo. (People v. Stapleton, supra, 9 Cal.App.5th at p. 993; Appleton, at p. 723.)
Cavalier contends the court erred by imposing probation condition 6n to the extent
it requires him to submit his "computer and recordable media" to search at any time with
or without a warrant, and with or without probable cause, when required by his probation
officer or a law enforcement officer. Comparing his case to In re P.O. (2016) 246
Cal.App.4th 288 and distinguishing People v. Ebertowski (2014) 228 Cal.App.4th 1170,
in which the court upheld a similar condition in a case involving a gang related crime and
defendant's admission to a gang allegation (Ebertowski, at pp. 1172-1173, 1176-1177), he
maintains the condition is unreasonable under Lent. Cavalier further argues the condition
is so overbroad as to impinge on his Fourth Amendment right to privacy.

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The People argue in response that the condition is valid under Lent because it is
reasonably related to reducing future criminality. According to them, in view of
Cavalier's lengthy and violent criminal history as well as his poor performance on
probation, the condition relates to Cavalier's supervision and rehabilitation by helping the
probation department ensure he refrains from committing future crimes. The People
further argue the electronics search condition is not overbroad because it allows the close
supervision of probationers to ensure they comply with their probation terms, and thus is
closely tailored to the compelling state interest in reforming and rehabilitating
defendants.
This court recently addressed a challenge by a defendant subjected to an
electronics search probation condition in Trujillo, supra, 15 Cal.App.5th 574, which we
discuss in detail for its persuasive value. (Cal. Rules of Court, rule 8.1115(e)(1).) The
defendant's crime in Trujillo, like Cavalier's here, had no relation to the probation
condition, and the main issue as here was whether the condition was reasonably related to
future criminality. We explained that "a probation condition 'that enables a probation
officer to supervise his or her charges effectively is . . . "reasonably related to future
criminality." ' [Citations.] Because the probation officer is responsible for ensuring the
probationer refrains from criminal activity and obeys all laws during the probationary
period, the court may appropriately impose conditions intended to aid the probation
officer in supervising the probationer and promoting his or her rehabilitation. [Citations.]
'This is true "even if [the] condition . . . has no relationship to the crime of which a
defendant was convicted." ' " (Trujillo, at p. 583.)

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In Trujillo, the defendant's crimes were first-time offenses, but his record showed
he had substantial risk factors relevant to reoffending, and we observed the trial court had
imposed the condition aware of these facts and the probation department's conclusion that
he was at risk and would require close supervision of his daily activities to support a
successful probation. (Trujillo, supra, 15 Cal.App.5th at p. 583.) The trial court had
found that in order to supervise the defendant, the probation department needed to be able
to view the contents of his computer and cell phone, and thus we pointed out it "did not
impose this condition as a matter of routine, but considered the specific facts relevant to
Trujillo's case." (Ibid.) Under the circumstances, we held the court did not abuse its
discretion: "If the court permits this young convicted felon to avoid prison through
probation despite his violent offenses, the court has the authority to take steps to help
ensure Trujillo will remain crime free and that public safety objectives are satisfied. As
our high court has observed, the purpose of requiring Fourth Amendment search waivers
as a probation condition is 'to determine not only whether [the probationer] disobeys the
law, but also whether he obeys the law. Information obtained [from an unexpected and
unprovoked search] afford[s] a valuable measure of the effectiveness of the supervision
given the defendant . . . .' [Citations.] The trial court had a reasonable basis to conclude
the most effective way to confirm Trujillo remains law-abiding is to permit his electronic
devices to be examined, rather than relying on a meeting or a telephone conversation.
This required Fourth Amendment waiver is not open-ended, it applies only during the
probation period. If Trujillo is successful at his probation, the Fourth Amendment waiver
will terminate and his electronic devices will again be completely private. The court

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made the factual determination that the electronics-search condition is necessary to
provide appropriate supervision for Trujillo while he is on probation. Under Lent and
Olguin, the court did not err in reaching this conclusion." (Id. at pp. 583-584.)
We further rejected the notion that the Trujillo defendant's failure to use an
electronic device in committing his crimes or the lack of any connection between such a
device and the crimes rendered the search condition unreasonable as a matter of law.
(Trujillo, supra, 15 Cal.App.5th at p. 584.) As we explained, whether a condition is
reasonably related to reducing future criminality requires a focus on the particular facts
and circumstances, not bright-line rules; that the propriety of a specific probation
condition "necessarily depends on a myriad of tangible and intangible factors before the
trial court, including the defendant's particular crime, criminal background, and
prospects. It is for the trial court, with the assistance of the probation officer and other
experts, to determine the probation conditions that will permit effective supervision of the
probationer." (Trujillo, supra, 15 Cal.App.5th at p. 584.) And it was this court's role to
decide whether the lower court had a reasonable factual basis to decide the condition
would assist probation in supervising the defendant. (Id. at pp. 584-585.) In Trujillo, the
facts supported the conclusion that the trial court's decision did have such a basis.
We are persuaded by Trujillo's reasoning and apply it in this case. Trujillo's
outcome did not turn on whether the trial court perceived the condition to be standard or
routine, but rather on its finding—knowing the defendant's history and risk factors—that
the condition was necessary to provide appropriate supervision for the defendant while he
was on probation. Here, the trial court had before it the probation report recounting

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Cavalier's lengthy criminal history and the probation department's conclusions as to the
factors—Cavalier's history of non-compliance on probation and his criminal
personality—that had to be addressed by the probation officers to reduce the chances of
his reoffending. As in Trujillo, here the court had reasonable grounds to conclude that an
effective way to confirm Cavalier remains compliant and law-abiding during his period
of supervision is to permit his electronic devices to be examined, rather than merely
relying on meetings or telephone conversations. Because the electronics search condition
is reasonably related to Cavalier's supervision, it is reasonably related "to his
rehabilitation and potential future criminality." (People v. Olguin, supra, 45 Cal.4th at
p. 380.) We conclude the court did not abuse its discretion in ordering the condition
under Lent, supra, 15 Cal.3d 481.
Following Trujillo, we reject Cavalier's argument that the electronics search
condition is unconstitutionally overbroad as violating his fundamental privacy rights
under Riley v. California (2014) 573 U.S. ___ [134 S.Ct. 2473]. Cavalier suggests we
should follow the decisions invalidating the condition as overbroad in People v. Appleton,
supra, 245 Cal.App.4th 723, and In re P.O., supra, 246 Cal.App.4th 288. In Trujillo, we
distinguished Riley, and followed authority explaining that the overbreadth analysis is
materially different from the warrant requirement at issue in that case. (Trujillo, supra,
15 Cal.App.5th at p. 587.) We observed that probationers do not enjoy the absolute
liberty to which law-abiding citizens are entitled, and that courts routinely uphold broad
probation conditions permitting searches of a probationer's residence without a warrant or
reasonable cause. (Id. at pp. 587-588.) Like the defendant in Trujillo (id. at pp. 588-

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589), Cavalier does not challenge the probation condition authorizing officers to conduct
random and unlimited searches of his residence at any time and for no stated reason, and
he made no showing that a search of his electronic devices would be any more invasive
than an unannounced, without-cause, warrantless search of his residence. Here, as in
Trujillo, the factual record supports a conclusion that the electronics-search condition is
necessary to protect public safety and to ensure Cavalier's rehabilitation during his
supervision period, and a routine search of Cavalier's electronic data "is strongly relevant
to the probation department's supervisory function." (Id. at p. 588.) We adopt a similar
conclusion as Trujillo: "Absent particularized facts showing the electronics-search
condition will infringe on [Cavalier's] heightened privacy interests, there is no reasoned
basis to conclude the condition is constitutionally overbroad or to remand for the court to
consider a more narrowly-drawn condition." (Id. at p. 589.)
II. Fees Imposed Are Improper
As the parties agree, the Harvey waiver allows the sentencing court to consider the
facts of the dismissed charges in exercising its sentencing discretion regarding the
charges for which a person has been convicted. (People v. Munoz (2007) 155
Cal.App.4th 160, 167.) The waiver is not the same as a conviction, and cannot be
considered as such in sentencing. (People v. Myers (1984) 157 Cal.App.3d 1162, 1168.)
Health and Safety Code section 11372.7 authorizing the court to impose a drug fee
requires a prior conviction under that statute. But Cavalier pleaded guilty only to one
count under a different statute, Penal Code section 4573. Thus, the trial court did not
have the authority to order that fee in this case.

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For the same reason, the court had no authority to impose a laboratory analysis fee
under Health and Safety Code section 11372.5. As we have discussed above, a Harvey
waiver does not amount to a conviction.
DISPOSITION
The trial court is directed to strike the $615 drug program fee and the $205
laboratory analysis fee and amend the court's minutes accordingly. In all other respects
the judgment is affirmed.
O'ROURKE, J.
I CONCUR:
NARES, Acting P. J.

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AARON, J., Concurring in the result.
The appellant concedes that he failed to appeal from the original judgment or from
four other subsequent proceedings in which the trial court imposed or re-imposed the
same conditions of probation of which he complains in the present appeal. Under these
circumstances, I would conclude that appellant has forfeited any challenge to the
conditions and would not address the merits of his claims.
Further, for the reasons set forth in my concurring and dissenting opinion in
People v. Lynch (Jan. 11, 2018, D071882) [nonpub. opn.], I disagree with the majority's
analysis of the merits of the issues raised in this appeal.
I concur with the analysis in the remainder of the majority opinion.
AARON, J.

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