P. v. Smith

Filed 10/11/17 P. v. Smith 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
HARVIE SMITH,
Defendant and Appellant.
D071956
(Super. Ct. No. SCN342422)
APPEAL from an order of the Superior Court of San Diego County, Sim Von
Kalinowski, Judge. Affirmed.
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami
Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
The court found Harvie Smith guilty of fraudulent appropriation by an employee
(Pen. Code, § 508; count 1).1 The court stayed Smith's sentence pending successful
1 All statutory references are to the Penal Code unless otherwise specified.

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completion of probation. On appeal, Smith contends the following probation conditions
are unconstitutional: defendant shall obtain probation officer's (P.O.) consent before
leaving San Diego County (condition 6l); defendant shall obtain P.O. approval as to
residence (condition 10g); and defendant shall submit computers and recordable media to
search at any time with or without a warrant, and with or without reasonable cause, when
required by P.O. or law enforcement officer (condition 6n). The attachment to condition
6n specifies "computers and electronic and wireless communication devices . . . including
any form of written communication (email, text message, twitter, or similar), web
browser history, or photographs" are subject to search. We conclude Smith forfeited his
right to challenge the conditions by failing to object in the court below. Accordingly, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Michael McLaughlin hired Smith to be the on-site property manager for Parkside
Villa Apartments in Oceanside around 2004. Smith's duties included collecting rents,
entering rent payments into the computer system, making bank deposits, and
documenting all financial statements. McLaughlin considered Smith's work performance
to be excellent until 2012. In 2012, the computer system's hard drive crashed and
McLaughlin went through all physical financial documents to recreate the computer
records. During this process, McLaughlin noticed numbers were not adding up.
Specifically, McLaughlin noticed about $80,000 of rent payments that were never
deposited to the bank. McLaughlin asked Smith about the missing payments and Smith

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confessed to stealing the money because he was in gambling trouble. McLaughlin did
not fire Smith but decided to give him another chance.
Then, in October 2014, McLaughlin again noticed missing bank deposits.
McLaughlin compared the rental payments and bank deposits for each month from
January to October 2014 and found around $60,000 unaccounted for. McLaughlin went
straight to the police.
A few days later, police officer Randy Markham met with Smith at the apartment
complex. Smith admitted to gambling and stealing some of the 2014 rental payments.
Then, Smith drove himself to the Oceanside Police Department where he met with
Officer Matthew Lyons. During this meeting, Smith admitted to and identified the 2014
rental payments he had stolen.
The court found Smith guilty of (1) fraudulent appropriation by an employee,
(2) grand theft by an employee, and (3) grand theft of personal property. The court struck
counts 2 and 3 and Smith's sentence was suspended pending successful completion of
probation.
DISCUSSION
I
STANDARD OF REVIEW
A probation condition is reviewed for abuse of discretion. (People v. Olguin
(2008) 45 Cal.4th 375, 379.) "Generally, '[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

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which is not reasonably related to future criminality." ' " (Ibid., quoting People v. Lent
(1975) 15 Cal.3d 481, 486.)
II
Smith asserts the following probation conditions are unconstitutional: approval to
leave San Diego County, approval as to residence, and warrantless searches of his
electronic devices. Smith contends the conditions can be challenged for the first time on
appeal because he presents facial challenges to the constitutionality of the conditions.
Failure to object to a probation condition at the trial court level forfeits the right to
challenge the condition on appeal. (People v. Welch (1993) 5 Cal.4th 228, 237.)
However, facial challenges to the constitutionality of probation conditions that present
pure questions of law may be raised for the first time on appeal. (In re Sheena K. (2007)
40 Cal.4th 875, 887-889 (Sheena K.).)
Smith relies on Sheena K. to avoid forfeiture. In Sheena K., the California
Supreme Court held that a constitutional challenge to a probation condition can "present
a pure question of law" and withstand failure to object below. (Sheena K., supra, 40
Cal.4th at p. 887). The Court noted that its holding does not apply to all constitutional
challenges, " 'since there may be circumstances that do not present "pure questions of law
that can be resolved without reference to the particular sentencing record developed in
the trial court." ' " (Id. at p. 889.) Further, Sheena K. emphasized that objections to facial
constitutional flaws should generally, given the opportunity, be objected to in the trial
court. (Ibid.)

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Smith objects to the conditions requiring him to obtain consent before leaving San
Diego County and approval as to his residence as unconstitutionally vague and overbroad
because the conditions are not narrowly tailored to further a compelling state interest.2
We disagree.
In an overbreadth challenge, "[t]he essential question . . . 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 . . . practical necessity will justify some
infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) When a condition limits
a person's constitutional rights the condition "must closely tailor those limitations to the
purpose of the condition to avoid being invalidated as unconstitutionally overbroad."
(Sheena K., supra, 40 Cal.4th at p. 890.)
The conditions requiring approval before leaving San Diego County and approval
as to residence are not unconstitutional on their face. There are circumstances where the
state has legitimate interests to infringe upon constitutional rights of travel and
association. For example, in People v. Stapleton (2017) 9 Cal.App.5th 989, a residency
condition was upheld because the condition aided probationer's rehabilitation. (Id. at
p. 996.) Thus, Stapleton illustrates under some circumstances a residency condition is
proper. Here, an analysis of the relationship of the conditions to the state's interests
requires looking to the facts of this case. According to Sheena K., such a factual analysis
is best reserved for the trial court to " 'encourage development of the record and a proper
2 Appellant's opening brief states once that the conditions are unconstitutionally
vague. The burden is on the appellant to prove error. (Plotnik v. Meihaus (2012) 208
Cal.App.4th 1590, 1600.) One statement contending the probation conditions are
unconstitutionally vague, without anything more, does not meet that burden.

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exercise of discretion.' " (Sheena K., supra, 40 Cal.4th at p. 889.) Therefore, this
challenge does not present a pure question of law and Smith forfeited his challenge by
failing to object below.
Smith references People v. Bauer (1989) 211 Cal.App.3d 937, which held a
residency condition invalid because the only interest in appellant's residence came from a
"suggestion that appellant's 'immaturity' may have resulted from his protective parents."
(Id. at p. 944). Smith argues his case is similar because "there is nothing in the record to
show that appellant's living conditions contributed to the crime of conviction." Smith's
argument relies on an analysis of the facts of the case and fails to present a pure question
of law, and as such only underscores that he forfeited his challenge here by not objecting
below.
Smith also contends the condition allowing warrantless searches of his computer
and electronic devices is unconstitutionally overbroad because it grants probation officers
unfettered access to private, irrelevant information. Again, we conclude Smith forfeited
his right to challenge this condition by failing to object in the trial court.
Smith relies on Riley v. California (2014) ___ U.S. ___ [134 S.Ct. 2473] for the
proposition that a warrantless search of electronic devices is unconstitutional. However,
Riley held a warrant is generally required to search a cell phone seized pursuant to an
arrest, the holding does not apply to the constitutionality of probation conditions. (Id. at
p. 2493.)
This court is not willing to say a warrantless electronics search condition is never
appropriate. In re R.S. (2017) 11 Cal.App.5th 239, rejected a challenge that a warrantless

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electronics search condition was unconstitutionally overbroad on its face. (Id. at p. 246).
The challenge was rejected because the challenge did not present a pure question of law
and thus was forfeited by failure to object below. (Ibid.) Similarly, In re I.V. (2017) 11
Cal.App.5th 249, held an overbreadth challenge to a probation condition allowing
warrantless searches of property was not facially unconstitutional. (Id. at p. 255.) The
analysis between the closeness of fit of the state interest between the constitutional
burden would require an inquiry into the record to determine whether the condition was
tailored to the state interests. (Id. at pp. 260-261). Further, we are aware that we should
avoid adding to a constitutional issue pending before the California Supreme Court.3
(California Teachers Assn. v. Board of Trustees (1977) 70 Cal.App.3d 431, 442 ["Courts
should follow a policy of judicial self-restraint and avoid unnecessary determination of
constitutional issues."].) The condition allowing warrantless electronics searches is not
unconstitutionally broad on its face. To analyze overbreadth further would require an
analysis of the record. Such analysis is inconsistent with Sheena K., supra, 40 Cal.4th
875, which restricts review to pure questions of law.
The probation conditions are not facially unconstitutional. Smith forfeited his
right to challenge the conditions on appeal by failing to object below.
3 See, In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016,
S230923; In re Patrick F. (2015) 242 Cal.App.4th 104, review granted Feb. 17, 2016,
S231428; In re Alejandro R. (2015) 243 Cal.App.4th 556, review granted Mar. 9, 2016,
S232240; In re Mark C. (2016) 244 Cal.App.4th 520, review granted Apr. 13, 2016,
S232849; In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25, 2016,
S233932; In re J.E. (2016) 1 Cal.App.5th 795, review granted Oct. 12, 2016, S236628;
People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted Dec. 14, 2016, S238210.

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DISPOSITION
The order is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
NARES, J.

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