P. v. Cardenas

Filed 5/11/18 P. v. Cardenas 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
SANTIAGO CARDENAS,
Defendant and Appellant.
D072269
(Super. Ct. No. SCD270379)
APPEAL from a judgment of the Superior Court of San Diego County,
Michael S. Groch, Judge. Affirmed.
Kent D. Young, 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, Arlene A. Sevidal and Elizabeth
M. Renner, Deputy Attorneys General, for Plaintiff and Respondent.

-- 1 of 23 --

2
I.
INTRODUCTION
Defendant Santiago Cardenas pled guilty to one count of felony assault with force
likely to cause great bodily injury and one count of attempted unlawful taking of a
vehicle. The trial court placed Cardenas on formal probation for a period of three years.
On appeal, Cardenas challenges nine of the probation conditions that the court imposed
(conditions 6e, 6k, 6n, 6r, 9a, 10g, 11a, and 11b), on a variety of grounds. Cardenas
objected to only two of these nine conditions in the trial court, and, as to those two, raised
no constitutional objection. Instead, he contended only that imposition of those
conditions was unreasonable, given the circumstances of his crime and his criminal
history. We conclude that Cardenas has forfeited a number of his challenges to the
probation conditions. We further conclude that his nonforfeited contentions are without
merit. We therefore affirm the judgment of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
Cardenas walked into a liquor store and took a bottle of liquor off a shelf, put it in
his pocket, and walked out of the store. A clerk followed Cardenas out of the store and
stopped him at a bus stop in an attempt to recover the liquor bottle. Cardenas threw
punches at the clerk but was unable to connect. The two men then engaged in a physical
altercation. Cardenas attempted to escape the situation by running to a nearby occupied
vehicle and opening a passenger side door. The driver of the vehicle tried to push

-- 2 of 23 --

3
Cardenas out of the vehicle while the clerk attempted to pull him out. The clerk
sustained injuries to his face, including a bloody nose, a cut lip, and a bruised forehead.
Cardenas met with a probation officer via teleconference in April 2017. He
acknowledged a criminal history beginning with misdemeanor convictions in Texas in
2011. He has been a transient since the age of 23, and suffers from mental issues,
including schizophrenia, anxiety, and depression. Cardenas has abused a number of
substances, including marijuana, methamphetamine, and heroin. He acknowledged that
he was under the influence of methamphetamine and heroin at the time he committed the
charged offenses. He told the probation officer that he has never received treatment for
substance abuse problems, and questioned whether such treatment would benefit him.
The probation department utilized the Correctional Offender Management Profiling for
Alternative Sanctions (COMPAS) assessment tool and concluded that Cardenas is "likely
to have a better chance of success in the community if he[ ] is managed on formal
probation with intensive monitoring and case planning to address identified needs."
B. Procedural background
On April 12, 2017, Cardenas pled guilty to one count of felony assault with force
likely to cause great bodily injury and one count of attempted unlawful taking of a
vehicle. The balance of the other charges against him were dismissed. The plea
agreement provided that Cardenas would be granted formal probation, and that the court
would consider imposing a sentence ranging from 180 to 365 days, which could be
served either in local custody or in an alternative to local custody.

-- 3 of 23 --

4
The trial court ordered Cardenas to serve three years of formal probation. The
court further ordered that Cardenas serve 365 days in local custody, with release on work
furlough, if eligible.
Cardenas filed a timely appeal.
III.
DISCUSSION
Cardenas challenges a number of the conditions of probation that the court
imposed, on various and multiple grounds. For example, Cardenas challenges condition
6k1 on vagueness grounds, and challenges condition 10g2 on overbreadth grounds.
Cardenas challenges conditions 6e,3 6n,4 11a,5 and 11b,6 on both vagueness and
overbreadth grounds. Further, Cardenas contends that six of the probation conditions—
1 Condition 6k requires that Cardenas "[p]rovide true name, address, and date of
birth if contacted by law enforcement" and to "[r]eport contact or arrest in writing to the
P.O. within 7 days," including "the date of contact/arrest, charges, if any, and the name of
the law enforcement agency."
2 Condition 10g requires that Cardenas "[o]btain P.O. approval as to" his residence
and employment.
3 Condition 6e requires that Cardenas "[c]omply with a curfew if so directed by the
P.O."
4 Condition 6n requires that Cardenas "[s]ubmit person, vehicle, residence, property,
personal effects, 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."
5 Condition 11a requires that Cardenas "[p]articipate in Global Position System
(GPS) monitoring . . . if directed by a P.O."
6 Condition 11b requires that Cardenas "[c]omply with all zone and curfew
restrictions, GPS charging requirements and equipment care" if he is directed to
participate in the GPS monitoring program.

-- 4 of 23 --

5
conditions 6e, 6r,7 7b,8 9a,9 11a, and 11b—"impermissibly delegate judicial authority to
the probation officer." (Formatting omitted.)
The only conditions to which Cardenas raised any objection in the trial court are
11a and 11b, to which he raised only a Lent10 reasonableness objection, but no
constitutional objection. He accepted without objection all of the other conditions of
probation. 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 [extending the forfeiture rule to a claim that
probation conditions are unreasonable, when the probationer fails to object on that
ground in the trial court].) However, a defendant who did not object to a probation
condition at sentencing may raise a challenge to that condition on appeal if the
defendant's appellate claim "amount[s] to a 'facial challenge' " (italics added), i.e., a
challenge that the "phrasing or language . . . is unconstitutionally vague and overbroad,"
and the determination whether the condition is constitutionally defective "does not
require scrutiny of individual facts and circumstances but instead requires the review of
abstract and generalized legal concepts—a task that is well suited to the role of an
appellate court." (In re Sheena K. (2007) 40 Cal.4th 875, 885 (Sheena K.).)
7 Condition 6r requires that Cardenas "[p]articipate and comply with any assessment
program if directed by the P.O."
8 Condition 7b requires that Cardenas "[p]articipate in treatment, therapy,
counseling, or other courses of conduct as suggested by validated assessment tests."
9 Condition 9a, which is located under the heading "DRUG CONDITIONS,"
requires that Cardenas "[c]omplete a program of residential treatment and aftercare . . . if
directed by the probation officer."
10 People v. Lent (1975) 15 Cal.3d 481 (Lent).

-- 5 of 23 --

6
Because Cardenas did not object in the trial court, he has forfeited any as applied
constitutional objections on appeal. We therefore address Cardenas's constitutional
challenges only to the extent that they " 'present "pure questions of law that can be
resolved without reference to the particular sentencing record developed in the trial
court." ' " (Sheena K., supra, 40 Cal.4th at p. 889.)
Further, as we discuss in section III.F, post, we decline to consider Cardenas's
constitutional challenge to probation conditions 6e, 6r, 7b, 9a, 11a, and 11b, on the
ground that they constitute impermissible delegations of judicial authority to a probation
officer. Because Cardenas accepted these conditions without objection, he failed to
provide the trial court with an opportunity to address his concerns. Although it could be
argued that such challenges constitute facial constitutional challenges, and that we
therefore could exercise our discretion to consider these claims (see Sheena K., supra, 40
Cal.4th at p. 889), we decline to do so under the circumstances.
A. Conditions 11a and 11b—reasonableness, vagueness, and overbreadth
Cardenas challenges condition 11, which includes two separate but related
conditions (11a and 11b), as unreasonable, under Lent, supra, 15 Cal.3d 481. He further
challenges these conditions on vagueness and overbreadth grounds.11
Condition 11a requires that Cardenas "[p]articipate in Global Positioning System
(GPS) monitoring . . . if directed by a P.O."12 Condition 11b requires that Cardenas
11 Cardenas also argues that conditions 11a and 11b improperly delegate the court's
judicial authority to a probation officer. We address this contention later in this opinion.

-- 6 of 23 --

7
"[c]omply with all zone and curfew restrictions, GPS charging requirements and
equipment care" if he is directed to participate in the GPS monitoring program.
According to Cardenas, these conditions are unrelated to his underlying crime, relate to
conduct that is not itself criminal, and are not reasonably related to future criminality.
Cardenas also argues that the conditions are vague and overbroad because they implicate
his constitutional rights to travel and association, and leave him to speculate as to their
requirements because they contain "undefined rules and restrictions of an electronic
monitoring program." Cardenas maintains that he "can only guess at what the terms of
the GPS monitoring are."
At sentencing, Cardenas's attorney objected to the imposition of condition
"11. CONTINUOUS ELECTRONIC MONITORING/GPS," which consists of conditions
11a, 11b, and 11c, stating, "I'm asking that [condition 11] not be imposed. I don't think
there's a nexus in this case given the facts and circumstances of this case. [¶] Mr.
Cardenas is 25. Again, he was extremely remorseful. There is no conduct in this case
that I think would justify a GPS device." Defense counsel did not state any further
objection with respect to the GPS-related conditions. In response, a probation department
representative noted that because Cardenas is a transient, in order "to assist supervision,
probation is asking for a GPS."
When an offender accepts a probationary sentence, thereby avoiding incarceration,
state law authorizes the sentencing court to impose conditions on such release as are
12 The condition provides two options, each with a box next to it for the court to
mark to indicate which selection the court is making—that the probationer participate in
the GPS monitoring "as mandated by PC1202.8(b)" or "if directed by a P.O."

-- 7 of 23 --

8
"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 . . . for the reformation and rehabilitation of the probationer." (Pen. Code,
§ 1203.1, subd. (j).) Accordingly, "[i]n granting probation, courts have broad discretion
to impose conditions to foster rehabilitation and to protect public safety . . . ." (People v.
Carbajal (1995) 10 Cal.4th 1114, 1120.) The broad discretion granted to trial courts to
impose probation conditions "is not without limits," however; "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.' " (Id. at p. 1121.) Therefore, a condition of probation is
generally "invalid [only if] 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.' " (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." (People v. Olguin (2008) 45 Cal.4th
375, 379 (Olguin).) We review the reasonableness of a probation condition imposed by
the trial court for an abuse of discretion. (Ibid.)
Cardenas challenges the reasonableness of the GPS monitoring condition, as well
as the GPS attendant curfew and zone requirements, when the record does not disclose
that he is currently subject to GPS monitoring. Cardenas's arguments regarding the
reasonableness of requiring him to wear a GPS monitor and to follow the rules of the

-- 8 of 23 --

9
GPS monitoring program are premature, given that there is no indication that he is
currently subject to GPS monitoring.
For this same reason, Cardenas's contentions that these conditions are vague and
overbroad are also premature.13 Again, there is no indication that a probation officer has
directed Cardenas to participate in GPS monitoring, or that he is presently subject to any
curfew or zone restrictions. As a result, the record does not demonstrate that he has been
directed to follow any rules or regulations that he has not been informed of or provided.
B. Condition 6k—vagueness
Cardenas contends that condition 6k is vague. Condition 6k requires that
Cardenas "[p]rovide true name, address, and date of birth if contacted by law
enforcement" and to "[r]eport contact or arrest in writing to the P.O. within 7 days,"
including "the date of contact/arrest, charges, if any, and the name of the law enforcement
agency."
"[T]he underpinning of a vagueness challenge is the due process concept of 'fair
warning.' [Citation.] The rule of fair warning consists of 'the due process concepts of
preventing arbitrary law enforcement and providing adequate notice to potential
offenders' [citation], protections that are 'embodied in the due process clauses of the
federal and California Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art. I,
13 To the extent that Cardenas is arguing that condition 11a is unconstitutionally
vague as it is currently written, without concern as to whether he has been directed to
participate in GPS monitoring, we reject such an argument. The condition is clearly not
vague. It requires that Cardenas comply with the rules and regulations of the GPS
monitoring program if he is directed by a probation officer to participate in the program.
This is not ambiguous.

-- 9 of 23 --

10
§ 7).' [Citation.]" (Sheena K., supra, 40 Cal.4th at p. 890.) "A probation condition 'must
be sufficiently precise for the probationer to know what is required of him, and for the
court to determine whether the condition has been violated,' if it is to withstand a
challenge on the ground of vagueness." (Ibid.) Probation conditions are given " ' "the
meaning that would appear to a reasonable, objective reader." ' " (In re I.V. (2017) 11
Cal.App.5th 249, 261 (In re I.V.).)
Cardenas relies on People v. Relkin (2016) 6 Cal.App.5th 1188 (Relkin), in support
of his argument that condition 6k is unconstitutionally vague. The Relkin court
considered a probation condition that required the defendant "to 'report to the probation
officer, no later than the next working day, any arrests or any contacts with or incidents
involving any peace officer.' " (Id. at p. 1196.) The defendant argued that the phrases
" 'contacts with' and 'incidents involving' peace officers are uncertain because one cannot
determine whether those terms include occasional conversation with a police officer who
lives down the street, answering an officer's questions as a witness to a crime, or
participation in a demonstration where officers are present." (Id. at pp. 1196–1197.) The
defendant also contended that the condition suffered from vagueness "because it is
subject to the ' "whim of any police or probation officer," ' and unconstitutionally
infringes on [the defendant's] rights under the First Amendment of the United States
Constitution." (Id. at p. 1197.)
The Relkin court determined that the condition was vague, but only in part.
Specifically, the Relkin court concluded that "the portion of the condition requiring that
defendant report 'any contacts with . . . any peace officer' " was vague because it "does

-- 10 of 23 --

11
indeed leave one to guess what sorts of events and interactions qualify as reportable."
(Relkin, supra, 6 Cal.App.5th at p. 1197.) According to the Relkin court, it was not
certain that the condition would not be triggered "when defendant says 'hello' to a police
officer or attends an event at which police officers are present, but would be triggered if
defendant were interviewed as a witness to a crime or if his 'lifestyle were such that he is
present when criminal activity occurs,' " as the People had argued on appeal. (Ibid.)
"The language does not delineate between such occurrences and thus casts an excessively
broad net over what would otherwise be activity not worthy of reporting." (Ibid.)
In contrast to the condition at issue in Relkin, condition 6k's requirement that
Cardenas "[p]rovide true name, address, and date of birth if contacted by law
enforcement" would appear to a reasonable, objective reader to refer to contacts initiated
by a law enforcement officer in which the officer requests that information from
Cardenas. This would not include mere greetings by law enforcement officers or
conversations with officers at events attended by Cardenas. Further, the requirement that
Cardenas report the "contact or arrest" and include the "name of the law enforcement
agency" indicates that the interaction must be of the type and nature that either the law
enforcement officer supplied that information to Cardenas, or that Cardenas was made
aware of this information because the nature of the "contact" was sufficiently meaningful.
This, too, indicates that a reasonable reading of the condition sufficiently delineates
between casual, random interactions between Cardenas and a law enforcement officer,
including the exchanging of pleasantries, and situations in which Cardenas is a witness to
a crime or is specifically stopped and questioned by a law enforcement officer. The mere

-- 11 of 23 --

12
fact that there " ' " 'may be difficulty in determining whether some marginal or
hypothetical act is covered by [a condition's] language' " ' " does not render the condition
"impermissibly vague." (In re I.V., supra, 11 Cal.App.5th at p. 261.) We therefore reject
Cardenas's vagueness challenge to condition 6k.
C. Condition 10g—overbreadth
Condition 10g requires that Cardenas "[o]btain P.O. approval as to" his residence
and employment.14 Cardenas argues that the requirement that he obtain approval from a
probation officer as to his residence is overbroad and impermissibly infringes on his
constitutional rights to travel and to free association.
Cardenas did not object to the imposition of condition 10g. We therefore will not
consider the challenge to the extent that Cardenas attempts to rely on the record of
conviction to assert that condition 10g is overbroad—i.e., we will not consider an as
applied challenge. Rather, we will consider his claim only to the extent that it may be
understood as asserting that the probation condition is facially overbroad and violates
fundamental constitutional rights. (Sheena K., supra, 40 Cal.4th at pp. 888–889; People
v. Quiroz (2011) 199 Cal.App.4th 1123, 1127 [forfeiture rule does not apply to
defendant's contention that as a matter of law probation condition, on its face, is
14 The condition provides three options, each with a box next to it for the court to
mark to indicate that the condition is being imposed: "residence," "employment" and
"contact with your children." The boxes next to "residence" and "employment" are
marked on the order granting Cardenas formal probation. Although both the "residence"
and "employment" boxes are checked, Cardenas's argument on appeal is directed only to
the residency approval portion of the condition; he makes no separate argument regarding
the employment approval portion of the condition.

-- 12 of 23 --

13
unconstitutionally vague and overbroad]; People v. Pirali (2013) 217 Cal.App.4th 1341,
1347 (Pirali) ["[a]lthough a probation condition may be overbroad when considered in
light of all the facts, only those constitutional challenges presenting a pure question of
law may be raised for the first time on appeal"].)
"If a probation condition serves to rehabilitate and protect public safety, the
condition may 'impinge upon a constitutional right otherwise enjoyed by the probationer,
who is "not entitled to the same degree of constitutional protection as other citizens." ' "
(People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355.) A constitutionally overbroad
condition is one that restricts a defendant's fundamental constitutional rights to a greater
degree than necessary to achieve the condition's purpose. (Olguin, supra, 45 Cal.4th at p.
384.) The overbreadth doctrine requires that probation conditions, which may impinge
on constitutional rights, be tailored carefully and reasonably related to the compelling
state interest in reformation and rehabilitation. (In re Victor L. (2010) 182 Cal.App.4th
902, 910.) " '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.'
[Citation.]" (Pirali, supra, 217 Cal.App.4th at p. 1346.)
A restriction requiring that a probation officer approve a defendant's residence
clearly imposes a burden on that defendant's constitutional rights to associate and his
right to intrastate and interstate travel. (People v. Bauer (1989) 211 Cal.App.3d 937, 944
(Bauer) [probation condition requiring that probation officer approve of residence

-- 13 of 23 --

14
"impinges on constitutional entitlements—the right to travel and freedom of
association"].) However, a probation condition may restrict these rights as long as it
reasonably relates to reformation and rehabilitation. (In re White (1979) 97 Cal.App.3d
141, 146.)
Cardenas relies on Bauer to argue that a probation condition that grants a
probation officer unfettered discretion to approve or disapprove of a probationer's
residence is facially unconstitutional. Bauer involved a probationer's challenge to a
condition nearly identical to the one here, which requires that Cardenas obtain his
probation officer's approval of his place of residence. (Bauer, supra, 211 Cal.App.3d at
pp. 943–945.) The Bauer court struck the condition, concluding that any requirement
that the defendant obtain his probation officer's approval of his residence was an
"extremely broad" restriction, and was not "narrowly tailored to interfere as little as
possible" with the constitutional right of travel and to freedom of association. (Id. at p.
944.) Such a condition gave the probation officer the discretionary power to prohibit the
defendant from living with or near whomever the probation officer chose—i.e., it gave
the probation officer "the power to banish him." (Ibid.)
To the extent that Cardenas's argument may be considered to be a facial challenge
to the residency-approval condition on overbreadth grounds, we reject this contention,
and we take issue with Cardenas's reliance on Bauer. The Bauer court did not explain
whether it was considering a facial or an as-applied challenge to the residency-approval
condition at issue, and there is no mention in that case whether the defendant had raised
an objection to the condition in the trial court. Although the Bauer court utilized broad

-- 14 of 23 --

15
language, including language often used in the context of facial overbreadth analysis, to
conclude that the residency-approval condition was unconstitutional in that case, it
appears from the court's analysis that it made this determination only after a
particularized assessment of the application of this condition to the specific
circumstances of that defendant. In fact, the Bauer court's conclusory constitutional
analysis followed discussion of the fact that there was "nothing in the probation report or
otherwise a part of the record in this case suggesting in any way that appellant's home life
(which is exemplary compared to that of most convicted felons) contributed to the crime
of which he was convicted." (Bauer, supra, 211 Cal.App.3d at p. 944.) We are
unconvinced that the Bauer court was truly considering whether this probation condition
was unconstitutional in every potential application, as opposed to determining that it was
unconstitutional in its application to the particular defendant in that case. For this
reason, we read Bauer to hold, narrowly, that a residency-approval condition may not be
constitutionally applied to a defendant where the record demonstrates that the defendant's
rehabilitation would not be served by placing restrictions on his residency, given the
specific nature of the offender and the nature of his offense.
Because we conclude that Bauer is not persuasive with respect to determining
whether the challenged probation condition is facially overbroad, we next consider
whether review of the residency approval condition in the abstract reveals that it is not
sufficiently narrowly tailored to the state's legitimate purpose in imposing it. (See
Sheena K., supra, 40 Cal.4th at p. 885 [appellate claim that the language of a probation
condition is unconstitutionally vague or overbroad "does not require scrutiny of

-- 15 of 23 --

16
individual facts and circumstances but instead requires the review of abstract and
generalized legal concepts"].) We conclude that the residency and employment approval
condition is not facially overbroad. It is readily apparent that this condition could be
constitutionally overbroad in certain circumstances, but it is equally apparent that the
condition might be entirely appropriate, and constitutional, in other circumstances. There
can be no dispute that certain probationers may require more intensive supervision and
monitoring, as the specific facts of each case demand. For example, where a defendant's
substance abuse contributed to his or her criminal conduct, preventing that defendant
from living in a home where drugs are present and used would be a significant step
toward ensuring that that defendant may successfully complete probation.
D. Condition 6e—vagueness and overbreadth
Condition 6e requires that Cardenas "[c]omply with a curfew if so directed by the
P.O." Cardenas complains that this condition is both unconstitutionally vague and
overbroad.15 Like most of the other conditions that Cardenas challenges on appeal,
Cardenas did not object to this condition in the trial court. He has therefore forfeited any
as-applied contentions with respect to the condition. Further, we reject Cardenas's
vagueness and overbreadth challenges because the record does not demonstrate that
Cardenas is currently subject to any curfew. His vagueness and overbreadth challenges
15 Cardenas also argues that condition 6e improperly delegates the court's judicial
authority to a probation officer. We address this contention later in this opinion.

-- 16 of 23 --

17
to this condition are therefore premature.16 If, in the future, Cardenas is directed to
comply with a curfew, he may raise any objections to the curfew at that time.
E. Condition 6n—vagueness and overbreadth
Condition 6n requires that Cardenas "[s]ubmit person, vehicle, residence, property,
personal effects, 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."
Cardenas argues that this condition is unconstitutionally vague because it includes
a blank space after " 'recordable media.' " He interprets this blank space as an "open-
ended fill-in-the blank condition." This is an unreasonable interpretation of condition 6n.
The blank space exists in order to allow the court to write in any additional items that the
court has determined should be subject to search and that are not included in the list
provided. If the blank space is not filled in by the court, it serves no purpose and has no
meaning. Contrary to Cardenas's contention, the blank space in condition 6n cannot
reasonably be interpreted as giving probation officers unfettered discretion to search
items beyond those listed. We therefore reject Cardenas's vagueness challenge to
condition 6n.
16 To the extent that Cardenas is arguing that the condition is vague because it does
not impose a specific curfew but instead, allows for the probation officer to do so, we
reject this contention. The condition is unambiguous and does not leave him to speculate
as to its requirements: it simply tells Cardenas that he must comply with a curfew if his
probation officer directs him to do so. To the extent that Cardenas's issue with the
condition is the fact that it permits the probation officer to decide whether to impose a
curfew, that is a question of delegation.

-- 17 of 23 --

18
Given Cardenas's unqualified acceptance of this probation condition in the trial
court, the only challenge that he may raise to the electronic search condition on appeal is
a facial challenge to the constitutionality of the condition. We therefore review solely the
question whether condition 6n, the search condition, which requires Cardenas to submit
his "computers" and "recordable media" to search when requested by a probation officer,
is unconstitutionally facially overbroad.
We reiterate that " '[t]he 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.' [Citation.]" (Pirali, supra, 217 Cal.App.4th at p. 1346.) A search
condition that permits unlimited searches of a probationer's computers and recordable
media requires the probationer to waive his Fourth Amendment protections and thus,
imposes a burden on the probationer's constitutional rights. We therefore consider
whether the search condition permitting searches of a probationer's computers and/or
recordable media, in the abstract, and not as applied to Cardenas, is not sufficiently
narrowly tailored to the state's legitimate interest in reformation and rehabilitation of
probationers in all possible applications. (See Sheena K., supra, 40 Cal.4th at p. 885
[appellate claim that the language of a probation condition is unconstitutionally vague or
facially overbroad "does not require scrutiny of individual facts and circumstances but
instead requires the review of abstract and generalized legal concepts"].) When the
search condition that allows searches of electronic media is viewed in this light, we

-- 18 of 23 --

19
conclude that the condition is not facially overbroad. Although it is readily apparent that
application of this search condition could be constitutionally overbroad in some
circumstances, it is equally apparent that such a search condition may be entirely
appropriate, and constitutional, in other circumstances. There can be no dispute that
certain probationers may require more intensive supervision and monitoring—in
particular, with respect to their use of computers and other electronic and recordable
media—based on the specific facts of the case. For this reason, we reject a constitutional
challenge to the search condition allowing for searches of computers and recordable
media on the ground that the condition is facially overbroad.
F. Cardenas has forfeited his appellate claims that conditions 6e, 6r, 7b, 9a, 11a, and
11b impermissibly delegate judicial authority to a probation officer
Cardenas relies on People v. Cervantes (1984) 154 Cal.App.3d 353 (Cervantes) to
argue that conditions 6e, 6r, 7b, 9a, 11a, and 11b "give 'unlimited delegation to the
probation officer' to determine the terms of probation."
Again, condition 6e requires that Cardenas "[c]omply with a curfew if so directed
by the P.O.," and conditions 11a and 11b require that Cardenas participate in the GPS
monitoring, and comply with all zone, curfew, and equipment charging and care
requirements, if he is directed by a probation officer to participate in the GPS monitoring
program. Condition 6r requires that Cardenas "[p]articipate and comply with any
assessment program if directed by the P.O." Condition 7b requires that Cardenas
"[p]articipate in treatment, therapy, counseling, or other courses of conduct as suggested
by validated assessment tests." Finally, condition 9a, which is located under the heading

-- 19 of 23 --

20
"DRUG CONDITIONS," requires that Cardenas "[c]omplete a program of residential
treatment and aftercare . . . if directed by the probation officer."
Cardenas argues that under condition 6e, the probation officer "has unlimited
authority to decide . . . whether Mr. Cardenas will be subject to a curfew; and, . . . what
the hours of the curfew will be." Cardenas contends that probation condition 6r "does not
specify the type of assessment program and in what circumstances the probation officer
should order participation in an assessment program." Cardenas objects that condition 7b
"grants broad authority to the probation officer, or other unknown individuals, to
prescribe the terms of Mr. Cardenas's probation," and effectively "allows the probation
officer . . . to dictate a 'course of conduct' " for him. Cardenas complains that condition
9a "does not specify [in] what circumstances the probation officer should order
participation in 'residential treatment and aftercare.' " As to all of these conditions, and
also conditions 11a and 11b, Cardenas contends that "[l]ike Cervantes, the unlimited
authority granted to the probation officer . . . improperly delegates judicial authority."
Apart from objecting to conditions 11a and 11b on other grounds, Cardenas did
not object to any of these conditions on the ground that they improperly delegate judicial
authority at the time the trial court imposed them. Challenges to probation conditions are
typically forfeited if not raised when they are imposed (People v. Welch (1993) 5 Cal.4th
228, 234–235), with a narrow exception that a court may exercise its discretion to
consider such challenges if they are constitutional challenges presenting pure questions of
law. (Sheena K., supra, 40 Cal.4th at p. 885.) However, merely couching a challenge as
a constitutional challenge is not a "talisman to ward off forfeiture." (In re R.S. (2017) 11

-- 20 of 23 --

21
Cal.App.5th 239, 244.) Not " ' "all constitutional defects in conditions of probation may
be raised for the first time on appeal, 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.' [Citation.] In those circumstances,
'traditional objection and waiver principles encourage development of the record and a
proper exercise of discretion in the trial court.' [Citation.]" [Citation.] . . . [T]he
probationer should object to a perceived facial constitutional flaw at the time a probation
condition initially is imposed in order to permit the trial court to consider, and if
appropriate in the exercise of its informed judgment, to effect a correction.' " (Ibid.)
To the extent Cardenas had any concerns about the court delegating to the
probation officer the authority to direct him to comply with any of these conditions,
Cardenas could have, and should have, objected and asked the trial court to address those
concerns at the time the conditions were imposed. Instead, he accepted these conditions
to avoid imprisonment.17 In accepting the terms of probation without raising any
objection that would have allowed the trial court to address these concerns, Cardenas
prevented the trial court from being able to set additional terms, or to more narrowly
draw the conditions. Indeed, the court could have had legitimate reasons for leaving
some of the conditions open-ended in Cardenas's case, and could have stated those
17 Probation is not an inherent right; it is an act of leniency (People v. Wardlow
(1991) 227 Cal.App.3d 360, 365), the purpose of which is to serve as a "period of
genuine rehabilitation" (Griffin v. Wisconsin (1987) 483 U.S. 868, 875). Probationers
may consent to limit their constitutional rights in preference to incarceration; on the flip
side, if a condition appears too onerous, a defendant may choose to serve the prison
sentence instead. (Olguin, supra, 45 Cal.4th at pp. 379, 384.)

-- 21 of 23 --

22
reasons on the record if Cardenas had raised an objection at the time the conditions were
imposed. Specifically, the court could have related its discretionary choices to
Cardenas's needs as a probationer. The purpose of the forfeiture rule is to avoid precisely
the situation that we have here, where an objection would have permitted the trial court to
address these concerns and/or make a better record to support the court's decisions; the
forfeiture rule exists to encourage parties to bring errors to the attention of the trial court
so they may be immediately corrected. (Sheena K., supra, 40 Cal.4th at p. 881.) We
conclude that Cardenas has forfeited his contentions, and we see no reason to exercise
our inherent discretion to consider them despite the forfeiture.18
18 We also question the validity of Cardenas's contentions on the merits. Cardenas
relies solely on Cervantes in support of his contentions that a number of conditions
improperly delegate to the probation officer the court's authority to set the conditions of
probation. However, Cervantes involved the delegation of the calculation of restitution;
but the calculation of restitution is specifically reserved for the court, pursuant to statute.
(Cervantes, supra, 154 Cal.App.3d at p. 356.) Cervantes does not stand for the
proposition that a court may never delegate to the probation officer some decision-
making authority with regard to the precise implementation of probation conditions.
Leaving certain day-to-day decision-making to a probation officer often makes sense and
is necessary, in fact, because the "trial court is poorly equipped to micromanage" the
selection of programs or tools that assist a probationer in his or her rehabilitation.
(People v. Penoli (1996) 46 Cal.App.4th 298, 308.)
Further, it seems apparent that under the terms of the challenged conditions, the
court effectively authorized the conditions but permitted the probation officer to
determine whether to implement them, depending on Cardenas's performance on
probation, thereby placing Cardenas in a better position than he would have been if the
court had simply imposed the conditions without allowing the probation officer to
determine that such conditions were not in fact necessary for the effective supervision of
the defendant. Essentially, the court has determined that Cardenas may be subjected to
these conditions, and that they should be imposed. However, Cardenas may avoid having
the conditions applied to him if he successfully performs on probation without them.

-- 22 of 23 --

23
IV.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
McCONNELL, P. J.
GUERRERO, J.

-- 23 of 23 --