Filed 11/6/19; Opinion following rehearing
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D074344
Plaintiff and Respondent,
v. (Super. Ct. No. SCD275677)
KAYVON PATTON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Polly H. Shamoon, Judge. Affirmed.
Leslie Ann Rose, 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, Eric A. Swenson, Kristine A.
Gutierrez and Yvette M. Martinez, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant Kayvon Patton pleaded guilty to grand theft of personal property (Pen.
Code, § 487, subd. (a))1 after he joined friends and stole cell phones and other electronic
devices from an electronics store. Among the conditions of his probation was a condition
subjecting his electronic devices to warrantless search. Patton challenges this condition
as unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and constitutionally
overbroad.
In our initial opinion, we rejected the People's argument that Patton's appeal
should be dismissed for failure to obtain a certificate of probable cause. We then
concluded the electronics search condition was valid under Lent and not overbroad. After
our decision, the California Supreme Court issued In re Ricardo P. (2019) 7 Cal.5th 1113
(Ricardo P.), clarifying when an electronics search condition is reasonably related to the
probationer's future criminality under Lent. We granted Patton's petition for rehearing
and allowed both parties to file supplemental briefs concerning the effect of Ricardo P.2
Upon rehearing we conclude, as before, that Patton did not need a certificate of
probable cause to challenge the electronics search condition on appeal. Despite a
boilerplate waiver of appellate rights in his plea agreement, he did not waive his right to
challenge a later-imposed condition of probation that was not referenced in that
agreement. Accordingly, his appeal is based on "[g]rounds that arose after entry of the
1 Future statutory references are to the Penal Code unless otherwise indicated.
2 Neither party requested argument on the Ricardo P. issue in their supplemental
briefs.
2
plea and do not affect the plea's validity" and required no certificate. (Cal. Rules of
Court, rule 8.304(b)(4).)3
Turning to the merits of Patton's appeal, Ricardo P. "does not categorically
invalidate electronic search conditions. In certain cases, the probationer's offense or
personal history may provide the . . . court with a sufficient factual basis from which it
can determine that an electronics search condition is a proportional means of deterring
the probationer from future criminality." (Ricardo P., supra, 7 Cal.5th at pp. 1128–
1129.) For example, the Supreme Court approved of In re Malik J. (2015) 240
Cal.App.4th 896 (Malik J.), in which a tailored electronics search condition was
reasonably imposed on a probationer given his history of robbing people of their cell
phones. (Ricardo P., at p. 1129.)
As we explain, the electronics search condition was validly imposed under Lent's
first prong because it relates to his underlying crime. Ricardo P. does not alter this
analysis. Moreover, because the nature of Patton's offense means that some electronics
search condition could constitutionally be imposed consistent with Malik J., the condition
is not facially overbroad. Any challenge to the closeness of fit between the condition and
facts related to Patton's crime or history is an as-applied constitutional claim, forfeited by
Patton's failure to object on that basis before the trial court. Accordingly, we affirm.
3 All subsequent rule references are to the California Rules of Court.
3
FACTUAL AND PROCEDURAL BACKGROUND
On January 19, 2018 around 4:30 p.m., officers with the San Diego Police
Department responded to a reported theft at Hit Mobile Store. Store employee Miguel O.
had been helping a female customer at the front counter when two men entered the store,
followed by two more men. At some point he heard a loud crack and saw the four men
pulling electronic devices off security cords attached to the wall. They ran out of the
store with three iPhones, two Apple Watches, an iPad Pro, a Samsung S7, and Samsung
gear VR.
When officers arrived, they discovered a smudged fingerprint on a Samsung phone
that was dropped by one of the men on his way out of the store.4 A lab report identified
the fingerprint as belonging to defendant Kayvon Patton. Video from the store's
surveillance camera confirmed Patton as one of the four men.
The San Diego County District Attorney charged Patton with felony grand theft of
personal property (§ 487, subd. (a)). Patton pleaded guilty as part of a plea agreement
whereby he would receive formal probation and pay restitution of $4,620. As part of the
plea deal he agreed to "give up my right to appeal . . . any sentence stipulated herein."
Another part of the form agreement stated, "As conditions of probation I may be given up
to a year in jail custody, plus the fine, and any other conditions deemed reasonable by the
Court."
4 The record indicates the fingerprint may have actually been found on the front
door of the store instead. The exact location of the fingerprint is not relevant.
4
In a subsequent conversation with a probation officer prior to sentencing, Patton
stated he sold one of the stolen phones to a pawn shop for $550 and used the money to
purchase "Norcos." Patton has a history of substance abuse; he began to drink alcohol at
age 13, smoke marijuana at age 15, and take Norco pills at age 15. Up until his arrest,
Patton took Norco pills daily.
At the sentencing hearing in July 2018, the judge imposed three years of formal
probation under various conditions with a stay of 240 days in local custody pending
successful completion of probation. The probation conditions included limitations on
drug and alcohol possession and an order to stay away from the other unidentified
perpetrators. Another condition required that Patton "submit person, vehicle, residence,
property, personal effects, computers, and recordable media including electronic devices
to search at any time with or without a warrant, and with or without reasonable cause,
when required by [a probation officer] or law enforcement officer." (Italics added.)
Patton's appeal challenges this condition. He did not request a certificate of probable
cause.
DISCUSSION
A. Failure to Obtain a Certificate of Probable Cause
The People contend we should not reach the merits of Patton's appeal because he
did not obtain a certificate of probable cause under section 1237.5 after entering his
guilty plea. That section generally prohibits appeals following pleas of guilty or no
contest unless the defendant first obtains a certificate from the trial court attesting that
there are reasonable grounds for the appeal. There are two exceptions to this general
5
rule, as provided in Rule 8.304(b)(4): A certificate is not required if the appeal is based
on either "[t]he denial of a motion to suppress evidence under Penal Code section
1538.5" or "[g]rounds that arose after entry of the plea and do not affect the plea's
validity." The People contend a certificate was required because the second exception
(the only one pertinent here) was not satisfied.
The People do not dispute that the specific grounds for Patton's appeal—a
condition of probation imposed at sentencing two months after his plea—"arose after
entry of the plea" within the meaning of Rule 8.304. They suggest, however, that
because the plea agreement contemplated a grant of probation with "reasonable"
conditions, Patton is attempting to challenge something he knew about, at least in a
general sense, at the time of the plea. More forcefully, they rely on People v. Espinoza
(2018) 22 Cal.App.5th 794 (Espinoza) to argue that by waiving his right to appeal the
"sentence stipulated herein," Patton's challenge to the probation condition necessarily
"affect[s] the validity of the plea" because he is seeking to narrow the scope of his
appellate waiver.
The People's first argument need not detain us long. The mere fact that Patton
knew some unspecified "reasonable" restrictions or requirements could be imposed as a
condition of his probation does not mean he was agreeing to accept anything the court
decided to include, regardless of how unreasonable he thought it was. The People's
reliance on People v. Panizzon (1996) 13 Cal.4th 68 (Panizzon) is misplaced. In that
case, the defendant challenged the specific sentence to which he had agreed as part of his
plea agreement, "as opposed to a matter left open or unaddressed by the deal." (Id. at
6
p. 86.) Here, unlike in Panizzon, Patton is challenging the imposition of an allegedly
unreasonable probation condition that he had no knowledge of at the time he entered into
the agreement.
The boilerplate appellate waiver included on the plea form likewise does not
preclude Patton's appeal. As this court has previously observed, "[a] defendant may
waive the right to appeal as part of a plea bargain where the waiver is knowing,
intelligent and voluntary. [Citation.] A broad or general waiver of appeal rights
ordinarily includes error occurring before but not after the waiver because the defendant
could not knowingly and intelligently waive the right to appeal any unforeseen or
unknown future error. [Citation.] Thus, a waiver of appeal rights does not apply to
' "possible future error" [that] is outside the defendant's contemplation and knowledge at
the time the waiver is made.' " (People v. Mumm (2002) 98 Cal.App.4th 812, 815
(Mumm), quoting Panizzon, supra, 13 Cal.4th at p. 85; accord, People v. Vargas (1993)
13 Cal.App.4th 1653, 1662–1663 (Vargas) [general waiver of appeal rights does not
constitute "a specific waiver of future sentencing error"]; People v. Sherrick (1993)
19 Cal.App.4th 657, 659 [general waiver of right to " 'appeal any ruling in this case' "
does not preclude argument that sentencing court decided his eligibility for probation
" 'on a patently erroneous standard' "]; In re Uriah R. (1999) 70 Cal.App.4th 1152, 1160
[a general waiver does not preclude attacks on subsequent errors that are unforeseen or
unforeseeable at the time the waiver was made]; People v. Kennedy (2012) 209
Cal.App.4th 385, 391 [under Panizzon, "waiver will not be construed to bar the appeal of
sentencing errors occurring subsequent to plea especially when the defendant is
7
attempting to appeal sentencing issues left unresolved by the particular plea
agreement"].)
In Espinoza, supra, 22 Cal.App.5th 794, the appellate court relied on Justice
Marvin Baxter's unusual concurring opinion to his own majority opinion in People v.
Buttram (2003) 30 Cal.4th 773 (Buttram). The holding of Buttram is unremarkable and
fully consistent with prior case law. The defendant pleaded guilty in exchange for an
agreed maximum sentence, or "lid." (Id. at p. 776.) There was nothing in the plea
agreement affirmatively waiving his right to appeal any sentencing issue that arose after
the plea. (Id. at p. 778.) Nonetheless, the People argued that a certificate of probable
cause was required because "when a defendant negotiates a maximum sentence in return
for his plea," any appellate challenge to a sentence imposed within the maximum "is an
attack on the validity of the plea itself, and thus requires a certificate of probable cause."
(Id. at p. 780.) Rejecting this argument, the Supreme Court held that "absent contrary
provisions in the plea agreement itself," no certificate of probable cause was required for
defendant to appeal the trial court's discretionary decision to impose the maximum
allowable sentence rather than some lesser punishment. (Id. at p. 790.)
Noting that the plea agreement in Buttram did not address defendant's ability to
attack a sentence within the allowable sentencing range, Justice Baxter's concurring
opinion urged parties in future cases to expressly negotiate that issue (30 Cal.4th at p. 791
(conc. opn. of Baxter, J.)), inferentially advocating that criminal defendants be
encouraged to waive their appellate rights if the trial court imposed a sentence within the
agreed-upon range. He suggested that with such an express waiver, "an attempt to appeal
8
the sentence notwithstanding the waiver would necessarily be an attack on an express
term, and thus on the validity, of the plea," requiring a certificate of probable cause. (Id.
at p. 793 (conc. opn. of Baxter, J.).)
Espinoza sought to apply Justice Baxter's recommendations to a defendant's post-
plea appeal challenging a condition of probation. In Espinoza, the defendant "broadly
waived her 'right to appeal the judgment and any rulings of the court.' " (22 Cal.App.5th
at p. 801.) The court found this "broad[]" waiver sufficient to invoke Justice Baxter's
concurring comments and preclude defendant's appeal in the absence of a certificate of
probable cause.5 (Id. at p. 803.)
Whatever the merits of Espinoza's analysis, its premise depends on the defendant's
express waiver of the right to appeal a discretionary decision on probation conditions that
is made after entry of the plea. As a result, the first issue we must address is the scope of
the appellate waiver in this case. (See Vargas, supra, 13 Cal.App.4th at p. 1661; People
v. Becerra (2019) 32 Cal.App.5th 178, 188 (Becerra).) Here, the provision in the plea
agreement purporting to waive Patton's appellate rights is decidedly different—and
significantly narrower—than the comparable provision in Espinoza.
5 There is, of course, a difference between the express waiver of a defendant's right
to appeal a known stipulated sentence (Panizzon, supra, 13 Cal.4th at pp. 73–74), the
waiver of the right to appeal a sentence where at least the maximum punishment is
known (Buttram, supra, 30 Cal.4th at pp. 777, 792 (conc. opn. of Baxter, J.)), and a
situation where the defendant generally waives her right to appeal the judgment but does
not know which particular conditions of probation the court is considering (Espinoza,
supra, 22 Cal.App.5th at p. 798 [defendant only told she would be subject to " 'other
terms and conditions to make sure [she was] successful on probation' "]).
9
In Espinoza, the plea form advised the defendant that she had "the right to appeal
the judgment and rulings of the court." (22 Cal.App.5th at p. 797.) She checked a box on
the form indicating that she agreed to "give up [her] right of appeal." (Ibid.) In contrast,
Patton initialed a box on the plea form in this case that stated, "I give up my right to
appeal the following: (1) denial of my 1538.5 motion, (2) issues related to strike priors
(under [§§] 667(b)–(i) and 1170.12), and (3) any sentence stipulated herein." (Italics
added.) At an earlier point on the form the parties indicated that in exchange for his plea,
Patton was promised: "NOLT. Upon successful completion of two years probation and
full satisfaction of restitution, no opposition to [section 17, subdivision (b)] reduction to
misdemeanor."6 According to the People, the plea agreement meant that Patton
"negotiated a grant of probation, with appropriate terms and conditions."
In waiving his right to appeal "any sentence stipulated herein," Patton's plea
agreement referred to the terms of the sentence that were included in the agreement itself.
(Italics added.) We construe that language to apply to the specifics of the stipulated
sentence specified in his plea agreement. By its terms, the scope of the waiver is limited;
it did not encompass provisions (such as particular conditions of probation) that were yet
to be determined in future proceedings. (Becerra, supra, 32 Cal.App.5th at p. 188 [no
certificate required "[i]f the defendant's claim is not within the scope of an appellate
waiver"].) Thus, Patton's appeal in no way attacks the plea or affects its validity, and
6 "NOLT" is an acronym meaning that the district attorney will not oppose local
time.
10
accordingly no certificate of probable cause was required. (Rule 8.304(b)(4).) We
therefore turn to the merits of Patton's appeal.
B. Validity of the Electronic Device Search Condition
Patton argues, as he did below, that the electronics search condition cannot validly
be imposed under Lent, supra, 15 Cal.3d 481. He also raises a facial overbreadth
challenge for the first time on appeal. We reject both contentions.
1. Additional Background
Patton went with friends to a Hit Mobile Store during business hours and stole
four cell phones, two Apple Watches, an iPad, and a virtual reality headset valued in the
aggregate at $4,620. He pleaded guilty to felony grand theft. Before Patton's sentencing,
the store manager told the probation department that he believed the same individuals had
burglarized the store a second time months after the admitted theft. The probation
department also interviewed Patton telephonically. He claimed he "was just following"
friends from school and "the streets" and had pawned the phone he stole for $550 to
purchase "Norcos."
At sentencing, Patton's counsel challenged the electronics search condition,
arguing there was an insufficient nexus under Lent. The trial court expressed surprise:
"So, Counsel, you don't believe that in a case where he's being charged with . . . stealing
from a store that sells telephones and electronic devices, and working with a group of
people that did that to the tune of $4,600 there is a nexus to the extension of the fourth
waiver to electronics?" In response, counsel indicated there was enough of a nexus to
justify an "external search" of an electronic device, but not to "searching the internals of
11
that device." The People disagreed, averring "this is the most nexus that we've ever seen
with an individual needing to have his fourth waiver extend to cell phones." The court
concurred:
"Clearly there was a theft of a cell phone here. And he was part of a
ring where people were stealing these, clearly selling them or doing
something. Because it's unclear why he needed as many phones as
he was taking. [¶]
"He also has a longstanding drug problem that we're going to try to
curtail. Probation can hopefully monitor that and monitor his phone
and make sure he's not purchasing cocaine that he first used at 15
years old, or marijuana that he started using at 15 years old or, in
fact, abusing cough syrup or using alcohol at all, given he's 20 years
old and not able to legally drink alcohol. And there's going to be a
condition that he not drink. [¶]
"We're also going to . . . attempt to monitor any no-contact order he
has with the other individuals that were involved in this. And a no-
contact with the store that he stole from."
As a condition of probation, Patton must "submit [his] person, vehicle, residence,
property, personal effects, computers, and recordable media including electronic devices
to search at any time with or without a warrant, and with or without reasonable cause,
when required by [a probation officer] or law enforcement officer."
2. The Condition is Reasonable Under Lent
Consistent with his argument before the trial court, Patton claims the electronics
search condition is unreasonable under Lent, supra, 15 Cal.3d 481. A sentencing court
has "broad discretion" to fashion appropriate conditions of probation that facilitate
rehabilitation and foster public safety. (People v. Carbajal (1995) 10 Cal.4th 1114,
1120.) We review the conditions imposed for abuse of discretion. (People v. Olguin
12
(2008) 45 Cal.4th 375, 379 (Olguin).) A probation condition is not invalid under Lent
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.]' [Citation.] This
test is conjunctive—all three prongs must be satisfied before a reviewing court will
invalidate a probation term." (Ibid., quoting Lent, supra, 15 Cal.3d at p. 486.)
The parties agree that Lent's second prong is met: use of electronic devices is not
inherently criminal. They disagree as to the first and third prongs. Patton contends the
electronics search condition does not relate to his crime merely because he happened to
steal electronics. He claims there must be indication he used an electronic device to
commit, plan, or discuss criminal activity. The People disagree, focusing on Patton's
admitted theft of $4,620 in electronics from an electronics store to argue the condition
relates to his crime. The parties likewise disagree as to Lent's third prong, offering
competing interpretations of Ricardo P., supra, 7 Cal.5th 1113, and disagreeing whether
the burdens imposed by the electronics search condition are proportional to a legitimate
rehabilitative aim.
We end our inquiry at Lent's first prong and have no need to scrutinize Ricardo P.
Patton and his companions stole four cell phones and other electronic devices from an
electronics store. According to the presentence probation report, Patton was with his
friends from school and "the streets," and the same individuals may have burglarized the
same store a second time a few months later. Patton calls it a "red herring" that he and
his companions happened to steal cell phones, and suggests the essence of his crime was
13
stealing something of value to support a drug habit. We are not persuaded. Patton did
not steal jewelry or other personal property; he stole electronic devices. The first prong
of Lent asks whether the probation condition has no relationship to the conviction.
(Olguin, supra, 45 Cal.4th at p. 379.) This broad language does not require a specific
connection to the instrumentalities of the convicted offense. (See, e.g., People v. Hughes
(2012) 202 Cal.App.4th 1473, 1481 [probation condition prohibiting defendant from
using medical marijuana satisfied the first prong because it related to his convictions for
cultivating, transporting, and possessing marijuana for sale]; People v. Appleton (2016)
245 Cal.App.4th 717, 724 (Appleton) ["somewhat attenuated" link between electronics
search condition and sexual assault was enough given the deferential standard of
review].)7
Given the nature of Patton's offense, there is a relationship between theft of
electronic devices and the imposition of an electronic device search condition. Although
we do not reach its analysis of Lent's third prong, it is noteworthy that Ricardo P.
approved of Malik J., supra, 240 Cal.App.4th 896, where the court upheld an electronics
search condition as to a defendant convicted of stealing cell phones, finding the condition
enabled probation officers to determine whether a cell phone on his person was stolen.
7 Ricardo P. addressed only the third prong of Lent —whether the electronics search
condition " ' "requires or forbids conduct which is not reasonably related to future
criminality." ' " (Ricardo P., supra, 7 Cal.5th at p. 1119.) Summarizing and quoting the
lower court's analysis as to Lent's first prong, the opinion includes language that " ' "there
is no indication that any electronic device was involved in the commission of the
burglaries." ' " (Ibid.) We do not construe this as a gloss on Lent's first prong, which
Ricardo P. presupposed. (Ibid.) Cases are not authority for points not considered.
(Santisas v. Goodin (1998) 17 Cal.4th 599, 620.)
14
(Malik J., at pp. 902, 904.) Patton is right that Malik J. involved an as-applied
constitutional overbreadth analysis, not an analysis under Lent's first prong. But it
nonetheless supports the notion that some electronics search condition may reasonably be
imposed under Lent where the underlying crime involved electronics theft. Patton's
attempts to parse the facts in Malik J. do not affect this basic point.
In short, the first prong of Lent is not satisfied. There is a relationship between the
electronics search condition and Patton's felony grand theft conviction. Accordingly, the
condition is valid under Lent.
3. Some Electronics Search Condition May Constitutionally Be Imposed, and
Patton Forfeited Any As-Applied Challenge
Patton next claims the electronics search condition is unconstitutionally overbroad.
He is correct that the warrantless search of electronic devices "significantly burdens
privacy interests." (Ricardo P., supra, 7 Cal.5th at pp. 1122−1123.) By citing Riley v.
California (2014) 573 U.S. 373, 393−395 and article I, section 1 of the California
Constitution for this point, the Ricardo P. court underscored the significant constitutional
interests at stake when this condition of probation is imposed. Because modern-day cell
phones are platforms for vast repositories of personal information (Riley, at pp. 395–396),
warrantless electronics searches have "potentially greater breadth . . . compared to
traditional property or residence searches." (Ricardo P., at p. 1127.) The privacy
intrusion is "of a different order" when warrantless searches are performed by a probation
officer or other government official. (Id. at p. 1123.)
15
A probation condition imposing limits on constitutional rights must be closely
tailored to its legitimate objective to avoid being invalidated as unconstitutionally
overbroad. (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) " '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.' " (Appleton, supra, 245 Cal.App.4th
at p. 723.) We review constitutional challenges to probation conditions de novo. (Ibid.)
The People argue Patton forfeited his overbreadth challenge by failing to raise it
before the trial court. An as-applied constitutional challenge is forfeited unless
previously raised. (Sheena K., supra, 40 Cal.4th at p. 889.) " 'The purpose of this rule is
to encourage parties to bring errors to the attention of the trial court, so they may be
corrected.' " (Id. at p. 881.) However, the forfeiture rule does not extend to facial
constitutional challenges presenting pure questions of law that can be resolved without
referring to the particular sentencing record developed below. (Id. at pp. 885, 889.) A
facial challenge "does not require scrutiny of individual facts and circumstances but
instead requires the review of abstract and generalized legal concepts." (Id. at p. 885.)
The claim is that a condition cannot have any valid application, without relying on any
facts in the sentencing record. (See, e.g., People v. Pirali (2013) 217 Cal.App.4th 1341,
1347.)
A probationer whose underlying crime involved stealing cell phones may
constitutionally be subjected to some electronics search condition. Malik J. approved a
16
condition that subjected any electronic devices such as cell phones, computers and
notepads in the probationer's custody and control to warrantless search, reasoning that
officers reasonably needed to determine whether devices in the probationer's possession
were stolen. Bearing in mind that perfect fit was impossible, the fact that a narrower
condition could serve this same goal did not render the condition overbroad. (Malik J.,
supra, 240 Cal.App.4th at pp. 902, 904.) The condition imposed here is similar to the
one approved in Malik J., albeit without limitations on forensic examination or accessing
remotely stored information. Although the condition does not expressly limit its scope to
electronic devices in Patton's custody and control (e.g., not computers he may leave at
work), that is its reasonable construction. (See People v. Hall (2017) 2 Cal.5th 494, 501
[probation conditions should not be invalidated on constitutional grounds if they can be
given a reasonable and practical construction].)8
Importantly though, Malik J. involved an as-applied challenge. The court
reviewed the sentencing record to evaluate whether the electronics search condition was
sufficiently tailored to the reasonable goal of determining if cell phones on the
8 We need not address whether a significantly more expansive electronic device
search condition might be unconstitutionally overbroad on its face. (See Appleton, supra,
245 Cal.App.4th at p. 721, 729 [probation condition subjecting defendant's electronic
devices "to forensic analysis search for material prohibited by law" deemed
unconstitutionally overbroad].)
17
probationer's person were stolen. Patton, in contrast, did not argue overbreadth; he only
argued there was no nexus under Lent.9
As Sheena K. observed, "in some instances, a constitutional defect may be
correctable only by examining factual findings in the record or remanding to the trial
court for further findings." (40 Cal.4th at p. 887.) That is the scenario here. Patton
argues his crime and social history do not justify so broad an intrusion on his privacy.
This is a classic as-applied claim. Had he raised a constitutional challenge at sentencing,
the court might have asked whether he had used electronic devices to coordinate the
burglary with friends or to buy drugs. Or the court could have asked questions to focus
the condition on search efforts that would help officers discover if electronic devices in
Patton's possession were stolen. Because no constitutional objection based on privacy
interests was raised, the court had no occasion to conduct such an inquiry.
In short, Malik J., supra, 240 Cal.App.4th 896 demonstrates on similar facts that
some electronics search condition could constitutionally be imposed. The closeness of fit
between the condition imposed and defendant's rehabilitation veers into as-applied
territory. Patton forfeited that claim by failing to raise a constitutional objection before
the trial court.
9 We infer that defense counsel in Malik J. raised an overbreadth challenge at
sentencing. (Malik J., supra, 240 Cal.App.4th at p. 900.)
18
DISPOSITION
The judgment is affirmed.
DATO, J.
I CONCUR:
HUFFMAN, Acting P. J.
19
Haller, J., Concurring.
I agree with the majority's conclusions that a certificate of probable cause is not
required and the challenged probation condition was proper. I write separately to clarify
my views on the necessity of obtaining a probable cause certificate before challenging a
probation condition as unreasonable. In particular, I agree with the analysis in People v.
Espinoza (2018) 22 Cal.App.5th 794 (Espinoza), but find the decision distinguishable.
Although the distinction is subtle, it is critical for appellate counsel to understand this
difference when deciding whether to seek a probable cause certificate and in briefing the
issue on appeal.1
An exception to the probable cause certificate requirement after a guilty plea
applies when the appellant raises "[g]rounds that arose after entry of the plea and do not
affect the plea's validity." (Cal. Rules of Court, rule 8.304(b)(4)(B), italics added.)
Challenges that "do not affect the plea's validity" (ibid.) are arguments on matters outside
the scope of the plea agreement (People v. Becerra (2019) 32 Cal.App.5th 178, 188
(Becerra)). In determining the scope of the plea agreement, the courts apply a contract
analysis and determine the parties' mutual intent by examining the plea agreement
language and other objective criteria. (Becerra, at pp. 188–189.)
1 In a prior unpublished opinion, counsel and this court did not fully consider the
distinction. In that case, there was no prejudice because we reached the issue on its
merits and found it was unavailing.
Under these rules, the critical issue on the probable cause certificate requirement is
whether the court's ruling fell within the intended scope of the plea agreement, as that
intent was objectively manifested by the parties. (Becerra, supra, 32 Cal.App.5th at
pp. 188–189.) This is true even if the appellate challenge is characterized as an argument
that the plea was not knowing or intelligent. (Id. at p. 188; Espinoza, supra, 22
Cal.App.5th at p. 802; see People v. Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon).)
A probable cause certificate is needed to challenge a plea agreement (including an
appellate waiver provision) on the basis that it was not knowing and intelligent if the
challenge falls within the scope of the agreement's provisions. (Becerra, at p. 188;
Espinoza, at pp. 802–803; see Panizzon, at pp. 76–79.) On the other hand, a probable
cause certificate is not necessary to challenge a court ruling that is outside the scope of a
plea agreement term.
In Espinoza, the defendant's plea agreement included her waiver of the " 'right to
appeal the judgment and rulings of the court.' " (Espinoza, supra, 22 Cal.App.5th at
pp. 797, 801.) In a criminal case, judgment is rendered when the trial court orally
pronounces sentence. (See Becerra, supra, 32 Cal.App.5th at p. 189.) In challenging the
probation condition imposed at sentencing, the Espinoza defendant did not dispute that
the challenge fell within the scope of her appellate waiver in the plea agreement.
(Espinoza, at p. 801.) But she argued her "waiver was not knowing and intelligent" and
thus she was not required to obtain a probable cause certificate. (Ibid.) In support of this
contention, she relied on " 'post-plea events' " (the imposition of the probation
conditions). (Id. at p. 802.)
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In my view, the Espinoza court correctly rejected this argument because the
defendant conceded her waiver of the right to appeal the judgment and the court's rulings
encompassed a challenge to the later-imposed probation conditions. The fact that the
probation conditions were decided and imposed after the plea does not change this
conclusion. As stated by our high court with respect to the need for a probable cause
certificate, "[t]he mere fact that [the challenged ruling] happened a month after the plea
. . . is not determinative [and the fact] that the events supposedly giving rise to
[defendant's constitutional challenge] occurred afterwards likewise is of no consequence.
Rather, 'the crucial issue is what the defendant is challenging.' " (See Panizzon, supra,
13 Cal.4th at p. 78.)
In Panizzon, the defendant was challenging the constitutionality of his agreed-
upon sentence based on events occurring after the sentence was imposed. (Panizzon,
supra, 13 Cal.4th at pp. 74, 77–78.) In Espinoza, the defendant was challenging the
validity of her agreement to waive her right to appeal, which she conceded included
"herright to appeal the imposition of probation terms." (Espinoza, supra, 22 Cal.App.5th
at p. 801.) In both situations, the court held a probable cause certificate was required
because the challenge sought to attack matters within the scope of the plea agreement.
(Panizzon, at pp. 74–79, 89; Espinoza, at pp. 798–803.)
These holdings do not bar a defendant from claiming on appeal that a waiver of
the right to appeal was not knowing or intelligent, and, if he or she prevails on this
argument, from challenging the reasonableness of the later-imposed probation conditions.
But they do bar a defendant from making these arguments when challenging a matter
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within the scope of the plea agreement without first obtaining a certificate of probable
cause.
This case is different from Espinoza because Patton's appeal waiver was narrower.
Patton agreed to waive his right to appeal (1) the denial of his Penal Code section 1538.5
motion; (2) strike priors; and (3) "any sentence stipulated herein." (Italics added.) As
the majority observes, in waiving his right to appeal "any sentence stipulated herein," the
scope of Patton's plea agreement was limited to those terms included in the agreement
itself. Unlike Espinoza, in which the defendant waived her right to appeal "the
judgment" and conceded her probation condition challenge fell within the scope of this
appellate waiver, Patton's probation condition challenge is outside his appellate waiver.
Thus, Patton's appeal did not attack the plea or affect its validity, and no certificate of
probable cause was required.
HALLER, J.
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