P. v. Mohamed

Filed 6/7/18 P. v. Mohamed CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
AMRAN MOHAMED,
Defendant and Appellant.
D072680
(Super. Ct. No. SCD271748)
APPEAL from a judgment of the Superior Court of San Diego County, Michael S.
Groch, Judge. Affirmed.
Lynelle K. Hee, 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, Melissa Mandel, Meredith White
and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.

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Amran Mohamed was originally charged with making criminal threats (Pen.
Code,1 § 422), resisting arrest (§ 148, subd. (a)(1)), and battering a police officer (§ 243,
subd. (b)). It was further alleged that she had suffered a prison prior (§ 667.5, subd. (b)).
Mohamed entered into a plea agreement under which she pleaded guilty to
criminal threats and the remaining charges and allegations were dismissed. The parties
agreed to a grant of formal probation. The parties agreed to her release from custody and
credit for time served if the probation report was positive and Mohamed appeared for
sentencing.
Mohamed failed to appear for her probation interview and failed to appear for
sentencing. When she finally appeared for interview and for sentencing, the court
granted formal probation, subject to 365 days in custody with a provision for release to a
residential treatment program after 135 days of actual custody. At the suggestion of the
probation officer, and over defense objection, the court imposed a search condition which
included search of "computers and recordable media." Defense counsel argued there was
no nexus between the crime and an electronic search condition. The trial court overruled
the objection finding Mohamed extremely difficult to supervise on probation and that the
condition was necessary to try to prevent her ultimately being sent to prison.
Mohamed appeals challenging only the portion of the Fourth Amendment waiver
relating to "computers and recordable media." She claims the condition violated People
v. Lent (1975) 15 Cal.3d 481 (Lent) for lack of nexus to the crime and that it is
1 All further statutory references are to the Penal Code unless otherwise specified.

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constitutionally overbroad. The People argue that the challenge, based on the claim the
condition is overbroad, has been forfeited. We are satisfied the extensive argument of
defense counsel made the court and the parties aware of the nature of the challenge. We
will address the merits of Mohamed's contention. We will, however, find the imposition
of the broad Fourth Amendment waiver in this case was well within the court's discretion
and was appropriately tailored to the defendant's need for close supervision. We will
affirm the judgment.
STATEMENT OF FACTS
Since this appeal is from a plea of guilty, it is sufficient to note the factual basis
for the plea was that Mohamed unlawfully and willfully threatened another and caused
that person to be in sustained fear.
DISCUSSION
By the time of sentencing in this case, Mohamed had accumulated 14
misdemeanor convictions, one prior felony conviction, seven grants of probation and a
prison commitment following persistent violations of probation, all of which occurred
since 2012. Mohamed had a substance abuse issue, multiple theft convictions and had
failed to appear for her probation interview and sentencing in this case. The current
crime did not involve the use of any electronic device, but the probation department and
the trial court were of the view Mohamed would not likely willingly comply with
conditions of probation and that her only hope to succeed on probation would be very
close supervision. We will evaluate Mohamed's contentions in light of her criminal
history and potential for probation violations.

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A. Legal Principles
The validity of so-called electronic search conditions of probation is currently
before our Supreme Court (In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted
Feb. 17, 2016, S230923). We are aware the court has granted review in multiple cases
raising the same issue. The court will ultimately provide guidance on this subject,
however, pending such guidance we must make our best effort to resolve the cases
presented to us.
Our court has addressed cases presenting similar arguments to those presented
here. We discussed such arguments in People v. Acosta (2018) 20 Cal.App.5th 225;
People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted December 14, 2016,
S238210; and People v. Trujillo (2017) 15 Cal.App.5th 574, review granted
November 29, 2017, S244650 (Trujillo). In those cases, we found the identical search
condition to be reasonable under Lent, supra, 15 Cal.3d 481, and narrowly tailored to
meet the proper balance of constitutional rights and the need for probation supervision.
In Trujillo we set out the legal principles for the Lent analysis:
"Probation is not a right, but an act of leniency that allows a
defendant to avoid imprisonment. [Citation.] When an offender
avoids incarceration by accepting probation, state law authorizes the
sentencing court to impose conditions that are '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 . . . .' [Citation.] Under this code
section, 'courts have broad discretion to impose [probation]
conditions to foster rehabilitation and to protect public safety . . . .'
[Citation.] [¶] But this broad discretion 'is not without limits.'
[Citation.] '[A] condition of probation must serve a purpose
specified in the statute,' and conditions regulating noncriminal

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conduct must be ' "reasonably related to the crime of which the
defendant was convicted or to future criminality. . . . " ' [Citation.]
In Lent, the California Supreme Court held a probation condition is
'invalid' under this standard only if the condition ' "(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.' [Citation.] We review the
reasonableness of a probation condition for an abuse of discretion."
(Trujillo, supra, 15 Cal.App.5th at p. 582; italics omitted.)
Regarding allegations of constitutional overbreadth, we said:
" ' "A probation condition that imposes limitations on a person's
constitutional rights must closely tailor those limitations to the
purpose of the condition to avoid being invalidated as
unconstitutionally overbroad." [Citation.] "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.] We review
'constitutional challenges to probation conditions de novo.' "
(Trujillo, supra, 15 Cal.App.5th at p. 586.)
A. Analysis
The parties do not dispute that the crime in this case did not involve the use of
electronic devices. The validity of the challenged condition depends on whether the
condition was reasonably necessary to allow the probation officer to supervise an
extremely difficult probationer. Since there was an objection to the condition, we have
the benefit of the trial court's reasoning and the probation officer's recommendations. On
the record before us we are convinced the trial court properly imposed the challenged
condition.

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The court and the probation officer noted that Mohamed had been almost
constantly involved in criminal offenses. She was convicted of stealing a smart phone
and a GPS device from the person of another. She was granted probation and ultimately
revoked on probation and sent to prison.
Mohamed has accumulated 14 misdemeanor convictions in a five to six year
period, received seven grants of probation, and suffered multiple revocations of her
probation. The offenses involved thefts, drugs and alcohol, and demonstrated her
unwillingness, or inability to comply with probation. She failed to appear for sentencing
and her probation interview, and falsely accused the police officer in the case with sexual
assault during the arrest. Both the court and the probation officer reasoned that
Mohammed was very difficult to supervise and would likely not willingly comply with
her probation conditions. Such reasoning is supported by the record.
We cannot say the condition is overbroad. Condition 6n, which contains the
challenged phrase, is a general Fourth Amendment waiver, which is not challenged in
this case. Mohamed has not demonstrated how the condition is overbroad or how it could
be more narrowly tailored. Allowing the probation officer access to Mohamed's
electronic devices, if she ever acquires any, is necessary for the officer to monitor her
actions when she is at great risk of further criminality and a return to prison.2
2 There is something of an academic nature of the challenge to the electronic search
condition. Mohamed has been homeless and does not own a telephone or computer.
Whether she will ever acquire such devices, without stealing them, is somewhat
speculative.

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DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.

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