P. v. Dreyfus

Filed 3/28/18 P. v. Dreyfus CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
LIANNA DREYFUS,
Defendant and Appellant.
D072420
(Super. Ct. No. SCN355947)
APPEAL from a judgment of the Superior Court of San Diego County, Hon.
Carlos O. Armour, 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, Barry Carlton and Sabrina Y.
Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.

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On October 3, 2016, defendant Lianna Dreyfus pleaded guilty to making a false or
fraudulent insurance claim (Pen. Code,1 § 550, subd. (b)(2)). On November 1, 2016,
imposition of sentence was suspended and Dreyfus was granted formal probation for
three years. On June 14, 2017, Dreyfus admitted she failed to report to probation. The
court in response revoked and reinstated probation on the same terms and conditions,
while adding an alcohol testing condition. Dreyfus failed to object to any of the
conditions when the court imposed them.
On appeal, Dreyfus objects to condition 6(l), requiring her to obtain probation's
consent before leaving San Diego County; condition 10(g), requiring her to obtain
probation's approval as to her residence; and condition 6(n), requiring her to "[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 [her probation officer] or law enforcement officer." (Italics
added.) Dreyfus specifically challenges the italicized portion of condition 6(n) relating to
computers and recordable media.
Dreyfus contends conditions 6(l) and 10(g) are unconstitutionally vague and
overbroad because they violate her constitutional rights to travel and freedom of
association. Dreyfus likewise contends condition 6(n) is unconstitutional because it
unfairly restricts her Fourth Amendment right to privacy. As we explain, we disagree
with defendant's contentions and affirm her judgment of conviction.
1 All further statutory references are to the Penal Code.

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I.
FACTUAL OVERVIEW2
Because this appeal does not challenge either the sufficiency or admissibility of
the evidence supporting her conviction, we only briefly review the facts.
On November 26, 2014, Dreyfus made what turned out to be a fraudulent
insurance claim to an insurance company. Dreyfus crashed her vehicle into another
vehicle when she "nodded off" while driving and then later claimed that someone ran into
her vehicle while it was parked. She had a prior conviction for using false information on
a DMV document.
When the court in November 2016 initially granted Dreyfus formal probation, it
included various terms and conditions that she did not challenge, including that she
obtain consent before leaving San Diego County, obtain approval as to her residence, and
submit to electronic search conditions.
Within six months of her probation, a Carlsbad police officer observed Dreyfus
pursuing a male as she yelled at him. The officer told Dreyfus to stop. She approached
the officer and started swinging her hands and hitting the officer's arms. Dreyfus was
arrested for battery on a peace officer (§ 243, subd. (b)). After her release, Dreyfus failed
to report to her probation officer within 72 hours, as required by condition 6(i).
A few days later, a Carlsbad police officer responded to a call of Dreyfus chasing
a male with a knife. Once on scene, officers detained Dreyfus and found a knife located
2 Because defendant pleaded guilty, this summary is principally derived from the
probation report.

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on a blanket Dreyfus had been sitting on. Dreyfus alleged the male was chasing her and
would not leave her alone. A witness told officers the male choked Dreyfus as she was
lying on the blanket and Dreyfus in response grabbed the male's knife and chased after
him. Dreyfus was arrested for assault with a deadly weapon not a firearm (§ 245, subd.
(a)).
Moreover, the record shows on three occasions Dreyfus failed to appear for her
mandatory compliance appointments. Dreyfus also failed to abstain from the use or
possession of a controlled substance, as required by condition 9(c). While on probation,
Dreyfus tested positive for hydrocodone, hydromorphone, morphine, amphetamine, and
methamphetamine. Although an alcohol condition was not initially imposed as a
condition of her probation, the record shows she tested positive for alcohol on four
occasions.
Additionally, Dreyfus failed to enroll in and complete a residential substance
abuse treatment program, as required by condition 9(a). Dreyfus also violated condition
6(l) when she left San Diego County without permission and later reported that she
allegedly fell asleep in a friend's car and awoke in Idaho. Further, Dreyfus has only made
one payment to revenue and recovery as required by condition 2(w). Dreyfus is
unemployed, homeless, and abuses drugs.

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II.
DISCUSSION
As noted, the record shows Dreyfus did not object to any probation conditions
when imposed by the court. Dreyfus, however contends her claims do not rest upon any
facts that are in dispute or were not developed during the trial.
As such, any attack Dreyfus may make to the imposition of these, or any other,
conditions is limited to a facial challenge, as failure to object forfeits any as-applied
challenge. (In re Sheena K. (2007) 40 Cal.4th 875, 887–889 (Sheena K.) [noting a
defendant may assert a constitutional challenge to a probation condition to the extent that
it presents "a pure question of law, easily remediable on appeal by modification of the
condition," and that "is capable of correction without reference to the particular
sentencing record developed in the trial court"].)
A. Guiding Principles
A grant of probation is an act of clemency in lieu of punishment. (People v.
Moran (2016) 1 Cal.5th 398, 402.) Probation is a privilege, not a right. A court has
broad discretion to impose "reasonable conditions, as it may determine 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, . . . and generally and specifically for the reformation and
rehabilitation of the probationer . . . ." (§ 1203.1, subd. (j); People v. Carbajal (1995) 10
Cal.4th 1114, 1121.) "If a probation condition serves to rehabilitate and protect public
safety, the condition may 'impinge upon a constitutional right otherwise enjoyed by the

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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 (O'Neil).)
Failure to raise the constitutionality of probation conditions does not forfeit the
issue for review on appeal. (Sheena K., supra, 40 Cal.4th at pp. 888–889; People v.
Quiroz (2011) 199 Cal.App.4th 1123, 1127.) Importantly, to avoid any vagueness, these
conditions must provide an opportunity for " 'the probationer to know what is required of
him [or her], and for the court to determine whether the condition has been violated.' "
(Sheena K., at p. 890.)
The facial constitutionality of a probation condition is subject to de novo review.
(In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) Although this court is reviewing a
question of law rather than fact, this court's analysis may take into account undisputed
facts from the record. (See In re Spencer S. (2009) 176 Cal.App.4th 1315, 1323 [noting
"appellate courts have discretion to address constitutional issues raised on
appeal . . . particularly when the issue presented is a 'pure question of law' turning on
undisputed facts or when ' "important issues of public policy are at issue" ' "].)
B. Approval Conditions
Dreyfus contends the court's imposition of condition 6(l), requiring her to obtain
probation's consent before leaving San Diego County, and condition 10(g), requiring her
to obtain probation's approval as to residence, violate her First Amendment right to travel
and freedom of association because they are unconstitutionally vague and overbroad. We
disagree.

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The environment in which a probationer serves probation is an important factor as
to whether the probation will be successfully completed, and thus, directly impacts the
likelihood of effective rehabilitation. (People v. Robinson (1988) 199 Cal.App.3d 816,
818.) Although conditions requiring prior approval of a probationer's residence may
affect the constitutional rights to travel and freedom of association (People v. Bauer
(1989) 211 Cal.App.3d 937, 944), courts have the authority to do so if there is an
indication the probationer's living situation contributed to the crime or would contribute
to future criminality. (People v. Soto (2016) 245 Cal.App.4th 1219, 1228.)
Dreyfus contends the residence condition is so broadly worded that it would allow
the probation officer unfettered discretion to bar Dreyfus from her current home or other
living arrangements that would not hinder her rehabilitation. We conclude the residence
conditions are plainly worded and adequately detailed to inform Dreyfus what is expected
of her and do not allow the probation officer unfettered discretion. (Compare Sheena K.,
supra, 40 Cal.4th at p. 880 [noting that in failing to specify that defendant know which
persons were disapproved of by her probation officer, the probation condition was
unconstitutionally vague or overbroad].) Dreyfus merely needs to obtain approval and
there is nothing to suggest that it will be arbitrarily withheld.
Moreover, we further conclude the approval conditions are necessary because they
serve a legitimate purpose: namely, to help Dreyfus rehabilitate and to deter future
criminality via supervision. (See In re E.O. (2010) 188 Cal.App.4th 1149, 1153 [noting
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

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constitutional rights—bearing in mind, of course, that perfection in such matters is
impossible, and that practical necessity will justify some infringement"].)
Indeed, the undisputed facts show that within about six months of being placed on
probation, Dreyfus remained homeless. She was arrested twice for assaultive behavior.
She failed to report for mandatory probation appointments on numerous occasions. She
tested positive for controlled substances and on four occasions tested positive for alcohol.
She also left San Diego County and went to Idaho without her probation officer's
permission, based on the excuse she had "fallen asleep." She only made one restitution
payment and failed to enroll in a residential substance abuse treatment program.
The approval conditions are thus entirely appropriate because, given Dreyfus's
escalation of violent behavior, her transient lifestyle, her polysubstance drug problem,
and her poor probation performance, the environment in which Dreyfus spends her time
will be an important factor in her rehabilitation. (See O'Neil, supra, 165 Cal.App.4th at
p. 1355.) The approval conditions will allow the probation officer to ensure Dreyfus
lives in a residence where drugs or alcohol are unavailable. Additionally, Dreyfus's
recent violent behavior while on probation appears to be impacted by her living situation:
on two occasions she was arrested for violent behavior at the same location, in a Carlsbad
park where she "resides." We thus conclude that these conditions are narrowly tailored to
fulfil the state's interest in ensuring Dreyfus's compliance with probation and deterring
future criminality. (See Sheena K., supra, 40 Cal.4th at p. 890.)

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C. Electronic Search Condition
Defendant next contends the court's imposition of condition 6(n), specifically the
search of electronic media, is unconstitutionally overbroad because it violates her Fourth
Amendment right to privacy. As noted above, Dreyfus's challenge to this condition is
limited to a facial attack.
Whether electronic search conditions can be imposed as conditions of probation is
before our Supreme Court in In re Ricardo P. (2015) 241 Cal.App.4th 676 (review
granted Feb. 17, 2016, S230923). Pending further direction from our high court, we must
undertake to resolve this case as best we can.
Where some aspects of a defendant's crime involve the use of electronic devices,
an electronic search condition may be appropriate to prevent the person from returning to
the same criminal activity and provide the necessary monitoring of the probationer's
activity. (People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1175–1176.) " ' "The
purpose of an unexpected, unprovoked search of defendant is to ascertain whether [the
probationer] is complying with the terms of [probation]; to determine not only whether he
[or she] disobeys the law, but also whether he [or she] obeys the law." ' " (People v.
Reyes (1998) 19 Cal.4th 743, 752.)
At the outset, we conclude there is nothing vague about the condition. It plainly
directs Dreyfus to submit to electronic searches of any computer and recordable media
devices. Dreyfus, however, contends this condition would give her probation officer
unfettered access to data inside her computer or her electronic device. But, as the court

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observed in People v. Olguin (2008) 45 Cal.4th 375, 383 (Olguin), the probation
department's authority to supervise compliance with the conditions of probation does not
empower the department to engage in irrational conduct or make irrational demands.
We conclude Dreyfus has not established the electronic search condition is
unconstitutionally overbroad. Dreyfus does not identify any specific privacy interests
that would be infringed or any harm stemming from imposition of an electronic search
condition. (See In re J.E. (2016) 1 Cal.App.5th 795, 806 ["Nothing in the record shows
Minor even has a cell phone or any electronic devices, and Minor does not point us to
anything in the record showing any actual harms stemming from their inspection."].)
We recognize the limited use of "recordable media" in connection with Dreyfus's
conviction for making a false or fraudulent insurance claim. However, we conclude this
is a factor, but not the only factor, in determining that this condition is narrowly tailored
to help rehabilitate Dreyfus while also protecting the public. (See O'Neil, supra, 165
Cal.App.4th at p. 1355.) Although not every condition that may aid in supervision of an
adult probationer necessarily will be reasonable, Olguin does not require that the
supervision method must relate to the defendant's past criminal conduct.
As summarized ante, the undisputed facts in the record show that Dreyfus has
performed extremely poorly while on probation; that she has repeatedly violated myriad
terms of her probation; and that her behavior while on probation shows she is becoming
more, as opposed to less, violent, as evidenced by her two arrests for assaultive conduct.
Given this record including her transient lifestyle and ongoing drug abuse, we conclude
the electronic search condition is an important tool that probation may use to ensure

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Dreyfus complies with the terms of her probation. (See In re P.O. (2016) 246
Cal.App.4th 288, 295 [electronic search condition is reasonably related to future
criminality because it enables peace officers to review electronic activity for drugs or
probation violations].)
As the court in Olguin observed, "probation is a privilege and not a right, and that
adult probationers, in preference to incarceration, validly may consent to limitations upon
their constitutional rights—as, for example, when they agree to warrantless search
conditions." (Olguin, supra, 45 Cal.4th at p. 384.) Based on this record, we conclude
that the state's interest in public safety outweighs the slight invasion of Dreyfus's privacy
that results from law enforcement having access to Dreyfus's electronic devices.
DISPOSITION
The judgment of conviction is affirmed.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
GUERRERO, J.

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