P. v. Trierweiler

Filed 7/18/17 P. v. Trierweiler CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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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.
DERREK TRIERWEILER,
Defendant and Appellant.
D071316
(Super. Ct. No. SCD268204)
APPEAL from a judgment of the Superior Court of San Diego County, Laura W.
Halgren, Judge. Affirmed.
Ashley N. Johndro, 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, Collette C. Cavalier and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Derrek Trierweiler was arrested after violating temporary restraining orders and
made threats to a deputy while in custody. An information was filed charging him with

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multiple counts, including threatening a public officer (Pen. Code, § 71.) He pled guilty
to this count, in exchange for dismissal of the other counts. The trial court granted
Trierweiler three years' probation and ordered him to serve 365 days in local custody.
The probation conditions required him to, among other things, submit to searches of his
computers and recordable media (the electronic search condition) and obtain approval of
his residence and employment (the approval condition). On appeal, Trierweiler
challenges the electronic search condition as unreasonable under People v. Lent (1975)
15 Cal.3d 481 (Lent), and both conditions as unconstitutionally overbroad. We reject
these contentions and affirm the judgment.
BACKGROUND1
Trierweiler's father had two temporary restraining orders against Trierweiler.
Trierweiler went to his father's house, and, according to his father, had alcohol on his
breath, pulled a hitching post out of the ground, and knocked off the mailbox. After
Trierweiler refused to leave, his father called the police. San Diego County Sheriff's
Deputy Jessica Boegler and another deputy responded and arrested Trierweiler. After
being placed in the patrol car, Trierweiler was aggressive and uncooperative. He
remained aggressive while in a holding cell at the station, was placed in maximum
restraints, and said to nearby officers: "I got a .50 caliber and a bullet for each one of
1 Because Trierweiler entered a guilty plea prior to trial, the following summary of
the factual background is taken from the probation report and the reporter's transcript of
the preliminary hearing and sentencing.

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your heads on the force." As Deputy Boegler helped him into a car for transport to the
county jail, he stated: "Fuck you, bitch. I know where your kid goes to school."
After Trierweiler pled guilty to threatening a public officer, the trial court granted
three years' probation and imposed various conditions, including 6(n) and 10(g).
Condition 6(n) provides that the defendant "[s]hall submit 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 [a] P.O. or
law enforcement officer." Condition 10(g) requires Trierweiler to "[o]btain P.O.
approval" as to residence and employment. Other conditions include not using controlled
substances without a valid prescription (and not using marijuana at all), and not using
threats or violence. Defense counsel objected to condition 6(n), to the extent it covered
electronic devices, based on a lack of nexus to the case. The court declined to modify the
condition:
"[T]his defendant's supervision and criminal activity goes back to
1999. To say he's been a difficult supervisee would be a bit of an
understatement. He is what the research shows [is] a high-needs
individual and will require a high degree of supervision. The
defendant's crimes do span narcotics, violence, disobeying court
orders, making criminal threats, and probation has to supervise the
entire defendant not just the pieces of the defendant that committed
this crime. [¶] This crime started with the defendant disobeying a
restraining order, and probation would need to have access to the
defendant's personal property through a Fourth waiver to insure no
additional violations . . . certainly whether that's contained in
physical form or in electronic form, it would be handcuffing
probation's ability to supervise this defendant and giving him the
services that he needs. . . . [A]wareness that probation may and will
search your electronic communication devices will hopefully have a
deterrent affect [sic] on the defendant to remain law abiding, . . . to
avoid controlled substance activity that leads to bad decision making

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and criminal behavior. [¶] Were the court to prohibit probation from
having the tools necessary to appropriately supervise the defendant,
that would not be in the defendant's interest or society's, so those
objections are overruled, and I cite the third factor of Lent."
The court stated it considered the probation report, and we briefly summarize
relevant portions. With respect to Trierweiler's criminal history, the report reflected
additional issues beyond those noted by the court, including (among many other things)
methamphetamine possession and resisting and evading police. Trierweiler's own input
reflected alcohol and marijuana use, as well as rare methamphetamine use. In addressing
supervision, the report stated: "The defendant has had multiple grants of juvenile,
summary, and formal probation since 1999. Records indicate a pattern of non-
compliance throughout probation. The defendant has failed to attend scheduled
appointments, provided positive drug tests, missed scheduled Court hearings, and
continued to reoffend."
DISCUSSION
I.
General Principles
"In general, the courts are given broad discretion in fashioning terms of supervised
release, in order to foster the reformation and rehabilitation of the offender, while
protecting public safety." (People v. Martinez (2014) 226 Cal.App.4th 759, 764.)
Under Lent, a probation condition generally " 'will not be held invalid unless it
"(1) has no relationship to the crime of which the offender was convicted, (2) relates to
conduct which is not in itself criminal, and (3) requires or forbids conduct which is not

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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." (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin), quoting Lent,
supra, 15 Cal.3d at p. 486.)
" '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.' " (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.)
"[W]e generally review the imposition of probation conditions for abuse of
discretion, [and] we review constitutional challenges to probation conditions de novo."
(People v. Appleton (2016) 245 Cal.App.4th 717, 723 (Appleton).)
"In general, the forfeiture rule applies in the context of sentencing as in other areas
of criminal law." (In re Sheena K. (2007) 40 Cal.4th 875, 881 (Sheena K.).) There is an
exception to this rule for a facial constitutional challenge; i.e., "a challenge to a term of
probation on the ground of unconstitutional vagueness or overbreadth that is capable of
correction without reference to the particular sentencing record developed in the trial
court . . . ." (Id. at p. 887.)

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II.
Electronic Search Condition
Trierweiler contends the electronic search condition was unreasonable under Lent,
as well as unconstitutionally overbroad.2
We begin with Lent. Because the People do not address the first two prongs, we
focus solely on the third and conclude the electronic search condition is reasonable. In
Olguin, the California Supreme Court held a probation condition "that enables a
probation officer to supervise his or her charges more effectively is . . . 'reasonably
related to future criminality.' " (Olguin, supra, 45 Cal.4th at pp. 380-381.) In light of
Trierweiler's lengthy criminal history and poor performance on probation, the trial court
could find the electronic search condition would aid supervision and was reasonably
related to deterring criminality. (See, e.g., In re J.E. (2016) 1 Cal.App.5th 795, 797-798
801 (J.E.), review granted Oct. 12, 2016, S236628 [minor pled to second degree
misdemeanor burglary and had history of drug use and gang ties; no abuse of discretion
in imposing electronic search condition as "means of effectively supervising" minor with
"constellation of issues requiring intensive supervision"].)
The underlying events here further support this conclusion. Trierweiler violated
his father's restraining orders, threatened law enforcement, and stated he knew where an
2 Several cases regarding electronic search conditions are pending before the
California Supreme Court. (See In re Ricardo P. (2015) 241 Cal.App.4th 676, review
granted Feb. 17, 2016, S230923.) We address certain of these decisions, post. We also
note Trierweiler does not contend the search condition terms here are vague, and appears
to contemplate they encompass cell phones and social media. Solely for purposes of this
appeal, we assume that is the case.

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officer's child attended school. Providing access to his devices could disclose if he is
searching for these individuals—and, perhaps, dissuade him from doing so in the first
place. It will also aid supervision of his other probation conditions, including limitations
on drug use. (See In re P.O. (2016) 246 Cal.App.4th 288, 291, 295 (P.O.) [minor
admitted to public intoxication following incident with drugs; applying Olguin to
conclude electronic search condition reasonably related to future criminality and
explaining officers could review "electronic activity for indications that [he] has drugs or
is otherwise engaged in activity in violation of his probation"]; In re George F. (2016)
248 Cal.App.4th 734, 740-741, review granted Sept. 14, 2016, S236397 [accord].)3
We disagree this case is governed by those decisions, including In re Erica R.
(2015) 240 Cal.App.4th 907 (Erica R.) and In re J.B. (2015) 242 Cal.App.4th 749 (J.B.),
which suggest the defendant must have used or be likely to use electronic devices in
criminal activity for an electronic search condition to relate to future criminality. (Erica
R., at pp. 907, 913 [minor admitted possession of Ecstasy; no reasonable relation to future
criminality, where neither offense, nor social history, connected electronic devices or
social media to drugs]; J.B., at pp. 752, 756 [minor admitted petty theft and had used
marijuana in the past; accord.].) Although not every condition that may aid supervision
necessarily will be reasonable, Olguin does not require that the supervision method relate
3 On reply, Trierweiler suggests that J.E., P.O., and George F. are distinguishable
because they involve minors. But he himself relies on cases involving minors, and
argued in his opening brief that "[t]heir reasoning applies with equal force to adult
probationers." Much of the reasoning in these cases is generally applicable, and we rely
on them to extent pertinent here.

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to the defendant's past criminal conduct. In addition, both J.B. and Erica R. involved
minors with apparently limited records, not an adult repeat offender with a history of
probation noncompliance. We conclude the electronic search condition reasonably
relates to deterring future criminality here.
Turning to overbreadth, we must first address whether Trierweiler forfeited this
issue by failing to raise it below. We conclude he did. He does state the electronic
search condition is overbroad on its face (citing Riley v. California (2014) 134 S.Ct.
2473, 2488-2489 (Riley)), and that we need not look at the trial record to resolve the
issue. But the substance of his argument is that "electronic search conditions like the one
at issue here must be narrowly tailored" and "Appellant's electronic search condition
simply is not." Because this challenge depends on the trial record, we conclude he has
forfeited it. (See Sheena K., supra, 40 Cal.4th at p. 881.)
In any event, Trierweiler has not established the electronic search condition is
unconstitutionally overbroad. The record reflects a legitimate purpose for the condition:
preventing criminal activity by facilitating supervision, for an individual with a long
criminal history and previous failures to comply with probation. Trierweiler does not
dispute this purpose, but rather contends it is "heavily outweighed" by his privacy rights.
We disagree. Although the condition may implicate Trierweiler's right to privacy, that
right is diminished while he is on probation. (See People v. Nachbar (2016) 3
Cal.App.5th 1122, 1129, review granted Dec. 14, 2016, S238210 [declining to find
electronic search condition overbroad; noting defendant who accepts probation "has a
diminished expectation of privacy as compared to law-abiding citizens"].) Moreover, he

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does not establish what devices he possesses or how his privacy would be impacted, and
the record is devoid of evidence on the issue. (See J.E., supra, 1 Cal.App.5th at p. 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."].)
Given the legitimate purpose of the electronic search condition and Trierweiler's
diminished privacy expectations (as well as his failure to establish specific concerns), we
conclude the condition is not overbroad. (See, e.g., J.E., supra, 1 Cal.App.5th at pp. 799,
806 [concluding electronic search condition was not overbroad; explaining the "collective
circumstances justif[ied] . . . imposition of a broad electronic search condition as a means
of adequately supervising Minor's compliance with his probation conditions and
protect[ing] the public, as well as Minor, from Minor's future criminality. Moreover,
given Minor's limited reasonable expectation of privacy, the intrusion into Minor's right
to privacy is outweighed by the state's interest in ensuring his rehabilitation."].)
Trierweiler's argument that the electronic search condition necessarily implicates
his Fourth Amendment rights and right to privacy lacks merit. In Riley, the United States
Supreme Court found warrantless cell phone searches implicated Fourth Amendment
rights, and emphasized the extent of personal information found on modern phones.
(Riley, supra, S.Ct. 2473 at pp. 2489-2493.) But the privacy concerns expressed in Riley
are inapposite here, where there is a legitimate basis for a waiver of Fourth Amendment
rights. (See J.E., supra, 1 Cal.App.5th at pp. 803-804 [finding Riley inapposite to
constitutionality of probation conditions allowing searches of electronic devices;

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explaining, in part, that unlike the suspect in Riley, who was still presumed innocent,
probationer may be subjected to " 'reasonable conditions that deprive the offender of
some freedoms enjoyed by law-abiding citizens' "].) In turn, Trierweiler's reliance on
Appleton and P.O. is misplaced. Appleton relied on Riley to conclude an electronic
search condition was overbroad, and P.O. reached the same result by relying, in part, on
Appleton. (Appleton, supra, 245 Cal.App.4th at pp. 725, 727; P.O., supra, 246
Cal.App.4th at p. 298.) Appleton and P.O. also are inapposite, because they involve
situations where more limited restrictions were sufficient.4 No such limitation is
warranted here.
III.
Approval Condition
Trierweiler also challenges the residence and employment approval condition on
overbreadth grounds. Again, we begin with forfeiture, and conclude he has forfeited the
issue. He contends the condition is overbroad on its face, but his arguments are specific
to himself and the record; he claims the condition is "not narrowly tailored to protect
appellant's important constitutional rights"; the underlying offense did not occur while he
was at work; and, on reply, that his personal circumstances would make it difficult to find
4 See Appleton, supra, 245 Cal.App.4th at pages 719 and 727 (defendant pled no
contest to false imprisonment by means of deceit, following alleged forced copulation
with victim he met online; describing state's interest as "monitoring whether [he] uses
social media to contact minors for unlawful purposes") and P.O., supra, 246 Cal.App.4th
at pages 291 and 300 (minor admitted to public intoxication after incident involving
drugs; modifying condition to allow for search of " 'any medium of communication
reasonably likely to reveal whether [he was] boasting about [his] drug use or otherwise
involved with drugs.' ").

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a residence that would satisfy the probation officer and permit him to continue working in
San Diego. These arguments require review of the trial record, and forfeiture applies.
(Sheena K., supra, 40 Cal.4th at p. 881.)
Trierweiler has not established overbreadth, regardless. Although the trial court
did not address the approval condition (as he failed to object), we can infer it has a
legitimate purpose akin to the electronic search condition: to deter future criminality via
supervision. Given Trierweiler's history, awareness of his residence and workplace are
relevant to this purpose, and the limited imposition of an approval requirement is
reasonable. (See People v. Stapleton (2017) 9 Cal.App.5th 989, 995 (Stapleton)
[affirming residence approval following plea to petty theft with a prior; noting criminal
history and substance abuse, among other issues, and explaining "[a] probation officer
supervising a person like defendant must reasonably know where he resides and with
whom he is associating in deterring future criminality. [¶] . . . The nature of defendant's
crime and criminal history suggests a need for oversight."].) For example, it could be
pertinent to Trierweiler's supervision if he sought to live or work near his father, or
officers to whom he made threats. His drug use warrants similar oversight, as drugs may
be associated with particular areas or available in certain workplaces. We reject his claim
that the conditions "could allow probation to bar [him] from residing in his home or
neighborhood and . . . prohibit him from obtaining employment," and find his concerns
about satisfying the probation officer unfounded. There is nothing in the record to show
the probation officer would abuse the approval condition, and it would be impermissible

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if he or she did. (See Stapleton, at p. 996 [probation officer "cannot use the residence
condition to arbitrarily disapprove a defendant's place of residence"].)
The authorities cited by Trierweiler do not warrant a different result. In People v.
Bauer (1989) 211 Cal.App.3d 937, the Court of Appeal struck a residence approval
condition for a defendant who lived with his parents, noting it gave the "probation officer
the discretionary power, for example, to forbid appellant from living with or near his
parents—that is, the power to banish him." (Id. at p. 944.) But here, there is nothing to
suggest the approval condition was "designed to banish defendant or to prevent him from
living where he pleases." (Stapleton, supra, 9 Cal.App.5th at p. 995 [distinguishing
Bauer, whose restriction it described as "apparently designed to prevent the defendant
from living with his overprotective parents"].) In People v. Burden (1988) 205
Cal.App.3d 1277 (Burden), a salesperson pled guilty to writing bad checks, a probation
condition barred him from work in outside or commissioned sales, and we reversed. (Id.
at p. 1279.) We explained that a condition relating to employment "must be 'necessary to
serve the dual purpose of rehabilitation and public safety' " and the condition there was an
"unnecessary infringement on [the defendant's] right to work." (Id. at p. 1281.)5 Here,
the condition will facilitate Trierweiler's supervision and rehabilitation, and he is not
5 Trierweiler also suggests an employment condition "must relate to the crime,"
citing Burden. But he is quoting from the court's discussion of Lent, and he did not
object under Lent here. (Burden, supra, 205 Cal.App.3d at pp. 1279-1280.) We further
note Burden preceded Olguin and its Lent analysis relating to supervision.

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prohibited from working in a particular industry or job. He merely needs to obtain
approval and, again, there is nothing to suggest it will be arbitrarily withheld.6
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
I CONCUR:
HALLER, J.
I CONCUR IN THE RESULT:
IRION, J.
6 On reply, Trierweiler requests this court at least modify the condition to require
notification, rather than approval. He did not raise this issue below or in his opening
brief, and we need not address it. (People v. Zamudio (2008) 43 Cal.4th 327, 353
[" 'Normally, a contention may not be raised for the first time in a reply brief.' "].) At any
rate, given his history of noncompliance while on probation, an approval requirement
remains suitable here.

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