P. v. Jackson

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Filed 11/19/18 P. v. Jackson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
DEONDRE MARQUISE JACKSON,
Defendant and Appellant.
E069751
(Super.Ct.No. FVI17003145)
OPINION
APPEAL from the Superior Court of San Bernardino County. Miriam Ivy
Morton, Judge. Affirmed.
Jared G. Coleman, 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, and Eric A. Swenson and Felicity
Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant, Deondre Marquise Jackson, pled guilty to accessory to
robbery after the fact. (Pen. Code, § 32, count 2.)1 The court granted defendant three
years of felony probation, a term of which required that he submit to a search and seizure
of any electronic device in his possession. On appeal, defendant contends the search
condition is unconstitutional. We affirm.
I. FACTS AND PROCEDURAL HISTORY2
The victim reported to the police that three males walked up to him outside a retail
establishment and asked if they could use his cell phone. The victim agreed, but he did
not let them hold his phone; instead, he dialed the number, put it on speaker, and held it
toward them to allow them to speak. As the phone began ringing, two of the three men
tried to distract the victim by pointing behind him. The other man then forcibly removed
the phone from the victim’s hand. All three men fled in an awaiting vehicle driven by
defendant.
An officer arriving thereafter followed the suspects after the store manager pointed
out the vehicle in which defendant and the men were fleeing. The officer conducted a
traffic stop and detained defendant while another officer arrived to detain the remaining
men. Defendant told another officer he would take him to the area where one of the men
had thrown the cell phone. Officers were unable to find the cell phone in the area. One
1 All further statutory references are to the Penal Code.
2 The parties stipulated the complaint and police report would provide the factual
basis for the plea. We derive our factual recitation from the police report.

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of the other men admitted to taking the phone from the victim. He took an officer to the
area where he said he had thrown the cell phone. The officer was then able to locate the
victim’s cell phone.
The People charged defendant by felony complaint with second degree robbery
(count 1; § 211) and accessory after the fact (count 2; § 32). Defendant signed and
initialed a declaration agreeing to plead guilty to the count 2 offense in return for three
years of felony probation. Defendant additionally signed a document titled “Felony
Terms and Conditions of Probation.” That document reflected that: “By signing this
form, I am agreeing that the Court will withhold pronouncement of judgment in my case,
and that I will be granted supervised probation for a period of thirty-six months . . . with
the following Terms and Conditions of Probation . . . .” One of the terms of probation
required that defendant “[s]ubmit to a search and seizure (electronic device) by a
government entity of any electronic device that you are an authorized possessor of
pursuant to . . . [section] 1546.1[, subdivision] (c)(10).”
Defendant pled guilty as recounted above. In return, the court dismissed the
balance of the complaint upon the People’s motion. Pursuant to the plea agreement, the
court granted defendant felony probation for a term of three years, including conditions
that he serve 180 days in jail and “[s]ubmit to a search and seizure (electronic device) by
a government entity of any electronic device that you are an authorized possessor of
pursuant to . . . [section] 1546.1[, subdivision] (c)(10).”

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II. DISCUSSION
A. Waiver and Forfeiture
Defendant contends the electronic search condition violates his constitutional
rights. The People maintain defendant forfeited any objection to the condition by failing
to object below. We hold that defendant waived and forfeited any objection to the
condition by expressly agreeing to it.
“Knowing and intelligent waivers are generally required when a criminal
defendant gives up ‘any significant right’ [citation], such as . . . constitutional rights
. . . .” (People v. Trujillo (2015) 60 Cal.4th 850, 859.) Courts can require that defendants
waive constitutional rights as a condition of probation. (People v. Garcia (2017) 2
Cal.5th 792, 798-799 [waiver of patient-therapist privilege for sex offender as a condition
of probation not constitutionally infirm]; People v. Bravo (1987) 43 Cal.3d 600, 607
[acceptance of probationary search condition waives expectation of traditional 4th
Amend. protection].)
“Ordinarily, a criminal defendant who does not challenge an assertedly erroneous
ruling of the trial court in that court has forfeited his or her right to raise the claim on
appeal. [Citations.] As the United States Supreme Court recognized . . . ‘“[n]o
procedural principle is more familiar to this Court than that a constitutional right,” or a
right of any other sort, “may be forfeited in criminal as well as civil cases by the failure
to make timely assertion of the right before a tribunal having jurisdiction to determine
it.”’ [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 880-881.) “[A]n adult

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probationer who elects to receive probation in lieu of incarceration fairly may be charged
with the need to timely challenge any conditions imposed . . . .” (Id. at p. 882.) “[A]n
unconstitutionally vague or overbroad probation condition does not come within the
‘narrow exception’ to the forfeiture rule made for a so-called unauthorized sentence or a
sentence entered in excess of jurisdiction. [Citations.]” (Id. at pp. 886-887.) However,
“[a]n obvious legal error at sentencing that is ‘correctable without referring to factual
findings in the record or remanding for further findings’ is not subject to forfeiture.” (Id.
at p. 887.) A defendant’s failure to object to the imposition of a probation condition
requiring the defendant to permit searches of electronic devices in his possession forfeits
the issue on appeal. (In re L.O. (2018) 27 Cal.App.5th 706, 711-712; People v. Valdivia
(2017) 16 Cal.App.5th 1130, 1139, review granted Feb. 14, 2018, S245893.)
Here, apparently prior to even orally entering his plea, defendant signed a
document agreeing that the court would grant him probation for three years under a
number of expressly enumerated terms and conditions. One of those conditions is the
very term of which defendant now complains. Defendant initialed a space directly
adjacent to the condition, further indicating his acceptance of the term. The minute order
of defendant’s plea and judgment expressly indicates: “Defendant accepts Terms &
Conditions of Probation.” The court asked defendant: “[Y]ou indicated you reviewed
the terms and conditions of probation with your attorney and you understood them. Do
you waive the Court formally reading them in open court?” To which defendant

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responded: “Yes, your Honor.” Thus, defendant knowingly and intelligently waived his
right to complain about the electronic device term of his probation.
Even if defendant did not waive his right to complain about the condition, he
forfeited that right by failing to object below. Here, beyond explicitly agreeing to the
condition, defendant did not object to the condition though he had ample opportunity to
do so.
Defendant contends that he was not required to object because the condition is
facially, unconstitutionally vague and overbroad. We disagree. First, defendant himself
repeatedly maintains the condition was not narrowly tailored or reasonably related to the
reformation and rehabilitation of defendant, an argument which necessarily requires
resort to the facts underlying defendant’s conviction and is therefore, not reviewable
without an objection: “Neither [defendant]’s crime, nor the events preceding it, involved
his electronic devices or social media.” “[The People] cite[] no facts or authority
showing that the monitoring of these conditions is critical to public safety or
[defendant]’s rehabilitation. There is no evidence that [defendant] has alcohol or drug
dependencies that require invasive searching of electronic devices.” “[I]f, as in
[defendant]’s case, there is nothing in [defendant]’s past or current offenses or personal
history that connects his use of electronic devices with criminal activity, there is nothing
to justify an electronic search condition.” The breadth of the condition “is not justified
by any known risk [defendant] poses to the public and is not at all related to [defendant]’s
criminality.”

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Second, defendant’s assertion that his crime did not involve electronic devices is
not borne by the record. Defendant executed a Harvey3 waiver as part of his plea
agreement. Defendant stipulated that the complaint and police report would provide the
factual basis for his plea. The complaint charged defendant with both robbery and
accessory after the fact. The police report reflects that defendant was part of a scheme to
steal a cell phone, an electronic device, from a person outside a store. Thus, defendant’s
crime did involve an electronic device.
Third, defendant’s complaint that “the electronics-search condition does not
require that the devices belong to” defendant, that it “only requires that [defendant] have
possession” of them is not well taken. As the California Supreme Court stated in People
v. Olguin (2008) 45 Cal.4th 375: “A probation condition should be given ‘the meaning
that would appear to a reasonable, objective reader.’ [Citation.]” (Id. at p. 382.) We
view the probation condition here in light of Olguin and presume a probation officer will
not interpret it in an irrational or capricious manner. (Id. at p. 383.) We agree with the
court in People v. Maldonado (2018) 22 Cal.App.5th 138, review granted June 20, 2018,
S248800, “that warrantless probation searches must not be conducted in an arbitrary,
capricious, or harassing manner. [Citation.]” (Id. at p. 145 [electronic device search
condition was not constitutionally overbroad].) Moreover, defendant would have no
3 People v. Harvey (1979) 25 Cal.3d 754 and People v. Moser (1996) 50
Cal.App.4th 130, 132 and 133 (permitting the sentencing court to consider the facts
underlying the dismissed counts when the defendant has executed a waiver of his Harvey
rights).

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standing to challenge the constitutional rights of third parties. (Ibid.) Thus, defendant
forfeited any challenge to the constitutionality of the probation condition by failing to
object below.
B. Overbreadth
Defendant contends, pursuant to Riley v. California (2014) ___ U.S. ___ [134
S.Ct. 2473] (warrantless search of defendant’s cell phone was constitutionally infirm),
that the probationary condition requiring that defendant submit electronic devices in his
possession to search and seizure by officers is unconstitutionally overbroad. Assuming
defendant did not waive or forfeit a challenge to the condition, we hold that it was not
unconstitutionally overbroad.
“A probation condition is constitutionally overbroad when it substantially limits a
person’s rights and those limitations are not closely tailored to the purpose of the
condition.” (People v. Harrisson (2005) 134 Cal.App.4th 637, 641, citing In re White
(1979) 97 Cal.App.3d 141, 146 [“‘. . . The Constitution, the statute, all case law, demand
and authorize only “reasonable” conditions, not just conditions “reasonably related” to
the crime committed.’ [Citation.] [¶] Careful scrutiny of an unusual and severe
probation condition is appropriate.”].)
The parties acknowledge that the issue of whether a probationary electronic device
search condition may be constitutionally imposed is currently under review by the

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California Supreme Court.4 The California Supreme Court has not yet granted review in
at least two cases dealing with this issue. In People v. Appelton (2016) 245 Cal.App.4th
717, where the defendant pled no contest to imprisonment by means of deceit, the court
held that a probationary condition requiring that the defendant’s electronic devices be
subject to “Forensic Analysis Search[]” was constitutionally overbroad and struck the
condition, but remanded the matter “because the trial court may be able to impose a valid
condition more narrowly tailored to the state’s interests . . . .” (Id. at p. 727.) In People
v. Ebertowski (2014) 228 Cal.App.4th 1170, where the defendant stood convicted of
criminal threats, resisting an officer, and a true finding on a gang enhancement allegation,
the court held: “Access to all of defendant’s devices and social media accounts is the
only way to see if defendant is ridding himself of his gang associations and activities, as
4 The lead case, In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted
February 17, 2016, S230923, frames the issue as follows: “Did the trial court err by
imposing an ‘electronics search condition’ on the juvenile as a condition of his probation
when that condition had no relationship to the crimes he committed but was justified on
appeal as reasonably related to future criminality under People v. Olguin[, supra,] 45
Cal.4th 375 because it would facilitate the juvenile’s supervision?” <http://appellatecases.
courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=2126967&doc_no=S2
30923&request_token=NiIwLSIkXkg%2FWyBVSSFdTEhIUFQ0UDxTICJeIzhTQCAg
Cg%3D%3D&bck=yes>(as of Nov. 19, 2018). The court has subsequently granted
review in cases in which the condition was applied to adults. (People v. Valdivia, supra,
16 Cal.App.5th 1130, review granted Feb. 14, 2018, S245893 [electronic search
condition reasonably related to future criminality, did not violate constitutional right
against self-incrimination, but was constitutionally overbroad]; People v. Nachbar (2016)
3 Cal.App.5th 1122, 1129, review granted Dec. 14, 2016, S238210 [electronic search
condition imposed upon a defendant convicted of unlawful sexual intercourse with a
minor not unconstitutionally broad and was reasonably tailored to defendant’s
rehabilitation].)

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required by the terms of his probation, or is continuing those associations and activities,
in violation of his probation.” (Id. at p. 1175.)
We agree with Ebertowski and the line of cases which have followed it. “As a
defendant who has pleaded guilty to a felony and accepted probation in lieu of additional
punishment, defendant has a diminished expectation of privacy as compared to law-
abiding citizens or those subject to searches incident to arrest. Thus, we conclude the
privacy concerns voiced in Riley are inapposite in the context of evaluating the
reasonableness of a probation condition.” (People v. Nachbar, supra, 3 Cal.App.5th at p.
1129, review granted Dec. 14, 2016, S238210.) “To the extent [the defendant] adds
information on his electronic devices that would invoke stronger privacy protections
beyond a warrantless search of his home and would be unrelated to his criminality or
future criminality, [the defendant] would have the right to seek a modification of the
probation condition to protect the privacy of such information. [Citations.] But as the
record stands now, there is no reasoned basis for more narrowly tailoring the search
condition. Additionally, any concerns regarding the potential invasiveness of the
electronics-search condition are ameliorated by the restriction against arbitrary,
capricious, or harassing probation searches. [Citations.]” (People v. Trujillo (2017) 15
Cal.App.5th 574, 589, review granted Nov. 29, 2017, S244650 [probation condition
requiring the defendant to submit to searches of electronics in his possession affirmed
where the defendant was convicted of attempted robbery and assault by means likely to
cause great bodily injury].)

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Here, defendant expressly agreed to the condition that electronic devices in his
possession be subject to search and seizure in return for a grant of probation. The offense
for which defendant stood convicted involved the theft of an electronic device. As noted
above, we presume a probation officer will not interpret the search condition in an
irrational or capricious manner. (People v. Olguin, supra, 45 Cal.4th at p. 383.) If a
probation officer does interpret the condition in any arbitrary manner, defendant may
then file a petition for modification of his probation condition. (See §§ 1203.2, subd.
(b)(1), 1203.3, subd. (a); see People v. Keele (1986) 178 Cal.App.3d 701, 708 [trial court
retains jurisdiction to review probation officer’s actions].) Thus, the electronic device
search and seizure condition is not constitutionally overbroad.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
MILLER
J.
SLOUGH
J.

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