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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