Filed 5/28/14                CERTIFIED FOR PARTIAL PUBLICATION*




          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                    DIVISION FOUR


THE PEOPLE,                                        B246217

        Plaintiff and Respondent,                  (Los Angeles County
                                                    Super. Ct. No. MA041187)
        v.

ROBERT G. KENDRICK,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of Los Angeles County,
Kathleen Blanchard, Judge. Affirmed.
        Renee Rich, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B.
Wilson and Jessica C. Owen, Deputy Attorneys General, for Plaintiff and
Respondent.

*
        Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for publication with the exception of part B of the Discussion.
                                 INTRODUCTION
      Pursuant to a plea agreement, defendant Robert G. Kendrick, represented by
counsel, pled guilty to two counts of committing a lewd act upon a child (§ 288,
subd. (a).)1 The trial court sentenced defendant to a 10-year state prison term but
suspended execution of sentence and placed defendant on formal probation for five
years. The probationary term included the condition that he not use the Internet
without prior approval of his probation officer. Defendant did not object to this
condition of probation. Three years later, the trial court found defendant in
violation of probation because he had used the Internet without obtaining
permission. The trial court revoked and terminated probation and lifted the stay of
execution on the 10-year sentence.
      In this appeal, defendant raises two contentions. The first is that the
probation condition precluding access to the Internet without prior authorization is
unconstitutional. In the published portion of this opinion, we find that this
contention has been forfeited because it was not raised in the trial court. We
therefore do not consider it on the merits. In the non-published portion of this
opinion, we consider defendant’s second contention that the trial court abused its
discretion in revoking and terminating his probation. We find no abuse of
discretion and therefore affirm the judgment.


              FACTUAL AND PROCEDURAL BACKGROUND
1. The Plea and Initial Sentencing
      In May 2008, the People filed a 28-count information alleging that defendant
had engaged in unlawful sexual acts with two young teenage girls he had taught
horseback riding.

1
      All statutory references are to the Penal Code.


                                            2
       In November 2009, the parties reached a negotiated settlement. Defendant,
represented by counsel, was advised of and waived his constitutional rights and
pled guilty to two counts of committing a lewd act upon a child (§ 288, subd. (a).)
The parties stipulated that the preliminary hearing transcript and probation report
contained the factual basis of the pleas.
       The trial court sentenced defendant to a 10-year term but suspended
execution of sentence. The court informed defendant that it was very reluctant “to
go along with this plea agreement.” The court stated: “I’m very concerned with
your conduct in this case. The probation officer does not feel that you are a
suitable candidate for probation [but] should [instead] be sent to state prison.[2] I’m
going to give you a shot on probation, but let me make it very clear: If you violate
your probation in any way, . . . you will do ten years in state prison without
question. . . . [Y]our attorney assures me that I will never see you again, that
you’re going to go on the straight and narrow. I hope for your sake that’s true
because you will go for the ten years. [¶] Do you understand that?” Defendant
responded: “Yes, I do.”



2
       The probation report explained: “The defendant[] is eligible for probation but is
definitely not suitable. For years, the defendant preyed on young girls, attempting to get
into their good graces and gain their trust, so that he could take advantage of them. He
used his position and title of horse trainer to try to build these girls up emotionally and
then verbally, physically, and sexually victimized them. [¶] The defendant has two prior
rape allegations, which stands to prove that he has a pattern of this type of behavior. The
defendant was just never caught for his actions until now. He is a sexual predator, who
intentionally seeks out young, inexperienced girls for his own sexual gratification. The
defendant is sophisticated enough to test the waters with all the girls he encounters to see
just what he can get from them and how much they will give him. [¶] The defendant is a
danger to the community and all the girls subjected to him. He should not be free in the
community to further victimize or abuse any more young girls.” The probation officer
therefore recommended that defendant be sentenced to state prison.


                                             3
      The court placed defendant on a five-year formal probationary term that
included multiple conditions. The court informed defendant that the conditions
included, inter alia, the requirement that he not “subscribe to or have access to any
form of Internet service without the approval of [his] probation officer.” The court
asked defendant if he understood “all of the terms and conditions of [his]
probation.” Defendant replied that he did. The court then asked him: “And do
you accept all the terms and conditions of your probation?” Defendant replied:
“Yes.” On the People’s motion, the court dismissed the remaining counts.


2. The First Probation Violation
      Within six months of the sentencing hearing, defendant violated probation
by being within 100 yards of a locale frequented by minors. In particular,
defendant repeatedly loitered at a McDonalds inside of a Walmart, a location that
gave him a “clear view of the Junior Miss clothing department.”
      In June 2010, the trial court conducted a probation violation hearing. The
court informed defendant that while it “could easily sentence [him] to ten years
today,” it was “willing to give [him] one more shot.” But that if defendant again
violated probation, he was “going to state prison for ten years.” Defendant,
represented by counsel, admitted the probation violation. The court revoked and
then reinstated probation on the same conditions with the additional provision that
defendant serve 45 days in jail.


3. The Second Probation Violation
      On July 26, 2012, defendant’s probation officer Thomas Wubben filed a
report with the court setting forth the following facts. During two routine visits of
defendant’s home, Wubben “discovered the defendant had Internet access.”
Defendant admitted to Wubben that “he was in Internet contact with an adult

                                          4
female” with whom he intended to pursue “a relationship.” Defendant “denied
awareness he was not allowed to have Internet access [and] indicated [that] his
prior supervision officer . . . had allowed him permission to use the Internet for the
purpose of seeking employment opportunities.”
       At a hearing conducted that day (July 26), the trial court found, based upon
the probation officer’s report, defendant “preliminarily” in violation of probation.
Defendant was remanded into custody and the court set the matter for a formal
probation violation hearing.
       On November 30, 2012, the trial court conducted the probation violation
hearing. Three probation officers testified as did defendant.
       The first witness, Robert Carpenter, had been defendant’s probation officer
from November 2009 to September 2011. He visited defendant at his residence
shortly after defendant was placed on probation. Defendant showed him a desk top
computer but indicated that he did not intend to use it because “it was too slow of a
system.” Carpenter told defendant that if he wanted to access the Internet, he was
required to request permission from him (Carpenter). Defendant never sought
permission to access the Internet and he (Carpenter) never gave defendant oral or
written authorization to use the Internet. Carpenter testified that generally
permission is granted only to permit a probationer to search for a job.3
       Carpenter visited defendant’s residence 12 to 15 times during his
supervisory period. Carpenter testified that “[d]uring that period of time, most of
the time it looked like [defendant] had little use of the computer. It was a very



3
       Carpenter explained: “[The probationer] has to explain to us how and when. He
has to document his use. It has to be very specific and detailed. And also he is subject to
search. We also have computer software that will search and find files that have been
opened up or used from the Internet.”


                                             5
slow system. . . . [D]efendant himself admitted that it was slow and he did not use
the system for much of anything, other than just anything off line.”
      The second witness, Wubben, became defendant’s probation officer in
September 2011. Wubben testified that defendant never asked permission to use
the Internet for any purpose and he never gave defendant permission to use the
Internet.
      On April 23, 2012, Wubben and his partner, deputy probation officer David
Scheivert, visited defendant’s residence. Wubben saw a Facebook page displayed
on defendant’s computer.
      On May 29, 2012, Wubben and Scheivert returned to defendant’s residence.
After Scheivert saw that defendant was accessing the Internet on the computer,
defendant admitted to Wubben that he had been using the Internet to contact a
woman.
      Scheivert testified that during one of the two visits to defendant’s home,
defendant “said he used the computer. He turned it on. I [Scheivert] think he
turned it on. He got it on line because I didn’t know how to get it on line.” After
defendant activated the computer, a “pornographic image” “just popped up.”
      Defendant testified on his behalf as follows. He rented a room in a three-
bedroom house. The landlady purchased the computer. The computer was not in
his bedroom but, instead, in “a bedroom” called “the computer room.” The
computer had access only to a dial-up Internet. The landlady and Chuck
Washington (a friend who visits him) had access to the computer.
      Defendant is a veterinarian technician specialist. He claimed to use the
Internet to find clients such as horse owners who would hire him to service their
horses’ teeth and hooves.
      In regard to his probationary term, defendant was asked: “When you agreed
to probation, one of your conditions of probation was not to use the Internet; is that

                                          6
correct?” Defendant replied: “I was never told I couldn’t. [¶] . . . I didn’t get any
conditions.” In a similar vein, defendant testified: “I was told I had no
restrictions” about Internet use. “I could use it for business.”
      Defendant gave inconsistent accounts as to his conversations with Carpenter
about Internet use. First, defendant testified that when he initially met with
Carpenter, he told Carpenter that he “was on the Internet” because he “needed to
find some more clients” and that Carpenter replied: “[O]kay, . . . make sure [you]
don’t do anything else.” Defendant further testified that each time Carpenter
visited his home, Carpenter “check[ed] the computer [and] [a]fter he finished he
said okay.” But at another point, defendant testified: “They never said anything
about me not being on the Internet, so I figured it was okay for me to be on the
Internet. [¶] . . . [Carpenter] never said I could. He never said I couldn’t.”
      Defendant denied ever having accessed Facebook on the computer. In
regard to the April 23 visit by Wubben and Scheivert, defendant testified that
Scheivert asked him to access the Internet. He complied, “got on Yahoo,” and
“[t]hat’s when he found pictures of my girl friend. I never seen no porn pop up on
my computer, ever.”
      In regard to the probation violation, the trial court ruled:
            “Clearly the defendant is in violation of his probation in this
      case. I do not find [defendant] to be a credible witness. Not only
      does he deny ever being told of those conditions or ever
      understanding them, again at sentencing it’s clearly laid out that those
      were his conditions.

              “In addition, I find Deputy Probation Officer Carpenter highly
      credible and he said that he went over those conditions and explained
      that if he needed some sort of permission from the probation officer,
      how to go about it and what it would be granted for.

            “When the defendant testified, his testimony was that he
      thought, based on that conversation, that he could use the Internet for

                                           7
work. But yet what he admits to him is actually using the Internet to
communicate with and receive photographs from his girlfriend, Lilly,
who he met via the Internet. And that he—I think his words were that
he figured it was okay to be on the Internet, and it wasn’t. It was in
direct violation of his probation in this case.

      “So I do find him in violation of his probation.”


      As for sentencing, the court explained:
       “I was the sentencing judge when [defendant] originally entered
into his plea, which involved the dismissal of . . . about 27 counts
against him. He pled to two of the counts, received a 10-year ESS
[execution of sentence suspended]. And I was very clear, as the
sentencing judge, what that meant; that he had a 10-year state prison
sentence hanging over his head.

       “Notwithstanding that, [defendant] came before me previously
on a probation violation that I actually considered very egregious,
considering the charges here. [Defendant] did not take responsibility
for that. And at the time, I gave him one more shot on probation.
And again, I was very clear that it was zero tolerance and that he had
to obey all of the conditions of his probation.

      “He comes before me again, for a violation that I do not
consider technical or minor, considering the nature of the charges
here.

       “The sentence isn’t imposed simply for the violation. This is a
sentence that was part of an agreed-upon disposition. And the
violation of that probation results in the state prison sentence that I am
about to impose.”


This appeal follows.




                                    8
                                       DISCUSSION
         A. CONSTITUTIONALITY OF THE PROBATION CONDITION
      Defendant contends that the “probation condition restricting [his] Internet
usage must be vacated as it is unconstitutionally overbroad and the finding that
[he] violated this condition of probation must be reversed.”
      The Attorney General urges that the contention has been forfeited because
defendant did not raise this constitutional claim in the trial court although he had
three opportunities to do so (when placed on probation and at his two probation
violation hearings). Defendant responds that In re Sheena K. (2007) 40 Cal.4th
875 (Sheena K.) permits him to raise this constitutional claim for the first time on
appeal. We conclude Sheena K. does not apply to this case because defendant is
not raising a facial challenge to the probation condition. The claim, therefore, has
been forfeited.
      People v. Welch (1993) 5 Cal.4th 228 (Welch) held that a defendant’s failure
to object in the trial court to a probation condition he claimed was unreasonable
resulted in a forfeiture of the right to raise that claim on appeal. Welch “reasoned
that an adult probationer who elects to receive probation in lieu of incarceration
fairly may be charged with the need to timely challenge any conditions imposed
and that application of the forfeiture doctrine would deter the promulgation of
invalid conditions in the trial court and decrease the number of appeals contesting
such conditions.” (Sheena K., supra, 40 Cal.4th at p. 882.)
      In Sheena K., the issue was whether an appellant could raise for the first
time on appeal the claim that a probation condition was facially unconstitutional
because it was vague or overbroad. The court concluded that because the
contention presented “a pure question of law, easily remediable on appeal by
modification of the condition,” it was not forfeited by the failure to raise it in the
trial court. (Sheena K., supra, 40 Cal.4th at p. 888.) However, Sheena K.

                                           9
cautioned that its “conclusion does not apply in every case in which a probation
condition is challenged on a constitutional ground . . . ‘since there may be
circumstances that do not present “pure questions of law that can be resolved
without reference to the particular sentencing record developed in the trial court.”
[Citation.] In those circumstances, “[t]raditional objection and waiver principles
encourage development of the record and a proper exercise of discretion in the trial
court.” [Citation.]’” (Id. at p. 889.) Sheena K. “emphasize[d] that generally,
given a meaningful opportunity, the probationer should object to a perceived facial
constitutional flaw at the time a probation condition initially is imposed in order to
permit the trial court to consider, and if appropriate in the exercise of its informed
judgment, to effect a correction.” (Ibid.)
      In this case, defendant’s constitutional claim, as advanced in his briefs, is
one that cannot be resolved “without reference to the particular sentencing record
developed in the trial court [and thus does not] present a pure question of law.”
(Sheena K., supra, 40 Cal.4th at p. 887.)
      First, defendant argues that the restriction on Internet usage was
“unconstitutionally overbroad as it was not narrowly tailored to serve a significant
governmental interest. The probation condition was not related to [his] conviction
and was not reasonably necessary for his rehabilitation or protection of the public
as there was no evidence [he] had ever used the Internet for any criminal purpose.”
This claim, by its own terms, requires a review of the facts underlying his
convictions, facts set forth in the transcript of the preliminary hearing and the
probation report. Defendant concedes as much because he claims that “[t]here is
no suggestion in the description of the underlying offenses in the probation report
or at the preliminary hearing that [he] used a computer or the Internet in the
commission of his crimes. . . . Moreover, the restriction is not related to [his]
criminal history as he does not have a history of using the Internet to engage in

                                            10
unlawful conduct. [¶] . . . Because [his] criminal conduct did not involve the use
of a computer or the Internet, restricting his access to such had no bearing on his
rehabilitation. . . . As there was no evidence [he] ever used a computer or the
Internet to contact minors, obtain child pornography, or commit any crime, the
probation condition restricting his use of the Internet was not reasonably related to
protecting the public.”
      In addition, defendant cites to Carpenter’s testimony that the probation
department generally approves Internet usage only if an unemployed probationer is
searching for a job. Relying upon that testimony, defendant argues: “Because the
probation department would only approve Internet access for employment
searches, [he] was prohibited from lawful and benign uses of the Internet, such as
obtaining information from on-line news sources, checking traffic reports, getting
directions or a weather report, taking on-line classes, or conducting on-line
banking or financial transactions. . . . Such a broad restriction on [his] access to
the Internet was an excessive deprivation of his liberty and violated his First
Amendment rights.” Building upon these arguments, defendant notes that “there is
no indication the [trial] court considered less restrictive alternatives to the
overbroad restriction on [his] access to the Internet.”
      Given his appellate arguments, it is apparent that defendant is not raising a
pure facial challenge to the constitutionality of the probation condition that can be
determined based on abstract or general legal principles. Instead, he advances fact-
driven arguments to claim that, given the evidentiary specifics of the crimes, his
criminal history, and the probation department’s policy, the probation condition is,
as applied to him, unconstitutional. Defendant essentially acknowledges this point
when he concludes: “The trial court failed to engage in the necessary case-specific
exercise of its discretion when it imposed the probation condition prohibiting [him]
from accessing the Internet without his probation officer’s approval.” But the

                                           11
reason the trial court failed to exercise that discretion is because defendant failed to
raise these arguments below. If they had been raised, both the prosecutor and the
probation department would have had the opportunity to respond. In turn, the trial
court, taking all of these circumstances into consideration, could have exercised its
discretion to decide whether to impose the probation condition and, if so, on what
specific terms. We therefore conclude that defendant’s failure to raise the
constitutional claim in the trial court constitutes a forfeiture of his right to raise it
on appeal. Furthermore, we decline defendant’s request that we exercise our
discretion to consider the forfeited contention.
       Anticipating this conclusion, defendant urges that trial counsel’s failure to
make the appropriate objections at various stages of the case constitutes ineffective
assistance of counsel. We are not persuaded. If, as here, the record on appeal
sheds no light on why counsel acted or failed to act in the manner challenged, an
appellate court must reject the claim of ineffective assistance unless there can be
no satisfactory explanation for counsel’s conduct.4 (People v. Mendoza Tello,
supra, 15 Cal.4th at p. 266.)
       In this case, the record suggests two satisfactory explanations for trial
counsel’s decision not to contest the probation condition when defendant was first
placed on probation.
       The first is defendant’s professed indifference to using the Internet. Shortly
after he was placed on probation, defendant told Carpenter he did not intend to use
the computer in his home because “it was too slow of a system.” It is reasonable to
infer that defendant had previously communicated this intent to trial counsel who,

4
       If, as here, a satisfactory explanation appears for trial counsel’s conduct, then the
claim of ineffective assistance of counsel “is more appropriately decided in a habeas
corpus proceeding.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) That
petition should be filed first in the trial court. (People v. Munoz (1984) 157 Cal.App.3d
999, 1017; Yokley v. Superior Court (1980) 108 Cal.App.3d 622, 628.)

                                             12
in turn, could have reasonably decided that there was no need to challenge the
condition because defendant did not intend to use the Internet. (See Strickland v.
Washington (1984) 466 U.S. 668, 691 [“The reasonableness of counsel’s actions
may be determined or substantially influenced by the defendant’s own statements
or actions. Counsel’s actions are usually based, quite properly . . . on information
supplied by the defendant.”].)
      The second is that trial counsel had already negotiated an extremely
favorable disposition for defendant. The probation department had recommended
a state prison sentence (see fn. 2, ante) but the prosecutor was willing to accept a
probationary term. The trial court agreed to this disposition with great reluctance.
In this context, trial counsel could have reasonably concluded that the trial court
would not have entertained an objection to the probation condition. This is
especially true since by that time case law had upheld Internet access conditioned
on a probation officer’s approval. (In re Hudson (2006) 143 Cal.App.4th 1, 11
[because many probation conditions are subject to securing the approval of the
probation officer, probation officers “must exercise a certain amount of discretion
and we will not assume that [they] will unreasonably withhold permission for
legitimate computer and Internet usage.”]; see also In re Victor L. (2010) 182
Cal.App.4th 902, 925 [“[T]he courts are not altogether in agreement as to how far
they may go in restricting adult access to the Internet, and have tended to reject
complete Internet bans . . . unless they contain a clause allowing Internet access
with prior approval of the supervising authority.”].)
      In regard to the first probation violation hearing, defendant concedes a
satisfactory explanation for counsel’s failure to raise the point: “The probation
condition restricting [his] use of the Internet was not at issue in the first probation
violation proceeding[], and therefore, there was no reason for counsel to raise the
issue at that time.”

                                           13
      As for the second probation violation hearing, a satisfactory explanation
exists for trial counsel’s failure to raise the issue: he could have reasonably
concluded that the claim had been forfeited because it had not been raised when
the probation condition was first imposed and accepted by defendant. In other
words, it was too late to challenge the constitutionality of the probation condition
insofar as it pertained to defendant’s actions committed before that hearing.
“[D]efense counsel is not required to make futile motions or to indulge in idle acts
to appear competent. [Citations.]” (People v. Torrez (1995) 31 Cal.App.4th 1084,
1091-1092.) In addition, since defendant’s position, as set forth in his testimony at
the second probation violation hearing, was that he had been unaware of the
condition precluding Internet access absent approval from his probation officer,
defense counsel could have reasonably concluded that little, if anything, was to be
gained by arguing that the condition was unconstitutional. (See Strickland v.
Washington, supra, 466 U.S. at p. 691 [“The reasonableness of counsel’s actions
may be determined or substantially influenced by the defendant’s own statements
or actions. Counsel’s actions are usually based, quite properly . . . on information
supplied by the defendant.”].)


            B. REVOCATION AND TERMINATION OF PROBATION
      Defendant contends that the trial court abused its discretion in revoking and
terminating his probation. We disagree.
      The trial court is vested with wide discretion in determining whether
probation should be terminated. An appellate court should interfere with that
discretion only in the most extreme case. (People v. Rodriguez (1990) 51 Cal.3d
437, 443.) This is not such a case.
      The pre-plea probation report concluded that defendant was not a suitable
candidate for probation given the serious facts underlying the charged offenses and

                                          14
therefore recommended a state prison term. (See fn. 2, ante.) Nonetheless, the
parties negotiated a settlement that placed defendant on probation. The trial court
agreed to this disposition with great reluctance, warning defendant that any
violation of his probation would result in execution of the 10-year sentence.
Within six months, defendant violated his probation by loitering near an area
frequented by minors. Defendant admitted the probation violation. The trial court
told him it was “willing to give [him] one more shot” but that if he again violated
probation, he was “going to state prison for ten years.” Three years later,
defendant again violated probation, this time by accessing the Internet without first
obtaining permission from his probation officer. In this appeal, defendant
concedes this probation violation, but characterizes it as “technical.” Given
defendant’s unsuccessful performance on probation, the seriousness of the charges,
the trial court’s willingness to grant defendant another opportunity after his first
probation violation, and the probation department’s original recommendation, the
trial court’s decision to revoke and terminate probation was not an abuse of
discretion. (See People v. Medina (2001) 89 Cal.App.4th 318, 323 [“[W]hen a
judge [initially] suspends execution of a prison term, the message being conveyed
is that the defendant is on the verge of a particular prison commitment.”].)
      Defendant’s contrary arguments are not persuasive.
      First, defendant relies upon the fact that the probation department’s report
that notified the court of the Internet violation did not recommend that probation be
terminated and the suspended sentence be executed. Instead, the probation report
recommended that the trial court find defendant “in violation of probation; that
probation be revoked, reinstated and modified; that defendant be ordered to
remove the home computer from his residence and not have any Internet service;”
and that defendant “perform 30 days of Cal-Trans [service].” The trial court was
not required to follow this recommendation. As the trial judge correctly observed:

                                          15
“It’s clear to this court, from this [probation] report, that [defendant] hasn’t had a
continuous probation officer. Unlike the fact that he’s had a continuous judge
through the violations.” Defendant’s repeated violations of probation constitute
sufficient reason for the court to refuse to reinstate his probation. (People v. Jones
(1990) 224 Cal.App.3d 1309, 1316.)
      Defendant also argues that the trial court abused its discretion because “it
made the decision to not reinstate [his] probation before it even heard the evidence
concerning [his] violation.” The record does not support this claim. At the July 26
hearing, the court made clear that, based upon the probation report, it was making
only the preliminary finding that defendant had violated probation and that a later
hearing would be conducted at which testimonial evidence would be presented,
following which it would make its decision. At the subsequent hearing, the court
listened to all the witnesses, made detailed credibility findings, and explained its
decision. No abuse of discretion occurred.


                                       DISPOSITION
             The judgment is affirmed.
             CERTIFIED FOR PARTIAL PUBLICATION



                                                WILLHITE, J.



             We concur:




             EPSTEIN, P. J.                    EDMON, J.*
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
 to article VI, section 6 of the California Constitution.

                                           16
