Filed 5/6/16 P. v. Byrn CA3
                                          NOT TO BE PUBLISHED
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
                                     THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----




THE PEOPLE,                                                                              C079887

                   Plaintiff and Respondent,                               (Super. Ct. No. CM043025)

         v.

DANIEL MICHAEL BYRN,

                   Defendant and Appellant.




         Defendant Daniel Michael Byrn entered a no contest plea to manufacturing a
controlled substance—butane honey oil. (Health & Saf. Code, § 11379.6, subd. (a)).1

         The trial court denied probation and sentenced defendant to county prison (Pen.
Code, § 1170, subd. (h)) for the upper term of seven years. The court ordered defendant


1 Codefendant Brandi Ann Smith was charged with the same offense. She is not a party
to this appeal.

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to serve 608 days of the sentence in custody, with 120 days of credit, and suspended the
balance pending completion of postrelease community supervision (PRCS).

       Defendant appeals. He contends (1) defense counsel rendered ineffective
assistance in failing to object to the trial court’s findings in imposing the upper term, (2)
the condition of mandatory supervision requiring defendant to make available for
inspection any data storage device and any network applications is unconstitutionally
overbroad and should be stricken, and (3) the condition of mandatory supervision
prohibiting defendant from contacting and communicating with Brandi Ann Smith is
unconstitutionally overbroad and must be modified. We will reject defendant’s
contentions and affirm the judgment.

                               FACTUAL BACKGROUND

       About 2:00 p.m. on May 10, 2015, defendant was walking away from a pharmacy
carrying two large backpacks, a duffle bag, and a purse. An officer contacted defendant
who explained he was waiting for his girlfriend (Smith) who was inside the pharmacy.

       When defendant set the purse down, it opened and the officer observed a clear
container with a dark liquid that was actively boiling without a heat source. Defendant
explained the substance was “ ‘weed wax’ ” and he was burning off the butane.
Defendant provided an expired marijuana recommendation to the officer. The officer
learned defendant had a “no cite” misdemeanor warrant from Sacramento County. The
officer arrested defendant.

       A search of defendant’s person revealed a knife, a container of hash, a bag of
marijuana, a USB cable, and a pair of earbud headphones. Defendant claimed he
purchased the USB cable from the pharmacy but did not have a receipt. A search of the
backpack revealed a glass extraction tube, a PVC pipe, 13 lighters with butane, a bag of
marijuana, a bag with two hypodermic needles, and a blowtorch. In the other backpack,



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the officer found a Tazer. In the duffle bag, the officer found Smith’s identification and
new merchandise, including cosmetics, shoes, batteries, and hygiene products.

       Pharmacy staff reported defendant and Smith had entered the store three hours
earlier. Defendant would make a purchase and return the item for a refund. Staff found
empty product packaging around the store since the pair had entered the store. When
confronted by the manager, Smith emptied her purse and several items of merchandise
from the store were found totaling $758.

                                      DISCUSSION

1.0    Ineffective Assistance of Trial Counsel

       Defendant contends defense counsel rendered ineffective assistance in failing to
object to two of the four factors the trial court found in aggravation to impose the upper
term. We reject this contention.

       1.1    Background

       A probation report summarized defendant’s criminal history, which included
juvenile adjudications for grand theft (2004), first degree burglary (2006), and
misrepresenting himself as a peace officer (2007). As an adult, defendant was convicted
of receiving stolen property (2008) and violating a protective order, a misdemeanor
(2012). Defendant had served a prior prison term in 2011, and had numerous violations
of probation, parole, and PRCS. The probation officer recommended the upper term of
seven years, citing no mitigating factors. In aggravation, the probation officer concluded
the manner in which the offense was carried out indicated planning and sophistication,
defendant had served a prior prison term, and his performance on probation, parole, and
PRCS was unsatisfactory.

       At sentencing, the court announced that it planned to impose the upper term with
PRCS. The prosecutor objected to supervision in lieu of incarceration. Defense counsel


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requested supervision. Defense counsel argued that defendant’s offense was not
sophisticated but was committed for defendant’s personal use. Defense counsel sought
the midterm sentence, citing defendant’s minimal record and his acceptance into a
recovery program.

       In denying probation, the court concluded defendant was not eligible but even if
he were eligible, probation would be denied based on “[t]he nature, seriousness and
circumstances of this case; the prior record of criminal conduct indicates a pattern of
regular and increasingly serious criminal conduct; [and] [defendant’s] prior performance
on probation, . . . PRCS, and parole was unsuccessful.” In imposing the upper term, the
court found the factors in aggravation outweighed those in mitigation. In aggravation,
the court found the manner in which the crime was committed indicated planning and
sophistication and commented on defendant’s conduct of “carry[ing] around a butane
honey oil lab in the middle of a drought is highly, highly dangerous behavior.” The court
also cited defendant’s prior prison term and his unsatisfactory performance on PRCS. In
mitigation, the court noted that defendant had admitted wrongdoing at an early stage, that
defendant was willing to comply with the terms and conditions of probation, and that he
had been accepted into a recovery program for his marijuana addiction. Defense counsel
did not object to the court’s findings.

       1.2    Analysis

       Defendant contends defense counsel failed to object to two of the four findings as
not supported by the record, that is, that defendant’s record indicates a pattern of regular
and increasingly serious criminal conduct and that the manner in which the crime was
carried out indicates planning and sophistication.

       To establish ineffective assistance of counsel, defendant must demonstrate that
counsel rendered deficient performance, that is, it fell below an objective standard of
reasonableness under prevailing professional norms, and that defendant suffered

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prejudice as a result, that is, there is a reasonable probability that but for counsel’s
failings the result would have been more favorable to defendant. (Strickland v.
Washington (1984) 466 U.S. 668, 687-696 [80 L.Ed.2d 674]; People v. Samayoa (1997)
15 Cal.4th 795, 845.) “[T]he mere failure to object rarely rises to a level implicating
one’s constitutional right to effective legal counsel.” (People v. Boyette (2002)
29 Cal.4th 381, 433.)

       Here, the probation officer recommended the upper term, citing no factors in
mitigation and several in aggravation, and the court stated at the beginning of sentencing
that it intended to impose the upper term. Defense counsel sought the midterm, arguing
that defendant’s offense of carrying around a honey oil lab cooking purse was not
sophisticated and claimed defendant was making it for his personal use. Defense counsel
argued that defendant had a minimal record, noting defendant had only one prior felony
conviction and one prior misdemeanor conviction. The trial court disagreed and found
otherwise. Defense counsel made his record. Defendant has failed to demonstrate that
counsel’s performance was deficient.

       Further, defendant has failed to demonstrate prejudice. The trial court found
defendant had served a prior prison term and his performance on PRCS was
unsatisfactory, each a separate independent aggravating factor. (Cal. Rules of Court,
rules 4.420(b), 4.421(b)(3), (4).) Defendant does not challenge these factors. A single
aggravating factor supports the court’s choice to impose the upper term. (People v.
Osband (1996) 13 Cal.4th 622, 728.) We conclude that defendant has failed to
demonstrate a reasonable likelihood of a more favorable outcome had counsel objected.

2.0    Special Condition No. 65 of Mandatory Supervision

       As a condition of mandatory supervision, the court imposed special condition
No. 65, which states: “The defendant shall be required to make available for inspection,
including providing passwords or unlock codes, any data storage device, including

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cellular telephones and computers, and any network applications associated with those
devices, including social media and remote storage services. All said devices are subject
to search by any peace officer upon request.” Defense counsel did not object.

       Defendant challenges the condition as unconstitutionally overbroad, impinging on
his rights to privacy and free speech, and invalid under People v. Lent (1975) 15 Cal.3d
481, 486 (Lent). He argues the condition should be stricken. The People respond that
defendant’s challenge is forfeited for failure to object to the condition in the trial court.
We agree with the People.

       Lent held that “[a] condition of probation 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 reasonably
related to future criminality . . . .’ ” (Lent, supra, 15 Cal.3d at p. 486.) The failure to
object to a probation condition on Lent grounds in the trial court forfeits the claim on
appeal. (People v. McCullough (2013) 56 Cal.4th 589, 594 (McCullough); see also
People v. Scott (1994) 9 Cal.4th 331, 355; People v. Welch (1993) 5 Cal.4th 228, 234-
235, 237.) Defendant’s challenge to special condition No. 65 on Lent grounds is
forfeited.

       Any “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.” (In re Sheena K. (2007) 40 Cal.4th 875,
890 (Sheena K.).) A constitutional right may be forfeited as well by failing to timely
object. (McCullough, supra, 56 Cal.4th at p. 593; Sheena K., at p. 889.) “Scott and
Welch also distinguished between an alleged factual error that had necessarily not been
addressed below or developed in the record because the defendant failed to object, and a
claimed legal error, which ‘can be resolved without reference to the particular sentencing
record developed in the trial court.’ [Citation.] We observed that we may review an


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asserted legal error in sentencing for the first time on appeal where we would not review
an asserted factual error. [Citation.] In the case of an asserted legal error, ‘[a]ppellate
courts are willing to intervene in the first instance because such error is “clear and
correctable” independent of any factual issues presented by the record at sentencing.’ ”
(McCullough, supra, 56 Cal.4th at p. 594.)

       Defendant asserts his constitutional claim is a question of law and is not forfeited
for failure to object. Defendant argues “even when resolving constitutional challenges
that present questions of law, . . . the court may consider the facts of the case to
distinguish applicable law from inapplicable law [which] does not turn a question of law
into a question of fact.”

       Defendant misplaces his reliance upon In re Malik J. (2015) 240 Cal.App.4th 896
and In re Erica R. (2015) 240 Cal.App.4th 907; the minor’s attorney in both cases
objected in the juvenile court to the particular probation condition challenged on appeal.
(Malik J., at p. 900; Erica R., at p. 910.)

       Defendant also misplaces his reliance upon People v. Martinez (2014)
226 Cal.App.4th 759 and In re Patrick F. (2015) 242 Cal.App.4th 104. Patrick F. was
granted review after briefing in this case and is no longer citable (review granted Feb. 17,
2016, S231428). Martinez stated that a challenge to a probation condition as overbroad
presents a question of law and that “failure to object below that a condition is
unconstitutionally overbroad does not forfeit review of the issue on appeal.” (Martinez,
supra, 226 Cal.App.4th at pp. 765-766.) Martinez cited Sheena K. for this latter
proposition but Martinez failed to discuss Sheena K.’s recognition that the failure to
object forfeits the issue as to whether the condition is unconstitutionally overbroad when
it cannot be resolved “ ‘without reference to the particular sentencing record developed in
the trial court.’ ” (Sheena K., supra, 40 Cal.4th at p. 889.)



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       Defendant argues that compared to Malik J., “there is even less of a connection
between the offense and the condition” and that in Malik J. “there was at least evidence
that the minor’s robberies involved cell phones.” Defendant claims his crime “has
nothing to do with electronic devices, social media, computers, or electronic data.”
Defendant’s reliance upon specific facts refutes his claim that the issue is purely a
question of law. (See People v. Kendrick (2014) 226 Cal.App.4th 769, 776-778.) We
conclude that defendant’s constitutional challenge to special condition No. 65 is forfeited
as well.

3.0    No-contact Condition of Supervised Release

       The probation officer recommended and the court imposed special condition of
supervised release No. 14, which provides: “Do not in any way, personally or through
any third party, contact or communicate with [codefendant] BRANDI ANN SMITH.”
Defense counsel did not object.

       Defendant contends the condition is unconstitutionally overbroad, unduly
infringing upon his First Amendment right to freedom of association, and must be
modified. The People respond that defendant’s constitutional challenge has been
forfeited because it depends on the facts in the record and does not represent a facial
challenge. We agree with the People.

       “A limitation on the right to associate which takes the form of a probation
condition is permissible if it is ‘(1) primarily designed to meet the ends of rehabilitation
and protection of the public and (2) reasonably related to such ends.’ ” (People v. Lopez
(1998) 66 Cal.App.4th 615, 628.) “ ‘[R]estriction of the right of association is part of the
nature of the criminal process.’ [Citation.] Thus, ‘freedom of association may be
restricted if reasonably necessary to accomplish the essential needs of the state.’
[Citation.] Where a defendant is convicted of drug possession and admits drug use, a



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condition of probation that the defendant not associate with other admitted and suspected
users is valid.” (People v. Peck (1996) 52 Cal.App.4th 351, 363.)

       At sentencing, defendant did not object when the no-contact condition was
imposed. On appeal, defendant claims that there was nothing suggesting Smith was
involved in or knew of the honey oil. Defendant also claims he had an intimate
relationship with Smith and the condition unduly impinges on his right to marry.

       Defendant’s claim of asserted error is not a facial challenge and cannot be
resolved without reference to the record below. We conclude that defendant’s belated
challenge to the no-contact condition is forfeited.

                                      DISPOSITION

       The judgment is affirmed.




                                                       BUTZ                  , J.



We concur:



      HULL                  , Acting P. J.



      DUARTE                , J.




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