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People v. Smith

California Court of Appeals, Sixth District

February 17, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
DANIEL SMITH, Defendant and Appellant.

         Santa Clara County No. C1498805 Superior Court Trial Judge: Honorable Javier Alcala

          Attorney for Defendant and Appellant: Sidney Sue Hollar Under Appointment by the Sixth District Appellate Program

          Attorneys for Plaintiff and Respondent: Kamala D. Harris Attorney General of California Gerald A. Engler Chief Assistant Attorney General, Jeffrey M. Laurence Senior Assistant Attorney General, Catherine A. Rivlin Supervising Deputy Attorney General, Laurence K. Sullivan Supervising Deputy Attorney General

          MIHARA, J.

         Defendant Daniel Smith pleaded no contest to attempted possession of a controlled substance for sale (Pen. Code, § 664; Health & Saf. Code, § 11378). The trial court placed him on probation for three years with numerous conditions and ordered him to register as a narcotics offender under Health and Safety Code section 11590.[1] Defendant contends that section 11590 does not permit a court to require narcotics offender registration where the conviction was for an attempted, rather than completed, violation of section 11378. He also challenges as unreasonable, vague, and overbroad a probation condition requiring him to submit his cell phones and computer to search and to provide any passwords necessary to conduct such a search. We hold that section 11590 applies to attempts and reject defendant's challenges to the probation condition.

         I. Background

         Defendant and another man went to a drug dealer's home for the purpose of purchasing a quarter-pound of methamphetamine.[2] Defendant was carrying two cell phones, a large knife in a concealed sheath, another knife in a pocket, and $1, 300 in cash. They were apprehended by law enforcement before they could enter the dealer's home. Defendant admitted that he had intended to use the $1, 300 to purchase a quarter-pound of methamphetamine. He said that he was a methamphetamine user who was acting as a middleman for a third party. The third party was going to repay him and give him some money and methamphetamine for his help in obtaining the quarter-pound of methamphetamine. Defendant disclaimed ownership of one of the two cell phones seized from his person and did not provide a password or open that phone. He permitted law enforcement to search the other phone, and “messages consistent with drugs sales” were found on it.

         Defendant was charged by felony complaint with attempted possession of a controlled substance for sale. He pleaded no contest after the court gave an indicated sentence of a grant of probation conditioned on “60 days county jail to be served on the Weekend Work Program.” Defendant had no prior criminal record. The court suspended imposition of sentence and placed defendant on probation. Over defendant's trial counsel's objection, the court, citing People v. Crowles (1993) 20 Cal.App.4th 114 (Crowles), ordered defendant to register as a narcotics offender under section 11590. One of the probation conditions imposed by the trial court was the following: “Submit your person, residence, and all property under your control to, and including cell phones and computers, to a search without the necessity of a warrant or probable cause whenever requested by any peace officer. That includes providing the passwords that [are necessary to] conduct the electronic searches.” Defendant's trial counsel objected to the requirement that defendant “provid[e] a password, ” although she did not otherwise object to the condition. The court overruled the objection and noted that “[i]n this case they were using their cell phones to communicate with the dealer.”

         II. Discussion

         A. Narcotics Registration

         Defendant contends that section 11590 does not permit a court to require narcotics offender registration where the conviction was for an attempted, rather than completed, violation of section 11378.

         Section 11590 provides: “(a) Except as provided in subdivisions (c) and (d), any person who is convicted in the State of California of any offense defined in Section 11350, 11351, 11351.5, 11352, 11353, 11353.5, 11353.7, 11354, 11355, 11357, 11358, 11359, 11360, 11361, 11363, 11366, 11366.5, 11366.6, 11368, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, 11383, or 11550, or subdivision (a) of Section 11377, or any person who is discharged or paroled from a penal institution where he or she was confined because of the commission of any such offense, or any person who is convicted in any other state of any offense which, if committed or attempted in this state, would have been punishable as one or more of the above-mentioned offenses, shall within 30 days of his or her coming into any county or city, or city and county in which he or she resides or is temporarily domiciled for that length of time, register with the chief of police of the city in which he or she resides or the sheriff of the county if he or she resides in an unincorporated area.” (§ 11590, subd. (a), italics added.)

         Defendant points out that section 11590 does not explicitly state that it applies to an attempt to commit one of the listed offenses. He acknowledges that the Fifth District Court of Appeal held in Crowles that section 11590 applies to an attempt to commit any of the listed offenses, but he asserts that Crowles was “wrongly decided.” We begin with an examination of the Fifth District's analysis in Crowles and then proceed to independently apply the rules of statutory construction to section 11590.

         Crowles was convicted of attempted possession of cocaine and ordered to register under section 11590. (Crowles, supra, 20 Cal.App.4th at p. 115.) Possession of cocaine (§ 11350) is one of the offenses listed in section 11590. On appeal, Crowles contended that section 11590 did not authorize the court to order him to register because the statute did not include attempts. (Crowles, at p. 116.) The Fifth District first noted that section 11590 “does mention attempts.” (Crowles, at p. 117.) “When addressing convictions in other jurisdictions, sister state or federal, the statute requires registration for those convicted of offenses which if ‘committed or attempted' in this state would constitute a violation of any of the enumerated offenses. (§ 11590, subds. (a) & (b).) As appellant points out, the literal wording of this provision does not encompass attempts to commit any of the listed offenses. Literally, the provision requires registration in California only if the attempt to commit the out-of-state offense would constitute one of the listed offenses. [¶] The literal interpretation urged by appellant, however, seems to lead nowhere. We cannot envision any case in which the attempt to commit some out-of-state crime could, if occurring in California, amount to the commission of some completed drug offense here. By definition, an attempt is a direct but ineffectual act done towards the commission of a crime. (Pen. Code, §§ 21, subd. (a), 664.) How can an act which is ineffectual in completing the foreign jurisdiction crime be sufficient to constitute a completed crime in California?[3] If there is such a possibility, it is not evident to us. Thus, if we adopt appellant's literal interpretation of the statute, we are concluding the Legislature's reference to attempts in section 11590 is itself ineffectual.” (Crowles, at pp. 117-118.) The Fifth District rejected Crowles's proposed “literal interpretation” of section 11590. “If section 11590 is given the literal construction urged by ...


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