California Court of Appeals, Fourth District, First Division
from a judgment of the Superior Court of San Diego County No.
SCD275677, Polly H. Shamoon, Judge. Affirmed.
Ann Rose, under appointment by the Court of Appeal, for
Defendant and Appellant.
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
Kayvon Patton pleaded guilty to grand theft of personal
property (Pen. Code, § 487, subd. (a)) 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
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
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 plea and do not affect the plea's validity" and
required no certificate. (Cal. Rules of Court, rule
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
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.
AND PROCEDURAL BACKGROUND
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.
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. 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.
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."
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.
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.
Failure to Obtain a Certificate of Probable Cause
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 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.
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.
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 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.
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 attempting to appeal
sentencing issues left unresolved by the particular plea
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 ...