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People v. Patton

California Court of Appeals, Fourth District, First Division

November 6, 2019

THE PEOPLE, Plaintiff and Respondent,
KAYVON PATTON, Defendant and Appellant.

          APPEAL from a judgment of the Superior Court of San Diego County No. SCD275677, 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.

          DATO, J.

         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 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.


         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."

         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.


         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 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 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 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 ...

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