People v. Brand

Filed 1/11/21

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D076621

Plaintiff and Respondent,

v. (Super. Ct. No. SCE391532)

LARRY BRAND,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,

Evan P. Kirvin, Judge. Affirmed.

Bruce L. Kotler, under appointment by the Court of Appeal, for

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant

Attorney General, Julie L. Garland, Assistant Attorney General, Eric A.

Swenson and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and

Respondent.

A jury convicted Larry Brand of one count of possessing metal knuckles

(Pen. Code, § 21810), one count of misdemeanor possession of heroin (Health

& Saf. Code, § 11350), and one count of misdemeanor possession of

methamphetamine (id., § 11377). The trial court imposed a split sentence of

two years in local custody, and one year of mandatory supervision.

Brand challenges three of the conditions of mandatory supervision

ordered by the trial court: (1) the condition requiring that he submit to a

search of his computers, recordable media, and cell phones; (2) the condition

that he report his contacts with law enforcement; and (3) the condition

requiring him to comply with a curfew if directed by his probation officer.

We conclude that Brand’s challenges lack merit, and we accordingly

affirm the judgment.

I.

FACTUAL AND PROCEDURAL BACKGROUND

On May 29, 2019, in connection with a traffic stop, a police officer

conducted a search of Brand and his vehicle. In several different locations on

Brand’s person and in the vehicle, the officer discovered, in total,

approximately 77 grams of methamphetamine and 14 grams of heroin.

Brand had almost $1,000 in cash in his pockets, and there was a digital scale

in the vehicle, along with metal knuckles. Two cell phones were found in the

vehicle. In the data that could be accessed, no evidence of narcotic sales was

found on either of the phones.

Brand was charged with two counts of transportation of a controlled

substance for sale (Health & Saf. Code, §§ 11379, subd. (a), 11352, subd. (a)),

two counts of possession of a controlled substance for sale (id., §§ 11378,

11351), and one count of possession of metal knuckles (Pen. Code, § 21810).

It was also alleged that Brand incurred two prison priors. (Former Pen.

Code, § 667.5, subd. (b).)

At trial, an expert called by the People opined that, based on the

totality of the circumstances, Brand possessed the drugs for sale. An expert

called by the defense, in contrast, opined that it was reasonable to conclude

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that Brand possessed the drugs solely for his own consumption, instead of for

sale.

The jury found Brand guilty of possessing metal knuckles, but for the

drug-related charges, Brand was found guilty only of two lesser included

misdemeanor offenses: possession of methamphetamine and possession of

heroin. Brand admitted his two prison priors.

At a sentencing hearing held September 23, 2019, the trial court

sentenced Brand to five years in local custody, with a split sentence allowing

one year to be served on mandatory supervision. The sentence included two

one-year terms for the prison priors. The trial court specifically imposed the

conditions of mandatory supervision contained in the probation officer’s

report, which included each of the conditions at issue in this appeal.

After Senate Bill No. 136 was enacted, amending Penal Code section 667.5,

subdivision (b), to limit one-year prior prison term enhancements to prior

prison terms based on sexually violent offenses (Stats. 2019, ch. 590, § 1), the

trial court recalled Brand’s sentence. At a December 6, 2019 hearing, the

trial court dismissed the two prison priors, and it resentenced Brand. The

trial court imposed a sentence of three years in local custody, with a split

sentence allowing one year to be served on mandatory supervision. The trial

court stated that it was reimposing the same sentencing orders and

judgments as at the original sentencing hearing. Defense counsel made no

objection to any of the conditions of mandatory supervision. The trial court

subsequently issued a written order granting mandatory supervision, which

included the same conditions as imposed at the original sentencing hearing.

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II.

DISCUSSION

A. The Challenged Conditions of Supervision

Brand challenges three of the conditions of mandatory supervision

imposed by the trial court: conditions 1.d, 1.j, and 1.m. All three conditions

are standard conditions that appear on the form used by the San Diego

County Superior Court.

Condition 1.d states that Brand shall “[c]omply with a curfew if so

directed by the [probation officer]” (the curfew condition). Condition 1.j states

that Brand shall “[p]rovide true name, address, and date of birth if contacted

by law enforcement. Report contact or arrest in writing to the [probation

officer] within 7 days. Include the date of contact/arrest, charges, if any, and

the name of the law enforcement agency” (the report-contact condition).

Condition 1.m states that Brand shall “[s]ubmit person, vehicle, residence,

property, personal effects, computers, and recordable media, [and] cell phone

to search at any time with or without a warrant, and with or without

reasonable cause, when required by [probation officer] or law enforcement

officer.” With respect to this condition, Brand challenges only the provisions

relating to his electronic devices, namely, “computers, and recordable media,

[and] cell phone” (the electronics search condition).

B. Applicable Legal Standards

When a defendant serves a period of mandatory supervision, “the

defendant shall be supervised by the county probation officer in accordance

with the terms, conditions, and procedures generally applicable to persons

placed on probation.” (Pen. Code, § 1170, subd. (h)(5)(B).) Courts generally

have “broad discretion in fashioning terms of supervised release, in order to

foster the reformation and rehabilitation of the offender, while protecting

public safety.” (People v. Martinez (2014) 226 Cal.App.4th 759, 764

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(Martinez).) A condition of mandatory supervision may be challenged on the

same grounds as a condition of parole, which in turn, may be challenged

based on the same standards as developed for challenging probation

conditions. (Id. at pp. 763-764.)

A condition of mandatory supervision may be challenged on state-law

grounds pursuant to the standards set forth in People v. Lent (1975) 15

Cal.3d 481, 486 (Lent). (Martinez, supra, 226 Cal.App.4th at p. 764.)

Under Lent, a court abuses its discretion when it imposes a term or condition

that “ ‘(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, at p. 486.) “This test is conjunctive—all three prongs

must be satisfied before a reviewing court will invalidate a . . . term.” (People

v. Olguin (2008) 45 Cal.4th 375, 379.) A trial court’s application of the Lent

test is reviewed for abuse of discretion. (Ibid.)

A condition of mandatory supervision may also be challenged on

constitutional grounds, including principles prohibiting vagueness and

overbreadth. “A probation condition ‘must be sufficiently precise for the

probationer to know what is required of him, and for the court to determine

whether the condition has been violated,’ if it is to withstand a challenge on

the ground of vagueness. [Citation.] A 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).) When a condition of mandatory supervision is challenged on

constitutional grounds, we apply a de novo standard of review. (Martinez,

supra, 226 Cal.App.4th at p. 765.)

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Challenges to conditions of mandatory supervision ordinarily must be

raised in the trial court, and if they are not, appellate review of those

conditions is forfeited. (See People v. Welch (1993) 5 Cal.4th 228, 234-235.)

The one exception to this rule involves facial constitutional challenges.

(Sheena K., supra, 40 Cal.4th at pp. 887-889.) The forfeiture rule does not

apply in such a case because a facial constitutional challenge “ ‘present[s] [a]

“pure question[ ] of law that can be resolved without reference to the

particular sentencing record developed in the trial court” ’ ” (id. at p. 889) and

“does not require scrutiny of individual facts and circumstances but instead

requires the review of abstract and generalized legal concepts—a task that is

well suited to the role of an appellate court.” (Id. at p. 885.)

C. Brand Has Forfeited Challenges to Two of the Three Conditions of

Mandatory Supervision

As we have explained, defense counsel made no objection to any of the

conditions of mandatory supervision. The challenges are accordingly

forfeited unless they are facial constitutional challenges that do not require

scrutiny of the individual facts and circumstances of Brand’s case. (Sheena

K., supra, 40 Cal.4th at pp. 887-889.)

Apparently recognizing that his challenges may be subject to forfeiture,

Brand does not assert any state-law challenge based on the requirements set

forth in Lent. (Lent, supra, 15 Cal.3d at p. 486.) Instead, Brand argues that

the three conditions of mandatory supervision he has identified are invalid on

constitutional grounds. Brand further contends that he asserts facial

constitutional challenges that are therefore not subject to the forfeiture rule.

As we will explain, two of Brand’s three challenges are not facial challenges,

but instead depend on the specific facts of Brand’s case. Accordingly, those

two challenges are as-applied challenges, which are forfeited.

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First, Brand challenges the curfew condition, arguing that it is

constitutionally overbroad. However, Brand’s overbreadth argument focuses

on the specific facts of his case. Brand argues, “The incident occurred in

broad daylight at 11:45 a.m. And, there is nothing in the record indicating

appellant is more prone to commit crimes at night, or that a curfew is

required to supervise him.” Because Brand bases his constitutional challenge

on the specific facts of his case, it is not a facial challenge. It is therefore

forfeited because it was not raised in the trial court. (Sheena K., supra, 40

Cal.4th at pp. 887-889.)

Second, Brand’s constitutional challenge to the electronics search

condition is also based on an overbreadth theory. Brand argues, “This is a

simple no-tech drug and weapon possession case. . . . Appellant’s crime has

nothing to do with any use of computers; and, there is nothing in the record

to suggest that there is a compelling state interest in being able to search

appellant’s computers or recordable media in order to supervise him for

simple possession of drugs and having a pair of metal knuckles.” As this

argument establishes, Brand’s challenge is not based on facial constitutional

grounds, but instead depends on the facts of his case. The challenge is

accordingly forfeited.

Brand’s third challenge is to the report-contact condition. Specifically,

Brand argues that the report-contact condition is vague and overbroad

because “[a]s written, the terms include any unqualified and undefined

contact with law enforcement, imposing an undue burden on him. It might

reasonably be seen as including insignificant and completely lawful conduct

that should not be the source of a violation, including consensual encounters.”

As the People concede, this challenge does not depend on the specific facts of

Brand’s case, and is accordingly a facial constitutional challenge that is not

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forfeited by Brand’s failure to raise it in the trial court. (See In re I.V. (2017)

11 Cal.App.5th 249, 261 (I.V.) [when appellant argued that the word

“property” in a search condition was unconstitutionally vague, the challenge

was not subject to forfeiture because it could be addressed without examining

the record].)

In light of Brand’s forfeiture of his challenge to the curfew condition

and the electronics search condition, we will limit our analysis to the merits

of Brand’s challenge to the report-contact condition.

D. The Report-Contact Condition Is Not Unconstitutionally Vague or

Overbroad

The report-contact condition states that Brand shall “[p]rovide true

name, address, and date of birth if contacted by law enforcement. Report

contact or arrest in writing to the [probation officer] within 7 days. Include

the date of contact/arrest, charges, if any, and the name of the law

enforcement agency.”

According to Brand, this condition is unconstitutionally vague because

it is not “ ‘sufficiently precise for the [defendant] to know what is required of

him, and for the court to determine whether the condition has been

violated.’ ” (Sheena K., supra, 40 Cal.4th at p. 890.) As Brand argues, the

condition is not clear as to what type of contact with law enforcement he

must report. Brand points out that he “may have positive and neutral

contacts with law enforcement as he goes about his daily life. He could have

friends and neighbors who are law enforcement personnel.” According to

Brand, in light of these neutral types of law enforcement contact, “one is left

guessing as to whether the term ‘contacted’ or ‘contact’ include[s] all types of

contact or only certain types.”

Brand also argues that if the condition is interpreted to cover any type

of contact with law enforcement, it is also unconstitutionally overbroad

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because it places an undue burden on him by requiring him to report law

enforcement contact that is “innocent and inconsequential.” He argues that

the condition is unconstitutionally overbroad because, although it serves no

purpose to require him to report innocent contact with law enforcement, he

might forego his constitutional right to associate and to travel in an attempt

to avoid the burden of reporting innocent law enforcement contact. In that

case, the report-contact condition would violate the rule that “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.” (Sheena K., supra, 40 Cal.4th at p. 890.)

Brand relies on People v. Relkin (2016) 6 Cal.App.5th 1188 (Relkin) in

support of his argument. Relkin considered a condition of mandatory

supervision that required the defendant “to ‘report to the probation officer, no

later than the next working day, any arrests or any contacts with or incidents

involving any peace officer.’ ” (Id. at p. 1196.) The defendant argued that the

phrases “ ‘contacts with’ and ‘incidents involving’ peace officers are uncertain

because one cannot determine whether those terms include occasional

conversation[s] with a police officer who lives down the street, answering an

officer’s questions as a witness to a crime, or participation in a demonstration

where officers are present.” (Id. at pp. 1196–1197.) The defendant also

contended that “the condition is vague because it is subject to the ‘ “whim of

any police or probation officer,” ’ and unconstitutionally infringes on his

rights under the First Amendment of the United States Constitution.”

(Id. at p. 1197.)

Relkin concluded that the condition was unconstitutionally vague and

overbroad. As Relkin explained, “[T]he portion of the condition requiring that

defendant report ‘any contacts with . . . any peace officer’ is vague and

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overbroad and does indeed leave one to guess what sorts of events and

interactions qualify as reportable. We disagree with the People’s argument

that the condition is clearly not triggered when defendant says ‘hello’ to a

police officer or attends an event at which police officers are present, but

would be triggered if defendant were interviewed as a witness to a crime or if

his ‘lifestyle were such that he is present when criminal activity occurs.’ The

language does not delineate between such occurrences and thus casts an

excessively broad net over what would otherwise be activity not worthy of

reporting.” (Relkin, supra, 6 Cal.App.5th at p. 1197.)

In reviewing a condition of mandatory supervision to determine if it is

vague or overbroad, we must assign “ ‘ “the meaning that would appear to a

reasonable, objective reader” ’ ” when presented with the condition. (I.V.,

supra, 11 Cal.App.5th at p. 261.) Applying this standard, we do not find

Relkin to be controlling because, as we will explain, the language of the

report-contact condition in this case is different from the condition found to

be vague and overbroad in Relkin.

The condition of mandatory supervision in Relkin required that the

defendant “ ‘report to the probation officer, no later than the next working

day, any arrests or any contacts with or incidents involving any peace

officer.’ ” (Relkin, supra, 6 Cal.App.5th at p. 1196, italics added.) In contrast,

the report-contact condition that applies to Brand is more specific. Unlike

the single phrase in Relkin, the report-contact condition here consists of three

sentences. It requires that Brand shall “[p]rovide true name, address, and

date of birth if contacted by law enforcement. Report contact or arrest in

writing to the [probation officer] within 7 days. Include the date of

contact/arrest, charges, if any, and the name of the law enforcement agency.”

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Taking the first and second sentences together, a reasonably objective

person would conclude that Brand is required to report only those contacts in

which a law enforcement officer requests identifying information from Brand.

This meaning arises because the requirement that Brand “[r]eport contact or

arrest in writing to the [probation officer] within 7 days” directly follows the

statement that Brand must “[p]rovide true name, address, and date of birth if

contacted by law enforcement.” When read together, these two sentences

make clear to a reasonable reader that the law enforcement contact that

Brand must report is any contact in which Brand is required to provide his

name, address, and date of birth to law enforcement. Further, because the

last sentence of the report-contact condition provides that Brand must

“[i]nclude the date of contact/arrest, charges, if any, and the name of the law

enforcement agency,” a reasonable person would understand that Brand does

not have to report contact with a law enforcement officer that is not

meaningful enough for the officer to provide Brand with information about

the relevant law enforcement agency.

In sum, the report-contact condition, when read in its entirety, would

indicate to a reasonable person that Brand is not required to report casual,

random interactions with law enforcement officers. Instead, the type of law

enforcement contacts that must be reported are those in which Brand is

questioned by law enforcement officers and is required to give identifying

information, such as when he has been a witness to a crime or is suspected of

possible involvement in a crime. Accordingly, we reject Brand’s contention

that the report-contact condition is unconstitutionally vague and overbroad.

E. Brand Has Not Met His Burden to Establish Ineffective Assistance of

Counsel on Direct Appeal

In the event we conclude some of his appellate challenges to the

conditions of mandatory supervision are forfeited, Brand argues that defense

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counsel was ineffective for failing to raise objections to the conditions in the

trial court. Because we have concluded that Brand’s challenges to the curfew

condition and the electronics search condition have been forfeited, Brand’s

ineffective assistance of counsel argument applies to defense counsel’s failure

to object to those conditions.

A criminal defendant is constitutionally entitled to effective assistance

of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v.

Washington (1984) 466 U.S. 668, 684-685; People v. Doolin (2009) 45 Cal.4th

390, 417.) To establish ineffective assistance, “the defendant must first show

counsel’s performance was deficient, in that it fell below an objective

standard of reasonableness under prevailing professional norms. Second, the

defendant must show resulting prejudice, i.e., a reasonable probability that,

but for counsel’s deficient performance, the outcome of the proceeding would

have been different.” (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).)

An ineffective assistance of counsel claim fails if the defendant makes an

insufficient showing on either one of these components. (Strickland, at p.

687.) “It is defendant’s burden to demonstrate the inadequacy of trial

counsel.” (People v. Lucas (1995) 12 Cal.4th 415, 436.)

“It is particularly difficult to prevail on an appellate claim of ineffective

assistance. On direct appeal, a conviction will be reversed for ineffective

assistance only if (1) the record affirmatively discloses counsel had no

rational tactical purpose for the challenged act or omission, (2) counsel was

asked for a reason and failed to provide one, or (3) there simply could be no

satisfactory explanation. All other claims of ineffective assistance are more

appropriately resolved in a habeas corpus proceeding.” (Mai, supra, 57

Cal.4th at p. 1009.)

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In this case, defense counsel failed to object to the curfew condition and

the electronics search condition. Brand contends that under In re Ricardo P.

(2019) 7 Cal.5th 1113 (Ricardo P.), which was issued prior to both of Brand’s

sentencing hearings, a competent attorney would have argued that the

electronics search condition should not be applied under the test set forth in

Lent, supra, 15 Cal.3d at page 486, and that it was constitutionally

overbroad. 1 Brand also contends that a competent attorney would have cited

People v. Nassetta (2016) 3 Cal.App.5th 699 (Nassetta), to argue against

application of the curfew condition. 2

To prevail on his claim of ineffective assistance of counsel on direct

appeal, Brand must show that defense counsel “had no rational tactical

purpose for the challenged act or omission.” (Mai, supra, 57 Cal.4th at p.

1009.) Brand does not meet this burden because the record reveals a sound

tactical reason for defense counsel to have decided against objecting to any of

the conditions of mandatory supervision. Specifically, at the December 6,

2019 sentencing hearing, the court stated that its tentative decision was to

impose a split sentence of two years in custody and one year on mandatory

supervision. Defense counsel advocated for a different split sentence, with

1 In Ricardo P., applying the Lent test, our Supreme Court held that an

electronics search condition of probation was improperly applied to a juvenile

who admitted two counts of felony burglary. (Ricardo P., supra, 7 Cal.5th at

pp. 1116-1117, 1128-1129.) The Supreme Court concluded that under the

specific facts presented, “the burden [the electronics search condition]

imposes on [the juvenile’s] privacy is substantially disproportionate to the

countervailing interests of furthering his rehabilitation and protecting

society.” (Id. at p. 1119.)

2 Nassetta held that a curfew from 10:00 p.m. to 6:00 a.m. was not a valid

probation condition under Lent for the defendant’s conviction of driving under

the influence and possession of a controlled substance for sale at 2:15 a.m.

(Nassetta, supra, 3 Cal.App.5th at pp. 701, 707.)

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only one year in custody and two years on mandatory supervision. Defense

counsel reasonably could have concluded that the court would be more likely

to agree to the request if the court believed Brand would be subject to a

robust set of mandatory supervision conditions. Defense counsel accordingly

could have made a reasonable tactical decision to forego any challenge to the

conditions of mandatory supervision in order to have a better chance of

convincing the court to grant two years, rather than one year, of mandatory

supervision.

Because defense counsel could have had a reasonable tactical basis for

failing to object to the curfew condition and the electronics search condition,

Brand has not succeeded in establishing that he received ineffective

assistance of counsel.

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

GUERRERO, J.

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