Wednesday, August 16, 2017

The Text Messages, Criminal Harassment and the Sufficiency of the Evidence

This post examines an opinion from the Appeals Court of Massachusetts:  Commonwealth v. Villaneuva, 92 Mass. App. Ct. 1101 (2017). The court begins the opinion by explaining that
[f]ollowing a jury-waived trial, the defendant was convicted of criminal harassment pursuant to Massachusetts General Laws 265, § 43A(a), based on a series of text messages he sent over a two-hour period to the victim. On appeal, he claims that the evidence was insufficient to prove that he committed three separate acts of harassing conduct over a period of time, as required by the statute. For the reasons that follow, we affirm.
Commonwealth v. Villaneuva, supra.
The court goes on to explain that
[w]e recite the facts in the light most favorable to the Commonwealth.

See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). On January 1, 2014, the victim, whom we shall call Mary, met the defendant while shopping at a Walmart store in Fairhaven. The two engaged in some polite conversation. At a certain point, the defendant asked Mary if she had a boy friend and then requested her telephone number. Mary gave the defendant the number of her cellular telephone because she felt nervous. The defendant tried the number and Mary's telephone rang. He then asked Mary where she lived. She replied that she lived on Smith Street, but she did not give her full address. That night, the defendant telephoned Mary twice and sent her a number of text messages. Mary sent a text message in response to the telephone calls telling the defendant that she was with her family. She ignored the text messages.

The defendant and Mary had no further contact until January 13, 2014, when the defendant sent Mary the following text messages between 4:24 A.M. and 4:37 A.M.:

4:24 A.M.: `Hey u FAT FucKEN CUNT, when I see u, am fucken ur shitt upp.’
4:25 A.M.: `N when I see ur car, am settin it ON fire too BiTcH, lmfaooooo.’
4:27 A.M.: `Hey When u sit down, without a shirt n bra. Look DOWN at ur Rolls at ur belly n see how many u have, lmfaooo.’
4:28 A.M.: `How many, like 3. Lol, let me stop, cause I can't stop laughin tho.’
4:29 A.M.: `I feel bad for ur ass, cause I don't forgitt faces. So ill be seein u soon.’
4:33 A.M.: `So-yeah I work at a Fish House gittin paid $650.00 per week. N I have my own house by tha South End Beach. I think am doin better then u, with jus ljob tho u fucken CUNT.’
4:35 A.M.: `U must always Smell like FiSh when u wake up. Look at urself ur fat, ur not a model tho. Fat bitches r only good enough for stuffin thea mouth all tha tim with food n COCK too, lol.’
4:37 A.M.: `Peace n goodluck PuTA, lmfaoooo.’
Commonwealth v. Villaneuva, supra.
The court goes on to explain that
Mary did not read the messages until later that morning. At 6:10 A.M., she replied:

`You don't even know me!? I don't know you I don't even know your name! Don't threaten me. Your going to fuck me up and set my car on fire because I don't want to talk to a stranger? Wth is wrong with you? Just delete my number like I thought you did and leave me alone!?’
The defendant responded immediately by sending three more text messages between 6:11 A.M. and 6:13 A.M.:
6:11 A.M.: `Cunt.’
6:12 A.M.: `Smith st. Baby.’
6:13 A.M.: `Well why did u even give me ur numba for?, if am a stranger. U make no sense for a sexy white gurl tho.’
Then, at 6:15 A.M., the defendant sent Mary a photograph of a penis, after which Mary replied:
6:15 A.M.: `K one min your telling me I'm a fat cunt next your calling me sexy. I've never had someone I didn't know what so ever ask for my number so I said ok because I was nervous and I just got back with my bf. You just need to leave me alone I really don't want to be threatened at 4 in the morning.’
The defendant's last communication, also sent at 6:15 A.M., was a photograph of himself smiling.
Commonwealth v. Villaneuva, supra.
The Appeals Court goes on to explain that
Mary testified that she felt scared when she read the defendant's text messages. Due to her fear, she woke up her cousin, with whom she lived, and asked her to sleep with her. She alerted her mother and stepfather and reported the incidents to the police. For the following two months, Mary carried a knife for protection and arranged to have someone accompany her in and out of her house.
Commonwealth v. Villaneuva, supra.
Having explained how the prosecution arose, the Appeals Court took up the defendant’s argument that the evidence presented at trial was not sufficient to establish his guilt beyond a reasonable doubt.  Commonwealth v. Villaneuva, supra.
The Court began its analysis by explaining that
General Laws c. 265, § 43A(a), as amended by St. 2010, c. 92, § 10, prohibits `willfully and maliciously engag[ing] in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress.’ The defendant claims that his motion for a required finding of not guilty should have been allowed because the Commonwealth failed to prove that he engaged in a series of criminally harassing acts over a period of time. Instead, he claims, the evidence established one continuous act of criminal harassment. The Commonwealth asserts that each one of the thirteen text messages sent by the defendant constitutes a separate and distinct act of harassment.
Commonwealth v. Villaneuva, supra. The Appeals Court began its analysis of the arguments made by both sides to the prosecution by inserting this footnote after the sentence above in which Villaneuva argues that the prosecution had not proven that he engaged in a series of criminally harassing acts over a period of time:
Because the defendant challenges the sufficiency of the evidence on only one element of the offense, we need not address the evidence supporting the remaining elements. It suffices to note that the Commonwealth met its burden of proof on all of the statutory elements. Instead, he claims, the evidence established one continuous act of criminal harassment. The Commonwealth asserts that each one of the thirteen text messages sent by the defendant constitutes a separate and distinct act of harassment.
Commonwealth v. Villaneuva, supra.
The Appeals Court went on to explain that the
statute does not define the meaning of the words, `pattern of conduct or series of acts’ or `over a period of time.’ The Supreme Judicial Court has determined that the phrase, `pattern of conduct or series of acts,’ requires the Commonwealth to prove three or more incidents of harassment. See Commonwealth v. Welch, 444 Mass. 80, 89-90 (2005), overruled on another ground by O'Brien v. Borowski, 461 Mass. 415 (2012); Commonwealth v. McDonald, 462 Mass. 236, 240 (2012). In Commonwealth v. Valentin, 91 Mass. App. Ct. 515, 523 (2017), we interpreted the phrase, `over a period of time,’ to `simply denote[ ] the passage of time.’ We rejected the defendant's contention that his conviction of stalking in violation of a restraining order could not be sustained because each of the alleged acts occurred on the same day. Giving the words, `over the course of time,’ `their usual and accepted meanings,’ Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977), we `s[aw] no reason to require a particular interval of time between acts. As long as the acts are separate, distinct, and separated by some interval, they occur ‘over a period of time’ within the meaning of the statute.’ 
Commonwealth v. Villaneuva, supra.
The court then began the process of enunciating its ruling on the issues outlined above, explaining, initially, that
[w]e view the evidence and all reasonable inferences that may be drawn therefrom in the light most favorable to the Commonwealth, to determine whether `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ Commonwealth v. Latimore, 378 Mass. at 677-678.

Here, there was evidence that the defendant sent eight text messages within a span of thirteen minutes. The intervals between each message varied from one to four minutes. With respect to this group of messages, it is clear that each one was separated by `some interval,’ but not so clear that the messages are separate and distinct from each other. We need not resolve this issue, because it matters not whether we treat the first group of texts as one or eight incidents of harassing conduct.

As we have noted, Mary read the first group of text messages and replied to them about one and one-half hours after they were sent. Thereafter, the defendant sent three additional text messages, at least two of which qualify as harassing in nature. He then sent a photograph of a penis. When Mary again responded, the defendant sent a photograph of himself smiling.

Viewing this sequence in the light most favorable to the Commonwealth, the judge could have found beyond a reasonable doubt that the defendant engaged in at least four separate and distinct acts of harassment separated by some interval. Cf. Commonwealth v. Kulesa, 455 Mass. 447, 451 (2009) (`defendant's two telephone calls to the victim's sister’ on one afternoon were sufficient for two of three required acts).
            Judgment affirmed.
Commonwealth v. Villaneuva, supra.            

Monday, August 14, 2017

Aggravated Indecent Exposure, Probation and the Internet Restrictions

This post examines a recent decision from the Court of Appeals of Michigan: People v. Wilson, 2017 WL 3197681 (2017) (per curiam). The court begins the opinion by explaining that
Defendant appeals, by delayed leave granted, certain probation conditions imposed for her guilty plea conviction of aggravated indecent exposure, [Michigan Compiled Laws] 750.335a(2)(b). The trial court sentenced defendant to a five year term of probation, with the first nine months to be served in jail. The trial court imposed additional probation conditions upon defendant and required the payment of specific court costs and fees. We vacate the condition of the defendant's probation restricting her from owning, possessing, or using `any computer or any device capable of connecting to the [i]nternet[,] either directly or indirectly[,] through a third party provider or reside in any residence in which these are present.’ We also remand for a hearing on whether the internet restrictions are warranted and, if so, for the court to tailor those internet restrictions to conform to the purpose behind defendant's individualized order of probation. We affirm in all other respects.

Defendant, 24 years old when she entered her guilty plea, admitted that at some point between 2005 through 2010 (when she was between 14 and 19 years old) she exposed and fondled her breast in front of a young person. The trial court sentenced defendant to a five year probation which included as a condition of probation that defendant not `own, possess, or use any computer or any device capable of connecting to the [i]nternet[,] either directly or indirectly[,] through a third party provider or reside in any residence in which these are present’ unless she first obtains written permission from the field agent. Additionally, the trial court ordered defendant to pay $68 for `State Cost,’ $130 as a crime victim assessment fee, $300 in court costs, $600 as a supervision fee, and $400 as a county probation oversight fee.
People v. Wilson, supra.
The opinion goes on to explain that
[t]hereafter, defendant moved the trial court to correct an `invalid sentence.’ Defendant argued that the complete ban on computer and internet use was an unlawful, overbroad probation condition and was not rationally related to defendant's rehabilitation or the facts of the case. Defendant further sought to have the order for a $400 `county probation oversight fee’ vacated, contending that the trial court lacked the necessary statutory authorization to impose that assessment. The trial court denied defendant's motion. The trial court acknowledged that the computer ban seemed overbearing and was `excessive maybe on some levels,’ but opined that because the county apparently imposed the computer ban as a restriction on all individuals under their supervision for sex offenses, it was not going to `step on the toes of the legislation.’ The trial court further found that the $400 fee is supported through the county and that there was verification as to how the funds were to be used by the county. A panel of this Court denied defendant's delayed application for leave to appeal the above decision. People v. Wilson, unpublished order of the Court of Appeals, entered February 4, 2016 (Docket No. 330799). However, our Supreme Court, in lieu of granting defendant's application for leave to appeal the Court of Appeals' denial, remanded the cases to the Court of Appeals for consideration as on leave granted. People v. Wilson, 500 Mich. 928; 889 N.W.2d 249 (2017).
People v. Wilson, supra.
The Court of Appeals then took up the issue of the probation conditions, explaining that
[w]e review the trial court's decision to set terms of probation for an abuse of discretion. People v. Zujko, 282 Mich. App. 520, 521; 765 N.W.2d 897 (2008). A trial court abuses its discretion only when its decision falls outside the principled range of outcomes. People v. Malinowski, 301 Mich. App. 182, 185; 835 N.W.2d 468 (2013).

A sentencing judge is accorded wide discretion in setting conditions of probation. People v. Miller, 182 Mich. App. 711, 713; 452 N.W.2d 890 (1990). MCL 771.3(3) permits a court to `impose other lawful conditions of probation as the circumstances of the case require or warrant or as in its judgment are proper.’ Thus, only if the conditions are unlawful will the judge's determination be disturbed. Miller, 182 Mich. App. at 713. `While there is no ultimate catalog of legal or illegal terms, and the Legislature did not define what constitutes a ‘lawful’ term of probation, there must be a rational relationship between the restriction and rehabilitation.’ Id. (internal citations omitted).
People v. Wilson, supra.
The court goes on to explain that the
discretion given to the trial court to impose `other lawful conditions of probation’ is `obviously necessary to allow trial judges to tailor sentences to the differing circumstances of those convicted of crimes and to meet the requirement of individualized sentencing.’ People v. Peters, 191 Mich. App. 159, 165; 477 N.W.2d 479 (1991); Michigan Compiled Laws 771.3(3). According to this Court:

`To accomplish the purpose of [probation], an exceptional degree of flexibility in administration is essential. It is necessary to individualize each case, to give that careful, humane[,] and comprehensive consideration to the particular situation of each offender which would be possible only in the exercise of broad discretion. [Peters, 191 Mich. App. at 165, quoting Burns v. United States, 287 U.S.216, 220; 53 S.Ct. 154; 77 L.Ed. 266 (1932)].

`[E]ach judge must decide for himself whether there is a rational relationship between the restriction and rehabilitation.’ People v. Johnson, 92 Mich. App. 766, 768; 285 N.W.2d 453 (1979).’
People v. Wilson, supra.
The Court of Appeals went on to explain that the
challenged probation term restricted defendant from owning, possessing, or using `any computer or any device capable of connecting to the[i]nternet [,] either directly or indirectly[,] through a third party provider or reside in any residence in which these are present’ unless she first obtains written permission from the field agent. According to defendant's probation officer, Bruce Garchow, the condition was imposed on all individuals that are under supervision for sex offenses. Any universal probation condition defeats the aim of rehabilitation where it is not tailored to each individual's offense and rehabilitation. The victim in this matter reported various incidents of sexual assault by defendant, and included a statement that defendant showed him pornographic movies. While pornography can be accessed on the internet, the restriction failed to account for other legitimate, lawful and necessary use of a computer and the internet. Placing a total ban on one's ability to use a computer and the internet for five years, or to reside in any residence where a computer or the internet is present, could pose a significant barrier to a defendant's transition back into society. Moreover, such a broad restriction could prove unworkable in today's high-tech society where some jobs require online applications and even the most basic cell phones are “capable of connecting to the internet.”

In her brief on appeal, as she did before the trial court, defendant outlines several legitimate reasons to use the internet. Specifically, defendant desires to use the internet to research questions and issues related to the parenting of her recently born twins, job hunting, housing, and daycare, and to communicate with her fiancé and to allow her children to do so while he is on military duty. The trial court did not state any reason for the blanket restriction and the prosecution did not explain how the restriction might be related to defendant's rehabilitation. In fact, the trial court was troubled by the overbearing and the excessive nature of the condition, but declined to modify the restriction. A broad blanket restriction on the use of the internet and computers, without regard to a defendant's need for the resources and the state's interest in rehabilitation of the defendant is questionable, particularly when there was nothing to show that the restriction was lawfully and logically related to the nt's defendant's rehabilitation. Miller, 182 Mich. App. at 713; Peters, 191 Mich. App. at 164–165.
People v. Wilson, supra.
The court then goes on to point out that
[f]ederal appellate courts have addressed similar issues regarding computer and/or internet restrictions. For instance, in United States v. Sofsky, 287 F3d 122, 124 (U.S. Court of Appeals for the 2d Circuit 2002), the defendant pleaded guilty to receiving child pornography. A condition of his probation prohibited him from using a computer or the internet without the approval of his probation officer. Id. Quoting United States v. Peterson, 248 F3d 79, 83 (U.S. Court of Appeals for the 2d Circuit, 2001), the court noted that `”‘computers and Internet access have become virtually indispensable in the modern world of communications and information gathering,”’ and that ‘”although a defendant might use the telephone to commit fraud, this would not justify a condition of probation that includes an absolute bar on the use of telephones."' ofsky, 287 F3d at 126. The court vacated the condition and remanded for `entry of a more restricted condition.’ Id. at 127.

Similarly in United States v. Miller, 594 F3d 172 (U.S. Court of Appeals for the 3rd Circuit 2010), the third circuit vacated the trial court's probation condition imposing a lifetime limitation on internet use where the defendant was convicted of child pornography, holding that it was a greater restraint of liberty than is reasonably necessary and that `conditions restricting computer and internet usage for child pornography offenders . . . as they bear on tools that are essential in modern life for legitimate purposes of communication, commerce, and information-gathering, must be narrowly tailored according to the context of the particular offense.’
People v. Wilson, supra.

The Court of Appeals then began the process of articulating its ruling – its decision – in this case:
. . . [W]hile there was a mention at the motion hearing that the police report indicated that the pornography shared with the victim was accessed on the internet, this could not be gleaned from the PSIR or the victim's statement, which indicated only that he had been shown pornography, but did not indicate whether it was on the computer as opposed to a television. In any event, while these facts might provide some basis for a restriction, the trial court did not individualize or tailor the restriction in this case. Rather, the trial court imposed the condition because it was universal, while noting that it was `overbearing’ and `excessive on some levels.’ Given the broadness of the probation condition in this case and the failure to tailor it to defendant's rehabilitation, we vacate the condition and remand to the trial court for a hearing on whether the internet restrictions are warranted and, if so, for the trial court to tailor those internet restrictions to conform to the purpose behind defendant's individualized order of probation.

With respect to defendant's challenge to the $400 `county oversight fee,’ as unauthorized by statute, we note that issues of statutory interpretation are questions of law that we review de novoKoontz v. Ameritech Services, Inc., 466 Mich. 304, 309; 645 N.W.2d 34 (2002). `The right of the court to impose costs in a criminal case is statutory.’ People v. Cunningham, 496 Mich. 145,149; 852 N.W.2d 118 (2014), quoting People v. Wallace, 245 Mich. 310, 313; 222 NW 698 (1929). `Thus, courts may impose costs in criminal cases only where such costs are authorized by statute.’ Id. `[W]hen a criminal defendant is placed on probation, courts may require the probationer to pay expenses specifically incurred in prosecuting the defendant or providing legal assistance to the defendant and the supervision of the probationer.’ Id. (internal quotation marks omitted); Michigan Compiled Laws 771.3(5).
People v. Wilson, supra.
The Court of Appeals goes on to explain that
Michigan Compiled Laws 771.3(2)(c) provides that as a condition of probation, the court may require the probationer to pay costs pursuant to subsection (5). Subsection (5) provides: `If the court requires the probationer to pay costs under subsection (2), the costs shall be limited to expenses specifically incurred in prosecuting the defendant or providing legal assistance to the defendant and the supervision of the probationer.’

During the motion hearing, plaintiff explained that county probation oversight fees are used by the county to cover probation expenses like heat, light, and other utilities. Specifically, plaintiff stated that the statutory purpose for the fee was for the supervision of probationers. Additionally, probation officer Garchow explained that the probation oversight fee was a “standard” fee associated with all probationers, which “goes to cover the office supplies used in the supervision of probationers.” The oversight fee is thus authorized under Michigan Compiled Laws 771.3(2)(c) and (5) as an expense incurred in the supervision of a probationer and the trial court did not err in imposing the fee.
People v. Wilson, supra.
And the court concluded the opinion with these comments:
We vacate the condition of the defendant's probation restricting her from owning, possessing, or using `any computer or any device capable of connecting to the [i]nternet[,] either directly or indirectly[,] through a third party provider or reside in any residence in which these are present’ and remand to the trial court for a hearing on whether the internet restrictions are warranted and, if so, for the court to tailor those internet restrictions to conform to the purpose behind defendant's individualized order of probation. We affirm in all other respects. We do not retain jurisdiction.
People v. Wilson, supra.

Friday, August 11, 2017

The Emails, the Nolo Contendere Plea and Attorney Discipline

This post examines a recent opinion the Supreme Court of Georgia issued in an attorney discipline proceeding:  Matter of Spain, 2017 WL 2822453 (2017) (per curiam). The Court begins the opinion by explaining that
[t]his disciplinary matter is before the Court on the second petition for voluntary discipline filed by Respondent John Michael Spain (State Bar No. 668898) pursuant to Bar Rule 4-227 (b)(2); this Court rejected Spain's first petition for voluntary discipline. See In the Matter of Spain, 300 Ga. 641, 797 S.E.2d 452 (2017). As recited in our opinion on Spain's first petition,
In his petition, Spain, who became a member of the Georgia Bar in 1999, admits that he pled nolo contendere in the State Court of Fayette County, Georgia to one misdemeanor violation of Georgia Code § 16-5-90 (stalking), and one misdemeanor violation of Georgia Code § 16-11-39.1 (harassing communications). He was sentenced to one year of probation on each count to be served consecutively. He states that the charges to which he pled nolo contendere were based on numerous emails that he sent over an approximately two-day period to opposing counsel in a divorce case, in which he is the defendant, and that he was acting pro se at the time, although he has since retained counsel. Spain further admits that the emails included inappropriate threatening language, intimidation and personal attacks directed to opposing counsel, including inappropriate remarks about counsel and members of her family, and ad hominem statements about his wife.
Matter of Spain, supra.
The opinion goes on to explain that Spain
admitted that by virtue of his convictions he had violated Rule 8.4(a)(3) of the Georgia Rules of Professional Conduct, and sought as discipline a Review Panel or public reprimand; the maximum sanction for a violation of Rule 8.4(a)(3) is disbarment. This Court concluded that the suggested discipline of a reprimand, as requested by Spain and supported by the Bar, was insufficient in light of our prior case law on violations of Rule 8.4(a)(3) and rejected Spain's petition.
Matter of Spain, supra.
The Supreme Court goes on to explain that
[i]n the present petition, Spain states that he seeks a suspension of at least 30 days in duration but acknowledges that he would accept a longer suspension, or even disbarment. As in his prior petition,

Spain offers in mitigation that he has no prior disciplinary record and at the time of his misconduct he was suffering from personal and emotional problems related to his marriage, compounded by the divorce which, contrary to his expectations based on a prenuptial agreement, entailed substantial litigation for which his bankruptcy practice provided no helpful experience. Spain states that he has since retained an attorney to represent him in the divorce action and that he has sought professional help for these problems. In addition, he states that he acted in good faith to rectify the consequences of his conduct by entering nolo contendere pleas, and he has cooperated fully with the State Bar in bringing this matter to a voluntary resolution. Finally, he states that his misconduct did not involve his own practice or his own clients, he is deeply remorseful and recognizes that his conduct was contrary to his professional obligations and longstanding personal values, and he wishes that he could reverse his actions.
Matter of Spain, supra.
The Supreme Court goes on to explain that,
[h]owever, in the present petition and a subsequently filed brief in support, Spain elaborates that he seeks to have this Court consider his `actual conduct’ in relation to his fitness to practice law. In furtherance of that goal, Spain recounts the facts that led to the incident underlying his criminal convictions, but his presentation of facts consists mostly of an explanation of the reasons for his email tirade against the victim, rather than an assessment of his conduct.

For instance, Spain asserts in his petition that the victim of his email tirade—opposing counsel in his divorce—was `in violation of certain ethical rules relating to the practice of law,’ that the victim could have and should have provided a variety of testimony in support of his motion to enforce the couple's prenuptial agreement, and that he `hopes never to file a grievance against [the victim] because Petitioner does not believe even a successful grievance would ameliorate his own station in life.’ (emphasis added).

The first section of his supporting brief is given over to a similar, although even more detailed, recitation of the underlying facts. The brief then proceeds to a discussion of some authority, much of it from other states or from federal immigration proceedings, that bears on the question of whether his crimes of conviction constituted offenses involving moral turpitude. The brief ultimately concludes that no authority definitely resolves that question but that, nevertheless, his conduct should be punished under Rule 8.4(a)(3).

Matter of Spain, supra. If you click on the link above to Rule 8.4(a)(3), you will see that Rule 8.4(a)(3) says it is “a violation of the Georgia Rules of Professional Conduct for a lawyer to . . . be convicted of a misdemeanor involving moral turpitude where the underlying conduct relates to the lawyer's fitness to practice law”.
Matter of Spain, supra.
The court goes on to explain that
[i]n the Bar's response, it states that it supports Spain's petition, but believes that a suspension greater than Spain's suggestion of 30 days would be appropriate. The Bar's response reviews the case facts, with particular attention to the details of Spain's emails to the victim, discusses the general law regarding the establishing of a proper level of discipline, and notes that this Court's opinion rejecting Spain's prior petition clarified the range of permissible discipline when an attorney is convicted or found guilty of a crime in violation of Rule 8.4(a)(3). The Bar also notes that, although Spain stridently insists that he is deeply remorseful for his conduct and that he is throwing himself on the mercy of the Court, his filings before this Court focus largely on an attempt to explain the circumstances that led to his email tirade.

The Bar also recognizes that the manner in which Spain goes about this explanation may cause one reasonably to doubt the true extent of his remorse, including whether he considers himself the ultimate victim in all of this—possibly bringing into question the extent to which Spain's professed remorse should be taken in mitigation. The Bar's response does not otherwise contest Spain's asserted factors in mitigation, but does suggest in aggravation of discipline that Spain had a selfish motive in trying to extract a settlement in the divorce proceedings, that he has failed to completely accept responsibility for his conduct, and that he has considerable experience in the practice of law. Finally, the Bar notes that Spain's probation for the convictions that gave rise to this petition is scheduled to end on June 27, 2018, and suggests that a suspension that terminates at the conclusion of Spain's probation may be an appropriate sanction.
Matter of Spain, supra.
The Supreme Court then explains that,
[h]aving reviewed the record, we find that a one-year suspension with reinstatement conditioned upon proof of termination of probation is an appropriate level of discipline in this matter. See In the Matter of Williams, 284 Ga. 96, 663 S.E.2d 181 (2008); In the Matter of Paine, 280 Ga. 208, 210, 625 S.E.2d 768 (2006). Accordingly, Spain's petition for voluntary discipline is accepted and Spain is suspended from the practice of law in this State for one year from the date of this opinion, with his reinstatement conditioned upon acceptable proof, provided to the State Bar's Office of General Counsel, that his probation has been terminated. If the State Bar agrees that the condition has been met, it will submit a notice of compliance to this Court, and this Court will issue an order granting or denying reinstatement. Spain is reminded of his duties under Bar Rule 4-219(c).

Petition for voluntary discipline accepted. One year suspension with conditions for reinstatement.
Matter of Spain, supra.
The opinion goes on to explain that
[a]ll the Justices concur except Blackwell and Peterson, JJ., who concur in part and dissent in part.

Blackwell, Justice, concurring in part and dissenting in part.

I concur in the acceptance of the petition for voluntary discipline, but I am not convinced that a one-year suspension is necessary, and I dissent from the imposition of the suspension.

I am authorized to state that Justice Peterson joins this opinion.
Matter of Spain, supra.

Wednesday, August 09, 2017

The GPS Bicycle, Grand Theft and Formal Probation

This post examines a recent opinion from the California Court of Appeal – Fourth District:  People v. Lewis, 2017 WL 2591284 (2017).  The court begins the opinion by explaining that
Randall Lewis pleaded guilty to one count of grand theft of property with a value exceeding $950 (Pen. Code § 487, subd. (a); count 1). The court placed Lewis on three years of formal probation and imposed certain probation terms and conditions. The court committed Lewis to 90 days in county jail with 85 days of credit for time served.

On appeal, Lewis challenges two of the probation conditions. First, he contends the condition requiring him to obtain approval from the probation officer regarding his residence is unconstitutionally overbroad. Second, he contends the portion of the Fourth Amendment waiver condition permitting warrantless searches of `computers, and recordable media’ is unreasonable and constitutionally overbroad. We conclude Lewis forfeited his challenge to the residence approval condition and, even if he did not, the condition is not unconstitutional. We conclude the warrantless electronic search condition is valid under People v. Lent (1975) 15 Cal.3d 481, 486 (Lent ) and is not unconstitutionally overbroad. 
People v. Lewis, supra.
The Court of Appeal goes on to outline the “factual and procedural background” of this case, explaining that
Lewis took a bicycle, which a police officer had placed against a tree. Police officers observed Lewis take the bicycle, walk it around a building, and then ride the bicycle down the block. The officers stopped and arrested Lewis for theft. The bicycle was appraised at $4,300 based upon global positioning and radio frequency equipment integrated in the bicycle.
People v. Lewis, supra.
The opinion then takes up the issues of Lewis’ “criminal history”, which the Court of Appeal says
spanned nearly 30 years with numerous misdemeanor and felony convictions, most of which involved crimes related to drugs and alcohol. Although he was granted summary probation on more than 20 occasions over the years, he was unable to remain law abiding.

Based upon the stipulated guilty plea, the court granted formal probation in this case, but imposed various conditions. These conditions included completion of treatment, therapy, and counseling programs, including substance abuse and anti-theft programs. The conditions also prohibited use of controlled substances and alcohol when required by the probation officer and submission to drug and alcohol testing.

Pertinent to this appeal, one probation condition required Lewis to obtain prior approval of his residence. The general Fourth Amendment waiver condition required Lewis to `[s]ubmit [his] person, vehicle, residence, property, personal effects, computers, and recordable media to search at any time with or without a warrant, and with or without reasonable cause. . . .’ (Italics added.)

Lewis's counsel objected to probation condition 6.n. regarding warrantless searches in its entirety, and specifically objected to the part of the search condition regarding Lewis's computers and recordable media based on People v. Lent, supra, 15 Cal.3d at page 481 and In re J.B. (2015) 242 Cal.App.4th 749, 758 (J.B.). The court rejected Lewis's objection stating, `I'm imposing 6[.n.], all of it. Full fourth waiver, you, your personal property, your residence can be searched at any time by law enforcement no questions asked. It's a theft case. Again, like guns, like alcohol, unfortunately—that's not my determination, but pictures can be taken of evidence. I think it's appropriate.’
People v. Lewis, supra.
The court goes on to outline the “general principles and standard of review” it needed to apply to the issues in this case.  People v. Lewis, supra. It began by explaining that trial courts
enjoy wide discretion when determining the conditions and scope of probation. (§ 1203.1 et seq.) A trial court may impose any `reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, . . ., and generally and specifically for the reformation and rehabilitation of the probationer . . . .’ (§ 1203.1, subd. (j).) Accordingly, a condition will only be invalid if it is: (1) not reasonably related to the defendant's crime, (2) conduct that is otherwise legal, and (3) not reasonably related to preventing future criminality. (Lent, supra, 15 Cal.3d at p. 486.) A party seeking to invalidate a condition must show each of the three prongs is satisfied. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin ).)

When a probation condition imposes limitations on a constitutional right, the limitations must be closely tailored to the purpose of the condition so as to avoid being unconstitutionally overbroad. (Olguin, supra, 45 Cal.4th at p. 384.) `The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.’ (In re. E.O.(2010) 188 Cal.App.4th 1149, 1153.)
People v. Lewis, supra.
The opinion goes on to explain that
[p]robation is not an inherent right; it is an act of leniency. (People v. Wardlow (1991) 227 Cal.App.3d 360, 365.) The purpose of probation is to serve as a `period of genuine rehabilitation.' (Griffin v. Wisconsin (1987) 483 U.S. 868, 875.) In California, probationers may consent to limiting their constitutional rights in preference to incarceration. (Olguin, supra, 45 Cal.4th at p. 384.) In other words, a defendant may choose to serve the prison sentence and reject probation if a condition appears too onerous. (Id. at p. 379.)

Generally, we review conditions of probation for abuse of discretion. (Olguin, supra, 45 Cal.4th at p. 379.) However, when a probation condition is challenged on constitutional grounds, we review the condition de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
People v. Lewis, supra.
The Court of Appeal then took up Lewis’ challenges to two of the probation conditions imposed on him, beginning with the one that his probation officer approve where he was living. People v. Lewis, supra. The court began its analysis of this condition by explaining that
Lewis contends the probation condition requiring approval of his residence violates his right to travel and freedom of association under the First Amendment. The People contend Lewis forfeited this challenge by failing to object to the condition at the sentencing hearing because the challenge does not present a pure question of law, easily remediable on appeal without reference to the factual record. (In re Sheena K. (2007) 40 Cal.4th 875, 888 (Sheena K.).)

`[A]bsent an objection, a defendant may, on appeal, argue a condition is unconstitutional if the claim presents a “‘pure question[ ] of law that can be resolved without reference to the particular sentencing record developed in the trial court.’” ([Sheena K., supra,] 40 Cal.4th [at p.] 889, quoting People v. Welch (1993) 5 Cal.4th 228, 235.) In the usual case, however, probationers are well advised to object at sentencing to conditions they find improper or unjustified, thereby ensuring they have preserved the issue for appeal.’ (People v. Moran(2016) 1 Cal.5th 398, 403, fn. 5.)

Lewis admitted, `whether the residence approval condition impedes appellant's constitutional right to travel cannot be assessed without at least a glance at the record, given that the condition is not necessarily overbroad in the abstract.’ Lewis did not object to the residence approval requirement at the sentencing hearing and did not develop a factual record to show an unreasonable impingement of his constitutional rights. As such, he forfeited the challenge to this condition.
People v. Lewis, supra.
The court continued its analysis of Lewis’ challenge to this condition, explaining that
[e]ven if we were to exercise our discretion to consider the challenge, the condition is not unconstitutionally overbroad. Although conditions requiring prior approval of a probationer's residence may affect the constitutional rights to travel and freedom of association (People v. Bauer (1989) 211 Cal.App.3d 937, 944 (Bauer )), courts have the authority to do so if there is an indication the probationer's living situation contributed to the crime or would contribute to future criminality. (People v. Soto (2016) 245 Cal.App.4th 1219, 1228.)

Similarly, the right to free association may be limited if it is reasonably necessary to meet the essential needs of rehabilitation and public order. (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1356.) A probation condition limiting the right to association `”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.’”’(Ibid.)

Lewis's history of substance abuse and criminal activity spans nearly three decades and appears to impact his living situation. He has repeatedly been found sleeping on sidewalks or under trees. He also was involved in disturbances at his prior residences. Unlike in Bauer, supra, 211 Cal.App.3d 937, where the condition appeared designed to prohibit the defendant from living with his overprotective parents, the condition here is reasonably related to Lewis's rehabilitation and protection of the public. Requiring approval of Lewis's residence will allow probation officers to supervise Lewis and limit his exposure to sources of temptation for future criminality. Probation officers cannot withhold residential approval for irrational or capricious reasons. Therefore, the requirement is not unduly burdensome. (Olguin, supra, 45 Cal.4th at p. 383.)
People v. Lewis, supra.
The Court of Appeal then took up Lewis’ challenge to the probation condition that required “warrantless electronic searches”. People v. Lewis, supra. The court began the analysis by explaining that
Lewis does not challenge on appeal the general waiver of Fourth Amendment protections against warrantless searches. However, he contends the portion of the condition authorizing warrantless searches of computers and recordable media does not satisfy the applicable three-prong test under Lent and is unconstitutionally overbroad. The People concede the electronic search condition is not reasonably related to Lewis's current theft crime and owning computers or recordable media is not itself illegal. Thus, Lewis's condition is only valid if it is reasonably related to preventing future criminality.

Generally, probation conditions allowing probation officers to effect supervision or enforce other probation requirements are conditions that prevent future criminality. (Olguin, supra, 45 Cal.4th at p. 381.) However, `[n]ot every probation condition bearing a remote, attenuated, tangential, or diaphanous connection to future criminal conduct can be considered reasonable.’ (People v. Brandao (2012) 210 Cal.App.4th 568, 574.)
People v. Lewis, supra.
The opinion goes on to explain that
[w]e conclude the electronic search condition is reasonable in this case. The trial court approved the electronic search condition as part of the full Fourth Amendment waiver stating it is `a theft case’ and `pictures can be taken of evidence.’ In the same sentence, the court referenced gun and alcohol conditions. We interpret the trial court's scant statement justifying the condition to mean the electronic search condition, along with gun and alcohol restrictions, would aid in Lewis's probation supervision and is reasonably related to deterring future criminality. There was no abuse of discretion in this determination because Lewis's long criminal history and poor performance on probation, largely related to Lewis's chronic drug and alcohol use, shows the need for intensive supervision of Lewis. (See In re J.E. (2016) 1 Cal.App.5th 795, 801, review granted Oct. 12, 2016, S2366283 [electronic search condition is appropriate as `means of effectively supervising’ minor with `constellation of issues requiring intensive supervision’], In re P.O.(2016) 246 Cal.App.4th 288, 295 [electronic search condition is reasonably related to future criminality because it enables peace officers to review electronic activity for drugs or probation violations, but condition modified to address overbreadth].)

We are not persuaded the cases of In re Erica R. (2015) 240 Cal.App.4th 907, 914 (Erica R.) and J.B., supra, 242 Cal.App.4th at pages 752, 756 should govern this case. The court in both cases struck electronic search conditions for juvenile probationers because there was no showing of a connection between electronic devices and the crimes committed by the juveniles or for preventing potential future criminal activity. (Erica R., supra, at p. 914; J.B., at p. 756.) Both cases pointed out the difference between adult and juvenile probation.

`”’[J]uvenile probation is not, as with an adult, an act of leniency in lieu of statutory punishment; it is an ingredient of a final order for the minor's reformation and rehabilitation.”’’ [Citation.] A juvenile `cannot refuse probation [citations] and therefore is in no position to refuse a particular condition of probation.’ [Citation.] Courts have recognized that a `minor cannot be made subject to an automatic search condition; instead, such condition must be tailored to fit the circumstances of the case and the minor.' (J.B. at p. 756, quoting Erica R. at p. 914.)
People v. Lewis, supra.
The court goes on to explain that,
[a]lthough not every condition that may aid in supervision of an adult probationer necessarily will be reasonable, Olguin does not require that the supervision method relate to the defendant's past criminal conduct. As the court in Olguin observed, `probation is a privilege and not a right, and that adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights—as, for example, when they agree to warrantless search conditions.’ (Olguin, supra, 45 Cal.4th at p. 384.)

In this case, Lewis's history as a repeat offender with significant probation noncompliance justifies intensive supervision, including warrantless searches of electronic devices to ensure compliance with the probation conditions. After the court overruled objections to the search condition, Lewis confirmed he agreed with the terms and conditions of probation.

We also conclude Lewis has not established the electronic search condition is unconstitutionally overbroad. Lewis does not identify any specific privacy interests that would be infringed or any harm stemming from imposition of an electronic search condition. (See In re J.E., supra, 1 Cal.App.5th at p. 806 [`Nothing in the record shows Minor even has a cell phone or any electronic devices, and Minor does not point us to anything in the record showing any actual harms stemming from their inspection’].)
People v. Lewis, supra.
The Court of Appeal went on to conclude the opinion with these comments:
Lewis cites to Riley v. California (2014) 573 U.S. –––– [134 S.Ct. 2473], to support his general contention that digital devices contain private information and searches of such devices are intrusive. The United States Supreme Court recognized electronic devices contain personal data, but Riley only held that the information on a cell phone is subject to the Fourth Amendment's protection, `not that the information on a cell phone is immune from search.’ (Id. at p. 2493.) Further, the Supreme Court in Riley was analyzing the privacy interests of arrestees who are afforded the assumption of innocence until proven guilty. (Id. at pp. 2488–2489.) Here, Lewis pleaded guilty to grand theft. As a probationer, Lewis does not enjoy the same absolute liberty afforded to every citizen. (See United States v. Knights (2001) 534 U.S. 112, 119.) Given the legitimate purpose of an electronic search condition and Lewis's diminished privacy expectations as an adult probationer, we conclude the condition is not overbroad. (In re J.E., supra, 1 Cal.App.5th at pp. 799, 804.)

The judgment is affirmed.
People v. Lewis, supra.