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Name: People v. Kendrick
Case #: B246217
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 05/28/2014

Probationer forfeits constitutional challenge to probation term restricting Internet access where he failed to raise the claim in the trial court. Appellant pled guilty to two counts of lewd act on a child (Pen. Code, § 288, subd. (a)). The court sentenced him to 10 years in prison, execution suspended, and granted probation; one term of probation restricted his Internet use. Appellant’s probation was revoked and reinstated on one occasion. After a second violation, based on accessing the Internet, the court revoked probation and executed the sentence. On appeal appellant challenged the Internet term. Held: Issue forfeited. Appellant claimed In re Sheena K. (2007) 40 Cal.4th 875, permitted him to challenge the constitutionality of a probation term without an objection having been made below. However, Sheena K. only applies to a claim that a probation term is facially unconstitutional because it is overbroad or vague, i.e., a pure question of law. Appellant claimed the term is overbroad because there is no evidence he used the Internet in committing the crimes and it does not relate to his criminal history. These are factually based challenges that the term is unconstitutional as applied to him. Appellant’s challenge was not resolvable without reference to the sentencing record in his case and thus was not a pure question of law.

Trial counsel’s failure to challenge the Internet restriction term of probation was not ineffective assistance. Appellant claimed he was ineffectively represented if the constitutional challenge to the probation term was forfeited. To his probation officer, appellant professed indifference to using the Internet, which presumably was known to his attorney, and trial counsel secured an extremely favorable resolution of the case. There could be tactical reasons counsel did not challenge the term.