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Name: People v. Smith
Case #: H042287
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 02/17/2017

Narcotics offender registration requirement under Health and Safety Code section 11590 applies to both attempts and completed crimes. Defendant pleaded no contest to attempted possession of a controlled substance for sale (Pen. Code, § 664, Health & Safety Code, § 11378). Citing People v. Crowles (1993) 20 Cal.App.4th 114, the trial court ordered defendant to register as a narcotics offender under section 11590. Defendant appealed, arguing that section 11590 does not permit the registration requirement to be imposed for attempted crimes. Held: Affirmed. Under section 11590, subdivision (a), any person who is convicted in California of certain enumerated crimes, or “who is convicted in any other state of any offenses which, if committed or attempted in this state, would have been punishable as one or more of the” enumerated offenses, must register as a narcotics offender. Although section 11590 does not explicitly state that it applies to an attempt to commit one of the listed offenses, the literal construction of the statute proposed by defendant would “lead to disharmony and would render portions of the statutory scheme nugatory.” Applying principles of statutory construction, and agreeing with People v. Crowles, the court concluded that the Legislature intended that the registration requirement in section 11590 would apply to attempts. The trial court did not err in requiring defendant to register as a narcotics offender.

Probation condition requiring defendant to provide passwords for electronic searches is reasonable. The trial court imposed a condition of probation requiring defendant to submit to warrantless searches of his personal property, including cell phones and computers, and to provide passwords necessary to conduct electronic searches. On appeal, defendant challenged the “computer and password” portion of the condition as unreasonable. Applying the test set forth in People v. Lent (1975) 15 Cal.3d 481, the court concluded that the probation condition was valid because it is reasonably related to defendant’s future criminality. Defendant used a cell phone to communicate with a drug dealer and police were unable to search one of the phones defendant carried because it was password protected. This demonstrates the need for a probation condition requiring defendant to provide his passwords. The court did not consider defendant’s argument that the condition was unreasonable because it included computers and “electronic search functions” within its scope. This challenge to the probation condition was forfeited because there was no objection to this aspect of the condition in the trial court.

The electronic search condition is not vague. Defendant also argued that the condition was constitutionally vague because it did not define “electronic searches.” According to the defendant, the term “electronic” is not sufficiently precise for him to know what electronics the probation condition encompasses. The Court of Appeal disagreed. The trial court explicitly stated that the condition applies to cell phones and computers, and the court’s use of the words “electronic searches” did not extend the condition to other electronic devices, but merely acknowledged that passwords would be required for “electronic searches” rather than physical searches. Read in context, the probation condition gives fair warning to defendant that the search condition applies to cell phones and computers.

Defendant’s overbreadth challenge to the electronic search condition is forfeited. On appeal, defendant argued that the electronic search condition is unconstitutionally overbroad because it is not narrowly tailored to his underlying offense. However, he did not object on overbreadth grounds below. The failure to timely challenge a probation condition in the trial court waives the claim on appeal. (People v. Welch (1993) 5 Cal.4th 228, 237.) While there is a narrow exception to the Welch waiver rule for facial constitutional challenges on overbreadth or vagueness grounds that raise pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court, defendant did not make a facial constitutional challenge. His challenge depended on the record developed in the trial court. Thus, defendant forfeited his overbreadth challenge by failing to object below.

The full opinion is available on the court’s website here: