Filed 8/27/20 P. v. Bolden CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

LEON BOLDEN,

Defendant and Appellant.

 D077178

 (Super. Ct. No. SCN408406)

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

David J. Danielson, Judge. Affirmed.

Shay Dinata-Hanson, under appointment by the Court of Appeal, for 

Plaintiff and Respondent.

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

Attorney General, Julie L. Garland, Assistant Attorney General, Steve 

Oetting and Anthony Da Silva, Deputy Attorneys General, for Defendant and 

Appellant. 
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FACTUAL AND PROCEDURAL BACKGROUND

The facts of the underlying convictions are not directly relevant on this 

appeal. On August 28, 2014, defendant was incarcerated following 

convictions for infliction of corporal injury on a spouse, and rape by force in 

violation of Penal Code1 sections 273.5, subdivision (a) and 261.5, subdivision

(a)(2), respectively. On May 18, 2017, he was released on active parole and 

was required to register as a sex offender pursuant to section 290. 

On December 10, 2019, it was discovered by his parole agent that 

defendant had been registering as a transient with the San Diego Police 

Department since May 21, 2019. The GPS tracking device on defendant 

revealed he had been living in Vista since June 16, 2019. He should have 

registered the Vista address by close of business on June 24, 2019. He last 

registered as a transient on November 18, 2019.

Defendant was arrested at the Vista address on December 12, 2019, for 

violating the requirement he register his Vista address. During an interview 

at the jail, defendant acknowledged his duty to register as a sex offender. 

The interviewer, a parole agent, read that portion of his sex registration form 

that indicated it was an offense to provide incorrect information. Defendant 

stated he did not register the residence in Vista because he did not want his 

sex offender status to be known to his housemates.

A complaint was filed charging defendant with failing to register with 

the law enforcement agency having jurisdiction over the new address 

location, within five working days of moving into a residence address. 

1 All statutory references are to the Penal Code unless otherwise 

specified.
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Defendant admitted that he was a person required to register per

section 290, and he failed to register within five days of moving into a 

residence and instead registering as a transient. 

The San Diego Probation Department filed a report on January 15, 

2020, with the sentencing court, recommending formal probation and all 

general conditions of probation, as well as GPS tracking if recommended by 

the probation officer. A sentencing hearing was held January 22, 2020.

Defendant objected to being required to submit to requests to search his 

electronic devices, arguing there was no nexus between that requirement and 

his criminality. He also argued that he already wears a tracking device 

which would not end until 2027. He urged any additional devices were 

unnecessary. 

The court awarded defendant probation and suspended imposition of 

sentence for three years. With respect to electronic devices, the court 

sustained appellant’s objection as to computers and recordable media, but 

retained the requirement of submitting to cell phone searches because “there 

is a compelling need to monitor his location in light of the nature of this 

offense and the violation of his reporting requirements.”

Defendant filed a timely notice of appeal.

ANALYSIS

Relying on People v. Lent (1975) 15 Cal.3d 481 (Lent) and In re Ricardo 

P. (2019) 7 Cal.5th 1113, defendant challenges probation condition 6n, which 

requires defendant surrender his cell phone to a search if requested by a 

probation or law enforcement officer. In this regard, we note the trial court 

replaced the broader term “electronic devices” which was originally 

recommended, with the term “cell phone.” Thus, recorded media and 

computers were deleted from the condition. He urges on appeal, that a cell 
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phone is not related to the underlying offenses or his failure to register as a 

sex offender. 

The purpose of requiring Fourth Amendment search waivers as a 

condition of probation and parole is to determine if the offender is, or is not, 

complying with the law. (People v. Olguin (2008) 45 Cal.4th 375, 380–382.)

Such conditions promote rehabilitation and reduce recidivism while at the 

same time help protect the community from harm by probationers. (People v. 

Robles (2000) 23 Cal.4th 789, 795–796.) To achieve these goals, a sentencing 

judge is vested with broad discretion to impose “any other reasonable 

conditions, as it may determine are fitting and proper to the end that justice 

may be done, that amends may be made to society for the breach of the law, 

for any injury done to any person resulting from that breach, and generally 

and specifically for the reformation and rehabilitation of the probationer.”

(§ 1203.1, subd. (j), also see Lent, supra, 15 Cal.3d at p. 486.) Appellate 

review centers upon whether a probation condition is “arbitrary or capricious”

or otherwise “exceeds the bounds of reason, under the circumstances.” (In re 

Ricardo P., supra, 7 Cal.5th at p. 1118.)

We conclude condition 6n, as limited to defendant’s cell phone, meets 

the requirements of existing law. It must be remembered that the core of the 

allegations concerning failure to report is that defendant knew but did not 

comply with the order that he inform his probation officers of any moves in 

residence. Here, defendant expressly stated he did not inform his probation 

officer of the move to Vista because he did not want his housemates to know 

of his criminal background. Exercising control over defendant’s cell phone 

would not only help supervise where he was living, and whether or not he 

once again became a transient, but also his current living conditions and 
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address, and his general whereabouts. These goals were directly and 

indirectly related to the offense for which he was charged.

Moreover, we see no merit to defendant’s argument that probation 

condition 6n is overbroad. Generally, any such claim must be made in the 

trial court, where there is an opportunity to narrow the condition if 

necessary. (People v. Welch (1993) 5 Cal.4th 228, 234–235.) Even if a facial 

challenge to the constitutionality of probation condition 6n could be made for 

the first time on appeal, this argument by defendant does not raise a pure 

question of law. Here, there must be a review of the facts and record in the 

case. (Id. at pp. 234–237.) Additionally, one can foresee other clearly 

appropriate cases where a cell phone condition is useful and reasonable, thus 

obviating any argument that the condition violates principles of overbreadth

as a matter of law.

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

IRION, J.

GUERRERO, J.