Opinion
C084084
08-12-2020
THE PEOPLE, Plaintiff and Respondent, v. AJAI NARAYAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17FE000125)
After defendant Ajai Narayan pleaded no contest to making criminal threats (Pen. Code, § 422) and driving in a willful and wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2), the trial court placed him on probation with various conditions, including an electronics search condition that he submit to warrantless searches of electronic devices.
Undesignated statutory references are to the Penal Code.
Defendant now contends (1) the electronics search condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and is unconstitutionally overbroad, and (2) the condition requiring him to provide passwords to access the electronic devices violates his Fifth Amendment right to remain silent.
Based on the record in this case, the electronics search condition is unreasonable under Lent. We will direct the trial court to issue an amended probation order striking the electronics search condition.
BACKGROUND
Defendant was charged with making criminal threats against Miguel M. (§ 422), with willfully evading a pursuing police officer by driving in the opposite direction of traffic (Veh. Code, § 2800.4), and with misdemeanor vandalism (§ 594, subd. (a)). In February 2017, prior to the preliminary hearing, defendant agreed to plead no contest to a reasonably related felony violation of driving in a willful and wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2), and also to misdemeanor criminal threats (§ 422). The vandalism charge was dismissed with a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754. --------
The factual basis for the evasion offense was that on December 30, 2016, defendant willfully and unlawfully fled in an attempt to elude a pursuing police officer, who was in a marked patrol vehicle with his lights and sirens visible and sounding so that defendant reasonably should have known of the pursuit. Defendant drove in a wanton and reckless manner in evading the police officer by traveling on surface streets up to 90 miles per hour and by failing to stop at four red lights. The pursuit lasted 5.6 miles and ended in a solo car collision.
Although defense counsel stipulated that there was a factual basis for the misdemeanor criminal threats offense, the factual basis for that offense was never articulated at the sentencing hearing. The trial court accepted defendant's plea and defendant requested immediate sentencing and waived referral to the probation department. The trial court sentenced him to probation for five years plus 180 days in county jail for the evasion offense and a concurrent 90 days for the criminal threats offense.
The proposed conditions of probation included the following electronics search condition:
"[Penal Code] 1546 searchable - Defendant shall submit his/her person, place, property, automobile, electronic storage devices, and any object under his/her control, including but not limited to cell phones and computers, to search and seizure by any law enforcement officer or probation officer, any time of the day or night, with or without a warrant, with or without his/her presence or further consent.
"Defendant being advised of his/her constitutional and statutory rights pursuant to Penal Code section 1546 et seq. in this regard, and having accepted probation, is deemed to have waived same and also specifically consented to searches of his/her electronic storage devices.
"Defendant shall provide access to any electronic storage devices and data contained therein, including disclosing and providing any and all information necessary to conduct a search."
Both the prosecution and the defense submitted briefs on the validity and constitutionality of the electronics search condition. The briefs provided no specific information relating to defendant or his criminal history or whether he owned or used any electronic storage devices, and if so, what information was stored on such devices.
The People's brief attached a declaration of a sheriff's deputy assigned to the Sacramento Valley Hi-Tech Crimes Task Force. The declaration did not address defendant's case specifically, but instead generally described the types of evidence found on electronic devices in crimes involving drugs, fraud, identity theft, financial crimes, sex offenses, human trafficking, pimping and pandering, domestic violence, weapons, and gangs. The declaration did not mention criminal threats. It discussed the need to examine electronic devices due to the ease of moving files and hiding information, and it expressed a need for passwords.
At the sentencing hearing, defense counsel asked that the electronic search condition not be imposed, but the prosecutor countered that it should be imposed because, according to the prosecutor, defendant had used a phone in making the criminal threat. The prosecutor represented at the hearing that the police report said the victim told law enforcement she received 75 to 100 phone calls and text messages from defendant in a 24-hour period. Under the circumstances, the prosecutor argued there was a nexus between the crime and the electronic search condition. Based on that verbal representation from the prosecutor, the trial court imposed the electronic search condition, finding a nexus between the condition and defendant's crime.
The police report referenced by the prosecutor at the sentencing hearing is not in the appellate record. But the complaint identified the victim of the criminal threat as a man, Miguel M. At the sentencing hearing, the prosecutor did not provide any other information about the woman who allegedly received repeated phone calls and texts from defendant. But the trial court issued a three-year criminal protective order to protect Miguel M. and a woman named Brittany J.
DISCUSSION
I
Defendant contends the electronics search condition is unreasonable under Lent, supra, 15 Cal.3d 481. Based on the record in this case, we agree.
A trial court has broad discretion to impose reasonable conditions of probation in order to promote the rehabilitation of the probationer and to protect public safety. (§ 1203.1, subd. (j); People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) But a condition of probation must serve a purpose specified in section 1203.1, and probation conditions which regulate noncriminal conduct must be reasonably related to the crime of which the defendant was convicted or to future criminality. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121, quoting Lent, supra, 15 Cal.3d at p. 486.)
Under Lent, a probation condition is invalid if it " '(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, supra, 15 Cal.3d at p. 486.) All three prongs of the Lent test must be met to invalidate a probation condition. (Olguin, supra, 45 Cal.4th at p. 379.)
The California Supreme Court addressed the validity of an electronics search condition in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). The probation condition in that case required a juvenile, who admitted to two counts of felony burglary, to submit to warrantless searches of his electronic devices and to provide passwords at any time, even though there was no indication that he used an electronic device in connection with the burglaries. (Id. at p. 1115.)
The Supreme Court concluded the electronics search condition was not reasonably related to future criminality under Lent's third prong because the burden imposed on the minor's privacy was substantially disproportionate to the condition's goal of monitoring and deterring drug use. (Ricardo P., supra, 7 Cal.5th at pp. 1116, 1120.) Given the breadth of sensitive and confidential information accessible on devices like cell phones, the limited justification for the condition did not support the significant burden imposed. (Id. at pp. 1119-1120.) The Supreme Court said the third prong of the Lent test "requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality." (Ricardo P., at p. 1121.) It "contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Id. at p. 1122.)
Although the requisite proportionality was lacking in Ricardo P., the court emphasized that electronics search conditions are not categorically invalid. (Ricardo P., supra, 7 Cal.5th at p. 1128.) In certain cases, a probationer's offense or personal history might provide a sufficient factual basis to determine an electronics search condition was a proportional means of deterring the probationer from future criminality. (Id. at pp. 1128-1129.)
In this case, however, there is no evidence in the appellate record, and no stipulation, that defendant owned or used any electronic devices or that he used such a device to commit the crimes for which he pleaded no contest. On this record, it has not been established that the electronics search condition is reasonably related to future criminality, and it is therefore invalid under Lent. (In re Ricardo P., supra, 7 Cal.5th at p. 1129; Lent, supra, 15 Cal.3d at p. 486.)
Having determined that the electronics search condition fails to satisfy the standard adopted in Lent and Ricardo P., we need not address defendant's additional contentions.
DISPOSITION
The trial court is directed to issue an amended probation order striking the electronics search condition. The trial court's orders are otherwise affirmed.
/S/_________
MAURO, J. We concur: /S/_________
RAYE, P. J. /S/_________
HULL, J.