Opinion
C082753
11-26-2019
THE PEOPLE, Plaintiff and Respondent, v. DEREK ALLEN RUNNER, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE013855)
After defendant Derek Allen Runner pleaded no contest to felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)), the trial court placed him on probation with various conditions, including that he submit to warrantless searches of electronic storage devices.
Further undesignated statutory references are to the Penal Code.
On appeal, defendant challenges the electronic device search condition. He claims the condition is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent), that it violates the Electronic Communications Privacy Act (ECPA) and the wiretap statute, that it violates various state and federal constitutional provisions, and is unconstitutionally overbroad.
We held this appeal pending resolution of the primary issue by the California Supreme Court. In In re Ricardo P. (2019) 7 Cal.5th at page 1113 (Ricardo P.), our Supreme Court held that where there is no evidence defendant had used or will use electronic devices in connection with any illegal activity, the substantial burdens imposed by an electronics search condition are not justified. (Id. at p. 1116) "The probation condition is not reasonably related to future criminality and is therefore invalid under Lent." (Ibid.) Here the record contains no indication of defendant's past or future use of any electronic device for any illegal activity. Accordingly, we modify the judgment by striking the electronics search probation condition.
BACKGROUND
The factual basis of defendant's crime of conviction provided only that on July 18, 2016, he possessed a .32-caliber rifle and was previously convicted of a felony. Defendant waived his right to preparation of a full probation report and was sentenced on the day of his plea. Defense counsel had been provided with an "abbreviated probation report" and objected to the proposed probation condition that read as follows:
"P.C. 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 statutory constitutional and statutory rights pursuant to Penal Code section 1564 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."
Defense counsel asserted the condition was improper because no phone was involved in the crime and the fact that other people often store photographs of themselves with guns on their phones did not justify the search condition as to defendant.
The court also imposed a general search condition that did not refer to electronic devices. Defendant did not object to this condition and does not contest its validity on appeal.
The prosecution filed a boilerplate motion supporting the condition. It attached the boilerplate declaration of a detective assigned to the Sacramento Valley Hi Tech Crimes Task Force. The declaration provided the detective's training experience, which included training in and experience investigating cyber crimes, computers, and electronic device forensics. The declaration also contained assertions regarding examples of electronic evidence found in investigations of various types of crimes and the need to examine electronic devices. As relevant here, the declaration asserted that people engaged in weapons offenses often used electronic devices to buy or sell weapons, threaten others, use illegal weapons, and to conspire with others to commit those crimes. Evidence of such offenses can be found on various electronic devices, and the detective had personally observed firearms posted for sale or felons posing with firearms on various forms of social media.
At sentencing, the prosecutor argued the phones of felons convicted of weapons offenses often contain photographs of them with their guns. Defendant was found with two firearms, and the prosecutor argued that the electronics search condition would deter future criminal conduct. The trial court imposed the condition without modification, stating that it was a "close call" but given the court's experience with cases where offenders photograph themselves with guns, the court would "keep [the condition] in."
DISCUSSION
Defendant contends the electronics search condition is invalid under Lent, violates the ECPA and wiretap law, violates various constitutional provisions, and is overbroad. We agree with the first contention and decline to address the others.
I
Probation Search Conditions Generally
Upon granting probation, the trial court may impose any "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).)
"The trial court's discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, we have interpreted [§ 1203.1] to require that probation conditions which regulate conduct 'not itself criminal' be 'reasonably related to the crime of which the defendant was convicted or to future criminality.' [Citation.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1121, quoting Lent, supra, 15 Cal.3d at p. 486.)
The Lent court adopted the three-part test of People v. Dominguez (1967) 256 Cal.App.2d 623: "A condition of probation will not be held invalid unless 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.) "The Lent test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a condition of probation." (People v. Contreras (2015) 237 Cal.App.4th 868, 879.)
II
Ricardo P. and its Application to this Case
A. Ricardo P.
In Ricardo P., the minor was placed on probation after admitting to two counts of burglary; one condition of probation was that he "submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices." (Ricardo P., supra, 7 Cal.5th at p. 1115.) While the minor did not use electronic devices in committing the burglaries, the juvenile court "imposed the condition in order to monitor his compliance with separate conditions prohibiting him from using or possessing illegal drugs." (Ibid.) Presupposing that the first and second Lent requirements were satisfied, our high court found the condition satisfied Lent's third prong and was therefore invalid under the Lent test because, "on the record before us, the burden it imposes on Ricardo's privacy is substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society." (Ricardo P., at p. 1119.)
By requiring a reasonable relationship between the condition and future criminality, Lent "contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition. [Citations.]" (Ricardo P., supra, 7 Cal.5th at p. 1122.) The condition significantly burdened the minor's privacy interests, given how much sensitive and confidential information can be accessed on devices like cell phones. (Id. at p. 1123.) The record did not support such a significant burden on the minor's privacy. The only rationale provided by the trial court was evidence that the minor previously used marijuana and its observation that minors often brag about using marijuana or other drugs by posting online pictures of themselves with drugs or paraphernalia. (Id. at p. 1122.) "If we were to find this record sufficient to sustain the probation condition at issue, it is difficult to conceive of any case in which a comparable condition could not be imposed, especially given the constant and pervasive use of electronic devices and social media by juveniles today. In virtually every case, one could hypothesize that monitoring a probationer's electronic devices and social media might deter or prevent future criminal conduct. For example, an electronic search condition could be imposed on a defendant convicted of carrying an unregistered concealed weapon on the ground that text messages, e-mails, or online photos could reveal evidence that the defendant possesses contraband or is participating in a gang. [Citation.] Indeed, whatever crime a juvenile might have committed, it could be said that juveniles may use electronic devices and social media to mention or brag about their illicit activities." (Id. at p. 1123.)
"In sum, we hold that the electronics search condition here is not reasonably related to future criminality and is therefore invalid under Lent. Our holding does not categorically invalidate electronics search conditions. In certain cases, the probationer's offense or personal history may provide the juvenile court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality. [Citations.]" (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.)
B. Analysis
Although Ricardo P. involved a juvenile, it is applicable here because "the Lent test governs in juvenile and adult probation cases alike." (Ricardo P., supra, 7 Cal.5th at p. 1119.)
Here, as in Ricardo P., the issue is the third prong of the Lent test, whether the electronics search condition is reasonably related to future criminality. The burden imposed by the condition is the same substantial burden seen in Ricardo P.
As in Ricardo P., the electronics search provisions of the search condition fails Lent's third prong. There is no evidence defendant used a computer, cell phone, or similar electronic devices in any way related to his offenses. Defendant was sentenced on the day of the plea and waived preparation of a probation report, so there is no information regarding any such use of electronic devices in prior criminal acts. Assuming the sworn declaration from the detective could be considered expert testimony upon which a court could base findings supporting the condition, it does not support a condition as applied to the facts of this case. The declaration does not tie the general observations to any particular facts about defendant or his crimes, being instead generic testimony about types of crimes, the nature of electronic devices, and the utility of evidence from them in other cases. Likewise, the trial court's comments about the case given its experience had nothing to do with defendant directly and his history or proclivity. Given the heavy burden an electronics search condition imposes on the probationer's privacy interests, the evidence supporting a finding under Lent's third prong must relate directly to the defendant or his crime rather than the type of generic evidence presented here.
Because there is no evidence supporting a finding that the electronics search condition is reasonably related to defendant's future criminality, it is invalid under Lent and Ricardo P. and must be stricken.
Our modification does not prevent the trial court from exercising its discretion following a noticed hearing to modify the probation terms if presented with additional facts that would tie an electronics search condition to defendant's future criminality as set forth in Ricardo P. (See § 1203.3, subds. (a), (b); People v. Leiva (2013) 56 Cal.4th 498, 505 [order modifying probation based on the same facts exceeds the court's jurisdiction].)
DISPOSITION
The trial court is directed to issue an amended probation order striking electronic search condition number 5. As modified, the judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Renner, J.