Opinion
A153020
06-18-2018
THE PEOPLE, Plaintiff and Respondent, v. JORDAN SAUNDERS SCOTT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC199921)
Following his guilty plea to two drug-related offenses, defendant Jordan Saunders Scott was sentenced to a three-year eight-month prison term, a portion of which is to be served under mandatory supervision. On appeal, defendant challenges the electronic devices search condition and curfew condition imposed during the period of his mandatory supervision. Defendant contends that the search condition is unconstitutionally overbroad and that the curfew condition is both invalid under People v. Lent (1975) 15 Cal.3d 481 and a violation of his constitutional rights. In addition, defendant contends the trial court erred by imposing the upper term sentence on the subordinate count on which he was sentenced rather than one-third the midterm. The Attorney General concedes that the curfew condition is invalid and that defendant's sentence must be modified, but contests any modification to the search condition. We conclude that the search condition is proper but agree with the parties that the curfew condition must be stricken and the sentencing error corrected.
Factual and Procedural Background
Defendant pled guilty to one count of possession for sale of methamphetamine in violation of Health and Safety Code section 11378 and one count of possession of Xanax in violation of Health and Safety Code section 11375, subdivision (b)(1). Pursuant to a plea agreement, defendant received a three-year eight-month sentence to be served in county jail under Penal Code section 1170, subdivision (h), with two years in county jail and the remaining one year and eight months on mandatory supervision.
The probation report provides the following summary of the facts underlying the convictions: "On January 14, 2017, at approximately 2056 hours, officers with the San Rafael Police Department (SRPD) were dispatched to [a] residence on a report of a family disturbance. The reporting party, the defendant's mother, reported the defendant became violent and started breaking items in the residence. Upon SRPD's arrival, the defendant fled the scene. [¶] . . . [¶] . . . Approximately one minute after the officers left the location, the defendant returned to the residence. Dispatch informed SRPD the defendant was on Marin County Probation (case numbers SC191882A and SC190123A). [¶] SRPD contacted the defendant who was cooperative and stated he did not believe his behavior was disruptive and was surprised SRPD was contacted. A probation search of the defendant yielded a plastic baggie which contained 19.40 grams of methamphetamine, 240 Xanax pills, and approximately 1 ounce of marijuana."
On March 16, 2017, the court sentenced defendant in accordance with the negotiated disposition. The court imposed the upper term of three years on count 1 for the violation of Health and Safety Code section 11378. On count 2 for the violation of Health and Safety Code section 11375, subdivision (b)(1), the court imposed a consecutive, upper term of three years. Pursuant to Penal Code section 1170.1, the court stayed all but eight months of the term imposed on count 2.
On November 9, 2017, the trial court specified several conditions for defendant's then-upcoming release on mandatory supervision. As relevant to this appeal, over defendant's objection the court imposed an electronic-devices search condition requiring defendant to "submit to search and seizure of all call logs, texts, and voicemail messages, photographs, emails, and social media account contents contained on any device or internet connected storage owned, operated, or controlled by him, including cell phones, computer, gaming consoles, mobile devices, and mobile or electronic storage devices" and to "disclose and provide any security information required to gain access to any of the aforementioned devices or social media accounts." The court also required defendant, over objection, "to maintain a curfew from 11:00 p.m. to 6:00 a.m. at the discretion of the probation officer."
Defendant timely filed a notice of appeal challenging the conditions of his release.
Discussion
1. The search condition is not overbroad.
Courts generally have "broad discretion in fashioning terms of supervised release, in order to foster the reformation and rehabilitation of the offender, while protecting public safety." (People v. Martinez (2014) 226 Cal.App.4th 759, 764.) A condition of supervised release " '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. . . ." [Citation.] Conversely, a condition of [release] which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.' " (Ibid., quoting People v. Lent, supra, 15 Cal.3d at p. 486.)
Defendant does not challenge the validity of the search condition under Lent — presumably because the condition is justified by his prior drug-related conviction in which the narcotics transaction was facilitated by telephone — but he contends the electronic search condition is unconstitutionally overbroad. He argues the condition infringes on his Fourth Amendment right to be free of unreasonable searches, as well as his privacy rights. We review constitutional challenges to the conditions of mandatory supervision de novo. (In re Sheena K. (2007) 40 Cal.4th 875, 880-889; In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
A condition of mandatory supervision " 'that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as constitutionally overbroad.' [Citation.] 'The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.' " (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346; People v. Martinez, supra, 226 Cal.App.4th at p. 767.)
In People v. Appleton (2016) 245 Cal.App.4th 717, 719, 725, the court held that a condition authorizing searches of the defendant's computers and electronic devices was unconstitutionally overbroad. Citing the reasoning in Riley v. California (2014) 573 U.S. ___ (Riley) "which recognized how the immense storage capacity of modern cell phones allows users to carry large volumes of data," Appleton concluded that "a search of [a] defendant's mobile electronic devices could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity." (Appleton, p. 725.) The court in Appleton struck the condition and remanded for the trial court to impose a more narrowly tailored condition. (Id. at p. 727.)
The search condition at issue read: " 'Any computers and all other electronic devices belonging to the defendant, including but not limited to cellular telephones, laptop computers or notepads, shall be subject to forensic analysis search for material prohibited by law. You shall not clean or delete internet browsing activity on any electronic device that you own and you must keep a minimum of four weeks of history.' " (People v. Appleton, supra, 245 Cal.App.4th at p. 721.)
Subsequent to Appleton, the California Supreme Court has granted review of at least three cases questioning the overbreadth of an electronic search condition: People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted Dec. 14, 2016, S238210; People v. Valdivia (2017) 16 Cal.App.5th 1130, review granted Feb. 14, 2018, S245893; People v. Trujillo (2017) 15 Cal.App.5th 574, review granted Nov. 29, 2017, S244650.
In Valdivia, the court relied on Riley in holding that a probation condition was unconstitutionally overbroad because its authorization of warrantless searches of electronic storage devices "carrie[d] the potential for a significant intrusion into [the] defendant's private affairs—even more so than the standard [search] condition" also imposed on the defendant. (People v. Valdivia, supra, 16 Cal.App.5th at p. 1144.) As in Appleton, the court in Valdivia struck the challenged condition and remanded, determining that the issue "[w]hether the condition [could], as a practical matter, be narrowed in a manner that will allow it to pass constitutional muster" was most appropriately addressed by the trial court in the first instance. (Id. at p. 1147.)
The search condition at issue read: " '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 shall provide access to any electronic storage devices and data contained there, including disclosing and providing any and all information necessary to conduct a search.' " (People v. Valdivia, supra, 16 Cal.App.5th at pp. 1135-1136.)
In Nachbar, however, the court held that a probation condition authorizing searches of the defendant's computers and "recordable media" was not overbroad. (People v. Nachbar, supra, 3 Cal.App.5th at pp. 1126, 1129-1130.) The court concluded that "the privacy concerns voiced in Riley are inapposite in the context of evaluating the [constitutional] reasonableness of a probation condition" and that the condition was sufficiently tailored to the defendant's "diminished expectation of privacy" as a probationer, given that he had used electronic devices to enable his sex crimes against a minor and required intensive supervision. (Id. at pp. 1129-1130.)
Finally, in Trujillo, the same division of the Fourth Appellate District again held that a similar probation condition was not overbroad. (People v. Trujillo, supra, 15 Cal.App.5th at p. 578.) In addition to reiterating Nachbar's reasoning, the Trujillo court found it significant that the defendant had not challenged the standard search condition allowing warrantless searches of his residence, despite the fact that "a person's home also contains considerable confidential information and is a place in which a person has the absolute right to be 'left alone,' and thus has long been provided the highest level of protection from governmental interference." (Id. at p. 587.)
In In re J.B. (2015) 242 Cal.App.4th 749, 758 and In re Malik J. (2015) 240 Cal.App.4th 896, 902, this court has twice relied, in part, on the reasoning in Riley to hold an electronic search condition overbroad. In doing so, we, like the courts in Appleton and Valdivia, relied on Riley's reasoning that cell phones potentially contain an enormous quantity of sensitive information. The broad array of private information that may be stored on electronic devices requires an electronics search condition to be more tailored than a standard search condition.
The search condition in In re J.B. required minor to submit to " 'electronics including passwords under your control to search by probation officer or peace officer with or without a search warrant at any time of day or night.' " (In re J.B., supra, 242 Cal.App.4th at p. 752, fn. 1.) The search condition in In re Malik J. required minor and his family "to provide all passwords to any electronic devices including cell phones, computers and notepads within your custody and control, and submit to search of devices at any time to any peace officer. And also provide any passwords to any social media sites, including [F]acebook, Instagram, and submit those [s]ites to any peace officer with or without a warrant." (In re Malik J., supra, 240 Cal.App.4th at p. 900.)
In this case, however, the search condition is narrowly tailored to monitor whether defendant is using his electronic devices to engage in narcotics transactions. The condition authorizes searches only of "call logs, texts, and voicemail messages, photographs, emails, and social media account content." It does not allow for unlimited open-ended searches of all data stored on his electronic devices. (See People v. Maldonado (2018) 22 Cal.App.5th 138, 142 [condition authorizing search of "electronic devices only for specific categories of information (i.e., 'text messages, voicemail messages, call logs, photographs, email accounts, [and] social media accounts')" was narrowly tailored and did not "provide officers carte blanche to search anything and everything on the devices"].) Accordingly, the search condition here does not transgress constitutional limits. 2 The curfew condition is invalid.
Defendant also challenges the condition imposing an 11:00 p.m. to 6:00 a.m. curfew. In People v. Nassetta (2016) 3 Cal.App.5th 699 (Nassetta) the court held that a similar curfew condition was invalid under People v. Lent, supra, 15 Cal.3d 481. In that case the defendant was arrested at 2:15 a.m. for driving under the influence and possessing cocaine for sale. (Nassetta, at p. 701.) The trial court imposed a probation condition requiring defendant to observe a 10:00 p.m. to 6:00 a.m. curfew. (Id. at pp. 702.) On appeal, the court struck the condition as invalid. The court concluded that "the curfew condition bears no relationship to the offenses [the defendant] was convicted of. Neither possession of cocaine for sale nor driving under the influence requires the offense be committed at night. The mere fact that [the defendant] was pulled over at night does not demonstrate a relationship between the curfew condition and the offenses he committed, and the Attorney General does not argue otherwise. Second, it is undisputed that it is not a crime for an adult to be outside between 10:00 p.m. and 6:00 a.m." (Id. at p. 703.) With respect to the third factor, the court found that there was no evidence in the record to support the court's conclusion that "a curfew is reasonably related to preventing him from driving under the influence." (Id. at p. 703-704.) The court observed, "He could be out at night as a pedestrian, a passenger in a car, or on public transportation and pose no risk of committing a DUI. Nothing in the record suggests [defendant] is more likely to use drugs at night or is more likely to drive while under the influence at night." (Id. at p. 704.)
The Attorney General concedes that "[t]he reasoning in Nassetta applies equally to the mandatory supervision curfew condition here. Nothing requires possession of methamphetamine for sale or possession of Xanax to be committed during the nighttime. While the record shows that appellant was arrested in the instant case at night, there was no evidence that he was engaged in actual drug sales or attempted sales after 10:00 p.m., or only possessed the Xanax at night. And while the trial court noted, in discussing the curfew, appellant's past 'dangerous driving offenses, drug-related offenses and weapons- related offenses,' there is no information in the appellate record bearing upon the time appellant committed those crimes. While the trial court observed that in its experience, night is the time within which most drug-related activity occurs, as in Nassetta, there was no evidence before the court to that effect."
We agree with the Attorney General that Nassetta mandates striking the curfew condition imposed in this case. 3. Defendant's sentence must be modified to reflect a midterm sentence on count 2.
Under Penal Code section 1170.1, subdivision (a), with limited inapplicable exceptions, when a trial court imposes consecutive sentences the court must impose one-third the middle term for each subordinate term. Here, the trial court designated the sentence imposed on the count 1 conviction as the principal term and the sentence imposed on the count 2 conviction as the subordinate term. As set forth above, however, the court imposed the upper term on both counts but stayed 28 months of the subordinate term—effectively resulting in one-third the middle term sentence. The court explained, "On count 2, I'm also going to sentence you to serve the aggravated term. Most of it will be stayed. One-third the midterm, or eight months, will be imposed consecutive."
Penal Code section 1170.1, subdivision (a) reads in relevant part: "Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses."
As the Attorney General explains, "While the trial court ultimately arrived at the correct sentence, it erred in imposing an upper term sentence on the subordinate term." Accordingly, we will modify the judgment to impose a consecutive one-third of the middle term on the count 2 subordinate term and direct the trial court to prepare an amended abstract of judgment reflecting this modification.
Disposition
The judgment is modified to reflect imposition of a consecutive one-third of the middle term on count 2 and the trial court is directed to prepare an amended abstract of judgment reflecting this modification. The order setting the conditions of defendant's mandatory supervision is modified to strike the condition that defendant " maintain a curfew from 11:00 p.m. to 6:00 a.m. at the discretion of the probation officer." In all other respects the judgment and order are affirmed.
/s/_________
Pollak, J. We concur: /s/_________
McGuiness, Acting P.J. /s/_________
Jenkins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------