Opinion
C084526
02-21-2020
THE PEOPLE, Plaintiff and Respondent, v. EDWARD B. ALVIDREZ, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17FE000461)
After defendant Edward B. Alvidrez pleaded no contest to stalking, the trial court placed him on probation with various conditions, including that he submit to warrantless searches of electronics storage devices.
On appeal, defendant challenges the electronics search condition; we conclude, pursuant to the recent California Supreme Court decision In Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), that "the burden it imposes on [defendant's] privacy is substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society." (Id. at p. 1119.) Accordingly, we will strike the condition and remand the matter to the trial court for further proceedings.
FACTS AND PROCEEDINGS
In April 2016, a restraining order issued protecting Jane Doe from defendant. Defendant violated that order multiple times using his phone to leave messages for Doe that included "veiled threats." Defendant already was on three grants of probation for violating a prior restraining order issued to protect Doe; his threats and repeated violations of restraining orders caused Doe to fear for her safety and the safety of her family.
The People charged defendant with stalking in violation of Penal Code section 646.9 (further undesignated statutory references are to the Penal Code). He agreed to plead no contest in exchange for a promise of no state prison at the outset. The factual basis for his plea was entered and defendant requested immediate sentencing, waiving referral to the probation department.
The proposed conditions of probation included an electronics search condition, which read in full 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 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."
At sentencing, defendant objected to the electronics search condition. In support of his objection, defendant argued the alleged conduct was text messages and phone calls, so the condition should be limited to "a search for text messages or phone calls that would violate a restraining order, and to not encompass all the other private information that could be on a person's cell phone."
In response, the People argued the condition did not need to be so limited because there was a "nexus" between the crime and the condition: "[i]t was text messages as well as nine phone calls. The People ask that it be included in its entirety."
The trial court imposed the contested condition: "I do find that there is a nexus, and I don't believe as written it is unconstitutionally overbroad, so it will remain as a condition."
DISCUSSION
I
Probation Search Conditions Generally
Upon granting probation, the 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 [section 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 People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).)
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.
In Ricardo P., supra, 7 Cal.5th 1113, the juvenile was declared a ward of the court after he committed two felony burglaries; he was placed on probation. The juvenile court imposed various probation conditions, including one which required the juvenile to " '[s]ubmit . . . electronics including passwords under [his] control to search by Probation Officer or peace office[r] with or without a search warrant at any time of day or night.' " (Id. at pp. 1116-1117.) Ricardo told a probation officer he committed the crime because he was not thinking and that he had stopped smoking marijuana because it interfered with his ability to think clearly. The court justified the condition on the basis that it believed marijuana was involved in the offense and minors often bragged about marijuana usage on the Internet, and it was important to monitor Ricardo's drug usage. (Ibid.)
On appeal, Ricardo challenged the electronics search condition under Lent, supra, 15 Cal.3d 481. The Court of Appeal upheld the condition under Lent, but found it was unconstitutionally overbroad. (Ricardo P., supra, 7 Cal.5th at p. 1116.) Our Supreme Court granted review on whether the electronics search condition satisfied the third prong of Lent, whether it " ' "requires or forbids conduct which is not reasonably related to future criminality." ' " (Id. at p. 1119.)
The high court was skeptical about the juvenile court's inference that Ricardo was using drugs during the burglaries and the generalization that teenagers tend to brag about drug use online. (Ricardo P., supra, 7 Cal.5th at pp. 1119-1120.) But even accepting these premises, the court noted that cases "upholding probation conditions under Lent's third prong have involved stronger connections between the burdens imposed by the challenged condition and a probationer's criminal conduct or personal history." (Id. at p. 1120.) The third prong of Lent "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.) Our high court found the electronics search condition significantly burdens privacy interests due to the type and quantity of information stored on electronic devices. (Id. at p. 1123.) Nothing suggested the juvenile had ever used an electronic device or social media in connection with illegal activity. (Ibid.) The court concluded the electronics search condition "imposes a very heavy burden on privacy with a very limited justification." (Id. at p. 1124.)
The Court of Appeal in Ricardo P. upheld the electronics search condition under People v. Olguin (2008) 45 Cal.4th 375, as reasonably related to the supervision of the juvenile on probation. (Ricardo P., supra, 7 Cal.5th at pp. 1124-1125.) Despite some broad language in Olguin, the Supreme Court rejected an interpretation of Olguin that probation conditions reasonably related to enhancing supervision of probationers are valid under Lent. (Ricardo P., at pp. 1125-1127.) Instead, the court limited Olguin to its facts. The probation condition at issue there required defendant to notify the probation officer about any pets at his residence. (Id. at p. 1124.) The pet notification condition was reasonable because it served to inform and protect the probation officer in his supervision and this protection was reasonably related to the purpose of deterring future criminality. (Id. at p. 1126.) By contrast, the electronics search condition was "far more burdensome and intrusive, and requires a correspondingly substantial and particularized justification." (Ibid.)
Our high court held the electronics search condition "satisfies Lent's third prong and is 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., supra, 7 Cal.5th at p. 1119.)
III
Application of Ricardo P. to this Case
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 and whether the burden imposed by the electronics search condition is "substantially disproportionate to the countervailing interests of furthering [defendant's] rehabilitation and protecting society." (Ricardo P., supra, 7 Cal.5th at p. 1119.) Unlike in Ricardo P., here the record provides ample evidence connecting defendant's criminal conduct to the use of his cell phone. The burden imposed by the condition, however, must still be reasonable and the sweeping invasion of privacy implicated by this electronics search condition demands too much. (See id. at p. 1122.)
The electronics search condition imposed on defendant is expansive. There is no limitation on when probation officers can search defendant's electronics. This unfettered access to defendant's constitutionally protected, private information "imposes a burden that is substantially disproportionate to the legitimate interests in promoting rehabilitation and public safety." (Ricardo P., supra, 7 Cal.5th at p. 1129.) The condition therefore, is not "reasonably" related to prevent future criminal activity under Lent and it must be stricken. (Id. at p. 1128.)
We note that, on remand, in reconsidering this probation condition, nothing in this opinion suggests that the court is limited to ordering the search of defendant's text messages and call log on his mobile phone. And, our decision to strike the condition is made without prejudice to the People's moving to modify the probation order for the purpose of proposing additional conditions that may be permissible under Ricardo P., should the People choose to do so.
DISPOSITION
The electronics search condition is stricken. The judgment is affirmed in all other respects. The matter is remanded to the trial court for further proceedings consistent with this opinion.
/s/_________
HULL, Acting P. J. We concur: /s/_________
MAURO, J. /s/_________
RENNER, J.