Opinion
D073827
02-10-2020
THE PEOPLE, Plaintiff and Respondent, v. MARIAM ALYASINI, Defendant and Appellant.
Taylor L. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Lance E. Winters and Julie L. Garland, Assistant Attorneys General, Tami Hennick, Melissa Mandel and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD275462) APPEAL from a judgment of the Superior Court of San Diego County, Kathleen M. Lewis, Judge. Affirmed and remanded with directions. Taylor L. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Lance E. Winters and Julie L. Garland, Assistant Attorneys General, Tami Hennick, Melissa Mandel and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
By amended complaint, the People charged defendant Mariam Alyasini with using personal identifying information of another (Pen. Code, § 530.5, subd. (a); count 1), possession of forged items (§ 475, subd (a); count 2), and possession for sale of a designated controlled substance (Health & Saf. Code, § 11375, subd. (b)(1); count 3). Alyasini pleaded guilty to count 1, and in exchange the People dismissed the other charges. She agreed to a "Harvey waiver," permitting the sentencing court to consider her criminal history and the case's factual background, including unfiled, dismissed and stricken charges. (People v. Harvey (1979) 25 Cal.3d 754.)
Undesignated statutory references are to the Penal Code.
The court placed Alyasini on three years formal probation, ordering her to serve 137 days in custody. It imposed an electronics search probation condition that Alyasini "[s]ubmit [her] person, vehicle, residence, property, personal effects, computers, and recordable media including electronic devices to search at any time with or without a warrant, and with or without reasonable cause, when required by [a probation officer] or law enforcement officer."
In her first appeal, Alyasini contended the electronics search condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent), unconstitutionally overbroad, and violates the California Electronic Communications Privacy Act (§ 1546 et seq.).
In our previous opinion in this case, we rejected those challenges to the probation condition and affirmed the judgment. Alyasini appealed to the California Supreme Court, which remanded the matter with instructions that we vacate our opinion and reconsider the cause in light of In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). The parties provided supplemental briefing on this issue. After considering this briefing, we direct the trial court to strike the electronics search probation condition. We affirm the judgment in all other respects.
The People request that we take judicial notice of a letter from the probation department stating Alyasini "is not in compliance with [p]robation." We may judicially notice the existence and contents of the letter, but not its truth. (See People v. Castillo (2010) 49 Cal.4th 145, 157.) Because the letter is relevant only for its truth, we deny the request for judicial notice. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063-1064.)
FACTUAL AND PROCEDURAL BACKGROUND
As this appeal follows Alyasini's guilty plea, the facts are taken from the probation report and preliminary hearing transcript.
In January 2018, as part of an operation conducted with the Department of Homeland Security, San Diego Police Department officers several times observed Alyasini and her boyfriend in a parking lot going to and from a car that had no license plates. When police later stopped the car, Alyasini was driving and her boyfriend, the car's owner, was the passenger. Police arrested him because he had an active felony warrant for cocaine sales. Alyasini falsely identified herself using the name of a relative who is in the military. Police discovered that Alyasini had an outstanding warrant for driving under the influence and resisting arrest for an incident in which she had been speeding at 120 miles per hour with a blood alcohol level of .13 percent. She eventually gave police her true name, explaining she was afraid that she and her boyfriend would be arrested.
Police officers discovered 40 fake or counterfeit $100 bills in the car. Alyasini said they were used in making a music video. Police found a video camera in the car, and also a pill capsule and a small vial, both of which contained a white powdery substance that they believed was cocaine. However, Alyasini and her boyfriend said the substance was a vitamin, and tests proved that was correct. Police found in Alyasini's purse 138 pills, which she said were prescribed to her. The pills were marked "Xanax" but tested negative for Xanax.
The probation officer discussed the serious nature of Alyasini's crimes: "Even though [Alyasini] does not have a lengthy criminal history, the facts of the instant offense and [the misdemeanor case involving the DUI] are serious, in that they indicate a level of non-compliance. Her failing to appear to Court in [the other case] and then attempting to allude [sic] officers by providing her [relative's] name upon contact, are not the actions of an individual who is ready and willing to take responsibility. Not to mention, the fact [Alyasini's] taking the name of a person serving in the military and using it in an effort to avoid her own arrest could be detrimental to the victim whose name was falsely used." The probation office recommended the electronics search condition to ensure Alyasini desist from contacting her boyfriend, and that she "is not seeking contraband that [is] counterproductive to her rehabilitation."
In the trial court, Alyasini objected to the probation department's request to include an electronics search condition on the same grounds as on appeal. The court denied Alyasini's challenge to the electronics search condition: "I am going to impose the electronic devices search condition based on the offense. I think that it is necessary for probation to monitor based on the facts and [her] unlawfully having personal identifying information, the Xanax, and other circumstances. I do think there is a nexus."
DISCUSSION
In contending the electronics search condition is invalid under Ricardo P., supra, 7 Cal.5th 1113 and Lent, supra, 15 Cal.3d 481, Alyasini argues: "No electronic device was used in the commission of any current or former crime. Any attempt to use [her] possession of innocuous drug look-alikes, counterfeit bills with pink ink that are obviously fake to the naked eye, and use of a video camera and props to justify [the electronics search condition] fails because possession of any of these items is not a crime."
The People counter that Alyasini's claim fails because the first prong of the Lent test is not met here, as Alyasini used an electronic device to commit her crimes: "[Alyasini] claimed that she used the counterfeit money in music videos, connecting the video camera to the counterfeit money by her own admission. The proximity of the video camera to the counterfeit money and fake drugs, and [her] lie about her identity, create a clear nexus between the crimes and the use of electronics supporting the electronics search condition. Importantly, the counterfeit money was connected by [her] own admission to the activity of creating music videos, which can be done on a multitude of electronic devices and platforms."
The California Supreme Court recently considered the reasonableness of electronics search conditions in Ricardo P., supra, 7 Cal.5th 1113. Applying that decision to the record here, we conclude the broad electronics search condition imposed on Alyasini is not reasonable. Under Lent, "[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 probation term.' " (Ricardo P., supra, 7 Cal.5th at p. 1118.) "On appeal, we ' "review conditions of probation for abuse of discretion." ' [Citation.] Specifically, we review a probation condition 'for an indication that the condition is "arbitrary or capricious" or otherwise exceeds the bounds of reason under the circumstances.' " (Ibid.)
Ricardo P. considered the third Lent prong in the context of an electronics search condition imposed on a juvenile probationer. (Ricardo P., supra, 7 Cal.5th at p. 1115.) The juvenile admitted two felony counts of burglary. (Ibid.) "As a condition of his probation, the juvenile court required Ricardo to submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices. Although there was no indication Ricardo used an electronic device in connection with the burglaries, the court imposed the condition in order to monitor his compliance with separate conditions prohibiting him from using or possessing illegal drugs." (Ibid.) Ricardo P. concluded that this rationale was insufficient to justify the broad electronics search condition: "[T]he record here, which contains no indication that Ricardo had used or will use electronic devices in connection with drugs or any illegal activity, is insufficient to justify the substantial burdens imposed by this electronics search condition. The probation condition is not reasonably related to future criminality and is therefore invalid under Lent." (Ricardo P., at p. 1116.)
"Lent's requirement that a probation condition must be ' "reasonably related to future criminality" ' contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Ricardo P., supra, 7 Cal.5th at p. 1122.) A broad electronics search condition "significantly burdens [a probationer's] privacy interests" because of the comprehensive nature of the information stored by modern electronic devices such as cell phones. (Id. at p. 1123, citing Riley v. California (2014) 573 U.S. 373, 395.) It therefore requires a correspondingly strong justification for the search condition. But where, as in Ricardo P., the justification for the search condition is mere speculation that the probationer will use his electronic devices to document or discuss drug usage—on the ground that minors typically do so—the justification is inadequate. (Ricardo P., at pp. 1122-1123.) As the California Supreme Court explained, "This case involves a probation condition that imposes a very heavy burden on privacy with a very limited justification." (Id. at p. 1124.) In other words, "the burden it imposes on Ricardo's privacy is substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society." (Id. at p. 1119.) "This disproportion leads us to conclude, on this record, that the electronics search condition is not ' "reasonably related to future criminality" ' and is therefore invalid under Lent." (Id. at p. 1124.)
Ricardo P. involved a juvenile, but its reasoning applies with equal force here, and we should be more exacting in our review because the court sentencing Alyasini did not have the same latitude as a juvenile court in the same situation. " 'A condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.' " (Ricardo P., supra, 7 Cal.5th at p. 1118.)
Under Ricardo P., "there must be information in the record establishing a connection between the search condition and the probationer's criminal conduct or personal history—an actual connection apparent in the evidence, not one that is just abstract or hypothetical." (In re Alonzo M. (2019) 40 Cal.App.5th 156, 166.) For example, in Alonzo M., the record contained evidence of the juvenile's extensive use of electronic devices to communicate with friends and for other purposes. (Id. at pp. 166-167.) The trial court imposed an electronics search condition to "help to ensure that [the juvenile] does not again succumb to the negative influences he blames for the criminal behavior that led to this wardship." (Id. at p. 167.) Because there was a basis in the evidence to believe that the electronics search condition would achieve these purposes, specifically the juvenile's extensive use of electronic devices, the reviewing court found that a narrowly tailored search condition would be reasonable. (Id. at p. 168.)
The record here does not reflect any such connection between the electronics search condition at issue and Alyasini's criminal conduct or personal history. The trial court cited Alyasini's unlawfully having the Xanax and her relative's personal information. But the relevant question is whether there is any indication beyond speculation that her conduct provides a strong justification for an electronics search condition. Where, as here, there is no indication that the defendant used or will use electronic devices in a manner that would lead to effective monitoring, the justification for a broad electronics search condition is lacking. (See Ricardo P., supra, 7 Cal.5th at p. 1116; In re Alonzo M., supra, 40 Cal.App.5th at p. 167.)
The same reasoning applies to the People's claim that the electronics search condition will help prevent criminality as Alyasini was arrested because of her suspicious conduct of going to and from her car numerous times, she had in her possession a suspicious white powdery substance, she had counterfeit money, and her boyfriend was on probation and a warrant had been issued for his arrest on a felony possession for sales charge. Those considerations do nothing to connect Alyasini's use of electronic devices to her future criminality. As one court explained, in a similar context, "Because of the significant burden imposed on [the defendant's] privacy interest and the absence of any information in the record to connect the condition with the goal of preventing future criminality, we again hold that the electronic[s] search condition imposed on [the defendant] is invalid under Lent." (People v. Bryant (2019) 42 Cal.App.5th 839, 847.) The broad electronics search condition at issue here is likewise invalid. (See Ricardo P., supra, 7 Cal.5th at p. 1116.)
The People argue that Alyasini claimed she used an electronic device—a video recorder—to commit the charged crime of possession of forged items; therefore, Lent's first prong is not met. The People merely assert there was a "proximity of the video camera to the counterfeit money." On this record, we conclude any relation between the video camera and the counterfeit money is too attenuated and therefore of insufficient evidentiary value for purposes of establishing the validity of the electronics search probation condition under Lent's first prong.
We therefore remand the matter to the trial court with instructions to strike the electronics search condition. (See People v. Appleton (2016) 245 Cal.App.4th 717, 728-729.) On remand, the court may consider whether to impose a more targeted or alternative condition consistent with this opinion and Ricardo P.
DISPOSITION
The matter is remanded to the trial court with directions that it strike the electronics search probation condition. In all other respects, the judgment is affirmed.
O'ROURKE, Acting P. J. WE CONCUR: IRION, J. GUERRERO, J.