Opinion
F074480
02-08-2018
THE PEOPLE, Plaintiff and Respondent, v. RUMALDO ANDREW CARRILLO, Defendant and Appellant.
Gillian Black, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF293868B)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge. Gillian Black, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Gomes, J. and Smith, J.
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INTRODUCTION
Appellant Rumaldo Andrew Carrillo was placed on probation after being found guilty of possession of marijuana for sale and cultivation of marijuana. He argues the electronic search condition imposed by the trial court as a condition of probation is unconstitutionally overbroad, and violates his constitutional right to be free of unreasonable searches and seizures. We reject his constitutional challenges because Carrillo failed to object to the condition in the trial court and thereby forfeited the right to argue on appeal the condition is unconstitutional. Nevertheless, we address and reject the contention on the merits.
FACTUAL AND PROCEDURAL SUMMARY
Deputies searched Carrillo's house on October 24, 2013, pursuant to a warrant. Five, 15-foot tall marijuana plants were growing on the property. Inside the house were jars containing fully processed marijuana; also inside was partially processed marijuana; over 13 pounds of marijuana was inside the house. At least seven empty canisters of butane were discovered, indicating Carrillo had been using butane to manufacture concentrated cannabis, also known as honey oil.
During the search, deputies seized Carrillo's cell phone and obtained a warrant to search the contents. After obtaining the warrant, deputies discovered multiple text messages asking to purchase marijuana. Carrillo responded to the texts with prices, pictures of his marijuana products, and arrangements to meet and conclude the sale.
Carrillo was charged with possession of marijuana for sale, cultivating marijuana, and manufacturing a controlled substance other than PCP. At trial, Carrillo maintained he was legally authorized to possess the marijuana found at his home because he had a medical marijuana recommendation. The recommendation, however, allowed Carrillo to possess small amounts, far less than was found at his home.
His mother, Mary Carrillo, also was charged, but is not a party to this appeal.
On August 23, 2016, the jury found Carrillo guilty of possession of marijuana for sale and cultivating marijuana, but not guilty of the third count of manufacturing a controlled substance.
The probation report was lodged with the superior court on September 23, 2016. The probation report noted that Carrillo had no prior record, but had been convicted of two felonies in the current case. The probation report recommended that Carrillo be placed on felony probation for three years, subject to various terms and conditions including serving 180 days in custody.
Among the specific terms and conditions recommended in the probation report was the following:
"17. The defendant submit to a search of his person, residence, automobile and any object under his control, including any electronic device, at any time day or night, with or without a search warrant, with or without his consent, by any Peace Officer or Probation Officer." [Emphasis added.]
Carrillo's sentencing hearing was held on September 29, 2016. Defense counsel was asked if he had any comments before the trial court proceeded to pronounce sentence. Defense counsel addressed the trial court and argued that mitigating factors were present and the trial court should reduce the 180 days of custodial time to no more than 90 days. No comment or objection was made to the probation department's recommendation that Carrillo be subject to a search of his electronic devices.
The trial court sentenced Carrillo to three years felony probation, subject to various terms and conditions; multiple fines and fees were imposed. Among the terms and conditions specifically articulated by the trial court was the condition that Carrillo "submit to a search of your person, residence, automobile or any object under your control, including any electronic device, anytime of day or night." Carrillo raised no objection to this condition of probation.
Some portions of the reporter's transcript erroneously identify Mary Carrillo as present at the sentencing hearing; however, it is clear the trial court is speaking to a male defendant. In addition, Mary Carrillo's sentencing was postponed to October.
Carrillo appealed on October 4, 2016.
DISCUSSION
Carrillo contends that the probation condition providing for a search of all electronic devices: (1) infringes on his fundamental constitutional right to be free from unreasonable searches and seizures; and (2) is constitutionally overbroad.
Overview
When granting probation, the trial court may "impose and require ... 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 ...." (Pen. Code, § 1203.1, subd. (j).)
"The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. [Citation.] 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 ....' [Citation.] Conversely, a condition of probation 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." (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).)
Forfeiture
Defense counsel posed no objection to the electronic search condition at the sentencing hearing. The Attorney General argues this failure results in a forfeiture of the issue on appeal. Carrillo, anticipating the Attorney General's argument, cites In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.), for the proposition that a claim that a probation condition is constitutionally overbroad presents a question of law which is preserved for appeal without an objection.
Sheena K. addressed the application of the forfeiture doctrine to a probation condition for which the defendant failed to object in the trial court. The Supreme Court began its analysis by observing the forfeiture rule encourages parties to bring errors to the attention of the trial court so they may be immediately corrected. (Sheena K., supra, 40 Cal.4th at p. 881.) It also observed the rule applied in sentencing as well as other areas of criminal law. (Ibid.) After analyzing the various relevant cases, the Supreme Court concluded,
"Applying the rule to appellate claims involving discretionary sentencing choices or unreasonable probation conditions is appropriate, because characteristically the trial court is in a considerably better position than the Court of Appeal to review and modify a sentence option or probation condition that is premised upon the facts and circumstances of the individual case. Generally, application of the forfeiture rule to such claims promotes greater procedural efficiency because of the likelihood that the case would have to be remanded to the trial court for resentencing or reconsideration of probation conditions.
"In contrast, an appellate claim—amounting to a 'facial challenge'—that phrasing or language of a probation condition is unconstitutionally vague and overbroad because, for example, of the absence of a requirement of knowledge as in the present case, does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court. Consideration and possible modification of a challenged condition of probation, undertaken by the appellate court, may save the time and government resources that otherwise would be expended in
attempting to enforce a condition that is invalid as a matter of law." (Sheena K., supra, 40 Cal.4th at p. 885.)
The Supreme Court also cautioned that not every constitutional challenge would fit within this exception to the forfeiture rule. "We caution, nonetheless, that our conclusion does not apply in every case in which a probation condition is challenged on a constitutional ground. As stated by the court in [In re Justin S. (2001) 93 Cal.App.4th 811], we do not conclude that 'all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." [Citation.] In those circumstances, "[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court." [Citation.]' [Citation.] We also emphasize that generally, given a meaningful opportunity, the probationer should object to a perceived facial constitutional flaw at the time a probation condition initially is imposed in order to permit the trial court to consider, and if appropriate in the exercise of its informed judgment, to effect a correction." (Sheena K., supra, 40 Cal.4th at p. 889.)
Of note is that Carrillo has not objected to a search of his residence, which presumably could disclose as much or more information than could be found on any electronic device, as unreasonable or overbroad. We consider Carrillo's challenge to the electronic search probation condition forfeited for failure to assert this objection at sentencing. (Sheena K., supra, 40 Cal.4th at p. 885.) Regardless, his challenge to the probation condition is without merit.
Consent to Search
Carrillo argues the electronic search condition is an unreasonable condition of probation primarily because of the broad range of information to which law enforcement would have access as a result of the electronic search condition. He argues that Riley v. California (2014) 134 S.Ct. 2473 (Riley) requires that a search warrant be obtained prior to searching an electronic device. Riley held that a person has a constitutional right to privacy in the content of his or her electronic devices and such devices therefore were protected from search by the Fourth Amendment. However, Riley did not address the search of a probationer subject to a search condition; it addressed a nonconsensual search of a cell phone incident to arrest. (Riley, supra, at p. 2493.)
Probation search conditions are based on consent; a probationer consents to a search condition and a waiver of his or her Fourth Amendment rights in exchange for a grant of probation. (People v. Robles (2000) 23 Cal.4th 789, 795.) Privacy intrusions that otherwise would not be permissible under the Fourth Amendment may be imposed on probationers and parolees. (Samson v. California (2006) 547 U.S. 843, 853.)
Electronic device search conditions as a term of probation specifically have been upheld after Riley. (United States v. Bare (9th Cir. 2015) 806 F.3d 1011, 1018; In re J.E. (2016) 1 Cal.App.5th 795, 797, 803-804.) Such a probation condition is particularly appropriate where, as here, the electronic device was used in commission of the offense for which the defendant is on probation, allows the probation officer to monitor compliance with probation conditions, and is reasonably related to future criminality. (See People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1176-1177.)
Several cases addressing electronic device searches as a probation condition are pending review in the California Supreme Court.
Riley simply does not support Carrillo's contention that an electronic device search condition is unreasonable as a condition of probation and we reject his contention as without merit.
Overbroad Contention
Carrillo also points to the enormous amount of data potentially accessible in a search of a cell phone to argue the search condition is constitutionally overbroad and, he contends, an electronic search condition cannot be sufficiently tailored to address overbreadth concerns. Again, we disagree.
The essential question on an overbreadth claim is "the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) To assess whether the probation condition addresses a legitimate purpose justified by the burden it imposes, we assess whether the electronic search condition meets the Lent criteria. A condition of probation 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. (Lent, supra, 15 Cal.3d at p. 486.)
While we acknowledge that cell phone use itself is not illegal, the electronic search condition is clearly related to the crimes for which Carrillo stands convicted. Deputies discovered multiple text messages on Carrillo's cell phone asking to purchase marijuana. Carrillo responded to the texts with prices, pictures of his marijuana products, and arrangements to meet and conclude the sale. The number of text messages on Carrillo's cell phone indicate it was used multiple times by Carrillo to facilitate his criminal activity of selling marijuana. Thus, this probation condition relates to conduct that is reasonably related to Carrillo's crimes and meets the Lent criteria.
The probation condition also is reasonably designed to prevent future criminality. Carrillo used his cell phone for his criminal activities; it is reasonable to infer other electronic devices in his possession might similarly be used. The electronic search condition facilitates supervision of Carrillo to ascertain he is complying with all terms of probation and to prevent future criminal conduct.
Although Carrillo argues the condition is overbroad because it potentially allows a search of medical and financial data, such a search is reasonably related to his criminal convictions and preventing future criminality. Because of the nature of Carrillo's offenses of production and possession for sale of marijuana, financial records are reasonably subject to search. Because Carrillo engaged in these activities with a family member, his mother, correspondence with family and friends is reasonably subject to search. Because Carrillo claims a medical marijuana exemption and was allowed to continue to possess a specified quantity of marijuana for personal use, his medical records on this point are reasonably subject to search. Because Carrillo was engaged in the sale of marijuana, his phone calls, text messages, emails and social media accounts are reasonably subject to search.
We acknowledge the electronic search condition implicates Carrillo's constitutional rights, but it does not violate them because of the overriding interest in assuring that Carrillo does not again produce and sell marijuana in violation of the law. The minimal infringement of Carrillo's privacy rights is outweighed by the state's interest in preventing future criminality from someone who has been granted the privilege of probation. (People v. Ebertowski, supra, 228 Cal.App.4th at p. 1176.)
DISPOSITION
The judgment is affirmed.