Opinion
C084111
11-26-2019
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW DAVID DAWSON, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE022488)
Defendant Matthew David Dawson pleaded no contest to making criminal threats, a misdemeanor reasonably related to robbery, driving in willful or wanton disregard for safety while fleeing from a pursuing police officer, and driving with a suspended license. The trial court placed him on probation with various conditions, including that he submit to warrantless searches of his electronic storage devices and obtain permission to leave the state or to remain away from his residence for more than 48 hours. On appeal, defendant challenges these conditions, contending: (1) the electronics device search condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) because it is not reasonably related to future criminal conduct; (2) the electronics device search condition is unconstitutionally overbroad; and (3) the travel permission condition is unconstitutionally overbroad.
We held this appeal pending resolution of the primary issue by the California Supreme Court. We have now received the awaited guidance.
In In re Ricardo P. (2019) 7 Cal.5th 1113, at page 1116 (Ricardo P.), our high 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. "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. We will otherwise affirm.
Our decision to strike the condition is made without prejudice to the People's seeking to modify the probation order for the purpose of proposing additional conditions that may be permissible under Ricardo P., should they choose to do so.
BACKGROUND
Defendant was charged in count one with robbery (Pen. Code, § 211); in count two with driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2, subd. (a)); in count three with possession for sale of a designated controlled substance (Health & Saf. Code, § 11375, subd. (b)); and in count four with driving with a suspended license (Veh. Code, § 14601.2, subd. (a)). As to count three, it was further alleged defendant had sustained a prior felony conviction in 2012 for criminal threats in violation of section 422. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) Defendant agreed to plead no contest to a lesser offense to that charged in count one, misdemeanor criminal threats reasonably related to robbery, as well as counts two and four. The factual basis for his plea was that defendant attempted to flee in his car from a uniformed police officer in his marked police car that was sounding its siren and exhibiting at least one red light. While fleeing, defendant drove with a wanton disregard for the safety of others. The trial court accepted his plea and defendant requested immediate sentencing and waived referral to the probation department.
Further undesignated statutory references are to the Penal Code.
The proposed conditions of probation included an electronics search condition, specific condition No. 13, that 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 phone 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."
The proposed conditions of probation further included a travel permission condition, general condition No. 3, that read in full as follows:
"You may not leave the State of California, at any time, without first securing permission from your probation officer and completing the appropriate procedures to do so. You are not to remain away from your regular residence for more than 48 hours without first having secured permission from your probation officer. You are to immediately notify your probation officer of any intended change of address and the reasons therefore." Both the prosecution and the defense submitted boilerplate briefs on the electronics search condition's validity and constitutionality. These boilerplate briefs provided no specific information relating to defendant or his current or past crimes, or whether he owned or used any electronic storage devices, and if so, what information was stored on such devices. Defense counsel did not object to the travel permission condition.
The People's brief attached a boilerplate declaration of a detective assigned to the Sacramento Valley Hi-Tech Crimes Task Force. The declaration detailed the kinds of evidence found on electronic devices in certain categories of crimes involving drugs, fraud, identity theft, financial crimes, sex offenses, human trafficking, pimping and pandering, domestic violence, weapons, and gangs. The declaration did not specifically mention any of defendant's crimes. It discussed the need to examine the entire contents of electronic devices due to the ease of moving files and hiding information. Finally, it explained the need to require the probationer to provide all passwords.
At sentencing, defense counsel argued that the electronics device search condition was not related to defendant's crimes or future criminality. The People noted that there was a dismissed charge in this case against defendant for possession of a controlled substance for the purpose of sales and that defendant had both a current charge and a prior criminal threats conviction, a crime that can be accomplished with electronic devices. The trial court placed defendant on five years' formal probation, imposing the contested condition, without making any findings or articulating any analysis.
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.)
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
The Electronics Search Condition
A. 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 that 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 had 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 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. had 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. (Id. 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.)
B. 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, 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. Unlike the juvenile court in Ricardo P., here the trial court offered no justification for the condition. The People proffered that the dismissed charge of possession of a controlled substance for the purpose of sales and prior criminal threats conviction are crimes that can be accomplished with electronic devices. This generalization, however, offers no greater connection to defendant's conduct or personal history than the juvenile court's generalization in Ricardo P. that teenagers tend to brag about drug use online. As our Supreme Court noted, "In virtually every case, one could hypothesize that monitoring a probationer's electronic devices and social media might deter or prevent future criminal conduct." (Ricardo P., supra, 7 Cal.5th at p. 1123.) If such generalizations were sufficient to justify the substantial burdens of the electronics search condition, "it is hard to see what would be left of Lent's third prong." (Id. at p. 1124.) As in Ricardo P., here the burden imposed by the electronics search condition is substantially disproportionate to the interests it serves.
In Ricardo P., our high court declined to consider whether there was a sufficient basis in the record to support the Court of Appeal's suggestion that the electronics search condition could be restricted so that it was reasonable. (Ricardo P., supra, 7 Cal.5th at p. 1124.) Here, the People have not suggested remand or that the electronics search condition could be narrowed to satisfy Lent. Therefore, we will simply strike the challenged probation condition.
Because we invalidate the electronics search probation condition, we need not reach defendant's argument that the condition was overbroad. --------
IV
Travel Permission Condition
Defendant contends the travel permission probation condition infringes on his constitutional right to travel. The People counter that defendant's arguments do not present pure questions of law and they are forfeited because defendant failed to raise them in the trial court. Further, the People contend that the condition is constitutional on its face. We agree with the People's second argument.
As an initial matter, we agree with defendant that he may challenge the travel permission probation condition for facial overbreadth despite his failure to object in the trial court. In general, the failure to make a timely objection to a probation condition forfeits the claim of error on appeal. (People v. Welch (1993) 5 Cal.4th 228, 234.) A defendant may, however, assert for the first time on appeal whether a probation condition is facially overbroad if the claim presents a pure question of law without reference to the particular sentencing record developed (or left undeveloped) in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 889.) Here, defendant's challenge is cognizable on appeal because he argues the condition is unconstitutionally overbroad on its face, and thus, his challenge involves a pure question of law and is not forfeited for failure to object.
"If a probation condition serves to rehabilitate and protect public safety, the condition may 'impinge upon a constitutional right otherwise enjoyed by the probationer, who is "not entitled to the same degree of constitutional protection as other citizens." ' " (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355.) "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." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
Defendant contends the travel permission probation condition is facially overbroad "because it impinges upon [defendant's] constitutional right to travel by giving the probation officer unfettered control over his freedom to do so." We disagree with the suggestion that a probation condition requiring a probationer to seek and obtain the approval of his or her probation officer before leaving the state or traveling away from his residence for more than 48 hours is not sufficiently tailored and reasonably related to the compelling state interest of facilitating supervision and rehabilitation of the probationer. Indeed, "[i]mposing a limitation on probationers' movements as a condition of probation is common, as probation officers' awareness of probationers' whereabouts facilitates supervision and rehabilitation and helps ensure probationers are complying with the terms of their conditional release." (People v. Moran (2016) 1 Cal.5th 398, 406.) The imposition of travel permission probation conditions are regularly upheld against overbreadth challenges, even in as-applied challenges. (See People v. Relkin (2016) 6 Cal.App.5th 1188, 1195-1196 [upholding a probation condition requiring defendant to obtain written permission from probation officer prior to leaving state against an as-applied overbreadth challenge].) "Although criminal offenders placed on probation retain their constitutional right to travel, reasonable and incidental restrictions on their movement are permissible." (Moran, at pp. 406-407.) Thus, we cannot say the imposition of a travel permission restriction is on its face a violation of a probationers' right to travel. We therefore conclude that the contested restriction is not facially overbroad.
DISPOSITION
The judgment is modified to strike the electronics search probation condition. In all other respects the judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Krause, J.