Opinion
D073240
01-28-2020
THE PEOPLE, Plaintiff and Respondent, v. THOMAS LEE DELANO, Defendant and Appellant.
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Steve Oetting and Warren J. Williams, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION ON TRANSFER FROM CALIFORNIA SUPREME COURT
(Super. Ct. No. SCS294857) APPEAL from a judgment of the Superior Court of San Diego County, Dwayne K. Moring, Judge. Affirmed and remanded with directions. Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Steve Oetting and Warren J. Williams, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Thomas Lee Delano of importation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 1), possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 2), and false impersonation (Pen. Code, § 529, subd. (a)(3); count 3). It also found true allegations that as to counts 1 and 2, the methamphetamine exceeded one kilogram (Health & Saf. Code, § 11370.4, subd. (b)(1)), four kilograms (Health & Saf. Code, § 11370.4, subd. (b)(2)), and 10 kilograms (Health & Saf. Code, § 11370.4, subd. (b)(3)).
The court sentenced Delano to the sheriff's custody as follows: four years on count 1 plus 10 years on that count's drug enhancement under Health and Safety Code section 11370.4, subdivision (b)(3), and eight months on count 3. The court imposed a "split sentence" that included four years of mandatory supervision under Penal Code section 1170, subdivision (h)(5)(b). Under Penal Code section 654, it imposed but stayed the sentence on count 2 and on each of the other drug enhancements. It also imposed as a condition of mandatory supervision an electronics search condition requiring Delano to "submit person, vehicle, residence, property, personal effects, computers, and recordable media 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."
Delano contends: (1) insufficient evidence supports the possession and transportation convictions; the court erroneously stayed, rather than struck, the Health and Safety Code section 11370.4 drug enhancements; and (3) the electronics search condition is unconstitutionally overbroad.
In our initial opinion in this case, we affirmed the judgment. As to the challenged probation condition, we pointed out the People had argued the claim was forfeited because Delano did not raise it in the trial court. Nonetheless, we addressed the claim on the merits and concluded the condition was not overbroad.
Delano appealed our decision 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. We requested the parties provide supplemental briefing on the matter, and they did. Delano argues the electronics search condition is both unreasonable under People v Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally overbroad. The People argue Ricardo P. is inapposite and this claim fails because Delano does not satisfy the first prong of Lent's test for evaluating a probation condition's validity. We agree. We further conclude Delano forfeited the overbreadth issue by failing to object to the condition in the trial court. We therefore affirm the judgment and remand with directions set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
On July 11, 2017, as Delano drove his Hyundai into the United States through the San Ysidro port of entry, a United States Customs and Border Protection officer's dog alerted to something in the car's gas tank. The officer requested Delano's car keys, and Delano calmly handed them over without making any furtive movements.
A second officer was called, and Delano presented him an Oregon driver's license falsely identifying him as "William Helmick." That officer testified Delano did not act suspiciously and did not try to run or evade the officer. Following secondary inspection, the border agents obtained assistance to remove and cut open the gas tank. The parties stipulated that border agents found thirty-nine vacuum sealed bags containing 16 kilograms of methamphetamine inside.
A Department of Homeland Security special agent testified as follows: he investigated Delano's vehicle registration and determined that his vehicle was purchased in Mexico in early July 2017. An incomplete car registration application showed Delano attempted to register it under the name "William Jodeph [sic] Helmick," and gave a Blythe, California address. Homeland Security computer records indicated a "William Helmick" had crossed the San Ysidro border between 12 and 14 times, including twice using the Hyundai in the days before Delano's arrest. The remaining times, Delano, while using Helmick's identifying information, had crossed the border in a different vehicle. No computer records showed that someone named "Thomas Delano" had crossed the border in the preceding 18 months.
Investigating officers testified they obtained Delano's text messages, phone logs, and internet search histories. Using an e-mail address based on a variation of "HelmickWilliams," Delano communicated with USA Auto Insurance on July 10, 2017, regarding a vehicle stolen nine days earlier. Delano had searched the Internet for "William Helmick," "how do you make meth using methylamine," and "how many people have been arrested at the Sandra JC [sic] border crossing this month?" An officer testified that "Sandra JC" referred to the San Ysidro border crossing. Delano sent text messages to a male stating, "Just saying you fucked up homie because my people are the real deal." Another text message stated, "Okay. You fuck you need to get me the rest of my things. I don't care how you do it or you won't be around much longer. I know where you are. I know where you're at and so does the people that I work for. Just saying you have until midnight to call Pangwin with my shit. . . . This is you[r] only and last chance!" Delano's text messages to someone called "Pangwin" mentioned a California license plate for a 2007 Acura. Delano stated, "We seem to be doing a lot of work for you. . . . They want 300 for expenses and the 500." Delano addressed other text messages to "My Love," and stated, "I'm ok. Three guys tried to take me on a one-way ride but they got beat up instead and now my boss has me hidden until he can find me a new apartment. I'm a little [bruised] up but I'm okay."
A Department of Homeland Security special agent testified that Delano used the term "my boss" to refer to the person he worked for, and that Delano alluded to drugs in some text messages. The special agent opined that a person stopped at the border with 16 kilograms of methamphetamine hidden in the gas tank of his registered vehicle would be knowingly transporting those narcotics. He testified that if the drug cartels' drivers were unaware they are carrying drugs, there was a risk that such costly merchandise would not reach its intended destination. He further testified he had never investigated a case involving an unknowing courier or "blind mule." However, he had heard of it in a specific instance involving small quantities of marijuana that were attached to the vehicles of people who lived close to the border and whose border crossing histories and patterns were known, like those persons who always parked at the same spot once they crossed into the United States. The special agent explained the difficulty of an unknowing carrier transporting large quantities of drugs: "If the person . . . works at Wal-Mart and parks the car at Wal-Mart, it's going to be pretty difficult to extract the drugs from the gas tank. [¶] . . . you actually have to put it up on a lift and take the gas tank off. [¶] So there's more of a danger of being caught trying to extract the drugs."
The prosecutor asked the special agent if he would expect to find the driver's fingerprints and DNA on the packages or in the concealed area of the car. The special agent answered in the negative: "Basically, drug trafficking is a business. There are different individuals that take part in the business. [¶] . . . there [are] drivers that drive the drugs from point A to point B. There [are] recruiters that hire drivers to drive the vehicles. There [are] people that purchase the vehicles. There [are] people that load the drugs into compartments. There [are] people that actually build the compartments. [¶] Usually it's all compartmentalized where each person has their own specific job or duty to do." The special agent added that because drug trafficking is an illegal business, those involved use nicknames and are not told about other people's roles in the business in order to protect the business. The special agent testified that drug traffickers hire drivers who typically engage in "burning plates," meaning that the driver "associat[es] a license plate with a driver basically crossing the border" because doing so allows drug traffickers to cross the border quickly and easily.
The special agent testified that the quantity of narcotics determines whether it is possessed for use or sale. A typical dose of methamphetamine is between .1 and .2 grams, and a heavy user would use around one gram a day. Quantities above that amount are usually for distribution. The methamphetamine seized from Delano was valued between $61,000 and $600,000.
Defense counsel asked the special agent on cross-examination: "What's the point of even telling the driver that you're taking drugs? Why aren't you just told to drive this car up there?" The special agent replied it was important to have good drivers, and the drivers need to know what they're carrying "[b]ecause if it turns out you have heroin, cocaine or meth and you were just paid to transport marijuana, that driver is not going to want to work for you and may even spread the word to other drivers, if that person knows. They don't want to work for you because something you should have been paid $5,000 for and now only got paid $500 for."
William J. Helmick, an Alaska resident, testified at trial that his wallet, including his driver's license, was stolen in 2016 while he was living in Oregon. Helmick stated he had not traveled to Blythe, California since 2000. Helmick nonetheless received notices in January 2017 for traffic violations in California, including notices for failure to show proof of insurance or registration, and a bench warrant. Helmick testified that he had never met Delano nor given him permission to use his identity. Helmick did not register or use the e-mail address that Delano used. Further, Helmick never attempted to register or insure a Hyundai or Acura within the previous year. Helmick had not been to Tijuana in the last year, did not purchase a Hyundai, and did not purchase insurance for a Hyundai.
DISCUSSION
I. Sufficiency of the Evidence
Delano contends that his count 1 and 2 convictions must be reversed because no substantial evidence shows that when he crossed the border he knew the methamphetamine was in the gas tank. Claiming he was convicted solely because he owned and drove the car, he argues no forensic or fingerprint evidence connected him to the gas tank or the drugs, he was not nervous or suspicious during his contacts with authorities, and no evidence connected him to a drug trafficking organization.
To determine the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt. (People v. Bolden (2002) 29 Cal.4th 515, 553; People v. Jennings (1991) 53 Cal.3d 334, 364.) We need not be convinced of the defendant's guilt beyond a reasonable doubt; we merely ask whether " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.) We must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. (Wader, at p. 640.) We may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297.)
The crime of importation of a controlled substance requires that the defendant (1) imported a controlled substance into California; (2) knew of its presence; (3) knew the substance was a controlled substance; and (4) the controlled substance was in a useable amount. (Health & Saf. Code, § 11379, subd. (a); CALCRIM No. 2300.) The crime of possession for sale of a controlled substance consists of four elements: (1) defendant unlawfully possessed a controlled substance; (2) defendant knew of its presence; (3) defendant knew of its nature as a controlled substance; and (4) the defendant intended to sell the substance in an amount usable for consumption. (Health & Saf. Code, § 11378; People v. Palaschak (1995) 9 Cal.4th 1236, 1242; People v. Meza (1995) 38 Cal.App.4th 1741, 1746; CALCRIM No. 2302.) These elements may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. (Palaschak, at p. 1242; People v. Tripp (2007) 151 Cal.App.4th 951, 956.)
As noted, Delano challenges only the knowledge element of the crimes. We conclude circumstantial evidence supports the jury's finding that Delano knew about the presence and illegal character of the methamphetamine. Specifically, his use of a false name is strong circumstantial evidence that he knew he was committing a crime. Further, he searched the Internet for how to make methamphetamine, and for the number of border arrests in the past month at San Ysidro, the same port of entry where he crossed numerous times. A special agent testified Delano's text messages indicated he worked for a drug trafficking organization. In fact, Delano threatened others via text messages, and alluded to physical harm he had suffered in a deal gone bad. The jury could reasonably infer Delano was involved in drug trafficking based on those search terms and his references to drugs and his boss. Further, the special agent testified that drivers who transport drugs attempt to associate their specific car with their driver's license to expedite border crossings. Thus, the jury could reasonably conclude that Delano's border crossings in the days immediately before his arrest were test runs to prepare him for knowingly transporting the drugs. The special agent also testified about the hazards to a drug trafficking organization of having an unknowing courier; therefore, the jury could reasonably conclude that given the high street value of the drugs Delano transported, the drug cartel likely would not have risked losing that cargo by failing to inform Delano of it. In light of this evidence and the applicable standard of review requiring us to draw all inferences in favor of the jury's finding, we conclude the convictions are supported by substantial evidence. We decline Delano's invitation to reweigh the evidence in his favor.
II. Sentencing Errors on the Drug Enhancements
Delano contends that because the trial court imposed the sentence on one drug enhancement (Health and Saf. Code, § 11370.4, subd. (b)(3)), it should have stricken, rather than stayed, the additional drug enhancements. This argument has merit. In People v. Estrada (1995) 39 Cal.App.4th 1235, 1240, the trial court imposed a drug enhancement for the possession for sale of 40 kilograms of drugs and a concurrent enhancement for possession for sale of 20 kilograms under Health and Safety Code section 11370.4. The appellate court ordered the latter enhancement stricken. (Estrada, supra, at pp. 1239-1240.) Health and Safety Code section 11370.4, subdivision (e) states, "Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment."
In People v. Cattaneo (1990) 217 Cal.App.3d 1577, the trial court imposed but stayed a sentence on a weight enhancement under Health and Safety Code section 11370.4, subdivision (a)(2). The appellate court ruled: "While the trial court had discretion, pursuant to Health and Safety Code section 113704, subdivision (e), to strike the enhancement, it lacked authority to stay the time for the enhancement." (Cattaneo, supra, at p. 1588.) We reach the same conclusions here. The court had authority to impose or strike, but not stay, the sentence on the drug enhancements. Accordingly, we remand this matter for the trial court to exercise its discretion to impose or strike the enhancements in compliance with Health and Safety Code section 11370.4, subdivision (e).
III. Electronics Search Condition
A.
Delano contends in his supplemental brief that the electronics search condition is unreasonable under Lent, supra, 15 Cal.3d 481. "When an offender chooses probation, thereby avoiding incarceration, state law authorizes the sentencing court to impose conditions on such release that are 'fitting and proper to the end that justice may be done . . . .' " (People v. Moran (2016) 1 Cal.5th 398, 402-403, quoting Pen. Code, §1203.1, subd. (j).) "[A] sentencing court has 'broad discretion to impose conditions to foster rehabilitation and to protect public safety . . . .' " (Moran, at p. 403.) " ' If the defendant finds the conditions of probation more onerous than the sentence he would otherwise face, he may refuse probation' [citation] and simply 'choose to serve the sentence.' " (Ibid.)
"The trial court's discretion [to impose probation conditions], although broad, nevertheless is not without limits." (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) " '[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 . . . ." ' " (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin), quoting Lent, supra, 15 Cal.3d at p. 486.) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (Olguin, at p. 379.)
In Ricardo P., a juvenile who admitted to committing two burglaries was placed on probation subject to an electronics search condition. (Ricardo P., supra, 7 Cal.5th at pp. 1116-1117.) Although the juvenile had not used an electronic device in the charged offenses, the juvenile court justified the condition by (1) construing the juvenile's statements to his probation officer as admitting he had used marijuana in connection with the offenses, and (2) " 'find[ing] that minors typically will brag about their marijuana usage . . . by posting on the Internet, showing pictures of themselves with paraphernalia, or smoking marijuana.' " (Id. at p. 1117.) Thus, the juvenile court reasoned the ability to search the juvenile's electronic devices was " 'a very important part of being able to monitor [his] drug usage.' " (Ibid.)
The Court of Appeal concluded the electronics search condition was valid under Lent's third prong, but the Supreme Court disagreed. (Ricardo P., supra, 7 Cal.5th at p. 1119.) It first clarified, "The issue on which we granted review presupposes that the first and second Lent requirements are satisfied. This case turns on whether the electronics search condition satisfies Lent's third prong—that is, whether it " 'requires or forbids conduct which is not reasonably related to future criminality.' " (Ricardo P., at p. 1119.) The court explained that "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." (Id. at p. 1122.) The court found "[s]uch proportionality . . . lacking" because "nothing in the record suggests that [this juvenile] has ever used an electronic device or social media in connection with criminal conduct." (Ibid., italics added; see ibid. ["courts may properly base probation conditions upon information in a probation report that raises concern about future criminality unrelated to a prior offense"].) Thus, the juvenile court's generalized finding that juveniles use electronic devices to brag about marijuana use was insufficient to justify the condition because "Lent's third prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality." (Id. at p. 1121.)
The Ricardo P. court was careful to note that its "holding does not categorically invalidate electronics search conditions. In certain cases, the probationer's offense or personal history may provide the juvenile court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality." (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129, citing People v. Appleton (2016) 245 Cal.App.4th 717, 724 (Appleton) [finding electronics search condition reasonable because the defendant lured victim using " 'either social media or some kind of computer software' "]; In re Malik J. (2015) 240 Cal.App.4th 896, 902 [condition allowing officers "to search a cell phone to determine whether [the defendant ] is the owner" was reasonable in light of the defendant's "history of robbing people of their cell phones"]; People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1173, 1176-1177 [finding electronics search condition related to the defendant's future criminality where the defendant was convicted of making gang-related criminal threats and had previously used social media sites to promote his gang].) But, on the record before it, the Ricardo P. court found "the electronics search condition imposes a burden that is substantially disproportionate to the legitimate interests in promoting rehabilitation and public safety." (Ricardo P., at p. 1129.)
Here, we need not address Lent's third prong because unlike the case in Ricardo P., Delano has not shown the first prong is met. In fact, the record established that Delano used his electronic devices to communicate via e-mail under an assumed name and to search for information regarding the commission of his drug crimes. Therefore, we conclude that Delano's reliance on Ricardo P. is unavailing. As mentioned, all three Lent prongs must be satisfied before a probation condition will be invalidated.
B.
Delano contends the electronics search condition is overbroad and thus violates his right to privacy under the Fourth Amendment of the federal Constitution. The People argue Delano forfeited this argument because he did not raise it in the trial court. They argue that, in any event, the record does not contain the necessary particularized information supporting the need for a more narrowly tailored Fourth Amendment waiver condition. Finally, they argue that "the potential invasiveness of the electronics-search condition in this case would be ameliorated by the restriction against arbitrary, capricious, or harassing probation searches."
We reject Delano's claim of facial overbreadth, which he bases on Riley v. California (2014) 573 U.S. 373 (Riley) and California appellate court opinions including Appleton, supra, 245 Cal.App.4th 717 holding such conditions to be unconstitutionally overbroad. The question at issue in a facial overbreadth challenge to an electronics search condition is whether the condition permitting searches of a probationer's computers and/or recordable media, in the abstract, and not as applied to the particular probationer, is insufficiently narrowly tailored to the state's legitimate interest in reformation and rehabilitation of probationers in all possible applications. (In re Sheena K. (2007) 40 Cal.4th 875, 885 [appellate claim that the language of a probation condition is unconstitutionally vague or facially overbroad "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts"].) Given the nature of such a challenge, it is "difficult to sustain." (Williams v. Garcetti (1993) 5 Cal.4th 561, 577.) We review it de novo. (People v. Guzman (2018) 23 Cal.App.5th 53, 64; Appleton, at p. 723.)
Delano urges us to follow Appleton, supra, 245 Cal.App.4th 717. In Appleton, the defendant, who met his minor victim through a social media application for smartphones, pleaded no contest to false imprisonment by means of deceit. (Id. at p. 719.) Though the court found the state had an interest in preventing the defendant from "us[ing] social media to contact minors for unlawful purposes" (id. at pp. 721, 727), the court held in part based on Riley, supra, 573 that a general electronics device search condition was unconstitutionally overbroad "as worded . . . " (Appleton, at pp. 724-727.) Given the limited justification for the condition, the Appleton court struck the condition and remanded the matter to the trial court to craft a narrower condition. (Id. at pp. 719, 727.) We point out that in Appleton, the defendant objected to the electronics search condition in the trial court (id. at p. 725), thus permitting an as-applied challenge to the condition. By contrast, Delano failed to object below and therefore his as-applied challenge is forfeited. (In re Sheena K., supra, 40 Cal.4th at p. 885.["Applying the [forfeiture]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"].)
Even if the warrantless search of a probationer's electronic devices "significantly burdens privacy interests" (In re Ricardo P., supra, 7 Cal.5th at pp. 1122-1123, citing Riley, supra, 573 U.S. at p. 393 and Cal. Const., art. 1, §1), we nonetheless reject Delano's facial overbreadth claim. We cannot say a condition requiring a probationer to submit to a warrantless search of his cell phone is necessarily or always unconstitutional in the abstract. In appropriate cases, a broad electronics search condition would be warranted as a useful, reasonable and constitutional tool to deter or discover criminal activity. In sum, we hold that monitoring of electronic devices is not unconstitutional as a matter of law, and accordingly reject Delano's claim that the challenged probation condition is facially unconstitutional.
DISPOSITION
The judgment is affirmed. We remand the matter for the superior court to exercise its discretion to impose or strike the previously stayed drug enhancements under Health and Safety Code section 11370.4, subdivision (e). The trial court is directed to thereafter prepare an amended abstract of judgment and forward a certified copy of it to the Department of Corrections and Rehabilitation.
O'ROURKE, Acting P. J. WE CONCUR: IRION, J. GUERRERO, J.