Opinion
D082128
03-14-2024
THE PEOPLE, Plaintiff and Respondent, v. RELEE FELIZARDO, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCD293708, Francis M. Devaney, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
BUCHANAN, J.
Relee Felizardo was convicted of unlawfully taking or driving a vehicle by using a car-sharing app to take another person's Jeep. On appeal, he only challenges the trial court's imposition of a probation condition requiring him to submit to warrantless searches of his electronic devices. We conclude that the probation condition is valid and not unconstitutionally overbroad. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Nolan B. used Turo, a car-sharing app, to rent out several of his cars. The Turo app allows vehicle owners to rent their vehicles to others for an agreed price and time period.
In November 2021, Nolan B. rented his 2013 Jeep Wrangler for a 24-hour rental to someone using a Turo account under the name "Sandra Ruiz." Felizardo and his girlfriend Noemi Buerer had created the account using a fake ID. The same Apple iPhone device used to create the "Sandra Ruiz" account was connected to four other Turo accounts belonging to Felizardo. One of the two addresses associated with the account was listed on Felizardo's driver's license. Felizardo used a prepaid credit card under his name to pay for the reservation.
"Sandra Ruiz" arranged with Nolan B. to a contactless pick-up of the Jeep at an agreed location. Nolan B. waited within sight as Felizardo and Buerer arrived at the Jeep pick-up location. Felizardo got into the passenger seat while Buerer entered the driver's seat. Before the rental pick-up, Nolan B. informed "Sandra Ruiz" via the Turo app that she would need to upload a photo of her license for verification purposes. When Felizardo was in the passenger seat of the rental vehicle, Nolan B. called the number attached to the Turo account and saw Felizardo looking at his phone as if the calls were going to him. Nolan B. then saw Felizardo take a photo of Buerer, which was later uploaded to the Turo app. Additionally, Nolan B. received a photo of a California driver's license belonging to Felizardo through the Turo app. The Jeep was not returned to the drop-off location when it was due back the next day. It was eventually recovered in Mexico eight months later.
Felizardo was charged with unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a)) and grand theft of an automobile (Pen. Code, § 487, subd. (d)(1)). A jury convicted Felizardo of unlawful taking or driving of a vehicle but acquitted him of the grand theft charge. The trial court suspended imposition of sentence and granted two years of formal probation with several terms and conditions, including a warrantless search condition. For the warrantless search condition, the pre-printed probation order included a checked box requiring Felizardo to submit his "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 [probation officer] or law enforcement officer." However, the court modified this condition in handwriting to "include electronic devices." Although Felizardo did not object to the warrantless search condition itself, he objected on overbreadth grounds to the court's extension of the condition to his electronic devices. The court overruled the objection and found a nexus between the use of a cell phone or other devices and the commission of the vehicle theft.
DISCUSSION
Felizardo argues that the electronic device search condition is impermissibly overbroad, violating his constitutional rights of privacy and free speech. We review Felizardo's constitutional challenge to his probation condition de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
"[S]tate law authorizes the sentencing court to impose [probation] conditions . . . that 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 . . . for the reformation and rehabilitation of the probationer.' ([Pen. Code,] § 1203.1, subd. (j).) Accordingly, . . . a sentencing court has 'broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.' [Citation.] But such discretion is not unlimited: '[A] condition of probation must serve a purpose specified in the statute,' and conditions regulating noncriminal conduct must be' "reasonably related to the crime of which the defendant was convicted or to future criminality." '" (People v. Moran (2016) 1 Cal.5th 398, 402-403.)
Generally, a condition of probation is valid 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. Lent (1975) 15 Cal.3d 481, 486 (Lent).) "This test is conjunctive-all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin).)
Felizardo does not contend that the electronic device search condition is invalid under Lent. Indeed, he could not satisfy the first Lent factor for invalidity because he admits "there was a nexus between the commission of the offense and [his] cell phone."
Felizardo instead argues that this probation condition is constitutionally overbroad as applied to him. A probation condition is overbroad when it imposes limitations on a person's constitutional rights that are not closely tailored to the purpose of the condition. (In re Sheena K. (2007) 40 Cal.4th 875, 890.)" 'A restriction is unconstitutionally overbroad . . . if it (1) "impinge[s] on constitutional rights," and (2) is not "tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation." [Citations.] 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-bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.'" (People v. Stapleton (2017) 9 Cal.App.5th 989, 993 (Stapleton).)
Our Supreme Court has recognized that an electronic device search condition "significantly burdens privacy interests." (In re Ricardo P. (2019) 7 Cal.5th 1113, 1123 (Ricardo P.).) The search of a cell phone poses a "potentially greater" intrusion than "traditional property or residence searches" because it" 'would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form - unless the phone is.'" (Id. at p. 1127, quoting Riley v. California (2014) 573 U.S. 373, 396-397.) Moreover, "probationers retain some expectation of privacy, albeit a reduced one." (In re Jaime P. (2006) 40 Cal.4th 128, 137.) We must therefore decide whether there is a sufficiently close fit between the legitimate purpose of the restriction and the burden it imposes on Felizardo's reduced privacy rights as a probationer. (Stapleton, supra, 9 Cal.App.5th at p. 993.)
Felizardo also asserts that the condition infringes on his free speech rights, but he does not develop the argument or cite any authority to support it. We therefore deem it to be forfeited. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [absence of cogent legal argument or citation to authority forfeits the contention].)
The Supreme Court's decision in Ricardo P. is instructive. There, the court invalidated an electronic device search condition under Lent. The court ruled 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." (Ricardo P., supra, 7 Cal.5th at p. 1122.) In adopting this proportionality test, the court explicitly acknowledged that it incorporates the same considerations as a constitutional overbreadth analysis. (Id. at pp. 1127-1128 [finding that "both Lent, as we interpret it here, and constitutional overbreadth analysis require a court to assess the relative burdens and benefits of probation conditions"].)
In Ricardo P., a crucial factor in the court's proportionality analysis was that the defendant had not used an electronic device in committing the charged burglaries. The majority mentioned this fact multiple times in its opinion, including twice in the introduction alone. (Ricardo P., supra, 7 Cal.5th at pp. 1115, 1116, 1122, 1119.) The court concluded that because the electronic device search condition was premised only on a generalized assumption that juveniles use their phones to brag about drug use online (id. at pp. 1122-1123), not on any facts specific to the defendant's offense or personal history, it imposed an unreasonable burden that was substantially disproportionate to the legitimate interests in promoting rehabilitation and public safety. (Id. at p. 1129.) The court left open the possibility that the court on remand might be able to impose a more narrowly tailored search condition. (Id. at p. 1124.)
At the same time, however, the Ricardo P. court recognized that "[o]ur holding does not categorically invalidate electronics search conditions." (Ricardo P., supra, 7 Cal.5th at p. 1128.) "In certain cases, the probationer's offense or personal history may provide the . . . 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." (Id. at pp. 1128-1129.)
The lesson of Ricardo P. is that "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.) In the absence of any such evidence, courts following Ricardo P. have invalidated overbroad electronic device search conditions for probationers who did not use such a device in committing their crimes. (See, e.g., People v. Cota (2020) 45 Cal.App.5th 786, 789-791.)
But if there is evidence that the defendant used an electronic device in committing the crime, a probation condition requiring him to submit to warrantless searches of his electronic devices is not necessarily invalid or overbroad. (In re Q.R. (2020) 44 Cal.App.5th 696.) In In re Q.R., the juvenile defendant used his cell phone to photograph and record sexual activity between himself and another minor, and later extorted money from her by threatening to disclose the recordings. (Id. at p. 698.) On appeal, the court held that a probation condition authorizing warrantless searches of his electronic devices was not constitutionally overbroad. The court found that the condition was not overbroad merely because it encompassed devices other than his cell phone, reasoning that otherwise the defendant "could attempt to circumvent it" simply by using other devices. (Id. at p. 702.) The court concluded: "The nature of minor's crimes and their direct relationship to the use of an electronic device distinguishes this case from those where similar probation conditions have been rejected as unconstitutionally overbroad." (Id. at p. 704 [distinguishing People v. Appleton (2016) 245 Cal.App.4th 717, 719-720 (Appleton); In re P.O. (2016) 246 Cal.App.4th 288, 291-293; In re Malik J. (2015) 240 Cal.App.4th 896, 899-900 (Malik J.)].) The court also concluded that "the rationale of Ricardo P. does not apply here because the offense Ricardo committed did not involve the use of an electronic device, whereas an electronic device was integral to minor's adjudication." (In re Q.R., at p. 705.)
We reach the same conclusion here. As in In re Q.R., Felizardo used his cell phone to commit his crime. Specifically, Felizardo used the Turo app and the camera and photo features of his phone to facilitate the taking of the Jeep. He also gave his own cell phone number to create the fake Turo account, and he had his cell phone with him when Nolan B. called the number in attempting to contact "Sandra Ruiz" during the pick-up. Moreover, Felizardo also had two prior theft-related convictions. In 2012, Felizardo was charged with theft-related offenses and pled guilty to possession of burglary tools. In 2015, Felizardo pled guilty to unlawfully taking or driving a stolen Hertz rental car. Given this pattern of theft-related conduct, and Felizardo's use of an electronic device to commit the taking of Nolan B.'s vehicle, the trial court reasonably imposed the search condition to monitor and deter any similar conduct in the future.
The condition is not overbroad merely because it applies to all of Felizardo's electronic devices. If the condition were limited to Felizardo's cell phone, he could easily use alternate devices for the same unlawful purpose. (See In re Q.R., supra, 44 Cal.App.5th at p. 702.) Similarly, if the condition were limited to searches within the Turo app, Felizardo could just use other apps or online marketplaces. Felizardo offers no suggestion how this condition could feasibly be narrowed without defeating its effectiveness in monitoring and preventing his commission of future theft offenses. Bearing in mind that perfection is neither possible nor required (In re E.O. (2010) 188 Cal.App.4th 1149, 1153), we conclude there is a sufficiently close fit between the legitimate purpose of the condition and the burden it imposes on Felizardo as a probationer with reduced privacy rights.
We are not persuaded by Felizardo's reliance on Malik J. There, a juvenile participated in an assault and robbery of three women. (Malik J., supra, 240 Cal.App.4th at p. 899.) There was no evidence that he used an electronic device in committing the crimes, but he had a history of robbing people of their cell phones, and one of the charged robberies involved an iPhone. (Id. at pp. 900, 902.) In granting probation, the court imposed a condition requiring both the juvenile and his family members to permit searches of and disclose all passwords to their electronic devices and social media sites. (Id. at pp. 899-900.)
On appeal, the court agreed it was proper to authorize warrantless searches of electronic devices within the juvenile's custody and control to determine whether they were stolen. (Malik J., supra, 240 Cal.App.4th at pp. 901-902.) But the court found that the condition was overbroad for two reasons: (1) it required the juvenile to turn over passwords for all his social media accounts; and (2) it applied to and encroached on the privacy rights of his family members. (Id. at pp. 901-906.) The court therefore narrowed the condition to make it apply only to the juvenile, not his family members, and to delete the requirement that he turn over his social media passwords. (Id. at p. 906.)
In contrast to Malik J., the order here does not apply to his family members or require him to turn over any social media passwords. And aside from those overbroad provisions, Malik J. held that the electronic device search condition was valid. Just as the search condition in Malik J. was proper to monitor whether any electronic device in the juvenile's possession was stolen, the search condition here is proper to monitor whether any electronic device in Felizardo's possession is being used to commit theft-related offenses, as he did in committing the unlawful driving and taking of Nolan B.'s vehicle.
The decision in Appleton also does not assist Felizardo. The defendant there met the victim through a dating app. After a consensual relationship lasting several months to a year, the defendant and two other men forced the victim to orally copulate them. The defendant pled no contest to false imprisonment by means of deceit and was granted probation. One of the terms of probation was an electronic device search condition. (Appleton, supra, 245 Cal.App.4th at pp. 719-721.) On appeal, the court held that the condition was valid under Lent but constitutionally overbroad. (Id. at pp. 723-724.)
As in In re Q.R., Felizardo's use of an electronic device to commit his crime distinguishes this case from Appleton. (See In re Q.R., supra, 44 Cal.App.5th at p. 704 [distinguishing Appleton on same basis].) The defendant in Appleton used a dating app only to meet and develop a relationship with the victim, not to commit the forcible sex crimes and false imprisonment several months to a year later. Although In re Q.R. is not perfectly analogous, it is more on point than either Appleton or Malik J. because the defendant in In re Q.R. used his cell phone in the actual commission of his crimes. Accordingly, we conclude that the electronic device search condition is not unconstitutionally overbroad as applied to Felizardo.
DISPOSITION The judgment is affirmed.
WE CONCUR: O'ROURKE, Acting P. J. RUBIN, J.