Opinion
C081102
09-17-2018
THE PEOPLE, Plaintiff and Respondent, v. SAMANTHA DEE GRUWELL, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CM043221)
Defendant Samantha Dee Gruwell pled no contest to unlawfully discharging a .22-caliber rifle in a grossly negligent manner. She was granted probation. On appeal, she challenges the condition of probation authorizing the warrantless search of "any data storage device, including cellular telephones and computers," and requiring her to provide any passwords or unlock codes to allow for their inspection (special condition 65). Specifically, she argues that special condition 65 violates People v. Lent (1975) 15 Cal.3d 481, and is constitutionally overbroad in violation of her Fourth Amendment rights. She further contends the condition requiring her to maintain a residence as approved by the probation officer (general condition 4) and the condition requiring her to obtain written permission from her probation officer before leaving the state (general condition 6) are both overbroad in violation of her constitutional right to travel.
We recently concluded an electronic storage device condition similar to condition 65 satisfied the Lent test but violated the Fourth Amendment because of its overbreadth. (See People v. Valdivia (2017) 16 Cal.App.5th 1130 (Valdivia).) We reach the same conclusion here regarding special condition 65. We also conclude that general condition 4 impermissibly impinges on defendant's constitutional right of travel and to freedom of association. We find no merit, however, to defendant's contention regarding general condition 6.
Accordingly, we will strike general condition 4 and special condition 65 and remand the matter to allow the trial court to determine in the first instance whether these conditions can be narrowed to pass constitutional muster.
BACKGROUND
On July 10, 2015, shortly before 1:00 a.m., Paradise police officers responded to reports of gunshots at a mobile home park. The shots were coming from inside defendant's mobile home. The responding officers made contact with defendant but she refused to come to the door; she told the officers that people were trying to steal property from underneath her home. Defendant also believed people were trying to break in through the roof and the police were not protecting her. She said she fired her rifle for protection. She advised "dispatch" that she had secured her rifle, but she refused to leave her mobile home. Eventually, one of the officers was able to get defendant to come to the door. They immediately took her into custody.
Defendant told the arresting officer that she fired her rifle to defend herself. She believed there were people trying to get in her mobile home through the floor and through her bed. The officers found a .22-caliber rifle inside the mobile home, along with discharged casings next to the bed, and live rounds in other areas of the room. They saw five bullet holes that appeared to have been fired into the home, three bullet holes from bullets fired inside the trailer, and 47 bullet holes in the roof. None of the surrounding homes appeared to be struck by a bullet.
Defendant said the police arrested someone on her roof only a week prior, though records revealed no arrests were made. In addition, twice in the prior month defendant called the police department to report people trying to steal things from inside her trailer. The police responded each time but found nothing suspicious. Defendant also said that people were hiding in the "hydraulics room" at the back of her mobile home, but if there was no "hydraulics room" in her mobile home then she needed to "go to Butte County Mental Health because she [wa]s hearing voices."
The People subsequently charged defendant with discharging a firearm with gross negligence. The criminal proceedings were suspended on July 29, 2015, and remained suspended until November 24, 2015, when defendant was declared competent to stand trial. Defendant then pled no contest to discharging a firearm with gross negligence.
At sentencing, the trial court noted that defendant was 55 years old, had no criminal record, and appeared willing and able to comply with the terms of probation. Accordingly, the court suspended imposition of sentence and placed defendant on three years of formal probation. Along with other numerous general and special conditions of probation, the court indicated its intention to impose "special condition number . . . 65." Special condition 65, the electronic storage device condition reads as follows: "The defendant shall be required to make available for inspection, including providing passwords or unlock codes, any data storage device, including cellular telephones and computers, and any network applications associated with those devices, including social media and remote storage services. All said devices are subject to search by any peace officer upon request."
Defendant's trial counsel objected to imposition of the electronic storage device condition. He argued, "I don't think there's anything involving use of a mobile device in the commission of an offense. I would ask the Court to strike that." The People responded, "Your Honor, the People believe that search of cell phones is necessary to ensure compliance with probation, especially in the case where the defense has mental issues and needs to report to Behavioral Health." The probation department agreed with the People.
Defendant's counsel argued further that "[t]he comments seem pretty attenuated from the facts of this case Your Honor. And compliance with Behavioral Health can be easily handled through the waiver of confidentiality that's required in her order to participate with Behavioral Health. That's -- we did that long before -- when we were able to verify compliance of those conditions -- long before cell phones were a reality." The trial court was not persuaded and imposed the electronic storage device condition.
The order of probation included general condition 4, which provides that defendant "must maintain [her] residence as approved by the probation officer and not change [her] residence without the prior written approval of the probation officer." The order also included general condition 6: "[Defendant] must not leave the State of California without having first received written permission from the probation officer. By accepting probation herein you agree to waive extradition to the State of California from any jurisdiction in or outside of the United States where you may be found, and also agree that you will not contest any effort by any jurisdiction to return you to the State of California." Defendant did not object to either of these conditions.
DISCUSSION
I
Electronic Storage Device Condition
On appeal, defendant makes two arguments in support of her contention that the electronic storage device condition is unlawful: (1) the condition violates Lent; and (2) the condition is overbroad in violation of the Fourth Amendment. We agree the condition is overbroad.
A
The Lent Test
" ' "Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. [Citations.] The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. [Citations.] The primary goal of probation is to ensure '[t]he safety of the public . . . through the enforcement of court-ordered conditions of probation.' [Citation.]" [Citation.] Accordingly, the Legislature has empowered the court, in making a probation determination, to 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 . . . ." [Citation.] Although the trial court's discretion is broad in this regard, we have held that a condition of probation must serve a purpose specified in Penal Code section 1203.1. [Citations.] If a defendant believes the conditions of probation are more onerous than the potential sentence, he or she may refuse probation and choose to serve the sentence.' [Citation.]" (Valdivia, supra, 16 Cal.App.5th at pp. 1136-1137.)
"Like the Supreme Court, '[w]e review conditions of probation for abuse of discretion.' [Citation.] Under the test from Lent, '[g]enerally, "[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.]" [Citation.] 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.' [Citation.]" (Valdivia, supra, 16 Cal.App.5th at p. 1137.)
The question here is whether special condition 65 is reasonably related to preventing future criminality. We conclude that it is.
It is undisputed that defendant's crime did not involve the use of a cellular phone or other electronic storage device. Defendant was, however, ordered as a condition of probation to "obey all laws, ordinances, and legal regulations." "Given this condition, the fact that defendant may not have shown any predisposition to use an electronic storage device like a cell phone or computer for purposes of criminal activity . . . does not render the electronic storage device search condition unreasonable under Lent. [Special condition 65] -- like the rest of the search conditions (to which defendant did not object) -- serves to enable defendant's probation officer to supervise [her] effectively by helping the probation officer ensure that defendant is complying with the conditions of [her] probation by obeying all laws, not just the law [she] previously disobeyed when [she fired her rifle]. Because [special condition 65] serves this valid rehabilitative purpose, it is reasonably related to future criminality and thus satisfies the Lent test." (Valdivia, supra, 16 Cal.App.5th at pp. 1138-1139.)
B
The Fourth Amendment
Defendant also contends special condition 65 is overbroad in violation of her constitutional rights under the Fourth Amendment. We agree and will strike special condition 65 from the order of probation.
" 'A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.' [Citation.] 'Conditions which infringe on constitutional rights are not automatically invalid. Certain intrusions by government which would be invalid under traditional constitutional concepts may be reasonable at least to the extent that such intrusions are required by legitimate governmental demands.' [Citation.] A probation condition '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.]" (Valdivia, supra, 16 Cal.App.5th at pp. 1141-1142.)
Special condition 65 undoubtedly impinges on defendant's constitutional rights under the Fourth Amendment. (Valdivia, supra, 16 Cal.App.5th at p. 1140.) And, as we explained in Valdivia, "a probation condition that authorizes the warrantless search of an electronic storage device like a cell phone carries the potential for a significant intrusion into defendant's private affairs . . . ." (Id. at p. 1144.) "Given the potential for an essentially unprecedented intrusion into private affairs that may -- and likely will -- have nothing to do with illegal activity, the question is whether such an intrusion is nonetheless constitutionally permissible because it is tailored carefully to the government's legitimate interest in defendant's reformation and rehabilitation." (Valdivia, at p. 1145.) On this record, we conclude that it is not.
Here, as in Valdivia, there is no evidence that electronic devices were a part of defendant's criminal conduct. Defendant, believing that people were trying to break into her home, repeatedly fired a rifle from inside her home. There is no claim now, nor was there in the trial court, that she used some electronic device before, during, or after that event to further her criminal conduct. What is evident from the record is that defendant had no criminal history and she appeared to be suffering from some mental illness at the time she fired her rifle. In addition, by the time of her plea and sentencing, defendant was competent and the trial court found she was willing and able to comply with the terms of probation.
"Under these circumstances, there appears to be no substantial reason for believing that evidence of future criminal activity by defendant is likely to be found on electronic storage devices under [her] control." (Valdivia, supra, 16 Cal.App.5th at p. 1144.) We thus conclude that special condition 65 is unconstitutionally overbroad. "Whether the condition can, as a practical matter, be narrowed in a manner that will allow it to pass constitutional muster is a matter we leave for the parties and the trial court to address in the first instance on remand." (Id. at p. 1147.)
II
General Condition 4
This condition requires defendant to "maintain your residence as approved by the probation officer and not change your residence without the prior written approval of the probation officer." Defendant contends this condition impermissibly impinges on her federal and state constitutional rights to travel and free association. We agree.
In People v. Bauer (1989) 211 Cal.App.3d 937, the defendant challenged a condition virtually identical to the one imposed here, requiring the defendant to obtain the probation officer's approval of his place of residence. (Id. at pp. 943-945.) The Bauer court struck the condition, finding that requiring the defendant to "obtain his probation officer's approval of his residence" was an "extremely broad" restriction instead of being one that was "narrowly tailored to interfere as little as possible" with the constitutional right of travel and to freedom of association. (Id. at pp. 940, 944.) The condition gave the probation officer free reign to prohibit the defendant from living with or near whomever the probation officer chose -- "that is, the power to banish him." (Id. at p. 944.)
We believe Bauer is sound and dispositive on the constitutionality of general condition 4. The residence approval requirement imposed on defendant gives unbridled authority to her probation officer to restrict where she may live and, consequently, with whom she may associate. Because "the condition is too broad [it] must either be stricken or rewritten to provide the necessary specificity." (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1359.) We will strike general condition 4 and remand the matter to the trial court for further proceedings.
III
General Condition 6
General condition 6 prohibits defendant from leaving the state without prior written permission from the probation officer. We recently upheld a similar condition in People v. Relkin (2016) 6 Cal.App.5th 1188. We noted, "[w]hile all citizens enjoy a federal constitutional right to travel from state to state (Shapiro v. Thompson (1969) 394 U.S. 618, 629 . . .), that right is not absolute and may be reasonably restricted in the public interest. (In re White (1979) 97 Cal.App.3d 141, 149-150 . . . .)" (Relkin, at p. 1195.)
Such a condition is in the public interest, as it assists the probation department in determining whether "defendant meets the standards of the Uniform Act for Out-of-State Probationer and Parolee Supervisions before he is allowed to go to another state (Pen. Code, § 1203.) Also it minimizes extradition problems." (People v. Thrash (1978) 80 Cal.App.3d 898, 902.) "[T]he condition's limitation on interstate travel is closely tailored to the purpose of monitoring defendant's travel to and from California not by barring his ability to travel altogether but by requiring that he first obtain written permission before doing so." (People v. Relkin, supra, 6 Cal.App.5th at p. 1195.) Moreover, the condition is " ' "sufficiently precise for [defendant] to know what is required of [her], and for the court to determine whether the condition has been violated." ' (In re Sheena K. [(2007)] 40 Cal.4th [875,] 890.)" (Relkin, at p. 1196.) Accordingly, this condition is not unconstitutionally overbroad or vague.
DISPOSITION
The order granting probation is modified by striking general condition 4 and special condition 65. As modified, the order is affirmed. The case is remanded to the trial court for further proceedings consistent with this opinion.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Renner, J.