Opinion
C082752
11-04-2019
THE PEOPLE, Plaintiff and Respondent, v. ERIK GUY, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE009872)
After defendant Erik Guy pleaded no contest to carrying a loaded firearm in public (Pen. Code, § 25850, subd. (a)), the trial court granted him five years of formal probation and awarded him a total of eight days of credit for time served. On appeal, defendant contends: (1) the imposition of an electronics search condition as a condition of his probation is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent); and (2) the minute order must be corrected to properly reflect his eight days of credit for time served. We agree with both contentions. Accordingly, we shall strike the electronics search condition from the probation order and direct the trial court to correct the minute order to comport with the oral pronouncement of judgment.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant pleaded no contest prior to a preliminary hearing, the parties stipulated to a factual basis for the plea without actually stating any facts, and defendant waived preparation of a probation report; accordingly, the record contains few facts related to the commission of this offense. In short, defendant knowingly carried a loaded nine-millimeter semiautomatic handgun on a public street and was not the registered owner of the gun. He pleaded no contest to carrying a loaded firearm in public. The trial court suspended imposition of sentence, and granted defendant five years of formal probation, conditioned on serving 120 days in jail, with eight days of credit for time served.
Both the prosecution and the defense submitted boilerplate points and authorities on the electronics search condition's validity and constitutionality. These boilerplate briefs provided no specific information relating to defendant, 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.
The People's points and authorities attached a boilerplate declaration from Sacramento County Sheriff's Department Detective Sean E. Smith, who was 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. As to weapons-related offenses, Smith declared those who commit weapons-related offenses often use the devices to sell or purchase weapons, threaten others, or conspire to commit offenses. They may also post photographs on social media and geolocation data may be used to provide evidence leading to the location of violent offenses, including where weapon sales are occurring and where caches of weapons are kept or hidden. The declaration also 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. This declaration contains no information specific to this defendant, his personal history, criminal background, or the particular offense he committed.
At the plea hearing, defense counsel reiterated his objection to the electronics search condition, stating there was no indication of anything in this case that related to electronic devices, "no drug sales or anything. It's simply officers suspected [defendant], chased him down, and found a gun in his backpack."
The trial court imposed the electronics search condition without modification. The trial court stated in its "experience, it's extremely common for those who are in possession of firearms or ammunition to electronically display their possession either on their phone, photographs, Facebook, or any of the other various forms of social media. [¶] It does appear that this would be related to the offense and held [sic] effective rehabilitation."
The probation condition imposed (specific condition of probation No. 5) states: "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 phones 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." --------
DISCUSSION
1.0 Electronic Device Search Condition
Defendant contends the electronics search condition imposed in this case is invalid under Lent because the condition is not related to the crime for which he was convicted, is not related to future criminal conduct, and the conduct to which the condition relates is not, in itself, criminal.
"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." (Lent, supra, 15 Cal.3d at p. 486.) Consequently, we review conditions of probation for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) "[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, at p. 486.) "The Lent test 'is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.' (Olguin, supra, 45 Cal.4th at p. 379.)" (In re Ricardo P. (2019) 7 Cal.5th 1113, 1118 (Ricardo P.).) Accordingly, even if the probation condition is unrelated to the crime defendant was convicted of and relates to conduct, not itself criminal, "the condition is valid as long as the condition is reasonably related to preventing future criminality." (Olguin, at p. 380.)
Recently, the California Supreme Court clarified the parameters of the Lent test's third prong, whether the condition " ' "requires or forbids conduct which is not reasonably related to future criminality." ' [Citation.]" (Ricardo P., supra, 7 Cal.5th at p. 1119.) In Ricardo P., the minor was placed on probation after admitting to two counts of burglary. The juvenile court imposed drug conditions because the minor had indicated he had previously smoked marijuana, and imposed a condition requiring the minor "submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices." (Id. at p. 1115.) Nothing in the record indicated the minor had ever used electronic devices to commit, plan, discuss or consider criminal conduct. Nonetheless, the juvenile court imposed the electronics search condition based on its own "observation that teenagers 'typically' brag about such drug use on social media." (Id. at p. 1119.) Although the Supreme Court was skeptical about generalization about teenagers' tendency to brag about drug use on social media, the Supreme Court found that even accepting that premise as true, Lent's third prong was not satisfied by an abstract or hypothetical relationship between the probation condition and preventing future criminality. (Ricardo P., at pp. 1120-1121.)
The Supreme Court also found the third prong of the Lent test "contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition. [Citations.]" (Ricardo P., supra, 7 Cal.5th at p. 1122.) This condition significantly burdened the minor's privacy interests, given how much sensitive and confidential information can be accessed on devices like cell phones, and the limited justification for the condition did not support such a significant burden. (Id. at pp. 1122-1123.) Accordingly, the Supreme Court found the electronics search condition was not reasonably related to future criminality and was therefore, invalid under Lent. (Id. at p. 1128.) In so doing, the Supreme Court expressly noted its determination was not a blanket invalidation of all such conditions, as there might be cases in which "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." (Ricardo P., at pp. 1128-1129.)
As in Ricardo P., only the third prong of the Lent test is at issue here. The factual basis for the plea indicates only that defendant possessed a gun, not registered to him, on a public street. There is no probation report and no evidence regarding any personal history of defendant. Nothing in the record indicates defendant used an electronic device in committing this offense, or had any history of using electronic devices to commit, facilitate, or plan criminal conduct, or using social media to demonstrate he had committed such conduct. The only support for the condition in the record is Detective Smith's generalized declaration, unrelated to either defendant or his specific offense, that those who commit weapons-related offenses often use electronic devices to sell or purchase weapons, threaten others, conspire to commit an offense, may post photographs on social media with weapons, and geolocation data may be used to locate where weapons' sales are occurring or where weapons are located. Even presuming these assertations are true, these generalized, hypothetical statements do not satisfy the requirements of Lent, any more than the juvenile court's generalized statements—about teenagers posting their drug use on social media—did in Ricardo P.
This case falls squarely within the concerns articulated in Ricardo P. "If we were to find this record sufficient to sustain the probation condition at issue, it is difficult to conceive of any case in which a comparable condition could not be imposed, especially given the constant and pervasive use of electronic devices and social media . . . today. In virtually every case, one could hypothesize that monitoring a probationer's electronic devices and social media might deter or prevent future criminal conduct. For example, an electronics search condition could be imposed on a defendant convicted of carrying an unregistered concealed weapon on the ground that text messages, e-mails, or online photos could reveal evidence that the defendant possesses contraband or is participating in a gang. [Citation.] Indeed, whatever crime a [probationer] might have committed, it could be said that [probationers] may use electronic devices and social media to mention or brag about their illicit activities." (Ricardo P., supra, 7 Cal.5th at p. 1123.) If Detective Smith's generalized and hypothetical declaration "were sufficient to justify the substantial burdens the condition imposes, it is hard to see what would be left of Lent's third prong." (Id. at p. 1124.) Accordingly, we find this condition is not reasonably related to future criminality and is therefore invalid under Lent. (Lent, supra, 15 Cal.3d at p. 486.) Having determined this condition is invalid under Lent we need not address defendant's additional claim that the condition is unconstitutionally overbroad.
2.0 Correction of Minute Order
Defendant also contends the minute order must be corrected to properly reflect his eight days of credit for time served. The People properly concede this issue. In its oral pronouncement of judgment, the trial court awarded defendant eight days of credit for time served. The minute order reflects only four days of credit. "Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Accordingly, we will order the minutes corrected.
DISPOSITION
The trial court is directed to issue an amended probation order, striking the electronics search condition. The trial court is also directed to correct the minute order to reflect eight days of credit for time served. As modified and corrected, the judgment is affirmed.
/s/_________
Butz, J. We concur: /s/_________
Raye, P.J. /s/_________
Hoch, J.