Opinion
F072865
12-29-2016
THE PEOPLE, Plaintiff and Appellant, v. CHAUNCEY HARRIS, Defendant and Appellant.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F15901825)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge. William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Peña, J.
-ooOoo-
Defendant Chauncey Harris contends his probation's electronics search condition is unreasonable and overbroad. We strike the condition and remand for the trial court to tailor the condition more narrowly.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and the victim had been in an on-and-off dating relationship that got physical sometimes. On March 20, 2015, they got into an argument over what food belonged to whom. Defendant yelled at the victim to leave as he started throwing her belongings out of the bedroom and into the living room. The victim tried to stop him by standing in front of him. Defendant spit on the victim's face and punched her on the side of her head, causing her to fall to the floor. She stood up and pushed defendant away. He grabbed a wooden broom about four feet long and struck her back with it, breaking the broom into a sharp-ended instrument. He continued swinging the broken broom at her, but missed. She ran out of the residence. Defendant followed and pushed her to the ground. He punched her head, grabbed an aluminum broom, and struck her again on the back. Defendant then fled the scene.
Officers arrived and medical personnel examined the victim, who was hysterical. She was granted an emergency protective order. Officers failed to locate defendant.
Later that day, the victim called the police again. When they arrived, they heard yelling inside. The victim was crying and screaming for the police to arrest defendant for beating her up again. Officers took defendant into custody. The victim told officers defendant had returned and yelled at her for calling the police. When he went into the bedroom and closed the door, she called the police. When he came out, he punched her on the mouth, causing her lip to bleed profusely. A male witness in the living room struggled with defendant to control him.
On July 2, 2015, defendant was charged with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and two counts of corporal injury to a spouse or cohabitant (§ 273.5, subd. (a)).
All statutory references are to the Penal Code.
On October 2, 2015, defendant pled no contest to assault with a deadly weapon (§ 245, subd. (a)(1)), and the remaining counts were dismissed.
On November 4, 2015, the trial court found unusual circumstances and granted defendant three years' formal probation with a number of conditions, including enrolling in a batterer's intervention program, avoiding contact with the victim and her family, complying with protective orders, and submitting his person and property (including electronic and cellular devices) to search and seizure at any time. Specifically, the search and seizure condition stated:
"Submit person and property, including financial records, vehicles, computers, handheld electronic and cellular devices, and place of abode/known residences to search and seizure at any time of the day or night by probation officers or any other law enforcement officer, with or without a search warrant, or other process."
When the trial court asked defendant if it was going to be a problem for him to avoid any further contact with the victim, defendant responded, "Not at all."
On December 10, 2015, defendant filed a notice of appeal.
DISCUSSION
I. Reasonableness of Electronic Search Condition
Defendant contends the electronic search condition is invalid under People v. Lent (1975) 15 Cal.3d 481, 486 (Lent), superseded on other grounds as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290. We disagree.
The People raise the issue of forfeiture, but because defendant argues defense counsel was ineffective for failing to object to the probation condition, we address the issue on the merits.
A trial court has broad discretion to impose reasonable conditions of probation in order to promote the rehabilitation of the probationer. (§ 1203.1, subd. (j); People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) A trial court does not abuse its discretion unless its determination is arbitrary or capricious or " ' "exceeds the bounds of reason, all of the circumstances being considered." ' " (People v. Welch (1993) 5 Cal.4th 228, 234.)
Under Lent, a probation condition is invalid if 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.) All three prongs must be met to invalidate a probation condition. (Olguin, supra, 45 Cal.4th at p. 379; see Lent, at p. 486, fn. 1.) "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." (Olguin, at pp. 379-380.)
First, nothing in the record suggests any electronic device played a role in defendant's current offense, and, second, communicating electronically is not in itself criminal. But, third, the electronic search condition is reasonably related to preventing future criminality. Defendant is subject to a criminal protective order and a probation condition prohibiting him from contacting the victim in any way, including electronically. Although defendant assured the trial court during sentencing that it would not be a problem for him to avoid all contact with the victim, his relationship with her involved physical violence from time to time, and on this occasion he attacked her violently twice in one day, despite police intervention. The history of their relationship, plus defendant's persistence in returning to the scene and engaging in a second round of violence against the victim, suggested the threat of contact and violence might continue. Even if there was no evidence that defendant had used an electronic device to contact the victim, it was not unreasonable to believe that he might attempt to do so in the future. The electronic search condition enables the probation officer to monitor defendant's compliance with the protective order and his probation conditions. Accordingly, the electronic search condition was reasonable under the circumstances, and the trial court did not abuse its discretion in imposing it. (See People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1176-1177 [finding a similar electronic search condition reasonably related to future criminality because it enabled probation officer to monitor the defendant's gang associations and activities].)
The California Supreme Court recently granted review in a case presenting the question of whether a probation condition requiring a minor to submit to warrantless searches of his "electronics including passwords" was overbroad. (In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923; see also In re Patrick F. (2015) 242 Cal.App.4th 104, review granted Feb. 17, 2016, S231428 [briefing deferred].) --------
II. Breadth of Electronic Search Condition
A person has a constitutional right to privacy in the content of his or her electronic devices, protected from search by the Fourth Amendment. (Riley v. California (2014) 573 U.S. ___ [law enforcement officers generally must secure a warrant before searching the digital content of a cell phone incident to an arrest]; People v. Appleton (2016) 245 Cal.App.4th 717, 724 (Appleton) ["It is well established that individuals retain a constitutionally protected expectation of privacy in the contents of their own computers"; "[m]uch of the reasoning in Riley—which recognized how the immense storage capacity of modern cell phones allows users to carry large volumes of data—would apply to other modern electronic devices"].) "[A]dult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights." (Olguin, supra, 45 Cal.4th at p. 384.) However, "[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." (In re Sheena K. (2007) 40 Cal.4th 875, 890.) Specifically, the issue is "whether the condition is closely tailored to achieve its legitimate purpose." (Olguin, at p. 384.) "It is not enough to show the government's ends are compelling; the means must be carefully tailored to achieve those ends." (People v. Harrisson (2005) 134 Cal.App.4th 637, 641.) "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." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
"[W]hile we generally review the imposition of probation conditions for abuse of discretion, we review constitutional challenges to probation conditions de novo." (Appleton, supra, 245 Cal.App.4th at p. 723.)
Here, we have concluded that monitoring defendant's electronic communications is reasonably related to defendant's future criminality because it allows officers to determine whether he is complying with his probation conditions, such as avoiding contact with the victim. But we do not believe this justifies monitoring all of defendant's electronic data.
In Appleton, supra, 245 Cal.App.4th 717, the court concluded that the electronic search condition was overbroad because it "would allow for searches of vast amounts of personal information unrelated to defendant's criminal conduct or his potential for future criminality." (Id. at p. 727.) "[A] search of defendant's mobile electronic devices could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity. These could include, for example, medical records, financial records, personal diaries, and intimate correspondence with family and friends." (Id. at p. 725.) The court ordered that the electronic search condition be stricken as overbroad, and it remanded the matter to the trial court to consider whether the trial court could "impose a valid condition more narrowly tailored to the state's interests." (Id. at p. 727.)
We agree that defendant's electronic search condition is overbroad, and we will strike the condition and remand to the trial court to fashion a more tailored condition related to monitoring defendant's compliance with his probation conditions and preventing his future criminality.
DISPOSITION
The portion of the probation condition requiring defendant to submit his "computers, handheld electronic and cellular devices" to search and seizure is stricken. The matter is remanded to the trial court with directions to tailor the electronic search condition more narrowly. In all other respects, the judgment is affirmed.