Opinion
A148659
11-20-2017
THE PEOPLE, Plaintiff and Respondent, v. STEVE REED HARRIS, Defendant and Appellant.
ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT] BY THE COURT:
It is ordered that the opinion filed herein on November 20, 2017, be modified as follows:
On page 17, the following sentence will be added to end of the final paragraph:
The case is remanded to the trial court for it to consider fashioning an alternative probation condition consistent with this opinion.
There is no change in judgment. Dated:
/s/_________
Humes, P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-142220-3)
After defendant Steve Harris attempted to swallow a bag of heroin to evade a probation search of his companion's vehicle, a jury convicted him of one count of possessing heroin and one count of resisting, delaying, or obstructing a peace officer. On appeal, he contends that the trial court erred by: (1) denying his request for a pinpoint jury instruction on prolonged detentions as to the latter count; (2) imposing a probation condition requiring him to submit to searches of his electronic devices (electronics search condition); and (3) imposing penalty assessments on a $50 criminal laboratory analysis fee (crime-lab fee) he was charged. We reject Harris's claim of instructional error, but we agree that the probation condition is unconstitutionally overbroad and that penalty assessments should not have been imposed on the crime-lab fee. We therefore strike the challenged condition and penalty assessments and otherwise affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
On the afternoon of June 13, 2013, Officer Joseph Terry of the Pittsburg Police Department was on patrol when he noticed an occupied Honda Accord "parked near the dumpster on the side of the 7-Eleven" on Century Boulevard. The officer found this suspicious because the car "was not anywhere near the front doors" of the store, and the police had received complaints about drug and alcohol use in that area of the parking lot. At approximately 12:22 p.m., the officer ran a check on the car's license plate to see whether the car was stolen, based on his belief that Honda Accords are "a very popular car and easy to steal."
We will refer to Terry as Officer Terry, although we recognize that his title had changed by the time of trial.
The check revealed that the car's 2014 registration tags did not match the registration, because the registration was expired. Officer Terry decided to talk to the car's occupants about the expired registration, and he approached the driver's side. He asked for identification from the woman seated in the driver's seat and Harris, who was sitting in the front passenger's seat, to determine whether either was the car's registered owner. Neither the woman nor Harris had a state identification card, but they both provided names, and Officer Terry ran a record check on them at 12:24 p.m. Less than a minute later, he requested a cover unit.
On cross-examination, the defense introduced a photograph of the Honda Accord that showed a 2012 registration tag, and Officer Terry was unable to explain the discrepancy. The officer did not ultimately issue a citation for a false registration tag.
As Officer Terry was speaking to the car's occupants, he noticed that Harris was holding a purple container about the size of a film canister in his left hand, between his left thigh and the center console. While the officer was waiting for the results of the record check on the two names, he moved to stand by the front passenger's side of the car because he found it "odd" that Harris was holding a container. When the officer got to that side, he noticed that the container was now open and in Harris's right hand.
Harris had provided the correct name and birthdate, and the record check on him was clear of warrants and confirmed he was not on probation. Dispatch notified Officer Terry that there was no match for the woman, however, meaning she had never obtained identification. Given that the woman was 23 years old, this was "a red flag" to the officer that she was lying about her name. After Officer Terry indicated to her that he thought she was lying, the woman provided the correct name, and he ran a record check on it at 12:30 p.m. The check revealed that she was on probation with a "full search and seizure" condition. Officer Terry decided to do a probation search of the woman and the car, and he waited for the cover unit to arrive to assist him.
As soon as the other officer arrived, Harris put a plastic bag he had been holding in his mouth and began chewing it. Officer Terry ordered him to spit it out, but Harris ignored the command and continued to chew. Concerned that Harris might harm himself and was destroying evidence, based on the suspicion that the substance in the bag was a narcotic, Officer Terry opened the car door, "grabbed [Harris] by the arm[,] and pulled him out of the car." Officer Terry and the other officer put Harris face down on the ground and handcuffed him "for . . . safety" because neither Harris nor the woman had yet been checked for weapons. Harris kept the bag in his mouth despite repeated commands to spit it out.
At approximately 12:39 p.m., Officer Terry used a "pain compliance" hold by pressing Harris's rear jaw, a maneuver that the officer had been trained to perform, in an attempt to get Harris to stop chewing. Officer Terry testified that, based on a CAD log of the encounter, 17 minutes passed between the time he ran a check on the car's license plate and the time he used the pain compliance hold.
"CAD" is an acronym for computer-aided dispatch. (See People v. Lewis (2013) 222 Cal.App.4th 108, 114, fn. 4.)
Officer Terry noticed that brown foam was coming from Harris's mouth, a color consistent with black tar heroin. The woman, who was still in the car, screamed at Harris "to spit the heroin out." Harris "began to tire and . . . eventually . . . spit the heroin out" onto the ground. Officer Terry recovered "a black tar inside a piece of plastic bag," which he recognized as black tar heroin. Later testing revealed that the substance was .784 grams of heroin, which Officer Terry testified was a usable amount.
Harris, who had sustained a small scratch to his forehead, was arrested and transported to the police station. During an interview with Officer Terry later that day, Harris stated that he was a heroin user and indicated he was aware that the substance he put in his mouth was heroin.
Harris was charged with a felony count of possession of heroin and misdemeanor counts of destruction of evidence and resisting, delaying, or obstructing a peace officer. Before trial, the trial court reduced the felony count to a misdemeanor under Proposition 47 and, on the People's motion, dismissed the destruction-of-evidence count. The court also denied Harris's motion to suppress and renewed motion to suppress based on the contention that Harris was subject to an illegal detention.
The felony count was brought under Health and Safety Code section 11350, subdivision (a), and the misdemeanor counts were brought under Penal Code sections 135 (destruction of evidence) and 148, subdivision (a)(1) (resisting, delaying, or obstructing a peace officer). All further statutory references are to the Health and Safety Code unless otherwise noted.
After the jury convicted Harris of the two remaining counts, the trial court sentenced him to 90 days in jail and suspended execution of the sentence. The court placed Harris on probation for three years, to be reduced to 18 months if he successfully completed a drug treatment program. Among the probation conditions imposed was one requiring him to submit to warrantless searches of his "electronic devices," which we will refer to as the "electronics search condition." The court also imposed various fines and fees, including a $200 "laboratory analysis fee."
The 90-day term was for heroin possession, and the trial court did not impose a separate term for resisting, obstructing, or delaying a peace officer based on its view that that conviction "was essentially an extension of trying to secrete the evidence from the [heroin] possession" and did not involve additional resistant acts against Officer Terry.
II.
DISCUSSION
A. Harris Is Not Entitled to Relief Based on His Claim of Instructional Error.
Harris claims that the trial court erred by denying his request for a pinpoint jury instruction on prolonged detentions, requiring reversal of his conviction for resisting, obstructing, or delaying a peace officer. We conclude that any error was harmless.
1. Additional facts.
In defending against the charge of resisting, obstructing, or delaying a peace officer, Harris maintained that Officer Terry had unlawfully prolonged the detention beyond the time needed to address the registration-tag issue. To support this defense, Harris requested the following pinpoint jury instruction:
A prolonged detention is unlawful. The lawful duration of a police inquiry in a traffic-stop context is determined by the time required to address the traffic violation that warranted the stop and attend to related safety concerns. When an officer prolongs the stop beyond what is reasonably necessary under the circumstances to effect the purpose of the stop, the detention is unlawful. A detention is unlawfully prolonged if a police officer failed to diligently pursue a means of investigation that was likely to confirm or dispel his suspicions quickly, during which time it was necessary to detain the defendant. If the police officer unreasonably failed to pursue or recognize a less-intrusive method of investigation, the stop may be unlawfully prolonged. An officer may conduct certain unrelated checks during an otherwise lawful traffic stop. But he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.
During the discussion of Harris's request, the trial court observed that the use notes to CALCRIM No. 2670, the standard instruction on the lawful-performance element of resisting, obstructing, or delaying a peace officer, did not mention instructing on prolonged detentions. That instruction, which the court ultimately gave to the jury, states in relevant part,
A peace officer is not lawfully performing his or her duties if he or she is unlawfully detaining someone or using unreasonable or excessive force when making or attempting to make an otherwise lawful detention.
A peace officer may legally detain someone if:
1. Specific facts known or apparent to the officer lead him or her to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime; [¶] AND
2. A reasonable officer who knew the same facts would have the same suspicion.
Any other detention is unlawful. [¶] In deciding whether the detention was lawful, consider evidence of the officer's training and experience and all the circumstances known by the officer when he or she detained the person.
The prosecutor argued that the authority on which Harris relied was distinguishable and that the evidence did not support the conclusion that Harris's detention was prolonged. Harris's trial counsel acknowledged that his proposed instruction might be "beefier than what the Court thinks is necessary" but maintained that "something along the lines of just telling the jury that a prolonged detention is unlawful, that the measure of a detention[']s lawful scope is determined by the violation . . . that the . . . police officer . . . perceives" was appropriate.
The trial court denied Harris's request. Characterizing its decision as "difficult," the court observed that "the task of giving a pinpoint instruction that covers all the different nuances and decades of case law that would apply to what constitutes a detention becoming unduly prolonged . . . is, in this Court's opinion, simply unworkable." The court also found it "very persuasive that no reference whatsoever is made by the CALCRIM committee either in [CALCRIM No. 2670] itself or in any of the bench notes or authorities" to suggest that instructing on unduly prolonged detentions is necessary, and it also noted that neither it nor Harris's trial counsel had been able to find any authority on point.
2. The omission of the requested pinpoint instruction was harmless.
"A trial court must instruct the jury, even without a request, on all general principles of law that are ' "closely and openly connected to the facts and that are necessary for the jury's understanding of the case." [Citation.] In addition, "a defendant has a right to an instruction that pinpoints the theory of the defense . . . ." ' [Citation.] The court may, however, 'properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation].' " (People v. Burney (2009) 47 Cal.4th 203, 246.) We independently review a claim of error based on the failure to give a requested pinpoint instruction. (People v. Johnson (2009) 180 Cal.App.4th 702, 707.)
The elements of resisting, obstructing, or delaying a peace officer under Penal Code section 148, subdivision (a)(1) are: " '(1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the [lawful] performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties.' " (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 759.) "The long-standing rule in California and other jurisdictions is that a defendant cannot be convicted of an offense against a peace officer ' "engaged in . . . the performance of . . . [his or her] duties" ' unless the officer was acting lawfully at the time the offense against the officer was committed." (In re Manuel G. (1997) 16 Cal.4th 805, 815, italics omitted.) " '[A]n officer is not lawfully performing [his or] her duties when [he or] she detains an individual without reasonable suspicion.' " (Garcia v. Superior Court (2009) 177 Cal.App.4th 803, 819, italics omitted.) And, as relevant here, an officer detaining a person for a routine traffic stop cannot lawfully prolong the detention beyond the time required "to address the traffic violation that warranted the stop [citation], and attend to related safety concerns." (Rodriguez v. United States (2015) 575 U.S. ___, 135 S.Ct. 1609, 1614.)
We need not decide whether the requested pinpoint instruction was appropriately worded or was supported by substantial evidence because we conclude that any error in the trial court's refusal to give it was harmless. The jury was instructed under CALCRIM No. 2670 on how to determine whether a detention is unlawful, and Harris does not contend that there is anything objectionable about that instruction except that it does not address prolonged detentions. In addition, Harris's trial counsel emphasized in closing that the detention took 17 minutes and argued that it was therefore "unlawful." Thus, " 'nothing in [the standard instructions given] precluded the jury' " from finding that Harris was subject to an unreasonably long detention, and "counsel's argument to the jury fully explicated the defense theme" that Officer Terry was not performing his lawful duties because the detention took longer than necessary to accomplish the traffic stop's purpose. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1144.)
Moreover, Harris argues that the detention was prolonged only as to him, contending that once the results of the record check on him were returned, Officer Terry should have told him he was free to leave. Although a passenger in a car subject to a traffic stop is seized within the meaning of the Fourth Amendment "and so may challenge the constitutionality of the stop" (Brendlin v. California (2007) 551 U.S. 249, 251), Harris does not acknowledge authority establishing that a "passenger's detention may be based on a reasonable suspicion of criminal activity by the driver or another," and "[i]ssues regarding the scope of the detention after the initial stop, whether raised by the driver or the passenger, should be analyzed identically." (People v. Bell (1996) 43 Cal.App.4th 754, 765.)
Consistent with this authority, the requested instruction did not differentiate between the actions of Harris and the woman in addressing whether a traffic stop's purposes have been accomplished. Although the record check on Harris came back clean, the initial check on the woman suggested that she had provided a false name, justifying a continued detention while the officer ran a check on her real name and then, once it was revealed she was on probation, waited for the cover unit to arrive to perform a probation search. (See People v. Russell (2000) 81 Cal.App.4th 96, 102; People v. Valencia (1993) 20 Cal.App.4th 906, 918.) In other words, there was ample justification for the detention's length based on the woman's actions. It was therefore highly unlikely that the jury would have concluded that the detention was unreasonably prolonged had the requested instruction been given.
In sum, we conclude that the omission of the requested instruction did not prejudice Harris because it is not reasonably probable that he would have received a better verdict had the instruction been given (People v. Watson (1956) 46 Cal.2d 818, 836) and, to the extent the claimed error affected an element of the offense, the instruction's omission was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24). (See People v. Moon (2005) 37 Cal.4th 1, 32.)
B. The Electronics Search Condition Is Unconstitutionally Overbroad.
Harris contends that the electronics search condition must be stricken because it is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally overbroad. We conclude that the condition is reasonable under Lent, but we agree that it is overbroad and remand for the trial court to impose a more narrowly tailored condition.
Harris objected to the electronics search condition on the basis that it was unreasonable because there was "no use of a cell phone that's alleged to have been involved" and overbroad because it was "unduly invasive of [his] privacy and . . . [Fourth] Amendment rights." The trial court responded, "It is the Court's opinion that electronic devices including cell phones and smart phones are often used to arrange . . . for the purchase or sale of controlled substances and because of that reason, I believe it is a reasonable condition of probation."
1. The electronics search condition is reasonably related to future criminality.
In granting probation to an adult, a trial court may impose any "reasonable conditions . . . 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 . . . ." (Pen. Code, § 1203.1, subd. (j).) A court "has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) We review the imposition of a probation condition for an abuse of discretion (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin)), considering "the sentencing court's stated purpose in imposing it." (People v. Fritchey (1992) 2 Cal.App.4th 829, 837.)
Although a trial court has broad discretion to impose probation conditions, that discretion has limits. Under Lent, a 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.) "This 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.)
The first prong under Lent that must be satisfied to invalidate a probation condition is that the condition have no relationship to the offender's crime. Harris argues that "there is no evidence whatsoever that [he] ever used electronic devices to obtain heroin," and the Attorney General effectively concedes that the first prong is met. We agree that the record contains no evidence that the challenged condition has any relationship to Harris's crimes of heroin possession or resisting, delaying, or obstructing a peace officer.
The second prong under Lent that must be satisfied to invalidate a probation condition is that the condition relates to conduct that is not itself criminal. Harris argues that "using electronic devices is almost always for legal purposes," and the Attorney General does not offer any argument on this point. We conclude that the second prong is met.
Finally, the third prong under Lent that must be satisfied to invalidate a probation condition is that the condition is not reasonably related to future criminality, and we conclude that this prong is not met. Under Olguin, supra, 45 Cal.4th 375, a probation condition that allows probation officers "to supervise [their] charges effectively is . . . 'reasonably related to future criminality,' " even if it "has no relationship to the crime[s] of which a defendant was convicted." (Id. at pp. 380-381.) Here, the challenged condition is reasonably related to enabling supervision of whether Harris is complying with his other probation conditions, including one prohibiting him from using or possessing drugs or drug paraphernalia without a prescription. (See In re P.O. (2016) 246 Cal.App.4th 288, 295 (P.O.).) We cannot say that the trial court's given reason for imposing the condition—that cell phones are often used to arrange drug sales—constituted an abuse of discretion. (See ibid.) Thus, the third prong under Lent required to invalidate a condition is not satisfied here.
The issue whether an electronics search condition imposed on a juvenile is reasonably related to preventing future criminality under Olguin is pending before our state Supreme Court. (In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923.)
Harris claims that the challenged condition satisfies Lent's third prong because "there is no evidence that searching [his] electronic devices would prevent him from obtaining heroin in the future," but Olguin does not support such a restrictive view of the third prong. In Olguin, our state Supreme Court affirmed as reasonable under Lent a probation condition that required the defendant, who had been convicted of drunk driving, to notify his probation officer if he kept any pets. (Olguin, supra, 45 Cal.4th at pp. 378, 380.) Although the presence of pets had nothing to do with preventing the defendant from committing the same crime again, the Supreme Court nonetheless held that Lent's third prong was not satisfied because the challenged condition was reasonably related to enabling effective supervision of the defendant by tending to protect the safety of a probation officer conducting any visits to or searches at the defendant's residence. (Id. at pp. 380-381.) Thus, a condition may be reasonably related to future criminality even if it does not tend to prevent a defendant from committing the same offenses.
Harris also contends that Olguin is distinguishable because the probation condition at issue there did not implicate any constitutional rights. (See Olguin, supra, 45 Cal.4th at pp. 384-386.) He points to In re J.B. (2015) 242 Cal.App.4th 749 (J.B.), in which Division Three of this court observed that Olguin "had no occasion to consider the reasonableness of requiring a probationary minor to submit all of his electronic devices to inspection without any evidence or indication that the minor was likely to use the devices for unlawful or other proscribed activity. The Supreme Court certainly was not considering any of the privacy concerns articulated in Riley v. California (2014) 573 U.S. ___[, 134 S.Ct. 2473 (Riley).]" (J.B., at p. 757.) As we explained in P.O., however, "Olguin's mention of reasonableness occurred during a discussion of the burden that compliance with the probation condition imposed on the probationer. [Citation.] It is this burden that must be reasonable, not the condition itself." (P.O., supra, 246 Cal.App.4th at p. 296.) Thus, the extent to which a condition infringes upon constitutional rights is not automatically a concern under Lent and is "better addressed by the overbreadth doctrine." (P.O., at p. 296.) In short, we continue to find it appropriate to rely on Olguin to conclude that electronics search conditions such as Harris's are reasonable under Lent.
2. The electronics search condition is overbroad.
" '[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.' " (Olguin, supra, 45 Cal.4th at p. 384.) " '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. Pirali (2013) 217 Cal.App.4th 1341, 1346.) We review de novo whether a probation condition is unconstitutionally overbroad. (P.O., supra, 246 Cal.App.4th at p. 297.)
We have previously held that similar electronics search conditions are overbroad when they are imposed on minors because they unduly infringe upon the minor's right to privacy. In P.O., we concluded that a probation condition authorizing warrantless searches of a minor's "electronics including passwords" was not narrowly tailored to its stated purpose of monitoring his involvement with drugs, including whether he displayed such involvement on the Internet. (P.O., supra, 246 Cal.App.4th at pp. 291, 293, 298.) We explained that the condition "[did] not limit the types of data that may be searched in light of this purpose" but "[i]nstead . . . permit[ted] review of all sorts of private information that [was] highly unlikely to shed light on whether [the minor was] complying with the other conditions of his probation, drug-related or otherwise." (Id. at p. 298.) To fix the condition's overbreadth, we modified the condition "to limit authorization of warrantless searches of [the minor's] cell phone data and electronic accounts to media of communication reasonably likely to reveal whether he is boasting about drug use or otherwise involved with drugs." (Id. at pp. 298, 300.) Similarly, the challenged condition here is not tailored to uncover evidence of Harris's involvement with drugs and authorizes searches that could expose a large amount of private information having nothing to do with ensuring Harris's compliance with the terms of his probation.
Courts have recognized that a probation condition " ' " ' "that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court" ' " ' " because minors have more limited constitutional rights that are subject to additional restriction by a juvenile court. (P.O., supra, 246 Cal.App.4th at p. 297.) We are aware of at least four published opinions addressing whether electronics search conditions are unconstitutionally overbroad when imposed on adults. In People v. Appleton (2016) 245 Cal.App.4th 717 (Appleton), on which we relied in P.O., the Sixth District Court of Appeal held that a condition authorizing searches of the defendant's computers and electronic devices was unconstitutionally overbroad. (Appleton, at pp. 719, 725.) Citing the "reasoning in Riley—which recognized how the immense storage capacity of modern cell phones allows users to carry large volumes of data," Appleton concluded that "a search of [the] 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." (Id. at pp. 724-725.) Appleton struck the condition and remanded for the trial court to impose a more narrowly tailored one. (Id. at p. 727.)
Similarly, in a recent decision, the Third District Court of Appeal relied on Riley in holding that a probation condition was unconstitutionally overbroad because its authorization of warrantless searches of electronic storage devices "carrie[d] the potential for a significant intrusion into [the] defendant's private affairs—even more so than the standard [search] condition" also imposed on the defendant. (People v. Valdivia (Nov. 8, 2017, C082622) ___ Cal.App.5th ___ [p. 16] (Valdivia).) As did Appleton, Valdivia struck the challenged condition and remanded, determining that the issue "[w]hether the condition [could], as a practical matter, be narrowed in a manner that will allow it to pass constitutional muster" was most appropriately addressed by the trial court in the first instance. (Id. at p. 21.)
In contrast, in People v. Nachbar (2016) 3 Cal.App.5th 1122 (review granted Dec. 14, 2016, S238210) (Nachbar), the Fourth District Court of Appeal held that a probation condition authorizing searches of the defendant's computers and "recordable media" was not overbroad. (Id. at pp. 1126, 1129-1130.) Nachbar concluded that "the privacy concerns voiced in Riley are inapposite in the context of evaluating the [constitutional] reasonableness of a probation condition" and that the condition was sufficiently tailored to the defendant's "diminished expectation of privacy" as a probationer, given that he had used electronic devices to enable his sex crimes against a minor and required intensive supervision. (Id. at pp. 1129-1130.)
Subsequently, the same division of the Fourth District again held that a similar probation condition was not overbroad. (People v. Trujillo (2017) 15 Cal.App.5th 574, 578 (Trujillo).) In addition to reiterating Nachbar's reasoning, Trujillo found it significant that the defendant had not challenged the standard search condition allowing warrantless searches of his residence, despite the fact that "a person's home also contains considerable confidential information and is a place in which a person has the absolute right to be 'left alone,' and thus has long been provided the highest level of protection from governmental interference." (Id. at p. 587.) Finally, Trujillo also noted that the defendant had mounted an as-applied constitutional challenge and that the record was devoid of any evidence that he "owns a cell phone or computer and uses these devices to hold the type of sensitive medical, financial, or personal information described in Riley and Appleton." (Id. at p. 589.)
As did Nachbar and Trujillo, the Attorney General questions Appleton's—and, by extension, Valdivia's—reliance on Riley. Although we agree that Riley addressed cell phones and the privacy concerns they raise in the context of searches incident to arrest and not probation search conditions, we do not read Appleton or Valdivia to suggest that probationers have the same privacy interests as arrestees or that any probation condition permitting warrantless searches of cell phones is invalid under Riley. Instead, Appleton and Valdivia relied on Riley's reasoning to make the point, which cannot be seriously disputed, that cell phones potentially contain an enormous quantity of sensitive information. It is the broad array of private information a search might reveal that requires an electronics search condition to be more tailored than a standard search condition, not any heightened privacy interest of the probationer.
Although we continue to find Appleton's reasoning persuasive, neither Appleton nor Valdivia offers any guidance on how electronics search conditions must be modified to avoid overbreadth when they are imposed on adults as opposed to minors. Because minors have more curtailed privacy interests and courts have more leeway to impinge on those interests, logically the electronics search condition here must be modified at least to the extent that the condition at issue in P.O. was. Harris does not propose any additional narrowing that his status as an adult might require, however, but merely offers the conclusory argument that "the condition is not and perhaps cannot be tailored to fit [his] situation" and therefore "cannot stand." We agree with the Attorney General that this argument must be rejected, and we conclude it is appropriate to strike the condition and remand for the trial court to impose a condition that is more narrowly tailored to its purpose, taking into account that Harris is an adult. (See Valdivia, supra, ___ Cal.App.5th ___ [p. 21]; Appleton, supra, 245 Cal.App.4th at p. 727.)
C. The Penalty Assessments Imposed on the Crime-lab Fee Must Be Stricken.
Finally, Harris claims that the trial court erred by imposing a $200 crime-lab fee because the fee itself is $50 and penalty assessments do not apply to it. We agree.
In sentencing Harris, the trial court imposed a "$200 laboratory analysis fee." Under section 11372.5, subdivision (a), every person convicted of enumerated offenses, including the drug offense of which Harris was convicted, "shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense."
In People v. Watts (2016) 2 Cal.App.5th 223 (Watts), we held that the crime-lab fee is not a "fine, penalty, or forfeiture" subject to "penalty assessments, which, when applicable, inflate the total sum imposed on the defendant by increasing certain charges by percentage increments." (Id. at pp. 226, 228.) We relied on both the statutory language and legislative history of section 11372.5 to conclude "that the Legislature's characterization of the crime-lab fee as a 'criminal laboratory analysis fee' reflects an intent to treat the charge as an administrative fee not subject to penalty assessments" except under circumstances that are not present here. (Watts, at pp. 234, 236; see § 11372.5, subd. (a).) Since our decision in Watts, four opinions on the issue have been published: People v. Webb (2017) 13 Cal.App.5th 486 and People v. Martinez (2017) 15 Cal.App.5th 659, in which Division Three of this court and Division Three of the Fourth District Court of Appeal, respectively, agreed with our reasoning, and People v. Moore (2017) 12 Cal.App.5th 558 (review granted Sept. 13, 2017, S243387) and People v. Alford (2017) 12 Cal.App.5th 964 (review granted Sept. 13, 2017, S243340), in which the Third District Court of Appeal and Division One of the Fourth District Court of Appeal, respectively, did not.
The Attorney General urges us to reconsider our holding in Watts, pointing out that the first paragraph of section 11372.5, subdivision (a) directs a court to "increase the total fine necessary to include this increment" and that the second paragraph directs a court to "impose a fine in an amount not to exceed fifty dollars ($50), which shall constitute the increment prescribed by this section and which shall be in addition to any other penalty prescribed by law." (§ 11372.5, subd. (a), italics added.) As we explained in Watts, there is nothing about the first paragraph's reference to the crime-lab fee increasing the "total fine" that compels the conclusion that the fee itself is a "fine," particularly given that the paragraph refers to the crime-lab fee itself as a "fee" and "increment." (Watts, supra, 2 Cal.App.5th at p. 234.) As to the second paragraph, we recognize that it refers to the $50 amount as a "fine," but neither the Attorney General nor the two decisions disagreeing with Watts address the fact that the paragraph applies only to a null set: "offenses specified in this subdivision for which a fine is not authorized by other provisions of law." (§ 11372.5, subd. (a); Watts, at pp. 235-236.) We acknowledge that section 11372.5 is hard to interpret and there is room for disagreement, but we continue to believe that Watts reflects the most sensible interpretation of the statute. As a result, we agree with Harris that the crime-lab fee imposed on him must be reduced to $50.
III.
DISPOSITION
The order granting probation is modified to strike the phrase "electronic devices" from the probation condition requiring Harris to submit to warrantless searches. The order is also modified to strike the penalty assessments imposed on the crime-lab fee under Health and Safety Code section 11372.5, reducing the amount due from $200 to $50. As so modified, the order is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Banke, J.