Opinion
C081550
11-19-2019
THE PEOPLE, Plaintiff and Respondent, v. KRYSTIN LEE HARVEY, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CM043516)
Defendant Krystin Lee Harvey pleaded no contest to theft from an elder adult by a caretaker, and was sentenced to county jail and mandatory supervision. As a condition of mandatory supervision, the court imposed, without objection, an electronics search condition requiring her to submit to warrantless searches of electronic storage devices, including providing passwords and access to social media accounts.
On appeal, defendant challenges the electronics search condition as unconstitutionally overbroad. We conclude that on the facts of this case the electronics search condition is unconstitutionally overbroad because its potential impact on defendant's Fourth Amendment rights exceeds what is reasonably necessary to serve the government's legitimate interest in ensuring that she complies with the terms of her mandatory supervision and does not contact the victim. Accordingly, we shall strike the electronics search condition and remand the case to the trial court to consider whether the condition can be narrowed in a manner that will allow it to pass constitutional muster.
FACTUAL AND PROCEDURAL BACKGROUND
In 2015, defendant and her husband, codefendant Phillip Harvey, lived at the main residence on a property owned by the 90-year-old victim; the victim lived in a mobile home located at the back of the property. In exchange for living rent free, defendant and her husband were supposed to take care of the victim.
Since August 2012, there had been several calls for service to the victim's residence and referrals to the Adult Protection Services alleging that defendant and her husband, among others, had physically abused or neglected the victim and had stolen his money.
In March 2015, authorities investigated allegations that defendant and her husband were cashing large checks from the victim's bank account. Bank records revealed several withdrawals from the victim's account that the victim had not made. In April 2015, defendant's husband had the victim sign a gift deed on two of the victim's properties to him.
When contacted by police, defendant admitted she had forged and signed multiple checks from the victim's bank account to herself. She also opened a credit card in the victim's name, which she used for household items and for her personal benefit because she had a spending problem, and cashed in one of the victim's life insurance policies, which she partly used to purchase a van for her family.
In August 2015, defendant was arrested and subsequently charged with theft from an elder adult by a caretaker (Pen. Code, § 368, subd. (e)—count 5), and procuring and offering a false or forged instrument (§ 115, subd. (a)—count 6), and accessory after the fact (§ 32—count 7). On the date set for the preliminary hearing in September 2015, defendant pleaded no contest to the theft from an elder adult by a caretaker offense and the remaining charges were dismissed with a Harvey waiver.
Further undesignated statutory references are to the Penal Code.
Counts 1 through 4 were alleged against defendant's husband.
The parties stipulated to the probation report as the factual basis for the plea.
People v. Harvey (1979) 25 Cal.3d 754.
In January 2016, the court sentenced defendant to four years in county prison with 731 days of incarceration and the remaining balance to be served on mandatory supervision. As a condition of her supervised release, the court imposed the following special condition without objection: "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." The court also entered a criminal protective order that prohibited defendant from having personal, electronic, telephonic, or written contact with the victim. Defendant timely appealed.
DISCUSSION
1.0 Forfeiture
Defendant contends the electronics search condition imposed here is unconstitutionally overbroad because it significantly infringes on her rights to privacy, expression, and association without being sufficiently tailored to the rehabilitative purpose of supervision. Although she did not object to the electronics search condition at the sentencing hearing, she argues the issue is not forfeited because it presents a pure question of law that may be raised for the first time on appeal. (See In re Sheena K. (2007) 40 Cal.4th 875, 887-888 (Sheena K.) [recognizing that facial overbreadth challenges to probation conditions are not necessarily forfeited by failure to raise an objection in the trial court; the asserted error can constitute a pure question of law that is easily correctable on appeal by modifying the condition without examining the trial record].)
The People, on the other hand, characterize defendant's claim as one that requires the court to consider the facts of the particular sentencing record developed in the trial court. They argue such a claim is forfeited in the absence of an objection below. (See People v. McCullough (2013) 56 Cal.4th 589, 593 [" ' " 'a constitutional right,' or a right of any other sort," ' " may be forfeited in a criminal case by the failure to timely assert the right before a tribunal having jurisdiction to determine it]; Sheena K., supra, 40 Cal.4th at p. 889 [not all constitutional defects in probation conditions may be raised for the first time on appeal; traditional objection and waiver principles apply to constitutional claims that cannot be resolved without reference to the particular sentencing record developed in the trial court].)
We conclude defendant's claim is not forfeited despite her failure to object on constitutional overbreadth grounds below because defendant raises a facial challenge to the condition. (Sheena K., supra, 40 Cal.4th at pp. 887-889.) She does not cite the particular facts relevant to her crime in arguing the condition is overbroad, but instead contends the sweep of the condition, notwithstanding her conviction, is overly broad. But even if defendant's overbreadth challenge arguably depends on the record developed in the trial court, we may exercise our discretion to consider the important constitutional issue. (See People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6; see Sheena K., at p. 887, fn. 7 [an appellate court may review a forfeited claim, and whether or not it should do so is entrusted to its sound discretion].) Accordingly, we will consider the merits of defendant's claim.
2.0 Overbreadth
Trial courts generally have "broad discretion in fashioning terms of supervised release, in order to foster the reformation and rehabilitation of the offender, while protecting public safety." (People v. Martinez (2014) 226 Cal.App.4th 759, 764 (Martinez).) Where a condition of supervision impinges on constitutional rights, the condition must be carefully tailored and reasonably related to the compelling state interest in reforming and rehabilitating the defendant. (People v. Olguin (2008) 45 Cal.4th 375, 384 [" '[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' "]; People v. Bauer (1989) 211 Cal.App.3d 937, 942.)
The trial court denied defendant probation. Thus, defendant's sentence is akin to a state prison commitment and her mandatory supervision is more similar to parole than probation. (See People v. Fandinola (2013) 221 Cal.App.4th 1415, 1422-1423; Martinez, supra, 226 Cal.App.4th at pp. 762-763.) However, supervised release is to be monitored by county probation officers "in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation." (§ 1170, subd. (h)(5)(B).)
"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 . . . ." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) "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." (In re White (1979) 97 Cal.App.3d 141, 149-150.) We independently review defendant's constitutional challenge to a supervision condition. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
The United States Supreme Court's observations in Riley v. California (2014) 573 U.S. 373, 378, 396 (Riley), which considered whether the police may conduct a warrantless search of digital information on a cell phone seized from an individual who has been arrested, make clear that a probation condition that authorizes the warrantless search of an electronic storage device, such as a cell phone, carries the potential for a significant intrusion into a defendant's private affairs. This is because cell phones, in many respects, are more than simply a phone; "many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers." (Id. at p. 393.)
The electronics search condition at issue here, "arguably sweeps more broadly than the standard three-way search condition allowing for searches of probationers' persons, vehicles, and homes." (People v. Appleton (2016) 245 Cal.App.4th 717, 725.) As the appellate court observed in Appleton, "by allowing warrantless searches of all of defendant's computers and electronic devices, the condition allows for searches of items outside his home or vehicle, or devices not in his custody—e.g., computers or devices he may leave at work or with a friend or relative." (Ibid.) The scope of a digital search, moreover, is extremely wide. "[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" (ibid.), as well as information about defendant's political and religious affiliations, health concerns, hobbies, and social life (Riley, supra, 573 U.S. at p. 396).
Here, 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. We conclude it is not.
While the state undoubtedly has a legitimate and significant interest in ensuring that defendant is rehabilitated upon her supervised release (Martinez, supra, 226 Cal.App.4th at pp. 762-764), and the electronics search condition can be understood to serve that purpose by helping to ensure defendant obeys all laws and stays away from the victim—other conditions of her mandatory supervision—it permits unprecedented intrusion into her private affairs, and does so on a record that demonstrates little likelihood, or even possibility, that evidence of illegal activity will be found in all of the applications in all of the devices the condition subjects to warrantless search.
That defendant's constitutional rights are reduced while under mandatory supervision does not support the sweeping electronics search condition imposed as the People argue. While it is undoubtedly true that a person on probation or mandatory supervision has lessened expectations of privacy (People v. Robles (2000) 23 Cal.4th 789, 798), defendant did not entirely surrender her Fourth Amendment rights by pleading no contest to the present offense.
The state's interests—preventing communication with the victim and fostering defendant's rehabilitation—could be served through narrower means. We therefore conclude that the electronics search condition is not sufficiently tailored to its purpose, and must be modified to limit authorization of searches of devices, accounts, and applications to those that are reasonably likely to reveal whether defendant has engaged in prohibited communication with the victim, or otherwise violated the terms of her probation.
DISPOSITION
The trial court is directed to issue an amended mandatory supervision order striking the electronics search condition. As modified, the judgment is affirmed. Because the trial court may be able to impose a valid probation condition more narrowly tailored to the state's interests, the case is remanded to the trial court for further proceedings consistent with this opinion.
/s/_________
Butz, J. We concur: /s/_________
Raye, P.J. /s/_________
Renner, J.