Opinion
F075386
03-14-2018
THE PEOPLE, Plaintiff and Respondent, v. KIMBERLY MARIE HOSTETLER, Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F16906163)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Don Penner, Judge. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and Peña, J.
-ooOoo-
Defendant Kimberly Marie Hostetler contends (1) the electronics search condition of her probation is unreasonable, overbroad, and violative of her Fifth Amendment rights, and (2) the protective order was issued pursuant to the wrong statute. We strike the probation condition and remand for the trial court to tailor the condition more narrowly.
FACTUAL AND PROCEDURAL BACKGROUND
On September 24, 2016, a police officer conducted a traffic stop on a vehicle for speeding. The 14-year-old victim was driving and 25-year-old defendant was in the passenger seat. When the officer asked defendant her relationship to the victim, she answered he was her boyfriend. Both defendant and the victim admitted to the officer that they were engaged in a sexual relationship and had been having sex for a few months.
On October 24, 2016, the trial court issued a criminal protective order pursuant to Penal Code section 136.2, prohibiting defendant from having any contact, including electronic contact, with the victim. No expiration date was noted, which meant, according to the order, that it would expire in three years.
All statutory references are to the Penal Code unless otherwise noted.
On January 30, 2017, defendant pled no contest to engaging in unlawful sexual intercourse with a minor under the age of 16 when defendant was 21 years of age or older (§ 261.5, subd. (d)).
Section 261.5, subdivision (d) provides: "Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years."
At sentencing on March 22, 2017, the trial court suspended imposition of sentence and granted defendant three years' probation with various terms and conditions, including an electronic search condition. The probation officer's report recommended the electronic search condition and the court orally pronounced the condition to conform to the recommendation:
"You're to submit your person and property, including financial records, vehicles, computers, hand held electronics and cellular devices and any place of abode or known residence to search and seizure at any time of the day or night by any peace officer or probation officer with or without a warrant. By virtue of your open search and seizure provisions, you are deemed to have given specific consent to any law enforcement officer, including a probation officer[,] under the California [E]lectronic [C]ommunication [P]rivacy [A]ct to search your electronic devices for electronic device information."
The court also stated:
"Further conditions of probation[: ] you're ordered not to contact the victim or the victim's family members without the consent of probation or the court. You're to comply with any and all issued criminal or civil protective orders."
On March 30, 2017, defendant filed a notice of appeal. On May 22, 2017, defendant filed an amended notice of appeal and a request for certificate of probable cause, which the trial court granted.
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); also 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, fn. omitted.) 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.)
Nothing in the record suggests any electronic device played a role in defendant's current offense, and communicating electronically is not in itself criminal. But the electronic search condition is reasonably related to preventing future criminality. Defendant is subject to a criminal protective order and a probation condition prohibiting her from contacting the victim in any way, including electronically. The sexual nature of their relationship suggested they might attempt to contact each other to maintain their relationship. Even if there was no evidence that defendant had used an electronic device to contact the victim, it was not unreasonable to believe she 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 her 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 contents of his or her electronic devices, which are protected from search by the Fourth Amendment. (Riley v. California (2014) 573 U.S. ___ [189 L.Ed.2d 430, 134 S.Ct. 2473] (Riley) [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 her future criminality because it allows officers to determine whether she is complying with her 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 it 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 preventing defendant's future criminality.
III. Self-Incrimination by Electronic Search Condition
Defendant also argues that the electronic search condition violates her Fifth Amendment right against self-incrimination because it requires her to provide access to electronic devices containing stored information that may be incriminating or may lead to incriminating evidence. We disagree that the condition violates her Fifth Amendment right against self-incrimination.
We review defendant's Fifth Amendment challenge to her probation conditions de novo. (Appleton, supra, 245 Cal.App.4th at p. 723.)
"The Fifth Amendment to the United States Constitution states that '[n]o person ... shall be compelled in any criminal case to be a witness against himself ....' The high court has made clear that the meaning of this language cannot be divorced from the historical practices at which it was aimed, namely, the brutal inquisitorial methods of ' "putting the accused upon his oath and compelling him to answer questions designed to uncover uncharged offenses, without evidence from another source." ' [Citations.] ... [T]he amendment prohibits the direct or derivative criminal use against an individual of 'testimonial' communications of an incriminatory nature, obtained from the person under official compulsion." (People v. Low (2010) 49 Cal.4th 372, 389-390.)
It is, however, a "settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not 'compelled' within the meaning of the privilege [against self-incrimination]." (United States v. Hubbell (2000) 530 U.S. 27, 35-36.)
Moreover, even if the required information amounts to "compelled testimonial communications" (Fisher v. United States (1976) 425 U.S. 391, 409), the condition in and of itself does not violate defendant's Fifth Amendment right against self-incrimination because it does not authorize the use of any compelled statements in a criminal proceeding. In Maldonado v. Superior Court (2012) 53 Cal.4th 1112, the California Supreme Court explained: "[T]he Fifth Amendment does not provide a privilege against the compelled 'disclosure' of self-incriminating materials or information, but only precludes the use of such evidence in a criminal prosecution against the person from whom it was compelled." (Id. at p. 1134.)
Finally, a probationer has no right to be free of self-incrimination in a probation revocation proceeding and any compelled statements would be admissible in that instance. (Minnesota v. Murphy (1984) 465 U.S. 420, 435, fn. 7 ["Although a revocation proceeding must comport with the requirements of due process, it is not a criminal proceeding. [Citations.] Just as there is no right to a jury trial before probation may be revoked, neither is the privilege against compelled self-incrimination available to a probationer."].)
Because the probation condition does not purport to authorize the use of any compelled testimonial communications against defendant in a criminal proceeding, it does not violate the Fifth Amendment.
IV. Statutory Authority of Protective Order
Defendant contends the protective order issued by the court under section 136.2 should have been issued under section 136.2, subdivision (i)(1). We agree but conclude the order is valid.
Section 136.2 generally provides for protective orders to protect a victim or witness. "The courts have construed section 136.2, subdivision (a) to authorize imposition of protective orders only during the pendency of the criminal action. [Citations.] Thus, once the defendant is found guilty and sentenced, the court's authority to issue a protective order under section 136.2, subdivision (a) generally ceases." (People v. Beckemeyer (2015) 238 Cal.App.4th 461, 465 (Beckemeyer).)
In 2011, however, "the Legislature responded to this restrictive judicial construction by creating an exception to the preconviction limitation of a section 136.2 restraining order" in cases of domestic violence and sexual crime. (Stats. 2011, ch. 155, § 1.) (Beckemeyer, supra, 238 Cal.App.4th at p. 465.) "Effective January 1, 2012, the Legislature added section 136.2, subdivision (i) to the statutory scheme so that a 10-year postconviction protective order would be permissible" when a defendant was convicted of these particular offenses. (Ibid.) In 2016, subdivision (i)(1) of section 136.2 (subdivision (i)(1)), which authorizes a postconviction restraining order in particular cases (Beckemeyer, at p. 466), provided:
"In all cases in which a criminal defendant has been convicted of a crime involving domestic violence as defined in Section 13700 or in Section 6211 of the Family Code, a violation of Section 261, 261.5, or 262, or any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with the victim. The order may be valid for up to 10 years, as determined by the court. This protective order may be issued by the court regardless of whether the defendant is sentenced to the state prison or a county jail or subject to mandatory supervision, or whether imposition of sentence is suspended and the defendant is placed on probation. It is the intent of the Legislature in enacting this subdivision that the duration of any restraining order issued by the court be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family." (Italics added.)
The current version of subdivision (i)(1) is not different from the 2016 version in any way that would affect this issue. --------
Here, the protective order form used by the trial court provided three statutory authorities for the order: "§§ 136.2, 136.2(i)(1), and 646.9(k)." The court checked the box for "§ 136.2." The trial court issued the order preconviction and appropriately issued it under section 136.2. But at sentencing, the court continued the order as a postconviction order. At that point, the order was authorized by subdivision (i)(1), even though it was originally issued under section 136.2 generally.
Regardless of the notation on the form, the protective order remains valid. The validity of a protective order should not be a matter of checking a particular box on a form; the substance of the order controls over its form. (Snapp v. State Farm Fire & Cas. Co. (1964) 60 Cal.2d 816, 821; Feinberg v. One Doe Co. (1939) 14 Cal.2d 24, 28 ["this court will not be bound by the form of the order but will look to its substance to determine its real nature"]; Brown v. Wells Fargo Bank, NA (2012) 204 Cal.App.4th 1353, 1356 ["[o]n appeal, the substance and effect of the order controls, not its label"].) The court expressly continued the protective order at sentencing and that act was authorized by subdivision (i)(1). We need not trouble the trial court to amend the order.
DISPOSITION
The portion of the probation condition requiring defendant to submit her "computers, hand held electronics 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.