Opinion
C083598
11-19-2019
THE PEOPLE, Plaintiff and Respondent, v. KEITH DARREN JACKSON, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE019939)
Defendant Keith Darren Jackson appeals a judgment entered following his no contest plea to unauthorized use of personal identifying information (Pen. Code, § 530.5, subd. (a)) and grant of felony probation for a term of five years. His challenge is twofold. First, he objects to the trial court's order requiring him to pay a urinalysis fee. Second, defendant contests the electronics search provision found in specific condition of probation No. 18 (specific condition 18), arguing it is overbroad in violation of the United States Constitution. We requested supplemental briefing addressing the constitutionality of a similar provision found in specific condition of probation No. 12 (specific condition 12).
Undesignated statutory references are to the Penal Code.
Having reviewed all the briefing in this matter, we conclude that the urinalysis fee was unauthorized and will strike it. We also conclude that on the facts of this case specific conditions 12 and 18 are constitutionally overbroad and accordingly we will strike them and remand the case to the trial court to consider whether the conditions can be narrowed in a manner that will pass constitutional muster. The judgment is otherwise affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
The People's felony complaint charged defendant with a single count of unauthorized use of personal identifying information. (§ 530.5, subd. (a).) Defendant pleaded no contest to this charge. The stipulated factual basis for the plea was that "[o]n or about January 6th, 2016, within the County of Sacramento — actually on four different occasions [defendant] enters Wells Fargo Bank and on four different occasions cashes four different fraudulently drawn checks. These checks are drawn upon groups called Shapiro Law Group — and . . . the Yeghiayan Law Corporation . . . . The total loss to Wells Fargo was $5,023.28. Each of the individual checks was over $900."
Defendant waived a formal probation report and the court suspended imposition of sentence at the same hearing and granted felony probation for a term of five years conditioned on serving 120 days in county jail, with custody credit of 28 days. The court imposed a $300 restitution fine (§ 1202.4), a stayed $300 probation revocation restitution fine (§ 1202.44), a $30 criminal conviction fee (Gov. Code, § 70373), and a $40 court operations fee (§ 1465.8). It also required defendant pay a $46 monthly costs of probation fee, a $25 urinalysis fee, and a criminal impact fee (§ 1465.7, subd. (a)). The court struck the booking and classification fees.
Included within the probation conditions imposed by the court were two pertaining to searches of defendant's electronic information: specific conditions 12 and 18. Specific condition 12 stated: "Defendant shall disclose all e-mail accounts, all Internet accounts, and any other means of access to any computer or computer network, all passwords and access codes. Defendant shall consent to the search of such e-mail and Internet accounts at any time and the seizure of any information or data contained therein without a search warrant or probable cause."
These conditions were delineated separately in the filed "specific conditions of probation," but were listed together in the unexecuted "minute order and order of probation" included within the record on appeal.
Specific condition 18 stated: "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 officers, 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."
Defendant objected to specific condition 18 at sentencing. His counsel first referenced the boilerplate written objection to any electronics search conditions that had been filed. This brief argued in pertinent part that the condition did not relate to the crime or future criminality, that the nature of the search was too intrusive to be justified in this case, that the condition would allow authorities to obtain information from the cloud outside of defendant's custody and control, and that the condition was unconstitutionally overbroad requiring modification. Counsel then objected that, specific to this case, there were no facts indicating "that a computer was used to generate these checks. For all it appears that they may simply be stolen checks that were passed off."
We find these objections broad enough to encompass defendant's complaints about specific condition 12, and even if they did not, we would exercise our discretion to reach the merits of this issue to forestall a future ineffective assistance of counsel claim. (See, e.g., In re Victor L. (2010) 182 Cal.App.4th 902, 928 [addressing the merits of a forfeited challenge to probation condition to avoid the need to analyze defendant's alternative ineffective assistance of counsel claim]; People v. Smith (2003) 31 Cal.4th 1207, 1214-1215 [exercising discretion to review on the merits arguably forfeited claims of sentencing entrapment and manipulation].)
The People countered that the checks utilized in the offenses were computer generated, referencing copies of the checks that had been provided by the defense in discovery. The People offered to show the court copies of the checks, but those copies were not shown to the court, were not admitted into evidence, and thus are not part of the record on appeal. The defense argued in response that there was nothing distinctive about the checks that would indicate that they were computer generated and that they simply "look like checks."
The court ruled there was "a nexus between the condition number 18 and the efforts to rehabilitate [defendant] through a grant of probation. That's the sort of activity for which he was convicted—of which he was convicted can be aided, abetted, and accomplished by the methods that are now subject to search pursuant to condition 18. So it does appear that there is a nexus to the offense here and it would be appropriate to impose that condition." Defendant timely appealed.
DISCUSSION
1.0 The $25 Urinalysis Fee
Defendant requests that we strike the provision requiring him to pay the $25 urinalysis fee, arguing it is not authorized under section 1203.1ab; section 1210.1; or Health and Safety Code section 11551, subdivision (a). The People respond that defendant has forfeited the right to challenge this fee and that it was authorized under the court's broader authority found in section 1203 and section 1203.1 et seq. We determine this fee was unauthorized and accordingly will strike it.
Section 1203.1ab, section 1210.1, and Health and Safety Code section 11551 do not authorize the trial court's order. Section 1203.1ab authorizes an order requiring, as a condition of probation, a defendant convicted of an offense involving the unlawful possession, use, sale, or other furnishing of any controlled substance to pay the cost of drug and substance abuse testing, under certain circumstances. Section 1210.1 requires drug testing as a condition of probation in a case where the defendant was convicted of a nonviolent drug possession offense. (§ 1210.1, subd. (a).) Here, defendant did not plead to a drug-related offense. Moreover, even when it applies, Health and Safety Code section 11551, which authorizes periodic drug tests in certain circumstances, does not authorize an order requiring the probationer to pay the cost of administering the tests. (Health & Saf. Code, § 11551, subds. (a), (d).) Thus, there is no statutory authority for the imposition of this fee.
The People nonetheless argue that the $25 fee is authorized by the court's broader probation authority. "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. (Pen. Code, § 1203 et seq.)" (People v. Lent (1975) 15 Cal.3d 481, 486.) Consequently, the imposition of a probation condition is generally reviewed for an abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379.)
Section 1203.1, subdivision (j), authorizes a sentencing court to impose conditions of probation "as 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 . . . ." However, the court's exercise of discretion under section 1203.1, subdivision (j) is not unlimited. (People v. Beal (1997) 60 Cal.App.4th 84, 86.)
It does not include the ability to order as a condition of probation that defendant pay the cost of urinalysis testing where a corresponding testing order is not issued and the fee is not otherwise authorized by statute. (Cf. Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321-322 [recognizing court could order periodic polygraph testing as a condition of probation, but any order for the payment of costs of that testing had to be in a separate order enforceable civilly].) Here, the court did separate the order requiring defendant to pay the $25 urinalysis fee. However, as we have explained, there is no statutory basis for this order. As such, it is unauthorized and must be stricken. (See People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1249 ["an unauthorized sentence may be corrected at any time even if there was no objection in the trial court"].)
2.0 Specific Conditions 12 and 18
Defendant requests that we strike specific conditions 12 and 18 as constitutionally overbroad in violation of the Fourth Amendment to the United States Constitution. The People concede that if specific condition 18 is constitutionally overbroad, specific condition 12 suffers from the same infirmity, but nonetheless argue that defendant has forfeited his challenge to specific condition 12. We are not persuaded and conclude on the merits that specific conditions 12 and 18 are overbroad for the reasons explained herein.
"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.) "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.)
To that end, a probation condition "is unconstitutionally overbroad . . . if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' " (In re E.O. (2010) 188 Cal.App.4th 1149, 1153, quoting In re Victor L., supra, 182 Cal.App.4th at p. 910.) "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., at p. 1153.) We review the constitutionality of specific conditions 12 and 18 de novo. (In re Malik J. (2015) 240 Cal.App.4th 896, 901.)
Specific conditions 12 and 18 allow members of law enforcement unfettered access to defendant's electronic devices and any electronic accounts to conduct warrantless searches without limitations and require that defendant provide all passwords or other information necessary to effectuate such a search. It is undeniable that these search conditions implicate defendant's constitutional rights. (In re Ricardo P. (2019) 7 Cal.5th 1113, 1123 (Ricardo P.); Riley v. California (2014) 573 U.S. 373, 393-395 (Riley); People v. Appleton (2016) 245 Cal.App.4th 717, 724 (Appleton).) As recognized by the Supreme Court of the United States in Riley at pages 393-397, modern cell phones represent significant privacy concerns because they differ both quantitatively and qualitatively from other objects previously subject to search, either on a person or in his/her home.
Quantitatively, cell phones have an immense storage capacity, enabling the collection of large amounts of data, much of which would not have been previously kept, dating back to the purchase of the device or beyond. (Riley, supra, 573 U.S. at p. 394.) Qualitatively, phones collect types of data previously unavailable, such as search histories, location data, and software applications ("apps"), which allow unprecedented revelations into an individual's private life including medical and romantic interests, etc. (Id. at pp. 395-396.) In fact, "[a] phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is." (Id. at pp. 396-397, italics added.)
Further, while defendant has a reduced expectation of privacy by virtue of his probationer status, he still retains a protectable privacy interest. (Ricardo P., supra, 7 Cal.5th at p. 1140 (conc. & dis. opn. of Cantil-Sakauye, C.J.) [citing In re Jaime P. (2006) 40 Cal.4th 128, 137, for proposition that " 'both parolees and probationers retain some expectation of privacy, albeit a reduced one' "]; Samson v. California (2006) 547 U.S. 843, 850 [165 L.Ed.2d 250, 258].) This reduced interest in an essentially unprecedented intrusion into private affairs begs the question 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 that it is not.
It goes without saying that the state has a legitimate and significant interest in ensuring that the purpose of probation—defendant's rehabilitation—is achieved here. (See People v. Wardlow (1991) 227 Cal.App.3d 360, 365 ["The purpose of probation is rehabilitation"].) This interest includes not only the rehabilitation of the probationer, but also the protection of the community. (United States v. Knights (2001) 534 U.S. 112, 119-120 [151 L.Ed.2d 497, 505-506].)
However, the state's interest in reforming defendant's tendency to commit identity theft while protecting the community does not justify unfettered access to all of defendant's electronic devices and accounts, enabling the search of highly personalized data having no reasonable connection to ensuring defendant does not reoffend. In fact, "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, . . . personal diaries, and intimate correspondence with family and friends." (Appleton, supra, 245 Cal.App.4th at p. 725; see Riley, supra, 573 U.S. at p. 396 [discussing the extraordinary breadth of software apps available for every aspect of modern life].) Such access sweeps more broadly than necessary to achieve the state's legitimate, laudable purposes and on that ground must be stricken. (See In re P.O. (2016) 246 Cal.App.4th 288, 298-299 [finding overbroad a search condition permitting review of information unrelated to goal of monitoring minor's involvement with drugs].)
DISPOSITION
The trial court is directed to issue an amended order of formal probation, striking specific condition numbers 12 and 18, as well as the $25 urinalysis fee. As modified, the judgment is affirmed. As 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.