Opinion
D070971
03-17-2017
THE PEOPLE, Plaintiff and Respondent, v. SEAN ERIC KENT, Defendant and Appellant.
Patrick Dudley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD265477) APPEAL from a judgment of the Superior Court of San Diego County, Michael S. Groch, Judge. Affirmed as modified and remanded with directions. Patrick Dudley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
Sean Eric Kent pleaded guilty to one count of felony vandalism (Pen. Code, § 594, subd. (a)(b)(1)). Pursuant to the plea agreement, Kent was granted probation on various terms and conditions.
All further statutory references are to the Penal Code unless otherwise specified.
Kent appeals challenging two of the conditions of probation: condition 10g requiring probation officer approval of his residence, and condition 6n, a search condition that includes searches of computers and recordable media. At sentencing, Kent objected to a portion of condition 6n, but did not object to condition 10g. We will find Kent's challenge to condition 10g has been forfeited for failure to raise it in the trial court. As to the challenge to the portion of condition 6n, relating to computers, we find no nexus in the offense, Kent's criminal history or rehabilitative needs to support the challenged portion of condition 6n. Accordingly, we will direct the trial court to strike the challenged portion and to modify the judgment accordingly.
STATEMENT OF FACTS
This case arises from a guilty plea thus there was no testimony. The probation officer's report shows that Kent slashed the tires on four cars, which were parked near a bar in Pacific Beach. The loss to the victims was in excess of $2,000.
DISCUSSION
A. Condition 10g
Probation condition 10g requires Kent to seek approval of his residence from the probation officer. Although Kent objected to a different probation condition in the trial court, he did not object to 10g. Appellate counsel recognizes that failure to object to a probation condition ordinarily forfeits the issue on appeal. (People v. Welch (1993) 5 Cal.4th 228, 235.) Counsel seeks to avoid forfeiture by contending the condition impinges on a constitutionally protected right and thus can be reviewed for the first time on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 884.) Counsel argues that since constitutional issues are reviewed de novo (In re J.H. (2007) 158 Cal.App.4th 174, 183), we can address this issue without reference to the record. We disagree in this case because assessing this condition requires consideration of the circumstances of the offense and Kent's unique rehabilitative needs. It cannot simply be analyzed on the language of the condition.
The probation officer's report detailed a significant history of violent and disturbing behavior. The probation officer points out that one of Kent's urgent needs is to obtain stable housing to attempt to stabilize his increasingly dangerous behavior. We cannot determine the reasonableness of the condition without understanding Kent's particular circumstances and rehabilitative needs. The failure to raise the issue in the trial court has deprived us of the record we need to make a rational judgment. Of course, we are aware that Kent always has recourse to the trial court to request modification of the conditions of probation, should that be appropriate.
We find Kent's objections to condition 10g have been forfeited. We decline to discuss the contentions on the merits.
B. Search of Computers
Probation condition 6n is a general Fourth Amendment waiver, which also includes waiver of the warrant requirement for searching computers and recordable media. Kent objected in the trial court only with regard to the search waiver for computers and recordable media. The trial court overruled the objection.
The trial court did inquire of the probation officer regarding the reason for the proposed condition. The probation officer explained it was a supervision tool in this case.
Kent contends the requirement that he submit to search of computers and recordable media has no relationship to the crime or anything in his criminal history which would indicate there was a need for such enhanced scrutiny into otherwise protected activity. We agree there is no basis in this record to impose such a significant intrusion into otherwise lawful activity.
The court in In re Erica R. (2015) 240 Cal.App.4th 907, 910-911 (Erica R.)), struck a similar search condition in a case where the juvenile had been found to have possessed a controlled substance. The court found there was no connection between the search condition and the offense. Further, the court found nothing in the supervisory needs of probation justified the search condition.
The court in Erica R., supra, 240 Cal.App.4th 907 was persuaded in large part by the significant privacy interests citizens have in the material stored in modern electronic devices. The court discussed the Supreme Court decision in Riley v. California (2014) 573 U.S. ___ (Riley). The Riley decision identified the significant privacy interests in smart phones and similar devices. The court in Riley held the amount of personal data at risk in such devices was so significant that the devices could not be searched incident to lawful arrest.
While Riley, supra, 134 S.Ct. 2473 was directly addressing the search incident to arrest exception to the search warrant requirement, it is significant in this context in that it recognized the enormous intrusion into privacy that searches would cause. It thus required that search of such media ordinarily requires a warrant.
This case is unusual in that Kent does not challenge the condition to the extent that it is general waiver of Fourth Amendment protections. Implicitly, Kent concedes the probation officer needs some ability to search Kent and his belongings in order to assure his compliance with probation. He argues that searches that extend into computers and recordable media pose greater privacy concerns that should require more carefully tailored conditions when dealing with intrusion into expanded personal data.
Courts have broad discretion in fashioning probation conditions designed to prevent recidivism. (People v. Lent (1975) 15 Cal.3d 481, 486; People v. Olguin (2008) 45 Cal.4th 375, 379; People v. Nachbar (2016) 3 Cal.App.5th 1122, 1128-1130.) However, such conditions must rationally relate to the crime or the needs for rehabilitation and must be sufficiently tailored as to avoid unnecessary intrusion into otherwise protected, lawful activity. (Erica R., supra, 240 Cal.App.4th at p. 914.)
In the present case, the crime involves vandalism and destruction of property. There is nothing in the record to indicate the involvement of computers or any other electronic device. Nothing in the probation officer's report indicates Kent has ever used an electronic device in the commission of any offense. Kent has no record of gang activity and there is nothing in the report that demonstrates Kent's use of such devices poses a risk of future criminality. As we have noted, when asked, the probation officer offered no specific need for search of electronic devices other than basic general supervisory tools. Certainly, maximum surveillance of probationers might yield greater compliance. However, unnecessary intrusion into otherwise protected activity is not an appropriate probation condition. (People v. Pirali (2013) 217 Cal.App.4th 1341, 1348.)
Given the absence of nexus with the offense or any particularized need for greater intrusion into Kent's constitutional privacy interests, condition 6n is overbroad to the extent it authorizes warrantless searches of computers and recordable media.
DISPOSITION
The trial court is directed to strike that portion of condition 6n which authorizes warrantless searches of Kent's computers or recordable media. The court is directed to modify the probation order consistent with the views expressed in this opinion. In all other respects, the judgment is affirmed.
HUFFMAN, J. WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.