Opinion
C082728
11-04-2019
THE PEOPLE, Plaintiff and Respondent, v. BRANKO ALEXANDER MAJSTORIC, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE012918)
Defendant Branko Alexander Majstoric pleaded no contest to felon in possession of a firearm. (Pen. Code, § 29800, subd. (a)(1).) The trial court imposed a stipulated disposition of five years of formal probation. On appeal, defendant contends an electronics search condition of probation is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent), violates his Fourth and Fifth Amendment rights, and violates the privacy interests of third parties.
Undesignated statutory references are to the Penal Code.
Finding the search term invalid under a recent decision of the California Supreme Court (In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.)), we shall strike the condition.
FACTUAL AND PROCEDURAL BACKGROUND
We take the facts of defendant's crime from the factual basis of his plea.
Around July 4, 2016, defendant, having been previously convicted of a felony, possessed a nine-millimeter Kahr semiautomatic pistol.
Defendant waived referral to probation and was sentenced on the day of his plea.
The defense objected to the proposed probation condition No. 9, which reads as follows:
"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 officer, 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 statutory constitutional and statutory rights pursuant to Penal Code section 1564 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."
The defense asserted the condition was invalid under Lent, a violation of the Electronic Communications Privacy Act (§ 1546, et. seq.) and the wiretap statute (§ 631), was unconstitutionally overbroad, and violated the Fifth Amendment self-incrimination privilege.
The prosecution filed points and authorities supporting the condition. Attached to it was a declaration from Sean E. Smith, a detective with the Sacramento County Sheriff's Department. The declaration provided Smith's training experience, which included training in and experience investigating cyber-related crimes, and computer and electronic device forensics. The declaration also contained assertions regarding examples of electronic evidence found in investigations of various types of crimes and the need to examine electronic devices. Detective Smith asserted that people engaged in weapons offenses often used electronic devices to buy or sell weapons, threaten others, use illegal weapons, and to conspire with others to commit those crimes. Evidence of such offenses can be found on various electronic devices, and Detective Smith personally observed firearms posted for sale or felons posing with firearms on various forms of social media.
At sentencing, the prosecutor argued the phones of felons convicted of weapons offenses often contain photographs of them with their guns. Since defendant was found with a firearm, the prosecutor asserted the electronics search condition would deter future criminal conduct.
The trial court imposed the condition without modification.
The trial court also imposed a general search condition that does not refer to electronic devices. Defendant did not object to this condition at sentencing and does not contest it on appeal.
DISCUSSION
Defendant contends probation condition No. 9 is invalid under Lent, and violates his Fourth and Fifth Amendment rights, and impermissibly infringes on the Fourth Amendment rights of third parties. We agree with the first contention and decline to address the others.
"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." (Lent, supra, 15 Cal.3d at p. 486.) Consequently, we review conditions of probation for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) "A condition of probation will not be held invalid unless 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, at p. 486.) The Lent "test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] 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.)
In Ricardo P., the minor was placed on probation after admitting to two counts of burglary; one condition of probation was that he "submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices." (Ricardo P., supra, 7 Cal.5th at p. 1115.) While the minor did not use electronic devices in committing the burglaries, the juvenile court "imposed the condition in order to monitor his compliance with separate conditions prohibiting him from using or possessing illegal drugs." (Ibid.) The Court of Appeal found the condition permissible under Lent because it was reasonably related to enhancing the minor's supervision while on probation, but also found it was unconstitutionally overbroad. (Ricardo P., at p. 1116.) The Supreme Court found the condition invalid under Lent. (Ricardo P., at p. 1116.)
The Supreme Court agreed with the Court of Appeal that the first two parts of the Lent test were met here; review was granted to determine "whether the electronics search condition satisfies Lent's third prong—that is, whether it ' "requires or forbids conduct which is not reasonably related to future criminality." ' [Citation.]" (Ricardo P., supra, 7 Cal.5th at p. 1119.) The Supreme Court found the condition satisfies Lent's third prong and is therefore invalid under the Lent test because, "on the record before us, the burden it imposes on Ricardo's privacy is substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society." (Ricardo P., at p. 1119.)
According to the Supreme Court, by requiring a reasonable relationship between the condition and future criminality, Lent "contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Ricardo P., supra, 7 Cal.5th at p. 1122.) The condition significantly burdened the minor's privacy interests, given how much sensitive and confidential information can be accessed on devices like cell phones. (Id. at pp. 1122-1123.) The record did not support such a significant burden on the minor's privacy. The only rationale provided by the trial court was evidence that the minor previously used marijuana and its observation that minors often brag about using marijuana or other drugs by posting online pictures of themselves with drugs or paraphernalia. (Id. at p. 1122.) "If we were to find this record sufficient to sustain the probation condition at issue, it is difficult to conceive of any case in which a comparable condition could not be imposed, especially given the constant and pervasive use of electronic devices and social media by juveniles today. In virtually every case, one could hypothesize that monitoring a probationer's electronic devices and social media might deter or prevent future criminal conduct. For example, an electronics search condition could be imposed on a defendant convicted of carrying an unregistered concealed weapon on the ground that text messages, e-mails, or online photos could reveal evidence that the defendant possesses contraband or is participating in a gang. [Citation.] Indeed, whatever crime a juvenile might have committed, it could be said that juveniles may use electronic devices and social media to mention or brag about their illicit activities." (Id. at p. 1123.)
The Court of Appeal's rationale fared no better. It relied on Olguin, which upheld a requirement that the probationer notify the probation officer about pets at his residence as enabling the officer to supervise the defendant, which was reasonably related to the probationer's future criminality. (Ricardo P., supra, 7 Cal.5th at p. 1124; see Olguin, supra, 45 Cal.4th at pp. 380-382.) "Compared to the minimally invasive pet notification requirement in Olguin, requiring a probationer to surrender electronic devices and passwords to search at any time is far more burdensome and intrusive, and requires a correspondingly substantial and particularized justification." (Ricardo P., at p. 1126.)
Such was not present in the case before the Supreme Court. "In sum, we hold that the electronics search condition here is not reasonably related to future criminality and is therefore invalid under Lent. Our holding does not categorically invalidate electronics search conditions. In certain cases, the probationer's offense or personal history may provide the juvenile court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality." (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.)
Ricardo P. controls. Defendant's crime did not involve the use of any electronic devices, and the use of such devices is not illegal. As in Ricardo P., the electronics search provisions of the search condition fail Lent's third prong. There is no evidence defendant used a computer, cell phone, or similar electronic devices in any way related to his offense. Defendant was sentenced on the day of his plea and there is no probation report, so there is no evidence of him using such devices in prior criminal acts. Assuming the sworn declaration from Detective Smith could be considered expert testimony upon which a court could base findings supporting the condition, it does not support a condition as applied to the facts of this case. The declaration does not tie Detective Smith's observations to any particular facts about defendant or his crime, being instead generic testimony about types of crimes, the nature of electronic devices, and the utility of evidence from them in other cases. The Supreme Court's rejection of the trial court's observations regarding minors posting their drug use online demonstrates that generic evidence like this generally will not support finding an electronics search condition valid under Lent's third prong. Given the heavy burden an electronics search condition imposes on the probationer's privacy interests, the evidence supporting a finding under Lent's third prong must relate directly to the defendant or his crime rather than the type of generic evidence presented here. Just as in Ricardo P., given the prevalence of electronic devices and their widespread use in communication, the type of generic evidence presented through Detective Smith's statement would justify imposition of an electronics search in virtually every case. That is not allowed under Ricardo P.
Detective Smith's statement also contained sections providing examples of electronic evidence in drug cases, fraud, identity theft, and financial crimes, sex offenses, human trafficking, pimping, and pandering, and gang cases, along with domestic violence and weapons offenses.
Since there is no evidence supporting a finding that the electronics search condition No. 9 is reasonably related to defendant's future criminality, it is invalid under Lent and Ricardo P. and must be stricken.
DISPOSITION
The trial court is directed to issue an amended probation order striking probation condition No. 9. As modified, the judgment is affirmed.
/s/_________
Butz, J. We concur: /s/_________
Raye, P.J. /s/_________
Hoch, J.