Opinion
C082730
11-06-2019
THE PEOPLE, Plaintiff and Respondent, v. ALYSSA MALDONADO, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE008048)
Defendant Alyssa Maldonado pleaded no contest to possession of methamphetamine for sale. (Health & Saf. Code, § 11378) The trial court placed her on probation for five years with various terms and conditions, including an electronics search condition.
Defendant now contends (1) the electronics search condition bears no relation to her offense or future criminality and violates her constitutional rights, and (2) she is entitled to two additional days of presentence credit.
We agree the electronics search condition violates People v. Lent (1975) 15 Cal.3d 481 (Lent) as explained in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), and that defendant is entitled to additional presentence credit. We will direct the trial court to strike the electronics search condition and correct the custody credits, and we will otherwise affirm the judgment.
BACKGROUND
After defendant pleaded no contest to possession of methamphetamine for sale, she waived a formal probation report and the trial court sentenced her to probation for five years with various terms and conditions and awarded her two days of presentence credit. One of the probation conditions was an electronics search condition stating: "[Penal Code section] 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 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 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 search 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's counsel objected to imposition of the electronics search condition. The prosecutor countered that there was a basis for the condition because when defendant was detained, there were two cell phones in the car that received numerous incoming calls and text messages from multiple phone numbers. Defense counsel responded that there was no evidence the phones had been used for drug sales. The parties filed briefs on the subject, but the briefs did not provide specific factual information regarding defendant's use of electronic devices in illegal activity.
The trial court ordered the condition over defendant's objection, ruling: "It appears there's a nexus in this case, and we have progressed technology to the point no one uses pay/owe sheets anymore. We've advanced and they use them digitally and electronically. And the phones and computers are certainly used for that purpose in drug sales which is the nature of this offense."
DISCUSSION
I
Defendant contends the electronics search condition bears no relation to her offense or future criminality and violates her constitutional rights.
"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.)" (Lent, supra, 15 Cal.3d at p. 486.) Consequently, imposition of a probation condition is reviewed for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379.) "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 California Supreme Court issued its decision in Ricardo P. after briefing was complete in this case. (Ricardo P., supra, 7 Cal.5th 1113.) In that case, a minor was placed on probation after admitting to two counts of burglary. Included among the conditions of probation was that he "submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices." (Id. 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 Supreme Court determined the search condition violated Lent. (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.) 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 pp. 1122-1123.)
As in Ricardo P., here there is no evidence defendant had used, or would use, an electronic device in connection with illegal activity. Accordingly, we will direct the trial court to strike the electronics search condition, and we need not address defendant's constitutional arguments.
II
Defendant further argues she is entitled to two additional days of presentence credit. We agree.
The trial court awarded defendant two days of presentence credit, but the jail commitment order reflects those two days were for actual time served. Defendant did not receive any good time credit. Because there is no indication in the record that defendant had engaged in any disqualifying conduct, she is entitled to two days of good time credit for a total of four days presentence credit. (People v. Whitaker (2015) 238 Cal.App.4th 1354, 1358, 1362 [defendant entitled to two days' presentence conduct credit for every two days served pursuant to Pen. Code, § 4019].)
DISPOSITION
The trial court is directed to strike the electronics search condition and award defendant two days of good time credit for a total of four days of presentence credit. The judgment is otherwise affirmed.
/S/_________
MAURO, J. We concur: /S/_________
BUTZ, Acting P. J. /S/_________
HOCH, J.