Opinion
C082807
12-05-2019
THE PEOPLE, Plaintiff and Respondent, v. PRITESH CHANDRAKAN MOGERA, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE008516)
Defendant Pritesh Chandrakan Mogera pleaded no contest to corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)), and received a stipulated disposition of five years' formal probation.
Undesignated statutory references are to the Penal Code.
On appeal, he contends an electronics search condition of probation is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent), is unconstitutionally overbroad, and any failure to preserve his claims on appeal constitutes ineffective assistance of counsel. Finding the 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.
BACKGROUND
We take the facts of defendant's crime from the preliminary hearing.
On April 30, 2016, defendant was living with his girlfriend, Cheryl W., and was her sole means of financial support. He had been physically violent to her in the past. After discovering that Cheryl's former boyfriend would sometimes text her, defendant told her to call the ex-boyfriend and tell him she did not want to talk to him anymore. After Cheryl refused, defendant got physical; he grabbed one of Cheryl's arms and put his hands around her neck. As the confrontation progressed, defendant picked up an ax and told Cheryl if she did not tell her ex-boyfriend not to talk to her, he would "drive up to Seattle" and "kill the son of a bitch." The responding police officer observed that Cheryl was crying and hysterical and had sustained bruising on her triceps and neck, as well as an abrasion on her neck.
Defendant, who waived the probation report and was sentenced on the day of his plea, objected to the following proposed condition of probation:
"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."
Defendant claimed the condition was invalid under Lent, a violation of the Electronic Communications Privacy Act (§ 1546 et seq.), as well as various statutory and constitutional provisions.
The People 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 experience, which included training and experience investigating cyber 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 those who commit domestic violence offenses often violate restraining, protective, or no-contact orders, and evidence of violations can often be found on electronic devices. The offender also may try to communicate with the victim through electronic devices and may use various programs to avoid detection.
The trial court imposed the condition without modification.
The court also imposed a general search condition which does not reference searches of electronic devices. Defendant did not object to this condition at trial and does not contest it on appeal.
DISCUSSION
Defendant contends the electronics search condition is invalid under Lent, is overbroad, and any failure to preserve his claims on appeal constitutes ineffective assistance of counsel. 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. [Citation.]" (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 . . . .' [Citation.]" (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 felony 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. (Ibid.)
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." ' " (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 p. 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 pp. 1124-1125; 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. [Citations.]" (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.)
Ricardo P. controls here. Defendant's crimes did not involve the use of any electronic devices, and the use of such devices is not illegal. As in Ricardo P., the electronic search provisions of the search condition fail Lent's third prong. Although defendant's attack was triggered by messages he saw on his victim's cell phone and he demanded that she call her ex-boyfriend to terminate the friendship, there is no evidence that defendant used a computer, cell phone, or similar electronic devices in any way related to his offenses. Defendant was sentenced on the day of the 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 crimes, 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 more closely 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 electronic 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, 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 is reasonably related to defendant's future criminality, it is invalid under Lent and Ricardo P. and must be stricken.
Nothing in this opinion prevents the trial court from exercising its discretion, following a noticed hearing, to modify the probation terms if presented with additional facts that would tie an electronics search condition to defendant's future criminality as set forth in Ricardo P. (See § 1203.3, subds. (a), (b); People v. Leiva (2013) 56 Cal.4th 498, 505 [order modifying probation based on the same facts exceeds the court's jurisdiction].)
DISPOSITION
The trial court is directed to issue an amended probation order striking the electronics search condition. As modified, the judgment is affirmed.
KRAUSE, J. We concur: RAYE, P. J. BLEASE, J.