Opinion
C083366
10-21-2019
THE PEOPLE, Plaintiff and Respondent, v. DAJON LEVONTE MOORE, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE013818)
Defendant Dajon Levonte Moore appeals a judgment entered following his no contest plea to being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)) and grant of felony probation for a term of five years. He argues in pertinent part that the trial court abused its discretion in imposing an electronic search term unrelated to his offense and without any factual basis in the record to support its relationship to his future criminality. We concur that the trial court's imposition of specific condition number five violated the third prong of People v. Lent (1975) 15 Cal.3d 481 (Lent) as explained in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). Accordingly, we will strike this condition and otherwise affirm the judgment.
Undesignated statutory references are to the Penal Code. --------
I. BACKGROUND
The People filed a felony complaint charging defendant with being a felon in possession of a firearm (§ 29800, subd. (a)(1)—count one) and being a prohibited person in possession of ammunition (§ 30305, subd. (a)(1)—count two). Defendant pled no contest to count one and count two was dismissed in the interests of justice. The stipulated factual basis for the plea was that: "On or about July 13, 2016, in the County of Sacramento, the defendant unlawfully possessed a 357-caliber revolver. Specifically, the gun was found in a dresser in a bedroom with indicia belonging to him. The defendant was prohibited from possessing the firearm due to a previous felony conviction for . . . section 25850 subsection (a) that occurred on January 8, 2013, in the County of Sacramento."
Defendant waived a formal probation report and was sentenced at the same hearing to felony probation for a term of five years and 300 days in county jail. 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). The court refused to impose a jail classification booking fee and the costs of probation because of defendant's inability to pay.
Included within the probation conditions imposed by the court was specific condition number five, which 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 . . . 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 orally objected to imposition of this condition, arguing it was inappropriate because there was a lack of "reasonable nexus" given the facts of the case and that it was overbroad. Counsel also filed a written objection to this term, arguing in pertinent part that the condition was invalid under Lent. The People countered that defendant was on probation for having a gun at the time of this offense and that "oftentimes the phones are searched and helpful in proving that people are in possession of guns because people often take photos with the guns." The trial court accepted this argument stating, "Based on that representation and over the objection of defense in terms of its ongoing opposition to this carefully court crafted language, the Court will impose term number five as set forth in the probation order." Defendant timely appealed.
II. DISCUSSION
Defendant requests that we strike specific condition number five because it meets all three of Lent's requirements for invalidating a probation condition, and alternatively, because it is constitutionally overbroad. Given that we concur with defendant's first argument, we do not reach the second.
"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. ([]§ 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 (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, supra, 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. [Citation.]" (Olguin, supra, at pp. 379-380.)
Because the challenged electronics search condition found in specific probation condition number five neither relates to a crime for which defendant was convicted, nor to conduct which is itself criminal, only the third Lent factor is implicated in this case. Thus, we must decide whether the challenged electronics search condition was " 'reasonably related to future criminality.' " (Lent, supra, 15 Cal.3d at p. 486.)
We find the Supreme Court's recent decision in Ricardo P., which was decided after briefing concluded here, instructive. (Ricardo P., supra, 7 Cal.5th 1113.) In that case, a minor was placed on probation after admitting 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.)
Similar to this case, the Supreme Court granted review 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 court determined the third prong of Lent required a reasonable relationship between the condition and future criminality, reasoning that Lent "contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition. [Citations.]" (Id. at p. 1122.)
However, it found that relationship was not met. (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.) The court noted the electronics search 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.) In contrast, 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. (Ibid.) Such an abstract or hypothetical connection to the interest served by the probation condition was insufficient to justify the significant intrusion into the minor's privacy. (Id. at pp. 1120-1123.)
The court reasoned: "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." (Ricardo P., supra, 7 Cal.5th at p. 1123.)
Nor did the court accept the argument that any condition reasonably related to effective supervision was valid under Olguin, which had upheld a probation condition requiring the probationer to notify the probation officer of the presence of any pets at his/her residence. (Ricardo P., supra, 7 Cal.5th at pp. 1124-1127.) Unlike a minimally intrusive notification requirement meant to ensure officer safety, "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." (Id. at p. 1126.)
Like the minor in Ricardo P., here, the record is devoid of any information from which we could find a proportionality between the privacy intrusion imposed by specific probation condition number five and the goal of deterring defendant's future criminality, to wit, firearm possession and/or compliance with the condition that he obey all laws. The People's suggestion that the term was justified "because people often take photos with guns" is materially indistinguishable from the trial court's generic justification in Ricardo P. that minors often brag concerning marijuana use on social media. (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123.) While there may be circumstances where a defendant's personal history may justify an electronics search condition as a means of deterring future criminality (id. at pp. 1128-1129), here, there is no evidence that defendant has ever posted a photo of himself with a gun online or otherwise utilized his electronic devices in a way that would justify imposition of this search condition. Accordingly, specific probation condition number five cannot withstand scrutiny under Lent and must be stricken. (Id. at p. 1129.)
III. DISPOSITION
For the reasons explained herein, we strike specific probation condition number five. The judgment is otherwise affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
DUARTE, J.