Opinion
C083210
12-05-2019
THE PEOPLE, Plaintiff and Respondent, v. GREGORY DONSHAY NORTH, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE017180)
Defendant Gregory Donshay North pleaded no contest to possession of marijuana for sale (Health & Saf. Code, § 11359), and the trial court imposed a five-year probation term. On appeal, defendant contends: (1) Proposition 64, reducing possession of marijuana for sale to a misdemeanor in some cases, should be applied retroactively to reduce his conviction to a misdemeanor, (2) the imposition of an electronics search condition of probation is unconstitutionally overbroad, and (3) the penalty assessments attached to the criminal laboratory analysis and drug program fees must be stricken. We will strike the electronics search condition from the probation order and affirm the judgment as modified.
Undesignated statutory references are to the Health and Safety Code.
BACKGROUND
Because defendant pleaded no contest before a preliminary hearing, the parties stipulated to a bare factual basis for the plea, and defendant waived preparation of a probation report, the record contains few facts related to the commission of the underlying offense. We do know that defendant possessed 87.2 grams of marijuana, divided into several baggies, along with a scale and $120 in cash. He pleaded no contest to possession of marijuana for sale (§ 11359). The trial court suspended imposition of sentence, and granted defendant five years of formal probation, conditioned on serving 90 days in jail, with 37 days of presentence custody credits.
At the plea hearing, defense counsel objected to imposition of the electronics search condition stating there "may" be a nexus, but the condition was overbroad. The prosecution submitted a form brief on the electronics search condition's validity and constitutionality that provided no specific information relating to defendant or his current or past crimes, or whether he owned or used any electronic storage devices and, if so, what information was stored on such devices.
The People's brief included a form declaration signed by Sacramento County Sheriff's Deputy Sean Smith, assigned to the Sacramento Valley Hi-Tech Crimes Task Force. The declaration detailed the kinds of evidence found on electronic devices in certain categories of crimes including drug offenses. As to drug sales offenses, Smith declared those who engage in drug sales may keep records of the sales on their electronic devices, take photographs of the narcotics, use their cellular devices to communicate with customers, coconspirators or competitors, use social media to post videos, pictures and commentary of their illegal conduct, and geolocation data may be used to place a suspect at a given time and location. The declaration also discussed the need to examine the entire contents of electronic devices due to the ease of moving files and hiding information. Finally, it explained the need to require the probationer to provide all passwords. Neither the prosecution's opposition nor Smith's declaration contain any arguments or information specific to this defendant, his criminal background, or the particular offense he committed. Defendant also was on a grant of felony probation, apparently for a domestic violence offense.
The trial court imposed the contested condition without making any findings. The condition 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 phone[s] and computers, to search and seizure by any law enforcement officer or probation officer, any time of the day or night, 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 his 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 acces [sic] to any electronic storage devices and data contained therein, including disclosing and providing any and all information necessary to conduct a search[.]"
DISCUSSION
I
Proposition 64
Relying on In re Estrada (1965) 63 Cal.2d 740, defendant contends that Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act (the Act) (as approved by voters, Gen. Elec. (Nov. 8, 2016)), should be applied retroactively to reduce his felony conviction for possession of marijuana for sale to a misdemeanor. In Estrada, the California Supreme Court held that when a statute that is silent as to whether it operates prospectively or retroactively reduces the penalty for a particular crime, courts will presume the "new lighter penalty" will apply "to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Id. at p. 745.)
At the time defendant was convicted, possessing marijuana for sale was a felony offense. (§ 11359; Stats. 2011, ch. 15, § 161, p. 322.) After sentencing, the electorate passed the Act, which amended section 11359 to generally provide that possession of marijuana for sale was a misdemeanor. (§ 11359, subd. (b).) The Act also addressed retroactivity in section 11361.8, which provides "[a] person currently serving a sentence for a conviction . . . who would have been guilty of a lesser offense under [the Act] had that act been in effect at the time of the offense may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing," and provides the trial court shall grant the petition of anyone who meets the statutory criteria unless the trial court "determines that granting the petition would pose an unreasonable risk of danger to public safety." (§ 11361.8, subds. (a) & (b).)
Analyzing a similar statutory structure under Proposition 36, the Three Strikes Reform Act of 2012 (as approved by voters, Gen. Elec. (Nov. 6, 2012)), the Supreme Court held that Proposition 36 was not silent on retroactivity, and where the electorate makes resentencing available only upon a determination that an early release would not pose an unreasonable risk of danger to public safety, there was no basis to confer an automatic entitlement to resentencing to cases pending on appeal. (People v. Conley (2016) 63 Cal.4th 646, 655-656, 659.)
In People v. Rascon (2017) 10 Cal.App.5th 388, the court considered the same issue defendant presents here. Relying on the analysis in Conley, Rascon concluded that, like Proposition 36, Proposition 64 is not silent on the question of retroactivity, but instead provides for a procedure that restricts the availability of reduced penalties to those who do not pose an unreasonable risk of danger to public safety. (Rascon, at p. 394.) Rascon therefore held that "a person sentenced prior to the enactment of Proposition 64 for violating . . . section 11359 whose judgment is not yet final is not automatically entitled to the reduction of punishment provided by the amendment to that statute." (Rascon, at p. 395.)
We find the reasoning in Rascon persuasive. In Proposition 64, as in Proposition 36, the voters provided a mechanism for resentencing or dismissal applicable to all judgments, whether final or not, and restricted that relief to those the trial court determined would not "pose an unreasonable risk of danger to public safety." (§ 11361.8, subd. (b).) Defendant is not entitled to an automatic reduction of his conviction to a misdemeanor. He may seek that relief by appropriate petition under section 11361.8.
II
Electronic Device Search Condition
Defendant claims the electronic search condition is constitutionally overbroad, as it "violates [defendant's] expectations of privacy by allowing for searches of vast amounts of personal information without being reasonably related to the state's compelling interest in rehabilitation or public safety." We agree.
"In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) In general, such a term or condition will not be invalidated "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 . . . .' " (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent), superseded by statute on another ground as stated in People v. Moran (2016) 1 Cal.5th 398, 403, fn. 6.) All three prongs must be satisfied before we will invalidate such a condition. (People v. Olguin (2008) 45 Cal.4th 375, 379-380.) Under Lent, we review the imposition of a condition for abuse of discretion. (Olguin, at p. 379.)
As to electronics search conditions specifically, our Supreme Court recently held such a condition invalid under Lent. (In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.).) The juvenile in Ricardo P. committed felony burglary and was placed on probation with a condition requiring him to submit to warrantless searches of his electronic devices. (Id. at pp. 1115-1116.) He objected to the condition, but the juvenile court concluded it was reasonably related to preventing future criminality because it enabled effective supervision of the juvenile's compliance with his drug-related probation conditions, reasoning that minors often brag about their drug use on social media. (Id. at p. 1117.) The Ricardo P. majority, however, concluded that the condition did not satisfy Lent's third prong because the record before it contained "no indication that Ricardo had used or will use electronic devices in connection with drugs or any illegal activity." (Id. at p. 1116.) The court reasoned that the burden the condition imposed on the juvenile's privacy was "substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society." (Id. at p. 1119.) Because there was no evidence in the record suggesting the juvenile had ever used an electronic device or social media in connection with criminal conduct, the condition was not reasonably related to future criminality. (Id. at pp. 1122-1123.)
Although the Supreme Court held the electronics search condition was invalid in that case, it noted that its holding did not categorically invalidate electronics search conditions. (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.) The court reasoned that trial "courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense. [Citation.] [¶] Yet Lent's requirement that a probation condition must be ' "reasonably related to future criminality" ' contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Ricardo P., at p. 1122.) The court concluded that the condition lacked proportionality where it allowed an unlimited search of the juvenile's devices, social media, and data, "which could include anything from banking information to private health or financial information." (Id. at p. 1123.)
Here, as in Ricardo P., there is nothing in the record suggesting defendant used an electronic device or social media in connection with his crime. It is true, as Deputy Smith avers in his declaration that people engaged in selling drugs often use electronic devices to facilitate sales. However, there is nothing in the record in this case showing that defendant engaged in electronic communications about drug sales. Nor is there any evidence raising a concern about defendant's future criminality vis-à-vis electronic devices. Without such evidence, we cannot conclude that a broad electronics search condition similar to the one at issue in Ricardo P. is a proportional means of deterring defendant from future criminality. We therefore conclude that the electronics search condition is not sufficiently tailored to its purpose, and must be stricken.
III
Penalty Assessments
As an additional condition of probation, the trial court imposed a $50 criminal laboratory analysis fee (§ 11372.5), a $150 drug program fee (§ 11372.7), and attendant penalty assessments of $130 on each of these fees. Defendant claims the trial court erred in imposing the penalty assessments to those fees.
Penalties or assessments must be imposed upon every fine, penalty, or forfeiture imposed by the trial court in a criminal case. (Gov. Code, § 76000; Pen. Code, § 1464; People v. Talibdeen (2002) 27 Cal.4th 1151, 1153-1154 (Talibdeen).)
After the parties submitted their briefing in this matter, our Supreme Court issued its decision in People v. Ruiz (2018) 4 Cal.5th 1100 (Ruiz), which reviewed the statutory language and legislative history of both the criminal laboratory analysis fee (§ 11372.5, subd. (a)) and the drug program fee (§ 11372.7, subd. (a)) and concluded that the Legislature intended them to be penalties. (Ruiz, supra, 4 Cal.5th at p. 1109.) The court expressly disapproved cases holding the fines were not punishment. (Id. at pp. 1112-1113, 1122, fn. 8.)
Although noting it was not dispositive, Ruiz relied on the Supreme Court's earlier decision in Talibdeen. (Ruiz, supra, 4 Cal.5th 1100.) As the court said, "the central issue [in Talibdeen] was whether imposition of the additional penalties was 'mandatory'—in which case they could be imposed on appeal notwithstanding the People's failure to object below—or 'discretionary'—in which case they could not be imposed on appeal. (Talibdeen, supra, 27 Cal.4th at p. 1153.) A prerequisite to our holding that the penalties were, in fact, mandatory was that section 11372.5's criminal laboratory analysis fee constituted a 'fine, penalty, or forfeiture' within the meaning of Penal Code section 1464, subdivision (a)(1) and Government Code section 76000, subdivision (a)." (Ruiz, at p. 1120.) Ruiz found that whether or not Talibdeen compelled the conclusion that the criminal laboratory analysis and drug program fees were punishment, the reasoning in Talibdeen supported the conclusion. (Ruiz, at p. 1121.)
The reasoning of Ruiz and Talibdeen supports the conclusion that the criminal laboratory analysis and drug program fees are punishment for purposes of the penalty assessments of Penal Code section 1464, sudivision (a)(1) and Government Code section 76000, subdivision (a). That is, "it is clear the Legislature intended the fees at issue here to be punishment." (Ruiz, supra, 4 Cal.5th at p. 1122.) As such, the penalty assessments are mandatory and the trial court did not err in imposing them.
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.