Opinion
E066142
11-14-2017
THE PEOPLE, Plaintiff and Respondent, v. ERIC JESSE RIOS, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Susan Miller and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1500006) OPINION APPEAL from the Superior Court of Riverside County. Jean P. Leonard, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Susan Miller and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant and defendant Eric Jesse Rios was charged by amended information with sexual penetration of a minor (Pen. Code, § 289, subd. (h), count 1) and assault with the intent to commit a sex offense (§ 220, subd. (a)(2), count 2). A jury found him guilty of count 2, but not guilty of count 1. A trial court granted defendant probation for five years, under specified conditions.
All further statutory references are to the Penal Code unless otherwise noted.
On appeal, defendant contends that three of the conditions were unconstitutional and invalid. We conclude that two of the conditions should be modified. Otherwise, we affirm the judgment.
FACTUAL BACKGROUND
In 2014, when defendant was 19 years old, he invited his 15-year-old sister (the victim) over for Thanksgiving. Defendant lived with their father, and the victim lived with their mother. They all drank alcohol, and the victim fell asleep. When she woke up, defendant was on top of her, touching her breasts and genitals. Her pants and shirt were off, and her underwear was pulled down. She pushed him off of her and, as she was leaving, he told her not to say anything to their father.
ANALYSIS
Two of the Probation Conditions Must Be Modified
Defendant challenges three of his probation conditions as being unconstitutional and invalid under People v. Lent (1975) 15 Cal.3d 481, 486 (Lent). We conclude that the conditions were valid, but two of them should be modified.
A. Relevant Law
Pursuant to section 1203.1, "the sentencing court has broad discretion to prescribe reasonable probation conditions to foster rehabilitation and to protect the public so justice may be done. [Citations.]" (People v. Miller (1989) 208 Cal.App.3d 1311, 1314 (Miller).) Thus, "[w]e review conditions of probation for abuse of discretion." (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) Generally, "[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, 15 Cal.3d at p. 486.) "This 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.)
" 'A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.' [Citation.] 'The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.' " (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.)
We generally review the imposition of probation conditions for an abuse of discretion, and we review constitutional challenges to probation conditions de novo. (People v. Appleton (2016) 245 Cal.App.4th 717, 723 (Appleton).)
B. The Electronic Search Condition
The court imposed the following probation condition: "Submit to immediate search and seizure of computers, memory storage devices, electronic mail, Internet accounts, and data and information contained therein; with or without reasonable cause by the Probation Officer or Law Enforcement. (QD1)"
Defendant also lists the following probation condition in his opening brief: "Provide telephone, Internet service, accounting information, including passwords, logins, access codes for personally held accounts to any computer or computer network. Provide this information on a monthly basis or as directed by the Probation Officer." We note that defendant proceeds to argue that "the electronic search condition is unreasonable under Lent and is unconstitutionally overbroad." Thus, we assume he is not challenging the condition requiring him to provide his passwords, etc., but only the condition requiring him to submit to search and seizure of his electronic devices. --------
Defendant now contends that this condition (the electronic search condition) is unreasonable under Lent and unconstitutionally overbroad. At the outset, we note that defendant failed to object to any of the probation conditions below. "[F]ailure to timely challenge a probation condition on 'Bushman/Lent' grounds in the trial court waives the claim on appeal." (People v. Welch (1993) 5 Cal.4th 228, 237.) Nonetheless, we will consider the merits of his claim.
Defendant argues, and the People concede, that the electronic search condition has no relationship to the crime of which defendant was convicted, and it involves conduct that is not itself criminal. Defendant further contends that the electronic search condition is not reasonably related to future criminality because there was no evidence connecting his use of an electronic device or social media to his offense or to a risk of future criminal conduct. In support of his position, he relies upon In re Erica R. (2015) 240 Cal.App.4th 907 (Erica R.) and In re J.B. (2015) 242 Cal.App.4th 749 (J.B.). In both cases, the court struck similar electronic search conditions under Lent (Erica R., at pp. 911, 913; J.B., at pp. 755-756.) However, those cases are distinguishable since they involved juvenile probationers, not an adult probationer like defendant. "A juvenile 'cannot refuse probation [citations] and therefore is in no position to refuse a particular condition of probation.' " (Erica R., at p. 914.) Moreover, "[i]f [an adult] believes the conditions of probation are more onerous than the potential sentence, he or she may refuse probation and choose to serve the sentence. [Citation.]" (Olguin, supra, 45 Cal.4th at p. at p. 379.) Here, defendant could have chosen to reject probation; however, he read and understood the probation conditions and agreed to comply, without objection.
Furthermore, we agree with the reasoning in Olguin, supra, 45 Cal.4th 375. In that case, the California Supreme Court upheld a condition requiring the defendant to notify his probation officer of the presence of any pets. (Id. at p. 380.) Acknowledging that the challenged condition had no relationship to the defendant's crime (driving under the influence) and did not involve criminal conduct, the Supreme Court held that the condition was nevertheless valid under Lent, supra, 15 Cal.3d 481 because it protected the safety of the probation officer charged with "supervising [the] probationer's compliance with specific conditions of probation." (Olguin, at p. 381.) In other words, "the protection of the probation officer while performing supervisory duties [was] reasonably related to the rehabilitation of a probationer for the purpose of deterring future criminality." (Id. at p. 381.) The court held that "[a] condition of probation that enables a probation officer to supervise his or her charges effectively is, therefore, 'reasonably related to future criminality.' " (Id. at pp. 380-381.)
We conclude that the third prong under Lent required to invalidate a probation condition is not met here because the electronic search condition is reasonably related to future criminality. The condition enables a probation officer to effectively supervise defendant's compliance with other probation conditions and is, therefore, reasonably related to future criminality. (Olguin, supra, 45 Cal.4th at pp. 380-381; see In re P.O. (2016) 246 Cal.App.4th 288, 295 (P.O.).)
Defendant also argues that the electronic search condition is overbroad "because it was not narrowly tailored to limit its impact on his constitutional right to privacy," and it allows unfettered access to his personal information. He contends that the condition must be limited to the types of data that are "reasonably likely to yield evidence of suspected criminal activity or noncompliance with probation conditions." The People claim that the electronic search condition is closely tailored to the state interest of reforming and rehabilitating defendant, and that it allows close supervision to ensure he complies with the terms of his probation and does not reoffend. We agree with defendant that the electronic search condition is overbroad. It authorizes general searches of "computers, memory storage devices, electronic mail, Internet accounts, and data . . . with or without reasonable cause" and does not appear to be narrowly tailored to its purpose of furthering defendant's rehabilitation. "[T]he scope of a digital search is extremely wide." (Appleton, supra, 245 Cal.App.4th at p. 725.) Thus, "a search of defendant's mobile electronic devices could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity." (Ibid.) The condition's purpose should be to allow monitoring of defendant's involvement with sexual offenses, but the condition does not limit the types of data that may be searched in light of this purpose. Instead, it permits review of all sorts of private information that is highly unlikely to shed any light on whether defendant is complying with the other conditions of his probation, sex offense-related or otherwise. (See P.O., supra, 246 Cal.App.4th at p. 298.)
We conclude that the condition must be modified to limit authorization of searches likely to reveal whether he is engaging in sexual offenses or otherwise not complying with his probation conditions.
The electronic search condition should read: "Submit to immediate search and seizure of computers, memory storage devices, electronic mail, Internet accounts, and data and information contained therein; with or without reasonable cause by the Probation Officer or Law Enforcement. The searches are limited to communications or information reasonably likely to reveal whether defendant is engaging in sexual offenses or otherwise not complying with his probation conditions."
C. The Self-incrimination and Polygraph Condition
The court imposed the following probation condition: "Waive privilege against self-incrimination and participate in periodic polygraph examinations, at offender's expense, as directed by the probation officer or treatment provider. Polygraph examiner to provide results to the probation officer upon request. (TFU3)"
Defendant contends that this probation condition violates his Fifth Amendment right against self-incrimination. Section 1203.067, subdivision (b), provides that "the terms of probation for persons placed on formal probation for an offense that requires registration pursuant to Sections 290 to 290.023, inclusive, shall include all of the following: [¶] . . . [¶] (2) Persons placed on formal probation . . . shall successfully complete a sex offender management program, following the standards developed pursuant to Section 9003, as a condition of release from probation. The length of the period in the program shall be not less than one year, up to the entire period of probation, as determined by the certified sex offender management professional in consultation with the probation officer and as approved by the court. . . . [¶] (3) Waiver of any privilege against self-incrimination and participation in polygraph examinations, which shall be part of the sex offender management program." (§ 1203.067, subd. (b)(2), (b)(3).)
In People v. Garcia (2017) 2 Cal.5th 792 (Garcia), the California Supreme Court recently rejected the challenge defendant advances on appeal. (Id. at pp. 803, 808-809.) In Garcia, the section 1203.067, subdivision (b)(3), condition required the defendant to "waive 'any privilege against self-incrimination' and to participate 'in polygraph examinations, which shall be part of the sex offender management program.' " (Garcia, at p. 798.) The Supreme Court agreed "that it would raise serious constitutional questions to require defendants to waive their privilege against self-incrimination as a condition of probation." (Id. at p. 803.) However, the court explained that the "condition is properly read . . . to require that probationers answer all questions posed by the containment team fully and truthfully, with the knowledge that these compelled responses could not be used against them in a subsequent criminal proceeding." (Id. at pp. 802-803.) Given this proper reading, the court determined that the condition did not violate the defendant's Fifth Amendment rights, stating that "the Fifth Amendment does not establish a privilege against the compelled disclosure of information; rather, it 'precludes the use of such evidence in a criminal prosecution against the person from whom it was compelled.' " (Garcia, at p. 807.)
Accordingly, we reject defendant's Fifth Amendment challenge to the self-incrimination and polygraph condition as foreclosed by Garcia.
Defendant also claims that "[f]orcing [him] to take unreliable polygraph tests is tantamount to forcing him to submit to a fortune-teller, an astrologist, a crystal gazer, or a palm reader." To the extent he is arguing that the court should not have ordered polygraph testing as a condition of probation because it is not a reliable investigative tool, we disagree. "Although polygraph tests are deemed unreliable in California courts for evidentiary purposes, this does not mean they do not have value for investigative and other collateral purposes." (Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321 (Brown); see Miller, supra, 208 Cal.App.3d at pp. 1314-1315.)
Defendant further contends that the probation condition "forces him to take . . . polygraph tests for unlimited purposes." While we conclude the probation condition is constitutional, we agree that it should be modified. In Garcia, the defendant complained that the scope of the condition requiring polygraph examinations was unlimited. However, the court rejected the claim of overbreadth and explained that, "[b]ecause the scope of the polygraph examination is already focused by its terms on criminal conduct related to the sex offender management program, it is a valid condition of probation and does not require further limitation." (Garcia, supra, 2 Cal.5th at p. 809.)
The condition in the instant case requires defendant to "[w]aive privilege against self-incrimination and participate in periodic polygraph examinations, at offender's expense, as directed by the probation officer or treatment provider." In order to focus the scope of the polygraph examination on criminal conduct related to the sex offender management program, the condition should be modified to conform to the language of section 1203.067, subdivision (b)(3), as does the condition in Garcia. Thus, it should read as follows: "Waive any privilege against self-incrimination and, at offender's expense, participate in periodic polygraph examinations, which shall be part of the sex offender management program. Polygraph examiner is to provide results to the probation officer upon request."
D. The Psychotherapist-patient Privilege Condition
The court imposed the following probation condition: "Waive any psychotherapist/doctor-patient privilege to enable communication between sex offender management professional and probation officer."
Defendant contends that this condition (the psychotherapist-patient privilege condition) "must be narrowly construed to permit disclosure of confidential communication only to the probation officer." He argues that he may be required to waive the psychotherapist-patient privilege "only to the extent necessary to allow the sex offender management professional to communicate with the supervising probation officer."
We observe that defendant does not contend that this condition is unconstitutional, or that it should be modified in any way. Rather, he merely asserts that it should be construed narrowly. We conclude that the condition sufficiently limits the scope and use of defendant's communications and only allows psychotherapists to communicate with his probation officer as necessary. (See Garcia, supra, 2 Cal.5th at p. 810.)
DISPOSITION
The probation conditions should be modified as follows:
The electronic search condition (QD1) should read: "Submit to immediate search and seizure of computers, memory storage devices, electronic mail, Internet accounts, and data and information contained therein; with or without reasonable cause by the Probation Officer or Law Enforcement. The searches are limited to communications or information reasonably likely to reveal whether defendant is engaging in sexual offenses or otherwise not complying with his probation conditions."
The self-incrimination and polygraph condition (TFU3) should read: "Waive any privilege against self-incrimination and, at offender's expense, participate in periodic polygraph examinations, which shall be part of the sex offender management program. Polygraph examiner is to provide results to the probation officer upon request."
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.