Opinion
C082791
12-05-2019
THE PEOPLE, Plaintiff and Respondent, v. WALLACE ROSADO, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE014349)
Defendant Wallace Rosado pled no contest to inflicting corporal injury on a cohabitant with a prior conviction for the same offense and was placed on probation with various conditions, including that he submit to warrantless searches of electronic storage devices and that he obtain his probation officer's permission before traveling out of state or being away from his residence for more than 48 hours. The court also imposed various fines and fees, including $1,000 in penalty assessments on a domestic violence fee.
On appeal, defendant challenges the electronic search condition, arguing it is unreasonable under People v. Lent (1975) 15 Cal.3d 481 and overbroad. He further contends that the travel approval condition violates his constitutional right to travel, and that the court was not authorized to impose the $1,000 penalty assessment because the domestic violence program fee is not a fine subject to penalty assessments.
We conclude the record contains no indication of defendant's past or future use of any electronic device for any illegal activity and therefore the condition is not reasonably related to future criminality and is unreasonable under Lent. Accordingly, we modify the judgment by striking the electronic search condition. We conclude the travel approval condition is not overbroad and does not unconstitutionally infringe on defendant's right to travel. Finally, we shall strike the $1,000 penalty assessment as unauthorized. As so modified, the judgment is affirmed.
Our decision to strike the condition is made without prejudice to the People's seeking to modify the probation order for the purpose of proposing additional conditions that may be permissible under In re Ricardo P. (2019) 7 Cal.5th 1113, should they choose to do so.
BACKGROUND
On July 24, 2016, defendant assaulted the victim, leaving her with bruises on her right buttocks area, back, hip, and knee; defendant had previously been convicted of inflicting corporal injury on a cohabitant in January 2014. He was charged with one count of inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), and it was alleged that he had a prior conviction for the same offense (§ 273.5, subd. (f)(1)).
Further undesignated statutory references are to the Penal Code. --------
On August 8, 2016, defendant pled no contest to the charge and admitted the prior conviction allegation in exchange for a grant of probation and 150 days in jail. During the same proceeding, the court suspended imposition of sentence, placed defendant on five years' formal probation and entered a three-year criminal protective order protecting the victim "from further acts of violence, threats, stalking, sexual abuse, harassment, and, if appropriate, residence exclusion or stay away conditions pursuant to Section 1203.097(a)(2) of the Penal Code."
As a condition of probation, the prosecutor requested that the court impose the following electronic search condition: "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 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."
The prosecutor explained that the victim requested a written no-contact order prohibiting defendant from having any electronic contact with her and that he has a history of domestic violence related offenses against the same victim; defendant had also violated probation on a previous occasion in 2016 for what the prosecutor described as "in lieu contact that was domestic violence conduct." The prosecutor further argued that an electronic search condition was necessary where, like here, a written no-contact order or criminal protective order is issued in domestic violence cases as those orders can be violated using electronic devices.
To support the requested electronic search condition, the prosecutor submitted a nonspecific declaration of Sacramento County Sheriff's Deputy Sean Smith who had experience investigating domestic violence crimes. According to Deputy Smith, based on his nearly 20 years of training and experience, persons convicted of domestic violence related crimes often violate postoffense restraining orders, protective orders, or no-contact orders, and evidence of such violations is often found on their electronic devices. The offender may communicate with the victim via text, chat, or e-mail, or may attempt to have a third party contact the victim electronically to deliver communications. Geolocation data may also provide evidence that the offender's device was near the victim's location in violation of a no-contact or stay-away order. The declaration did not relate specifically to the facts of defendant's case or defendant's history.
Defense counsel objected to the electronic search condition under Lent, arguing the condition was unreasonable because no evidence showed defendant used any electronic devices in planning or carrying out the corporal injury offense. Counsel further objected that requiring defendant to turn over his passwords to his electronic devices violated his Fifth Amendment right against self-incrimination and that the condition was unconstitutionally overbroad.
After considering the parties' arguments, the court imposed the electronic search condition as proposed by the prosecutor despite defense counsel's continued objection. The court also entered a criminal protective order prohibiting contact with the victim (§ 1203.097) and included a probation condition prohibiting defendant from contacting the victim without the prior approval of his probation officer.
In addition to the above conditions, the court also imposed general condition No. 3 as follows: "You may not leave the State of California, at any time, without first securing permission from your probation officer and completing the appropriate procedures to do so. You are not to remain away from your regular residence for more than 48 hours without first having secured permission from your probation officer. You are to immediately notify your probation officer of any intended change of address and the reasons therefore." Defendant did not object to general condition No. 3.
The court ordered defendant to pay $500 to the domestic violence program special fund and domestic violence fund pursuant to section 1203.097, subdivision (a)(5). Although the written fees and fines, which the trial court reviewed during the hearing, did not include any penalty assessments on the domestic violence fee, the minute order states: "Defendant pay a minimum of $500[] pursuant to Section 1203.097(a)(5) of the Penal Code with a $800[] penalty assessment pursuant to Section 1464 . . . and a $200[] penalty assessment pursuant to Section 76000 of the Government Code . . . ."
Defendant timely appealed from the order granting probation.
DISCUSSION
I
Electronic Search Condition
Defendant challenges the electronic search condition on two grounds, arguing that the condition is unreasonable under Lent and that it is unconstitutionally overbroad. We agree the condition as written is unreasonable and therefore do not reach defendant's constitutional challenge.
A trial court has broad discretion to impose reasonable conditions of probation in order to promote the rehabilitation of the probationer and to protect public safety. (§ 1203.1, subd. (j); People v. Olguin (2008) 45 Cal.4th 375, 379 [" 'The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions' "].) A trial court does not abuse its discretion unless its determination is arbitrary or capricious or " ' "exceeds the bounds of reason, all of the circumstances being considered." ' " (People v. Welch (1993) 5 Cal.4th 228, 234.)
Under Lent, a probation condition is invalid if 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, supra, 15 Cal.3d at p. 486.) All three prongs of the Lent test must be met to invalidate a probation condition. (People v. Olguin, supra, 45 Cal.4th at p. 379.) Thus, "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." (Id. at pp. 379-380.)
Communicating electronically is not itself criminal. And nothing in the sparse record suggests any electronic device played a role in defendant's current offense. The question, then, is whether the electronic search condition is reasonably related to preventing future criminality.
Our Supreme Court recently addressed a similar issue in In re Ricardo P. The probation condition at issue in Ricardo P. required a juvenile, who admitted to having committed two counts of felony burglary, to submit to warrantless searches of his electronic devices and passwords at any time even though there was no indication that he used an electronic device in connection with the burglaries. (In re Ricardo P., supra, 7 Cal.5th at p. 1115.) The court imposed the electronic search condition in order to monitor the juvenile's compliance with separate conditions prohibiting him from using or possessing illegal drugs after he said he had stopped smoking marijuana following his arrest because it prevented him from thinking clearly. (Id. at pp. 1116-1117.) To support the condition, the juvenile court noted that minors typically brag about drug usage by posting on the Internet or showing pictures of themselves using drugs or with drug paraphernalia. (Id. at p. 1117.)
Although skeptical of the juvenile court's general premise that teenagers have a tendency to brag about drug use online, our Supreme Court found that even accepting the premise as true, the electronic search condition was not reasonably related to future criminality under Lent's third prong because the burden imposed on the minor's privacy was substantially disproportionate to the condition's goal of monitoring and deterring drug use. (In re Ricardo P., supra, 7 Cal.5th at pp. 1116, 1119-1120.) Given the breadth of sensitive and confidential information accessible on devices like cell phones, the limited justification for the condition did not support the significant burden imposed. (Id. at pp. 1119-1120.)
In so finding, our Supreme Court held that the third prong of the Lent test "requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality." (In re Ricardo P., supra, 7 Cal.5th at p. 1121.) It "contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Id. at p. 1122.)
Here, as in Ricardo P., only the third prong of the Lent test is at issue. The factual basis for the plea indicates only that defendant physically assaulted the victim with whom he lived. There is no probation report and no evidence regarding any personal history of defendant. Nothing in the record indicates defendant used an electronic device in committing the offense or had any history of using electronic devices to commit, facilitate, or plan criminal conduct, or to brag about such conduct on social media. The only support for the sweeping electronic search condition in the record is Deputy Smith's generalized declaration, unrelated to either defendant or his specific offense, that those who commit domestic violence related offenses often use electronic devices to violate postoffense restraining orders, protective orders, or no-contact orders, and that geolocation data can show whether a defendant had violated such court orders. Even presuming that these premises are true, like the statements about teenagers posting about their drug use online in Ricardo P., such generalized, hypothetical statements about domestic violence perpetrators -- unrelated to the particular defendant before the court -- does not satisfy the requirements of Lent. "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 . . . 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." (In re Ricardo P., supra, 7 Cal.5th at p. 1123.)
Accordingly, we find the electronic search condition is not reasonably related to future criminality and is therefore invalid under Lent because it imposes a burden that is substantially disproportionate to the legitimate interests in promoting rehabilitation and public safety. (In re Ricardo P., supra, 7 Cal.5th at p. 1129; People v. Lent, supra, 15 Cal.3d at p. 486.) Having determined the condition is invalid under Lent, we need not address defendant's additional contention that the condition is unconstitutionally overbroad.
II
Travel Approval Condition
Defendant challenges the condition that prohibits him from traveling outside of California or remaining away from his residence for more than 48 hours without first receiving permission from his probation officer, arguing that the condition is overbroad and unconstitutionally infringes on his right to travel. While he acknowledges that he did not object to the condition below, he argues he did not forfeit his challenge on appeal because the condition can be corrected without reference to the sentencing record. The People contend defendant forfeited his constitutional challenge to the condition, or, alternatively, that the condition is valid.
Initially, we reject the People's claim that defendant forfeited his constitutional challenge to the travel approval condition. Although the failure to make a timely objection to a probation condition ordinarily forfeits the claim of error on appeal, a claim that a probation condition is facially overbroad may be treated as a question of law which is not forfeited by failure to raise it in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 881, 888-889 [forfeiture rule does not apply to a defendant's contention that a probation condition, on its face, is unconstitutionally vague and overbroad].) Accordingly, we address defendant's claim on the merits.
As noted above, trial courts generally have broad discretion in fashioning terms of probation that foster rehabilitation and protect public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120; § 1203.1].) Where a probation condition impinges on constitutional rights, the condition must be carefully tailored and reasonably related to the compelling state interest in reforming and rehabilitating the defendant. (People v. Bauer (1989) 211 Cal.App.3d 937, 942; People v. Olguin, supra, 45 Cal.4th at p. 384 ["[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"].)
"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 . . . ." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) "Conditions which infringe on constitutional rights are not automatically invalid. Certain intrusions by government which would be invalid under traditional constitutional concepts may be reasonable at least to the extent that such intrusions are required by legitimate governmental demands." (In re White (1979) 97 Cal.App.3d 141, 149-150.) We independently review defendant's constitutional challenge to a probation condition. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
Although all citizens have a basic constitutional right to interstate and intrastate travel (In re White, supra, 97 Cal.App.3d at p. 148; People v. Relkin (2016) 6 Cal.App.5th 1188, 1195), that right is not absolute and may be reasonably restricted in the public interest (Relkin, at pp. 1195-1196; In re White, at pp. 149-150). Indeed, "[i]mposing a limitation on probationers' movements as a condition of probation is common . . . ." (People v. Moran (2016) 1 Cal.5th 398, 406.)
The environment in which a probationer serves probation is an important factor in determining whether probation will be successfully completed, and, thus, directly impacts the likelihood of effective rehabilitation. A probation officer's awareness of a probationer's whereabouts, moreover, "facilitates supervision and rehabilitation and helps ensure probationers are complying with the terms of their conditional release." (People v. Moran, supra, 1 Cal.5th at p. 406.)
The travel approval condition here is similar to others that have been upheld as valid. (People v. Relkin, supra, 6 Cal.App.5th at pp. 1195-1196 [upholding against constitutional overbreadth challenge of a probation condition similarly requiring defendant to obtain written permission from probation officer prior to leaving state]; In re Antonio R. (2000) 78 Cal.App.4th 937, 942 [probation condition prohibiting juvenile offender who legally resided in Orange County from traveling to Los Angeles County unless accompanied by a parent or with his probation officer's permission held valid].) Contrary to defendant's contention, the condition does not impermissibly restrict his right to travel. The condition does not prohibit him from traveling outside California or from being away from his residence for more than 48 hours, but merely requires him to obtain his probation officer's approval before doing so. Leaving the state or remaining away from one's home for an extended period of time would interfere with the probation officer's ability to effectively supervise defendant. It could also hinder defendant's rehabilitation and successful compliance with other probationary conditions. The condition is thus narrowly tailored and reasonably related to the compelling state interest of facilitating the supervision and rehabilitation of defendant. (People v. Moran, supra, 1 Cal.5th at p. 406.)
Defendant's claim that the probation condition gives the probation officer "unfettered control" in deciding whether to allow him to leave the state or remain away from his home for more than 48 hours is not persuasive. There is nothing to suggest that defendant's reasonable requests to travel out of state or to stay somewhere other than his residence for more than 48 hours would be disapproved. Our Supreme Court in People v. Olguin, supra, 45 Cal.4th at page 382, stated that a probation condition "should be given 'the meaning that would appear to a reasonable, objective reader.' " We view the travel approval condition here in light of Olguin and presume a probation officer will not withhold approval for irrational or capricious reasons. (Id. at p. 387; see People v. Stapleton (2017) 9 Cal.App.5th 989, 996 ["A probation officer cannot issue directives that are not reasonable in light of the authority granted to the officer by the court"]; People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240 [probation conditions are limited by reasonableness "[s]ince the court does not have the power to impose unreasonable probation conditions, [and therefore] could not give that authority to the probation officer"].)
Based on the foregoing, we conclude the travel approval condition is not unconstitutionally overbroad and it does not unreasonably restrict defendant's right to travel.
III
Penalty Assessments
Defendant contends $1,000 in penalty assessments was improperly added to the domestic violence fee imposed by the court. The People concede the penalty assessments were improper and we agree.
Various statutory provisions require the addition of a penalty assessment upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses. (§ 1464, subd. (a)(1); Gov. Code, § 76000, subd. (a)(1).) However, penalty assessments do not apply to fees imposed not as punishment but to defray administrative costs. (People v. Vega (2005) 130 Cal.App.4th 183, 195.)
Section 1203.097 requires a person who is granted probation for a domestic violence crime to pay a minimum $500 "fee" unless the court finds the person does not have the ability to pay the fee. (§ 1203.097, subd. (a)(5)(A).) The statute expressly delineates the payment as a fee rather than a fine (§ 1203.097, subd. (a)(5)(D) ["The fee imposed by this paragraph shall be treated as a fee, not a fine"]), and the legislative history of the statute makes clear that the $500 payment is a fee not a fine (Legis. Counsel's Dig., Assem. Bill No. 139 (2013-2014 Reg. Sess.), ch. 144). It was therefore error to impose $1,000 in penalty assessments on the fee, and we shall order the penalty assessment stricken.
DISPOSITION
The electronic search condition is stricken from the order of probation. The $800 penalty assessment under section 1464 and the $200 penalty assessment under Government Code section 76000 imposed on the $500 domestic violence fee are stricken from the minute order, and the clerk is directed to prepare a corrected minute order. As so modified, the judgment is affirmed.
/s/_________
Robie, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Murray, J.