Opinion
C082755
11-22-2019
THE PEOPLE, Plaintiff and Respondent, v. JOHN SIDA, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE011015)
Defendant John Sida pleaded no contest to being a felon in possession of a firearm and was granted formal probation. Over his objection, the trial court imposed an electronics search condition that required him to make electronic storage devices under his control, including cell phones and computers, available for search and seizure.
Defendant argues the electronics search condition (1) is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent), (2) is unconstitutionally overbroad under the Fourth Amendment, (3) was imposed without his consent under the Electronic Communications Privacy Act, (4) violates the Wiretap Act, and (5) violates his right against self-incrimination under the Fifth Amendment.
We conclude the electronics search condition is unreasonable under Lent, supra, 15 Cal.3d 481. Accordingly, we strike the electronics search condition from the probation order, and do not reach defendant's remaining contentions.
BACKGROUND
In June 2016, defendant, a convicted felon, unlawfully possessed a sawed-off .22-caliber semiautomatic rifle. After waiving a preliminary hearing, he pleaded no contest to being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)) in exchange for probation and 180 days in jail. Defendant waived a presentence probation report, and the trial court granted defendant five years' formal probation immediately following the plea.
Undesignated statutory references are to the Penal Code. --------
As a condition of probation, the prosecutor requested that the trial court impose an electronics 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 . . . 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 storages 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." (Fns. omitted.)
To support the requested electronics search condition, the prosecutor submitted the declaration of Sacramento County Sheriff's Deputy Sean E. Smith, who had significant experience in investigating various crimes, including weapons related offenses. According to Deputy Smith, based on his nearly 20 years of training and experience, persons convicted of weapons related offenses often use the devices to sell or purchase weapons, threaten others, or conspire to commit offenses. They may also post photographs on social media and geolocation data may be used to provide evidence leading to the location of violent offenses, including where weapon sales are occurring and where caches of weapons are kept or hidden. The declaration also delineates in general terms the law enforcement need to have complete access to electronic devices, including all the contents and all passwords. Neither the prosecution's brief nor Smith's declaration contains any arguments or information specific to defendant, his criminal background, or the particular offense he committed.
Defense counsel objected to the imposition of an electronics search condition, and filed supporting points and authorities. Counsel argued, among other things, that the condition violated Lent, supra, 15 Cal.3d 481 and was overbroad.
At the sentencing hearing, the prosecutor argued an electronics search condition was warranted given defendant's unlawful possession of a firearm. Defense counsel reiterated his objection to the electronics search condition, arguing there was no nexus between defendant's crime and the proposed search condition. After considering the parties' arguments, the trial court imposed the electronics search condition (probation condition No. 9). The court found a "sufficient nexus between the weapons possession and the manner in which law enforcement often finds out weapons are being possessed." Defendant timely appealed.
DISCUSSION
Defendant contends the electronics search condition is unreasonable under Lent, supra, 15 Cal.3d 481. We agree the condition as written is unreasonable and therefore do not consider defendant's alternative challenges to the condition.
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 (Olguin) [" '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 . . . .' " (Lent, supra, 15 Cal.3d at p. 486.) All three prongs of the Lent test must be met to invalidate a probation condition. (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 electronics search condition is reasonably related to preventing future criminality.
Our Supreme Court recently addressed a similar issue in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). The probation condition at issue in Ricardo P. required a juvenile who admitted 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. (Ibid.) The court imposed the electronics 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. (Ibid.) To support the condition, the juvenile court noted that minors typically brag about their drug usage by posting on the Internet or showing pictures of themselves using drugs or with drug paraphernalia. (Id. at p. 1117.)
Even accepting as true the juvenile court's general premise that teenagers have a tendency to brag about drug use online, the Supreme Court nevertheless held the electronics 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. (Ricardo P., supra, 7 Cal.5th at pp. 1116, 1120.) Given the breadth of sensitive and confidential information accessible on devices such as cell phones, the limited justification for the condition did not support the significant burden imposed. (Id. at pp. 1119-1120.)
In so finding, the Supreme Court held the third prong of the Lent test "requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality." (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.)
Although the requisite proportionality was lacking in Ricardo P., the court emphasized that electronics search conditions are not categorically invalid. (Ricardo P., supra, 7 Cal.5th at p. 1128.) In certain cases, the Supreme Court recognized, a probationer's offense or personal history might provide a sufficient factual basis to determine an electronics search condition was a proportional means of deterring the probationer from future criminality. (Ibid.)
Here, as in Ricardo P., supra, 7 Cal.5th 1113, only the third prong of the Lent test is at issue. The factual basis for the plea indicates only that defendant possessed a sawed-off rifle after previously being convicted of a felony that prohibited him from possessing firearms. 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 electronics search condition in the record is Smith's generalized declaration, unrelated to either defendant or his specific offense, that those who commit weapons related offenses often use electronic devices to sell or purchase weapons, threaten others, or conspire to commit offenses, may post photographs on social media with weapons, and geolocation data may be used to locate where weapons sales are occurring or where weapons are located. Even presuming these premises are true, like the statements about teenagers posting their drug use online in Ricardo P., such generalized, hypothetical statements--unrelated to the particular defendant before the court--does not satisfy the requirements of Lent, supra, 15 Cal.3d 481. "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." (Ricardo P., supra, 7 Cal.5th at p. 1123.)
Accordingly, we conclude the electronics search condition is not reasonably related to future criminality and is therefore invalid under Lent, supra, 15 Cal.3d 481 because it imposes a burden that is substantially disproportionate to the legitimate interests in promoting rehabilitation and public safety. (Ricardo P., supra, 7 Cal.5th at p. 1129; Lent, supra, 15 Cal.3d at p. 486.) Having determined the condition is invalid under Lent, we need not address defendant's additional contentions.
DISPOSITION
The order granting probation is modified by striking probation condition No. 9. As modified, the order is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
BUTZ, Acting P. J. /s/_________
MAURO, J.