Opinion
C084480
01-31-2020
THE PEOPLE, Plaintiff and Respondent, v. PRESTON JAMES SMITH, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17FE003636)
After defendant Preston James Smith pleaded no contest to auto theft and unlawful use of identifying information, the trial court granted him five years' probation, with various conditions, including an electronics search condition requiring he submit to warrantless searches of electronic storage devices. On appeal, defendant challenges the validity of the electronics search condition, contending it is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) because it is not reasonably related to future criminal conduct. We agree. Accordingly, we strike the electronics search condition from the probation order and affirm the judgment as modified.
BACKGROUND
Defendant pleaded no contest prior to a preliminary hearing. The parties stipulated to a factual basis for the plea without actually stating many facts, and defendant waived preparation of a probation report; accordingly, the record contains few facts related to the commission of this offense. In summary, defendant unlawfully drove a victim's Honda Civic, without her consent and with the intent to permanently deprive her of the vehicle. While in possession of the vehicle, defendant also unlawfully obtained personal identifying information of another victim, and used that information to attempt to obtain credit or goods, without that victim's permission. Defendant pleaded no contest to vehicle theft (Veh. Code, § 10851, subd. (a)) and unlawful use of identifying information (Pen. Code, § 530.5, subd. (a)). The trial court accepted his plea and defendant requested immediate sentencing and waived referral to the probation department. The trial court placed defendant on five years' probation, including an electronics search condition which read in full as follows:
"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 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."
At the plea hearing, defense counsel interposed a general objection to the electronics search condition. The prosecution did not respond.
Defense counsel also submitted a boilerplate brief objecting to the electronics search condition's validity and constitutionality. This brief contains 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 prosecution did not file a responsive pleading.
The trial court imposed the electronics search condition, stating the condition was standard in identity theft cases.
DISCUSSION
Electronics Search Conditions
Defendant contends the electronics search condition imposed in this case is invalid under Lent, supra, 15 Cal.3d 481, because the condition is not related to the current offense, the conduct to which the condition relates is not, in itself, criminal, and the condition is not related to future criminal conduct.
We review conditions of probation 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 . . . .' [Citation.]" (Lent, supra, 15 Cal.3d at p. 486.) "The Lent test 'is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.' (Olguin, supra, 45 Cal.4th at p. 379.)" (In re Ricardo P. (2019) 7 Cal.5th 1113, 1118 (Ricardo P.).) Accordingly, even if the probation condition is unrelated to the crime defendant was convicted of and relates to conduct not itself criminal, "the condition is valid as long as the condition is reasonably related to preventing future criminality. [Citation.]" (Olguin, at p. 380.)
Recently, the California Supreme Court clarified the parameters of the Lent test's third prong, whether the condition " ' "requires or forbids conduct which is not reasonably related to future criminality." ' [Citation.]" (Ricardo P., supra, 7 Cal.5th at p. 1119.) In Ricardo P., the minor was placed on probation after admitting to two counts of burglary. The juvenile court imposed drug conditions because the minor had indicated he had previously smoked marijuana, and imposed a condition requiring the minor "submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices." (Id. at p. 1115.) Nothing in the record indicated the minor had ever used electronic devices to commit, plan, discuss or consider criminal conduct. Nonetheless, the juvenile court imposed the electronics search condition based on its own "observation that teenagers 'typically' brag about such drug use on social media." (Id. at p. 1118.) Although the Supreme Court was skeptical about generalization of teenagers' tendency to brag about drug use on social media, the Supreme Court found that even accepting that premise as true, Lent's third prong was not satisfied by an abstract or hypothetical relationship between the probation condition and preventing future criminality. (Id. at pp. 1119-1120.)
The Court of Appeal in Ricardo P. had upheld the electronics search condition under Olguin, supra, 45 Cal.4th 375, as reasonably related to the supervision of the juvenile on probation. (Ricardo P., supra, 7 Cal.5th at pp. 1124-1125.) Despite some broad language in Olguin, the Supreme Court rejected an interpretation of Olguin that probation conditions reasonably related to enhancing supervision of probationers are valid under Lent. (Id. at pp. 1125-1127.) Instead, the court limited Olguin to its facts. The probation condition at issue there required defendant to notify the probation officer about any pets at his residence. (Id. at p. 1124.) The pet notification condition was reasonable because it served to inform and protect the probation officer in his supervision and this protection was reasonably related to the purpose of deterring future criminality. (Id. at p. 1126.) By contrast, the electronics search condition was "far more burdensome and intrusive, and requires a correspondingly substantial and particularized justification." (Ibid.)
Our high court held the electronics search condition "satisfies Lent's third prong and is therefore invalid under the Lent test because, on the record before us, the burden it imposes on Ricardo's privacy is substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society." (Ricardo P., supra, 7 Cal.5th at p. 1119.)
As in Ricardo P., only the third prong of the Lent test is at issue here. The factual basis for the plea indicates only that defendant unlawfully drove a car and possessed another's identifying information and attempted to obtain credit or goods with that information. 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 these offenses, or had any history of using electronic devices to commit, facilitate or plan criminal conduct, or of using social media to demonstrate he had committed such conduct. The prosecutor offered no evidence to support imposition of the condition. The trial court's conclusion that the condition was necessary for proper supervision does not satisfy the requirements of Lent, any more than the juvenile court's generalized statements about teenagers posting their drug use on social media did in Ricardo P.
This case falls squarely within the concerns articulated in Ricardo P.: "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. . . . [Citation.] Indeed, whatever crime a [probationer] might have committed, it could be said that [probationers] may use electronic devices and social media to mention or brag about their illicit activities." (Ricardo P., supra, 7 Cal.5th at p. 1123.) Accordingly, we find this condition is not reasonably related to future criminality and is therefore invalid under Lent. (Lent, supra, 15 Cal.3d at p. 486.)
DISPOSITION
The trial court is directed to issue an amended probation order striking the electronics search condition. As modified, the judgment is affirmed.
/s/_________
RAYE, P. J. We concur: /s/_________
BLEASE, J. /s/_________
KRAUSE, J.