Opinion
C082933
02-21-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMAL DAVID WILEY, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE010231)
After defendant Jamal David Wiley pleaded no contest to a domestic violence offense, the trial court granted him five years' probation and imposed an electronics search condition. On appeal, defendant challenges the electronics search condition. We conclude, pursuant to the recent California Supreme Court decision In Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), that "the burden it imposes on [defendant's] privacy is substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society." (Id. at p. 1119.) Accordingly, we will strike that condition of probation.
FACTS AND PROCEEDINGS
Defendant pleaded no contest prior to a preliminary hearing, the parties stipulated to a factual basis for the plea that stated minimal facts, and defendant waived preparation of a probation report; accordingly, the record contains few facts related to the commission of this offense. In short, defendant inflicted corporal injury on the mother of his child, and she sustained four blisters on her shoulder as a result. Defendant pleaded no contest to inflicting corporal injury on a spouse or cohabitant. The trial court granted defendant five years' probation, conditioned on serving 364 days in jail, with 56 days of custody credit. The trial court also issued a "no contact" order.
At the plea hearing, defense counsel objected to the imposition of the electronics search condition as not having a nexus to this case and being overbroad. The prosecution argued generally that those who commit domestic violence offenses often violate protective orders, that this was not the first time defendant had committed domestic violence against this victim, that defendant had violated the protective order on numerous occasions, and that this instance of domestic violence was in violation of a criminal protective order. On questioning from the trial court, the prosecution indicated defendant had violated the prior no contact order by e-mailing the victim to apologize for this incident. There was no evidence that defendant had otherwise used electronic devices to communicate with the victim, or otherwise threaten, harass, or stalk her.
Both parties also filed boilerplate points and authorities on the propriety of imposing the electronics search condition. Attached to the People's points and authorities was a declaration from Sacramento Sherriff's Deputy Sean Smith. The declaration generally indicated Smith's background and experience as a peace officer and delineated the type of evidence that may be found on electronic devices as to various categories of criminal offenses, including domestic violence offenses. As to domestic violence offenses, Smith declared those who commit domestic violence related offenses often violate protective or no contact orders issued after the offense. Evidence of these violations can frequently be found on electronic devices, through communications on the device and geolocation data. The declaration also delineated in general terms the need of law enforcement to have complete access to electronic devices, including all passwords and contents. The argument in the prosecution's points and authorities and the statements in Smith's declaration do not contain any arguments or information specific to this defendant, his criminal background, or the particular offense he committed. The trial court found there was a nexus between the facts of this case and the electronics search condition.
The probation condition imposed states: "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 . . . 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."
DISCUSSION
Defendant claims the electronics search condition is constitutionally overbroad, as it permits searches of devices not in his custody and "could potentially expose a large volume of documents or data, much of which has nothing to do with illegal activities."
I
Probation Search Conditions Generally
Upon granting probation, the court may impose any "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer." (Pen. Code, § 1203.1, subd. (j).)
"The trial court's discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, we have interpreted Penal Code section 1203.1 to require that probation conditions which regulate conduct 'not itself criminal' be 'reasonably related to the crime of which the defendant was convicted or to future criminality.' [Citation.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1121, quoting People v. Lent (1975) 15 Cal.3d 481, 486.)
The Lent court adopted the three-part test of People v. Dominguez (1967) 256 Cal.App.2d 623: "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 . . . .' " (People v. 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 condition of probation." (People v. Contreras (2015) 237 Cal.App.4th 868, 879.)
II
Ricardo P.
In Ricardo P., supra, 7 Cal.5th 1113, the juvenile was declared a ward of the court after he committed two felony burglaries; he was placed on probation. The juvenile court imposed various probation conditions, including one which required the juvenile to " '[s]ubmit . . . electronics including passwords under [his] control to search by Probation Officer or peace office[r] with or without a search warrant at any time of day or night.' " (Id. at pp. 1116-1117.) Ricardo told a probation officer he committed the crime because he was not thinking and that he had stopped smoking marijuana because it interfered with his ability to think clearly. The court justified the condition on the basis that it believed marijuana was involved in the offense and minors often bragged about marijuana usage on the Internet, and it was important to monitor Ricardo's drug usage. (Ibid.)
On appeal, Ricardo challenged the electronics search condition under People v. Lent, supra, 15 Cal.3d 481. The Court of Appeal upheld the condition under Lent, but found it was unconstitutionally overbroad. (Ricardo P., supra, 7 Cal.5th at p. 1116.) Our Supreme Court granted review on whether the electronics search condition satisfied the third prong of Lent, whether it " ' "requires or forbids conduct which is not reasonably related to future criminality." ' " (Id. at p. 1119.)
The high court was skeptical about the juvenile court's inference that Ricardo was using drugs during the burglaries and the generalization that teenagers tend to brag about drug use online. (Ricardo P., supra, 7 Cal.5th at pp. 1119-1120.) But even accepting these premises, the court noted that cases "upholding probation conditions under Lent's third prong have involved stronger connections between the burdens imposed by the challenged condition and a probationer's criminal conduct or personal history." (Id. at p. 1120.) The third prong of Lent "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.) Our high court found the electronics search condition significantly burdens privacy interests due to the type and quantity of information stored on electronic devices. (Id. at p. 1123.) Nothing suggested the juvenile had ever used an electronic device or social media in connection with illegal activity. (Ibid.) The court concluded the electronics search condition "imposes a very heavy burden on privacy with a very limited justification." (Id. at p. 1124.)
The Court of Appeal in Ricardo P. upheld the electronics search condition under People v. Olguin (2008) 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. (Ricardo P., 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.)
III
Application of Ricardo P. to this Case
Although Ricardo P. involved a juvenile, it is applicable here because "the Lent test governs in juvenile and adult probation cases alike." (Ricardo P., supra, 7 Cal.5th at p. 1119.)
Here, as in Ricardo P., the issue is the third prong of the Lent test and whether the burden imposed by the electronics search condition is "substantially disproportionate to the countervailing interests of furthering [defendant's] rehabilitation and protecting society." (Ricardo P., supra, 7 Cal.5th at p. 1119.) Unlike in Ricardo P., here the record provides some evidence connecting defendant's future criminal conduct to the use of electronics devices, in that he violated an existing no-contact order by sending an e-mail. The burden imposed by the condition, however, must still be reasonable and the sweeping invasion of privacy implicated by this electronics search condition demands too much. (See Ricardo P., at p. 1122.)
The electronics search condition imposed on defendant is expansive. There is no limitation on when probation officers can search defendant's electronics, which electronics can be search, or the type of information to be searched. Probation officers would be permitted to search defendant's e-mail, voicemail, and social media accounts without limitation. They also could search defendant's bank accounts, medical records, and any other online account he might maintain. This unfettered access to defendant's constitutionally protected, private information "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.) The condition therefore, is not "reasonably" related to prevent future criminal activity under Lent and it must be stricken. (Id. at p. 1128.)
We recognize that defendant apparently used an electronic device on one occasion to try to apologize to the victim. Even so, we cannot say that the one use alone is sufficient to justify the electronics search condition entered here.
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 Ricardo P., should they choose to do so.
DISPOSITION
We order the electronics search condition stricken from the probation order. The judgment is affirmed in all other respects.
/s/_________
HULL, Acting P. J. We concur: /s/_________
ROBIE, J. /s/_________
DUARTE, J.