Opinion
C083027
03-24-2020
THE PEOPLE, Plaintiff and Respondent, v. WILLIE BRYAN WYSINGER, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE004234)
Defendant Willie Bryan Wysinger pleaded no contest to carrying a loaded firearm in public (Pen. Code, § 25850, subd. (a)) and two counts of driving a vehicle under the influence of drugs (Veh. Code, § 23152, subd. (e)). The trial court placed defendant on formal probation for five years with various terms and conditions, including an electronics search condition, which the trial court limited by requiring a warrant to obtain any password for electronic devices.
Further statutory references are to the Penal Code.
Defendant now contends the electronics search condition is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent), violates the Electronic Communications and Privacy Act (ECPA), and is unconstitutionally overbroad. Although the trial court imposed a laudable limitation on the electronics search condition by requiring a search warrant to obtain passwords, we conclude, based on the California Supreme Court's decision in In re Ricardo P. (2019) 7 Cal.5th. 1113, that the search condition is nevertheless invalid under Lent because there was no showing that defendant used electronic devices to commit or further his crimes or that he would likely do so in the future. We will modify the judgment to strike the electronics search condition and affirm the judgment as modified.
BACKGROUND
On February 28, 2016, defendant unlawfully carried a loaded .9-mm semiautomatic firearm in the center console of his vehicle. On the same day, he was found driving the car while under the influence of THC and alprazolam. He was also found driving while under the influence of the same drugs on December 25, 2015.
Defendant asserted written and oral objections to a proposed electronics search condition. The written objections argued that the condition was invalid under Lent, violated the Fourth Amendment, Fifth Amendment, ECPA and the wiretap law, and was unconstitutionally overbroad.
The prosecution filed a motion supporting the condition. Attached to it was a declaration from Sean E. Smith, a detective with the Sacramento County Sheriff's Department who had experience and training in investigating computer and other electronic devices. The declaration gave examples of electronic evidence found in investigations of various types of crimes and the need to examine electronic devices.
The prosecutor argued at the sentencing hearing that the electronics search condition was appropriate because defendant was found with a loaded firearm in his vehicle, and when asked by law enforcement why he was carrying the weapon, defendant replied that he carried it for protection as he was a Gmobb gang member. According to the prosecutor, the facts that he had a loaded firearm, that he had a prior drug conviction, and that he is a gang member all supported the imposition of an electronics search condition to make sure defendant has been rehabilitated and to deter future criminality.
A dismissed count for felon in possession of a firearm (§ 29800, subd. (a)(1)) alleged defendant had a 2008 felony conviction for possession of narcotics (Health & Saf. Code, § 11350, subd. (a)). The prosecutor told the court she was referring to this conviction.
Defense counsel reasserted that the proposed search condition was overbroad because it would permit searching defendant's cell phone without a search warrant and there was no link between the defendant's cell phone and his crimes. Defense counsel continued: "If the Court is inclined to grant this condition of probation, we would request that the Court place limits as to this condition because if it is granted, then officers, including probation and police officers, would be able to go through every single folder in the phone, including photos which may include personal family photos, e-mails."
The trial court noted that the felony complaint, by itself, would not justify the search condition, but the trial court was concerned about defendant's gang affiliation and prior narcotics conviction. It asked defense counsel to suggest a limitation on the condition. Defense counsel asked that the trial court remove proposed language requiring defendant to divulge passwords in the absence of a search warrant.
When the trial court suggested that officers would need a search warrant to obtain passwords, defense counsel said that was agreeable, and the prosecutor also agreed with the proposal. The trial court said it would add the following language to the electronics search condition: "in order to obtain passwords, law enforcement will first obtain a search warrant."
The condition as modified and imposed by the trial court reads as follows:
"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. In order to obtain passwords, law enforcement will first obtain a search warrant.
"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 court also imposed, without objection, a general search condition.
DISCUSSION
Defendant contends the electronics search condition is invalid under Lent.
We begin by noting that defense counsel's request at sentencing that defendant's passwords be protected with a warrant requirement did not forfeit any of defendant's contentions on appeal. Defense counsel objected to the electronics search condition in writing and at the hearing and offered the limiting language only as an alternative to a complete denial of the objection. Accordingly, we address the merits of defendant's challenge.
"The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. [Citation.]" (Lent, supra, 15 Cal.3d at p. 486.) Consequently, we review conditions of probation for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379.) "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, at p. 486.) The Lent "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. [Citation.]" (Olguin, at pp. 379-380.)
Ricardo P. involved a minor who was placed on probation after admitting to two counts of burglary; one condition of probation was that he "submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices." (Ricardo P., supra, 7 Cal.5th. at p. 1115.) Although the minor did not use electronic devices in committing the burglaries, the juvenile court "imposed the condition in order to monitor his compliance with separate conditions prohibiting him from using or possessing illegal drugs." (Ibid.)
The California Supreme Court held that the condition was invalid under Lent's third prong -- whether the condition requires or forbids conduct which is not reasonably related to future criminality -- because the burden it imposed on Ricardo's privacy was substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society. (Ricardo P., supra, 7 Cal.5th at p. 1119.) The condition significantly burdened the minor's privacy interests but the record did not support such a significant burden. (Id. at pp. 1122-1123.) The court said that "requiring a probationer to surrender electronic devices and passwords to search at any time is far more burdensome and intrusive, and requires a correspondingly substantial and particularized justification." (Id. at p. 1126.) But the court explained that its holding did not categorically invalidate electronics search conditions. "In certain cases, the probationer's offense or personal history may provide the juvenile court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality. [Citations.]" (Id. at pp. 1128-1129.)
As in Ricardo P., here there is no evidence defendant had used, or would use, an electronic device in connection with illegal activity. We recognize, of course, that with current electronic devices, very little, if any, information can be obtained without a password, and that the trial court's limitation was significant. Nevertheless, based on the holding in Ricardo P., this record provides an insufficient basis to impose an electronics search condition.
Accordingly, we will modify the judgment to strike the electronics search condition and affirm the judgment as modified. Under the circumstances, we need not address defendant's additional grounds to challenge the search condition.
DISPOSITION
The judgment is modified to strike the electronics search condition. The judgment is affirmed as modified.
/S/_________
MAURO, J. We concur: /S/_________
BUTZ, Acting P. J. /S/_________
HOCH, J.