Filed 12/3/19 P. v. Spatola CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

NIKOL ELISABETH SPATOLA,

Defendant and Appellant.

C082456

(Super. Ct. No. 16FE012561)

After defendant Nikol Elisabeth Spatola pleaded no contest to possession of identification of another with intent to defraud with a prior (Pen. Code, § 530.5, subd. (c)(2)), the trial court placed her on probation with various conditions, including that she submit to warrantless searches of electronic storage devices and provide all information necessary to access those devices, as well as her e-mail and other electronic accounts.

On appeal, defendant challenges the electronics search conditions, which are set forth separately as special conditions 13 and 19 but combined in the minute order, contending that they: (1) are unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) because they are not reasonably related to future criminal conduct; (2) are impermissible under the California Electronic Communications Privacy Act (ECPA) (§ 1546 et seq.); and (3) are unconstitutionally overbroad. She further contends the condition requiring her to provide passwords to access the electronic storage devices violates the Fifth Amendment.

We held this appeal pending resolution of the primary issue by the California Supreme Court. We have now received the awaited guidance.

In In re Ricardo P. (2019) 7 Cal.5th 1113, at page 1116 (Ricardo P.), our high court held that where there is no evidence defendant had used or will use electronic devices in connection with any illegal activity, the substantial burdens imposed by an electronics search condition are not justified. “The probation condition is not reasonably related to future criminality and is therefore invalid under Lent.” (Ibid.) Here the record contains no indication of defendant’s past or future use of any electronic device for any illegal activity. Accordingly, we modify the judgment by striking the identified probation conditions.

BACKGROUND

Defendant was charged with possession of identification of another with intent to defraud with a prior (§ 530.5, subd. (c)(2); count one); unauthorized use of the identifying information of 10 or more persons (§ 530.5, subd. (c)(3); count two); concealing or destroying evidence about to be produced (§ 135; count three); and receipt of stolen property valued less than $950 (§ 496, subd. (a); count four).

Defendant pleaded no contest to count one, and the trial court dismissed the remaining counts in the interest of justice. The factual basis for her plea was that: “On or about June 27, 2016, in the county of Sacramento, the defendant committed a felony violation of Penal Code Section 530.5(c)(2); in that the defendant was in possession of personal identifying information belonging to another individual. She possessed that information with the intent to defraud that person of their personal identifying information and/or other goods. [¶] She was also previously convicted just on June 15, 2016, in Sacramento County for the same charge, a violation of Penal Code Section 530.5(c)(c) [sic] in case 16 FE010010. She had no permission to have that personal property.”

Defendant waived a formal probation report and was sentenced at the same hearing to five years of formal probation with various conditions, including county jail. The trial court imposed various fines and fees but declined to impose costs for “probation supervision,” as well as the main jail booking and classification fees.

The conditions of probation imposed by the court included two specific conditions that related to the search of electronics devices and media. They stated:

“13. Defendant shall disclose all email accounts, all Internet accounts and any other means of access to any computer or computer network, all passwords and access codes. Defendant shall consent to the search of such email and Internet accounts at any time and for the seizure of any information without a search warrant or probable cause.

“19. 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.”

Defendant objected to specific conditions 13 and 19 at the sentencing hearing, arguing that per the police report, defendant had broken into mailboxes with her boyfriend in order to obtain the illicit information; there was no evidence in the record that electronics had been used. The People originally argued they did not know how defendant had come across the personal data and had numerous prepaid cards belonging to other people, but later conceded the police report did reflect defendant breaking into mailboxes and that the victims “indicate[d] that they were not only mail theft victims, but also had been fraud victims as well, where the identifying information was being used.”

The trial court overruled defendant’s objections, noting the challenged conditions were “broad, but they seem applicable to somebody particularly that was on probation and within a week or two . . . continue[d] to commit the same offenses.” Defense also filed written objections, which consisted of a boilerplate brief on the electronics search conditions’ validity and constitutionality and provided no specific information relating to defendant or her current or past crimes, or whether she owned or used any electronic storage devices, and if so, what information was stored on such devices. The People did not file any response.

Defendant timely appealed.

DISCUSSION

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.” (§ 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 [ ] 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.)

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 . . . .’ ” (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 had 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 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. had 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. (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.)

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, whether the electronics search condition is reasonably related to future criminality. The burden imposed by the condition is the same substantial burden seen in Ricardo P. Unlike the juvenile court in Ricardo P., here the trial court offered no justification for the condition aside from the court’s ambiguous statement that the conditions seemed appropriate for a person who was on probation and continued to commit the same offense. The People originally proffered that they did not know where defendant had obtained the illicit information, but later conceded that the police report reflected that defendant had stolen the information from mailboxes.

On appeal, the People argue the electronics search conditions are reasonably related to deterring future criminality because they allow the probation officer to assure that defendant is complying with the terms of her probation. This generalization, however, offers even less of a connection to defendant’s conduct or personal history than the juvenile court’s generalization in Ricardo P., that teenagers tend to brag about drug use online. As our Supreme Court noted, “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.) If such generalizations were sufficient to justify the substantial burdens of the electronics search condition, “it is hard to see what would be left of Lent’s third prong.” (Id. at p. 1124.) As in Ricardo P., here the burden imposed by the electronics search conditions are substantially disproportionate to the interests they serve.

In Ricardo P., our high court declined to consider whether there was a sufficient basis in the record to support the Court of Appeal’s suggestion that the electronics search condition could be restricted so that it was reasonable. (Ricardo P., supra, 7 Cal.5th at p. 1124.) Here, the People have not suggested remand or that the electronics search conditions could be narrowed to satisfy Lent. Therefore, we will simply strike the challenged probation conditions.

IV

Remaining Contentions

Defendant contends the electronics search conditions are overbroad and violate the ECPA. Defendant further contends the specific condition 13 requires her to provide passwords to all social media and storage accounts in violation of her privilege against self-incrimination protected by the Fifth Amendment.

Because we invalidate the electronics search probation conditions, we need not address these contentions.

DISPOSITION

The judgment is modified to strike the specific probation conditions 13 and 19. In all other respects the judgment is affirmed. The juvenile court is directed to prepare and serve an amended order of probation reflecting this modification.

/s/

Duarte, J.

We concur:

/s/

Hull, Acting P. J.

/s/

Krause, J.