Filed 12/13/19 P. v. Ruiz 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

JAIME ANDRES RUIZ,

Defendant and Appellant.

C083029

(Super. Ct. No. 16FE014436)

Defendant Jaime Andres Ruiz pleaded no contest to discharging a firearm in a grossly negligent manner. The trial court granted him probation and imposed an electronics device search condition as a condition of probation. Defendant challenges the condition, contending the trial court abused its discretion in imposing an unreasonable condition and the condition is unconstitutionally overbroad. We agree the electronics device search condition is invalid, and we will direct the trial court to strike the condition.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant discharged a firearm during an argument with his wife and father-in-law, shooting in the air five to six times. Pursuant to a negotiated agreement, defendant pleaded no contest to discharging a firearm in a grossly negligent manner. (Pen. Code, § 246.3.)

The trial court suspended imposition of sentence and granted defendant three years’ formal probation on various terms and conditions. Defense counsel objected to the imposition of an electronics device search condition, included in specific condition No. 7. The condition required defendant to submit his “electronic storage devices” to search and seizure at any time, “including but not limited to cell phones and computers.” The court imposed the condition over the objection, noting that in the court’s experience, “individuals love to take pictures of themselves with guns on their phones.”

DISCUSSION

Defendant contends the trial court erred in imposing the electronics device search condition because it is not reasonably related to future criminality. We agree.

“In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to . . . section 1203.1.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) In general such a term or condition will not be invalidated “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 (1975) 15 Cal.3d 481, 486 (Lent), superseded by statute on another ground as stated in People v. Moran (2016) 1 Cal.5th 398, 403, fn. 6.) All three prongs must be satisfied before we will invalidate such a condition. (People v. Olguin (2008) 45 Cal.4th 375, 379-380.) Under Lent, we review the imposition of a condition for abuse of discretion. (Olguin at p. 379.)

As to electronic device search conditions specifically, our Supreme Court recently held such a condition invalid under Lent. (In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.).) The juvenile in Ricardo P. committed felony burglary and was granted probation with a condition requiring him to submit to warrantless searches of his electronic devices. (Id. at pp. 1115-1116.) He objected to the condition, but the juvenile court concluded it was reasonably related to preventing future criminality because it enabled effective supervision of the juvenile’s compliance with his drug-related probation conditions, reasoning that minors often brag about their drug use on social media. (Id. at p. 1117.) The Ricardo P. majority, however, concluded the condition did not satisfy Lent’s third prong because the record before it contained “no indication that Ricardo had used or will use electronic devices in connection with drugs or any illegal activity.” (Ricardo P. at p. 1116.) The court reasoned the burden the condition imposed on the juvenile’s privacy was “substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society.” (Id. at p. 1119.) Because there was no evidence in the record suggesting the juvenile had ever used an electronic device or social media in connection with criminal conduct, the condition was not reasonably related to future criminality. (Id. at pp. 1122-1123.)

While the Supreme Court held the electronics search condition was invalid, it noted its holding did not categorically invalidate electronics search conditions. (Ricardo P., supra, 7 Cal.5th at p. 1128.) The court reasoned that trial “courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense. [Citation.] [¶] Yet Lent’s requirement that a probation condition must be ‘ “reasonably related to future criminality” ’ 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.) The court concluded the condition lacked proportionality where it allowed an unlimited search of the juvenile’s devices, social media, and data “which could include anything from banking information to private health or financial information.” (Id. at p. 1123.)

Here, as in Ricardo P., there is nothing in the record suggesting defendant used an electronic device or social media in connection with any crimes. It is true, as the trial court noted below, that people who own guns may take photographs of themselves with the guns. However, there is no evidence defendant engaged in electronic communications about guns or took photographs of himself with guns in this case. Nor is there any evidence raising a concern about defendant’s future criminality in relation to electronic devices. Without any such evidence, we cannot conclude that a broad electronics device search condition similar to the one at issue in Ricardo P. was proportionate. The condition was not reasonably related to future criminality under Ricardo P. (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123.) Accordingly, the condition must be stricken from the probation order.

DISPOSITION

The trial court is directed to issue an amended order of probation, striking specific condition No. 7. As so modified, the judgment is affirmed.

/s/

HOCH, J.

We concur:

/s/

BUTZ, Acting P. J.

/s/

MAURO, J.