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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

BYRON TYRONE SOLOMON,

Defendant and Appellant.

C085768

(Super. Ct. No. 17FE016223)

After defendant Byron Solomon pled no contest to carrying a concealed firearm in a vehicle, the trial court granted him five years’ probation. On appeal, defendant contends the imposition of an electronic search condition as a condition of his probation is invalid under People v. Lent (1975) 15 Cal.3d 481. We agree. Accordingly, we strike the electronic search condition from the probation order and affirm the judgment as modified.

BACKGROUND

While driving a vehicle on a public street, defendant possessed a loaded nine-millimeter handgun. The gun was loaded, accessible to him, and he was not the registered owner of the gun. He pled no contest to carrying a concealed firearm in a vehicle. The trial court placed defendant on five years’ probation, conditioned on serving 90 days in jail, with six days of credit for time served.

Defense counsel submitted boilerplate briefs objecting to the electronic search condition’s validity and constitutionality. This brief included 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 responsive pleadings.

At the plea hearing, defense counsel again objected to the imposition of the electronic search condition, stating it was overbroad and there was no nexus to this case. The prosecutor argued the condition related to future criminality, as defendant was a validated gang member who had been stopped by gang detectives and his passenger was also a validated gang member. The prosecutor also argued defendant had had previous contacts with police in the presence of additional gang members. “[I]t is not a strain on common sense to understand or see that gang members use their cell phones. They use electronic communication devices to act in furtherance of their organization.” In response, defense counsel noted that in this case, “a cell phone was not used at all.” The trial court imposed the contested condition, indicating that the electronic device search was reasonably related to the offense without elaboration. Without objection, the trial court also imposed conditions that defendant would not knowingly associate with known gang members or knowingly be in places frequented by known gang members.

DISCUSSION

I

Electronic Device Search Condition

Defendant contends the electronic search condition imposed in this case is invalid under Lent 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.) “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 probation term.’ ” (In re Ricardo P. (2019) 7 Cal.5th 1113, 1118.) 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.” (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.” ’ ” (In re 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 electronic search condition based on its own “observation that teenagers ‘typically’ brag about such drug use on social media.” (Id. at p. 1119.) 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 Supreme Court also found the third prong of the Lent test “contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” (In re Ricardo P., supra, 7 Cal.5th at p. 1122.) This condition significantly burdened the minor’s privacy interests given how much sensitive and confidential information can be accessed on devices like cell phones; the limited justification for the condition did not support such a significant burden. (Id. at p. 1123.) Accordingly, the Supreme Court found the electronic search condition was not reasonably related to future criminality, and was therefore invalid under Lent. In so doing, the Supreme Court expressly noted its determination was not a blanket invalidation of all such conditions, as there might be cases in which “the probationer’s offense or personal history may provide the . . . 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.” (Ricardo P., at pp. 1128-1129.)

As in Ricardo P., only the third prong of the Lent test is at issue here. Unlike Ricardo P., here the record contains support for finding the condition related to future criminality. The factual basis for the plea indicates defendant was carrying a loaded concealed weapon in a vehicle. The record also reflects that defendant is a validated gang member who has repeatedly been found by law enforcement officers in the presence of other gang members. Two probation conditions were imposed to restrict his continuing association with gangs. Defendant’s association with gangs related to future criminality and the electronic search condition here was designed to allow the probation officer to monitor defendant’s gang associations and activities. (People v. Ebertwoski (2014) 228 Cal.App.4th 1170, 1176-1177, cited with approval in In re Ricardo P. at p. 1129.)

II

Constitutional Overbreadth

Defendant also claims the electronic search condition is constitutionally overbroad, given the vast storage capacity of electronic devices and the breadth of distinct types of information contained within them.

“A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) “Certain intrusions by government which would be invalid under traditional constitutional concepts may be reasonable at least to the extent that such intrusions are required by legitimate governmental demands.” (In re White (1979) 97 Cal.App.3d 141, 149-150.) “The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s constitutional rights . . . .” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) “A probation condition . . . is unconstitutionally overbroad . . . if it (1) ‘impinge[s] on constitutional rights,’ and (2) is not ‘tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.’ ” (Ibid.) We independently review defendant’s constitutional challenge to a probation condition. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)

The United States Supreme Court’s observations in Riley v. California (2014) 573 U.S. 373 [189 L.Ed.2d 430] make clear that a probation condition that authorizes the warrantless search of an electronic storage device, such as a cell phone, carries the potential for a significant intrusion into defendant’s private affairs. The electronic search condition at issue here, “arguably sweeps more broadly than the standard three-way search condition allowing for searches of probationers’ persons, vehicles, and homes. First, by allowing warrantless searches of all of defendant’s computers and electronic devices, the condition allows for searches of items outside his home or vehicle, or devices not in his custody — e.g., computers or devices he may leave at work or with a friend or relative. Second, the scope of a digital search is extremely wide. . . . Thus, a search of defendant’s mobile electronic devices could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity. These could include, for example, medical records, financial records, personal diaries, and intimate correspondence with family and friends.” (People v. Appleton (2016) 245 Cal.App.4th 717, 725.) The mobile application software could also include information about defendant’s political and religious affiliations, health concerns, medical and financial data, hobbies, and social life. (Riley, at p. 396 [189 L.Ed.2d at p. 448].)

Ensuring defendant is complying with the terms of his probation, including the specific conditions that he not knowingly associate with or be in the same location as gang members, is an important state interest. (See People v. Carbajal (1995) 10 Cal.4th 1114, 1121; People v. Robles (2000) 23 Cal.4th 789, 795.) Despite the importance of this interest, we agree with defendant that the electronic search condition impinges on his constitutional rights under the Fourth Amendment. (See People v. Appleton, supra, 245 Cal.App.4th at p. 724.) As currently stated, the electronic search condition “could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity. These could include, for example, medical records, financial records, personal diaries, and intimate correspondence with family and friends.” (Appleton, at p. 725.) The state’s interests could be served through narrower means. We therefore conclude that the electronic search condition is not sufficiently tailored to its purpose and must be modified to limit authorization of searches to devices, accounts and applications that are reasonably likely to reveal whether defendant has engaged in prohibited association with known gang members or whether he is frequenting prohibited locations or otherwise has violated the terms of his probation.

DISPOSITION

The trial court is directed to issue an amended probation order striking the electronic search condition. As modified, the judgment is affirmed. Because the trial court may be able to impose a valid condition more narrowly tailored to the state’s interests, the case is remanded to the trial court for further proceedings consistent with this opinion.

/s/

Robie, J.

We concur:

/s/

Blease, Acting P. J.

Murray, J.