Filed 12/20/19 P. v. Wright CA3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

CHRISTOPHER WRIGHT,

Defendant and Appellant.

C082729

(Super. Ct. No. 16FE011619)

OPINION ON TRANSFER

Defendant Christopher Wright admitted a felony violation of Penal Code section 530.5, subdivision (c)(3), acquiring personal identifying information with intent to defraud, in relation to the possession of about 60 credit cards, driver’s licenses, gift cards and Social Security cards in the names of other persons. (Statutory references that follow are to the Penal Code unless otherwise stated.) The trial court placed defendant on probation with various terms and conditions, including that defendant submit his electronic storage devices and e-mail/Internet accounts to search without a search warrant (the challenged search conditions).

In an earlier opinion, we concluded the challenged search conditions were valid under People v. Lent (1975) 15 Cal.3d 481, 486 (Lent) and were not constitutionally overbroad. The California Supreme Court granted defendant’s petition for review and transferred the matter to us to reconsider our opinion in light of In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.).

We now conclude the challenged search conditions are invalid under Lent and Ricardo P. and strike those conditions. We note that nothing in this opinion prevents the trial court from exercising its discretion, following a noticed hearing, to modify the terms of probation if presented with additional facts that would tie an electronics device search condition to defendant’s future criminality as set forth in Ricardo P. (See § 1203.3, subds. (a), (b).)

Defendant also contends (1) the urinalysis test fee is unauthorized and cannot be made a condition of probation; (2) the order granting probation must be modified to make clear that payment of the court facility fee is not a condition of probation; and (3) the criminal impact fee is unauthorized.

We modify the order granting probation to strike the urinalysis testing fee and the criminal impact fee, and to provide that the court facility fee is not imposed as a condition of probation, but instead is imposed as an order of the trial court entered at judgment.

FACTS AND PROCEEDINGS

Defendant entered a plea of no contest to willfully and unlawfully acquiring and retaining the personal identifying information of 10 or more persons with intent to defraud. He waived referral to probation and requested immediate judgment and sentencing.

The People asked the trial court to impose an electronic device search condition to help the probation department monitor whether defendant was violating the law. The People submitted the declaration of Detective Sean Smith in support of the request. Detective Smith was a member of the Sacramento Valley Hi Tech Crimes Task Force, an agency which investigated cybercrimes. Detective Smith averred, based on his training and experience, that persons who committed identity theft and fraud crimes commonly used electronic devices to research and purchase victim information and manufacture counterfeit credit cards, checks and identifications. The detective explained how electronic devices could be used to commit identity theft and fraud crimes. He said, for example, that cell phones were commonly used to photograph and store victim information, identify locations where the defendant intended to commit fraud, and deposit counterfeit checks into bank accounts. Detective Smith explained why it was necessary to search all content on a device and obtain password information in identity theft and fraud cases.

Defendant’s trial counsel objected to the electronic storage device search condition because there was no indication a cell phone or electronic device was used in this case or that defendant manufactured the items found in his car, and defendant’s only prior crime was for driving stolen cars. Counsel argued the electronic device search condition was not tailored to defendant or the current offense and was overbroad. He also argued the condition violated defendant’s Fifth Amendment rights in that it required defendant to disclose passwords. Counsel pointed out that another probation condition already required disclosure of e-mail/Internet accounts and access to computers, networks and passwords. He did not object to the e-mail/Internet search condition.

The trial court imposed the electronic storage device search condition over defendant’s objection. It said, “It does appear that computers, cell phones, other electronic devices are extremely useful in violating this code section. One can violate it by possessing these things and also the manufacture of these things or the negotiation of various instruments can be facilitated through the use of these electronic devices. So I think there is a nexus here in this case, given the offense.”

The trial court suspended imposition of sentence and placed defendant on formal probation for five years. It imposed 19 specific conditions of probation including a general search condition which provided, “Defendant shall submit his person, property and automobile and any object under [his] control to search and seizure in or out of . . . [his] presence . . . , by any law enforcement officer and/or probation officer, at any time of the day or night, with or without his consent, with or without a warrant.”

The trial court imposed the electronic device search condition (condition 19) as follows: “P.C. 1546 searchable – Defendant shall submit his . . . person, place, property, automobile, electronic storage devices, and any object under his . . . 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 . . . presence or further consent. [¶] Defendant being advised of his . . . 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 . . . 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.”

In addition, the trial court imposed the e-mail/Internet search condition (condition 13) thus: “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.”

The court also prohibited defendant from possessing, controlling or using a personal checking account, unless authorized by his probation officer; possessing personal identifying information of another person, as defined in section 530.5, without prior approval of the probation department; possessing an access card, as defined in section 484d, subdivision (2), in the name of another without prior approval of the probation department; possessing software designed for manufacturing checks or blank check paper; knowingly possessing a scanner; possessing an access card reader or encoder; intentionally concealing the source, destination or content of any electronic communication transmitted or otherwise sent by defendant; providing false information about his identity to an electronic communications service provider, as defined in section 2510(15) of title 18 of the United States Code, when purchasing or agreeing to purchase any service from that provider which allows defendant to send and receive electronic communications; and possessing any software and/or hardware designed to encrypt or decrypt computer files.

The court further required defendant to pay restitution, a restitution fine under section 1202.4, subdivision (b), a criminal impact fee pursuant to section 1465.7, subdivision (a), a urinalysis test fee, and a court facility fee pursuant to Government Code section 70373.

Defendant filed a brief opposing the electronic device search condition after the sentencing hearing. He asserted privacy, overbreadth, the Electronic Communications Privacy Act and his Fifth Amendment privilege against self-incrimination as the basis for his objection and asked the trial court to narrowly tailor the condition to fit the government’s purposes. The appellate record does not indicate whether a further hearing was requested or held based on defendant’s written brief.

DISCUSSION

I

The Challenged Search Conditions Are Invalid

Defendant claims the challenged search conditions are invalid under Lent and Ricardo P. because they are not reasonably related to his future criminality. We agree.

We review conditions of probation for abuse of discretion. (People v. Moran (2016) 1 Cal.5th 398, 403 (Moran).) We review a condition “for an indication [it] is ‘arbitrary or capricious’ or otherwise exceeds the bounds of reason under the circumstances. [Citation.]” (People v. Olguin (2008) 45 Cal.4th 375, 384 (Olguin).)

Trial courts have broad discretion to impose probation conditions to foster rehabilitation and protect public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) The sentencing court may impose reasonable conditions of probation 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).)

We will not invalidate a condition of probation unless the condition “ ‘(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, 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.” (Olguin, supra, 45 Cal.4th at p. 379.)

Addressing the first and second Lent factors, the Attorney General agrees there is no evidence an electronic device played a role in the current offense, and using an electronic device is not criminal. Turning to the third Lent factor, however, the Attorney General argues the challenged search conditions are reasonably related to preventing future criminality. Under the rule of law announced in Ricardo P., we disagree.

“Lent’s third prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality.” (Ricardo P., supra, 7 Cal.5th at p. 1121.) It does not go so far as to require a “nexus” between the condition and the underlying offense. (Id. at p. 1122.) “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. (Lent, supra, 15 Cal.3d at p. 486; see People v. Fritchey (1992) 2 Cal.App.4th 829, 837-838 [‘ “[A] reasonable condition of probation is not only fit and appropriate to the end in view but it must be a reasonable means to that end. Reasonable means are moderate, not excessive, not extreme, not demanding too much, well-balanced.” ’].)” (Ibid.)

In Ricardo P., the juvenile defendant was placed on probation after admitting two counts of felony burglary. As a condition of probation, the court required the defendant to submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through those devices. There was no evidence the defendant had used an electronic device in connection with committing the burglaries. Nonetheless, the court imposed the condition to monitor the defendant’s compliance with other probation conditions that prohibited him from using or possessing illegal drugs or associating with people who did. (Ricardo P., supra, 7 Cal.5th at pp. 1116-1117.)

The Supreme Court held the search condition was not reasonably related to the juvenile’s future criminality, in violation of Lent’s third prong. Requiring a probationer to surrender electronic devices and passwords to search at any time imposes a heavy burden on a probationer’s privacy interests and “requires a correspondingly substantial and particularized justification.” (Ricardo P., supra, 7 Cal.5th at p. 1126.) In Ricardo P., the burden imposed by the condition was disproportionate to the interests the condition served. Nothing in the record suggested the defendant had “ever used an electronic device or social media in connection with criminal conduct.” (Id. at p. 1122.)

Moreover, imposing the search condition merely to enhance surveillance of the probationer was an insufficient interest. (Ricardo P., supra, 7 Cal.5th at p. 1125.) To justify imposing the condition, the juvenile court had relied primarily on indications the defendant had previously used marijuana, its own “generalization” that minors typically brag about drug usage online, and the need to monitor for that behavior. (Id. at p. 1122.) But “[i]n virtually every case, one could hypothesize that monitoring a probationer’s electronic devices and social media might deter or prevent future criminal conduct.” (Id. at p. 1123.) If monitoring was enough by itself to justify the burdens the condition imposed, “it is hard to see what would be left of Lent’s third prong.” (Id. at pp. 1123-1124.) In short, the search condition “impose[d] a very heavy burden on privacy with a very limited justification.” (Id. at p. 1124.)

The same reasoning holds true here. Defendant pleaded no contest to willfully and unlawfully acquiring and retaining approximately 60 credit cards, driver’s licenses, gift cards, social security cards with multiple different victims, as well as several receipts and checks. There is no evidence, however, that he acquired or manufactured these items with the assistance of electronic devices or social media. Indeed, there is no evidence as to how defendant acquired the items. There is also no evidence that defendant has ever used any electronic storage device or social media in connection with criminal conduct.

Moreover, Detective Smith’s declaration did not provide a sufficiently particularized justification for imposing the challenged conditions. Detective Smith declared that criminals “commonly” use electronic devices and Internet accounts to commit fraud, identity theft, and financial crimes. His declaration contained no reference to the circumstances of the offense, defendant’s criminal history, or defendant’s personal history or current circumstances. That defendant possessed these items with the intent to defraud does not establish he would use electronic devices or social media to commit additional fraud or identity theft.

The Attorney General contends the state’s interest in rehabilitating defendant and protecting others from future criminal conduct by him justified the challenged search conditions. The state, however, has these interests whenever a defendant is placed on probation, no matter the defendant’s crime. Imposing the search conditions to monitor the defendant’s behavior, without a more particularized justification, fails the Lent test’s third prong. (Ricardo P., supra, 7 Cal.5th at p. 1125.)

The burden imposed on defendant’s privacy interests by the challenged search conditions was disproportional to the state’s justifications supporting the conditions. Accordingly, the conditions are not reasonably related to defendant’s future criminality and are invalid under Lent. Because we reach this conclusion, we need not address defendant’s other arguments challenging the conditions’ validity or the effectiveness of his counsel’s representation.

II

The Urinalysis Testing Fee

Defendant claims the urinalysis testing fee imposed by the trial court is unauthorized under section 1203.1ab, and even if it is authorized, it cannot be made a condition of probation because probation costs are collateral to the offense. We conclude the condition is invalid.

The probation department recommended a $367.81 main jail booking fee and a $67.03 main jail classification fee, among other fees. The recommendation noted that the monthly cost of probation supervision was $46 and urinalysis testing was $25 per test. The trial court, however, did not impose a main jail booking fee, main jail classification fee, or monthly probation supervision fee, but it did impose a urinalysis testing fee. Defendant did not object to the urinalysis testing fee.

The testing fee is invalid because defendant was not convicted of a drug offense. Sections 1203.1ab and 1210.1 and Health and Safety Code section 11551 authorize drug testing, but not in this instance. Section 1203.1ab authorizes an order requiring, as a condition of probation, a defendant convicted of an offense involving the unlawful possession, use, sale or other furnishing of any controlled substance to pay the cost of drug and substance abuse testing, under certain circumstances. Section 1210.1 requires drug testing as a condition of probation in a case where the defendant was convicted of a nonviolent drug possession offense. (§ 1210.1, subd. (a).) Defendant was not convicted of a drug-related offense. Moreover, even when it applies, Health and Safety Code section 11551, which authorizes periodic drug tests in certain circumstances, does not authorize an order requiring the probationer to pay the cost of administering the tests. (Health & Saf. Code, § 11551, subds. (a), (d).)

The Attorney General argues section 1203.1, subdivision (j), authorized the trial court to order defendant to undergo urinalysis testing and to pay for the cost of such testing to foster his rehabilitation and ensure public safety. This justification, however, does not satisfy the Lent test. Nothing in the record indicates defendant had used illegal drugs or consumed alcohol in connection with any criminal behavior. Although we review the trial court’s order under the deferential abuse of discretion standard (Moran, supra, 1 Cal.5th at p. 403), there is simply no support in this record for the urinalysis testing fee. (Cf. People v. Shimek (1988) 205 Cal.App.3d 340, 342-343 [proper to impose drug testing probation condition on a defendant convicted of unlawful cultivation of marijuana because the condition would aid in determining whether the defendant was once again using and cultivating marijuana unlawfully].) Accordingly, we modify the probation order to strike the condition requiring defendant to pay a $25 urinalysis testing fee.

III

The Court Facility Fee

Defendant contends the order granting probation must be modified to make clear that payment of the court facility fee imposed under Government Code section 70373 is not a condition of probation, and to strike the criminal impact fee imposed pursuant to section 1465.7, subdivision (a) as unauthorized. The Attorney General agrees.

We also agree. (§ 1202.4, subd. (e); People v. Kim, (2011) 193 Cal.App.4th 836, 842-843.) We modify the order granting probation to clarify that the payment of the court facility fee imposed under Government Code section 70373 is not a condition of probation but rather a separate order of the court entered at judgment. In addition, we modify the order granting probation to strike the criminal impact fee imposed pursuant to section 1465.7, subdivision (a).

DISPOSITION

The order granting probation is modified to strike the following: the electronic storage device and the e-mail/Internet warrantless search conditions (conditions 19 and 13), the condition requiring defendant to pay a $25 urinalysis testing fee, and the requirement that defendant pay a criminal impact fee pursuant to section 1465.7, subdivision (a). In addition, the order granting probation is modified to provide that the court facility fee imposed pursuant to Government Code section 70373 is not imposed as a condition of probation, but instead is imposed as an order of the trial court entered at judgment.

HULL, Acting P. J.

We concur:

MAURO, J.

HOCH, J.