Filed 1/6/20 P. v. Martinez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

SAMUEL MALAVE MARTINEZ,

Defendant and Appellant.

C082726

(Super. Ct. No. 16FE014227)

After defendant Samuel Malave Martinez pleaded no contest to being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)) and possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)), the trial court placed him on probation with various conditions, including that he submit to warrantless searches of electronic storage devices.

On appeal, defendant challenges the electronics search condition, contending it is both unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally overbroad. Defendant also challenges general probation condition No. 3 contending it is unconstitutionally overbroad because it restricts his right to travel. Finally, defendant contends the penalty assessments imposed on the criminal laboratory analysis fee result in an unauthorized sentence.

In In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), our high court held that where there is no evidence a 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.” (Id. at p. 1116.) 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 electronics search probation condition. Defendant’s remaining claims lack merit. The judgment is affirmed as modified.

BACKGROUND

The People charged defendant with possession of methamphetamine with the intent to sell (while personally armed with a firearm), being a felon in possession of a firearm, and possession of methamphetamine (a misdemeanor). He pleaded no contest to being a felon in possession of a firearm and possession of methamphetamine in exchange for dismissal of the remaining charge. The trial court accepted his plea and defendant requested immediate sentencing and waived referral to the probation department.

The proposed conditions of probation included an electronics search condition, which reads as follows: “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.”

The proposed probation conditions also included general probation condition No. 3, which provides: “You may not leave the State of California, at any time, without first securing permission from your probation officer and completing the appropriate procedures to do so. You are not to remain away from your regular residence for more than 48 hours without first having secured permission from your probation officers. You are to immediately notify your probation officer of any intended change of address and the reasons therefore.”

Both the prosecution and the defense submitted boilerplate briefs on the electronics search condition’s validity and constitutionality. These boilerplate briefs provided 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 People attached to their brief the declaration of a sheriff’s deputy assigned to the Sacramento Valley Hi-Tech Crimes Task Force. The declaration detailed the kinds of evidence found on electronic devices in certain categories of crimes involving drugs, fraud, identity theft, financial crimes, sex offenses, human trafficking, pimping and pandering, domestic violence, weapons, and gangs. The declaration did not mention burglary. It discussed the need to examine the entire contents of electronic devices due to the ease of moving files and hiding information. Finally, it explained the need to require the probationer to provide all passwords.

At sentencing, the People noted defendant had “a criminal history” and was on probation for a domestic violence conviction when he was charged with these crimes. Moreover, defendant was convicted of a weapons-related offense and that electronic devices are frequently used “to sell or purchase weapons, threaten others, or use illegal weapons and conspire with others to commit said crimes.” Evidence of such crimes, the People argued, could be found on electronic devices. The trial court imposed the contested condition, along with general condition No. 3, without making any finding or articulating any analysis. The trial court also ordered defendant to pay numerous fines, fees, and assessments including a $50 criminal laboratory analysis fee.

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.” (Pen. Code, § 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 Penal Code 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, quoting Lent, supra, 15 Cal.3d at p. 486.)

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.)

A. Electronics Search Condition

1. 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 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 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.)

2. 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. The People proffered that electronic devices are used to facilitate the illegal sale and exchange of weapons, along with providing evidence of such illegal activity. This generalization, however, offers no greater 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 condition is substantially disproportionate to the interests it serves.

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 condition could be narrowed to satisfy Lent. Therefore, we will simply strike the challenged probation condition.

B. General Condition No. 3

Defendant also contends general condition No. 3 requiring him to “not leave the State of California, at any time, without first securing permission from your probation officer” and to obtain permission from his probation officer before he is gone from his “regular residence for more than 48 hours” is unconstitutionally overbroad because it infringes on his right to travel. The People respond defendant forfeited his constitutional challenge to the condition or, in the alternative, the People maintain the condition is valid.

Initially, we reject the People’s claim defendant forfeited his constitutional challenge to the travel approval condition. Although the failure to make a timely objection to a probation condition ordinarily forfeits the claim of error on appeal, where a claim that a probation condition is facially overbroad and violates fundamental rights is based on undisputed facts, it may be treated as a question of law, which is not forfeited by failure to raise it in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 881, 888-889.)

We previously upheld a probation condition requiring permission before traveling out of California in People v. Relkin (2016) 6 Cal.App.5th 1188. We noted, “[w]hile all citizens enjoy a federal constitutional right to travel from state to state (Shapiro v. Thompson (1969) 394 U.S. 618, 629), that right is not absolute and may be reasonably restricted in the public interest. (In re White (1979) 97 Cal.App.3d 141, 149-150.)” (Relkin, supra, at p. 1195.)

Such a condition is in the public interest, as it assists the probation department in determining whether “defendant meets the standards of the Uniform Act for Out-of-State Probationer and Parolee Supervisions before he is allowed to go to another state (Pen. Code, § 1203). Also it minimizes extradition problems.” (People v. Thrash (1978) 80 Cal.App.3d 898, 902.) “[T]he condition’s limitation on interstate travel is closely tailored to the purpose of monitoring defendant’s travel to and from California not by barring his ability to travel altogether but by requiring that he first obtain written permission before doing so.” (People v. Relkin, supra, 6 Cal.App.5th at p. 1195.) Moreover, this component of general condition No. 3 is “ ‘ “sufficiently precise for [defendant] to know what is required of him, and for the court to determine whether the condition has been violated.” ’ ([In re ]Sheena K., supra, 40 Cal.4th at p. 890.)” (Relkin, supra, at p. 1196.) Accordingly, this component of general condition No. 3 is not unconstitutionally overbroad.

Additionally, the second component of general condition No. 3, requiring defendant to obtain permission before leaving his residence for more than 48 hours, is not unconstitutionally overbroad. Imposing a limitation on a probationer’s movement as a condition of probation is common because it facilitates supervision and rehabilitation and helps ensure probationers are complying with the terms of their conditional release. (People v. Moran (2016) 1 Cal.5th 398, 406.) And, again, this component of general condition No. 3 is “ ‘ “sufficiently precise for [defendant] to know what is required of him, and for the court to determine whether the condition has been violated.” ’ ([In re ]Sheena K., supra, 40 Cal.4th at p. 890.)” (Relkin, supra, 6 Cal.App.4th at p. 1196.)

Finally, there is nothing to suggest that defendant’s reasonable requests to travel out of state or to stay somewhere other than his residence for more than 48 hours would be disapproved. Our Supreme Court in People v. Olguin, supra, 45 Cal.4th at page 382, stated that a probation condition “should be given ‘the meaning that would appear to a reasonable, objective reader.’ ” We view the travel approval condition here in light of Olguin and presume a probation officer will not withhold approval for irrational or capricious reasons. (Id. at p. 383; see People v. Stapleton (2017) 9 Cal.App.5th 989, 996-997 [“A probation officer cannot issue directives that are not reasonable in light of the authority granted to the officer by the court”]; People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240 [probation conditions are limited by reasonableness “[s]ince the court does not have the power to impose unreasonable probation conditions, [and therefore] could not give that authority to the probation officer”].)

In sum, we conclude, general condition No. 3 is not unconstitutionally overbroad.

II

Penalty Assessments

Defendant further contends we must strike the penalty assessments added to the $50 laboratory analysis fee. In support of his contention, defendant argues the laboratory analysis fee is administrative in nature and is not subject to penalty assessments. This argument is foreclosed by our Supreme Court’s decision in People v. Ruiz (2018) 4 Cal.5th 1100, in which the high court concluded the laboratory analysis fee was indeed punishment within the meaning of Penal Code section 182. (Ruiz, supra, at p. 1122.) Because the laboratory analysis fee constitutes punishment, the trial court properly imposed additional penalty assessments in connection with that fee.

Defendant also argues the assessments should be stricken because they were not pronounced orally by the trial court but added to the minute order by the clerk. Generally, an oral pronouncement of judgment controls (People v. Mitchell (2001) 26 Cal.4th 181, 185), but, where fines are mandatory, “their omission may be corrected for the first time on appeal.” (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1530.) The penalty assessments are mandatory. (People v. Turner (2002) 96 Cal.App.4th 1409, 1413.) Here, the trial court erred by not including those assessments in its oral pronouncement of judgment. We shall order the judgment modified to include the penalty assessments included within the minute order.

DISPOSITION

The judgment is modified to strike the electronics search probation condition and to include the penalty assessments appended to the laboratory analysis fee that were included in the minute order, but not provided for by the trial court in its oral pronouncement of judgment. The judgment is affirmed as modified. The trial court is directed to amend the probation order accordingly and distribute the amended order as necessary.

/s/

RAYE, P. J.

We concur:

/s/

BLEASE, J.

/s/

KRAUSE, J.