Filed 1/27/20 P. v. Collins CA4/2

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CARLA ROSE COLLINS,

Defendant and Appellant.

E069430

(Super.Ct.Nos. RIF1701190 &

BAF1700728)

OPINION

APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge. Affirmed in part, remanded with directions in part.

Linda M. Cuny, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters and Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

This case is before us for the second time after the California Supreme Court granted review, deferred briefing, and transferred the matter back to this court with directions to vacate our prior decision filed February 4, 2019, and reconsider the cause in light of In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). In our earlier opinion, we agreed with the parties that the condition requiring defendant and appellant Carla Rose Collins to report contact with law enforcement must be modified and remanded the matter to allow the trial court to modify the condition. We, however, rejected defendant’s remaining contentions challenging a number of her probationary conditions on constitutional grounds, including a purported electronics search condition, and affirmed the judgment.

We hereby vacate our previous decision and, having reconsidered the matter in light of Ricardo P., remand the matter to allow the trial court to modify the reporting condition. On remand, if the trial court contemplates the search condition to include searches of electronic devices, a factual showing that satisfies the standard announced in Ricardo P. must be met, and the electronic devices search condition should be narrowly tailored in a manner that will allow it to pass constitutional muster. We reject defendant’s remaining contentions and otherwise affirm the judgment.

II

FACTUAL AND PROCEDURAL BACKGROUND

A. Case No. RIF1701190

On January 4, 2017, with a blood alcohol content of 0.249 percent, defendant repeatedly drove into a closed gate in order to gain access to a fenced-in property. Defendant caused approximately $2,000 in damages to the fence.

On April 5, 2017, a felony complaint was filed charging defendant with felony vandalism (Pen. Code, § 594, subd. (a); count 1), driving a vehicle while under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 2), and driving a vehicle while having a blood alcohol content of 0.08 or greater (Veh. Code, § 23152, subd. (b); count 3). As to counts 2 and 3, the complaint also alleged that defendant’s blood alcohol content was 0.20 or greater (Veh. Code, § 23538, subd. (b)(2)). The complaint further alleged that defendant had suffered one prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)) and four prior prison terms (§ 667.5, subd. (b)).

On June 21, 2017, pursuant to a plea agreement, defendant pled guilty to counts 1 and 2, and admitted her blood alcohol content was 0.20 or greater, with the agreed-upon maximum sentence of three years six months. In exchange, the remaining charge and enhancement allegations were dismissed, and defendant was placed on probation for a period of 36 months on various terms and conditions of probation, including serving 180 days in the county jail. Defendant did not object to the terms and conditions of her probation, and explicitly agreed to accept her probationary terms and to follow all of them.

On June 30, 2017, defendant was placed in the Riverside Alternative Sentencing Program, where she was placed on home detention and required to wear an ankle bracelet monitor.

B. Case No. BAF1700728

On July 3, 2017, defendant escaped from home detention.

On July 5, 2017, while on probation in case No. RIF1701190, a felony complaint was filed charging defendant with escaping from home detention in violation of section 4532, subdivision (b)(1). The felony complaint was amended on August 1, 2017, to include defendant’s five prior prison terms (§ 667.5, subd. (b)) and one prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).

On September 25, 2017, the trial court granted defendant’s motion to strike her prior strike conviction pursuant to section 1385.

On September 28, 2017, defendant pled guilty to escaping from home detention in violation of section 4532, subdivision (b)(1). On that same day, defendant also admitted to violating her probation in case No. RIF1701190. In return, the remaining enhancement allegations were dismissed, and defendant was placed on formal probation for a period of three years on various terms and conditions of probation, including serving 335 days in county jail, to run concurrent with case No. RIF1701190. Defendant did not object to the terms and conditions of her probation, and explicitly agreed to accept all of her probationary terms and conditions. In case No. RIF1701190, the trial court reinstated defendant on probation with the same terms and conditions, with the exception of serving an additional 185 days in county jail, to run concurrent with case No. BAF1700728.

On October 30, 2017, defendant filed a notice of appeal in both cases.

In a nonpublished opinion filed February 4, 2019, this court rejected defendant’s challenges to a number of her probationary terms and conditions, but agreed with the parties that the condition requiring defendant to report contact with law enforcement should be modified. We, therefore, remanded the matter to allow the trial court to modify the reporting condition. Defendant subsequently filed a petition for review with the California Supreme Court.

On May 15, 2019, the California Supreme Court granted review and deferred briefing pending consideration and disposition of related issues in Ricardo P., supra, 7 Cal.5th 1113.

On October 23, 2019, the Supreme Court transferred the matter back to this court with directions to vacate our prior decision, and reconsider the cause in light of Ricardo P. After we vacated our prior opinion, we requested supplemental briefing from the parties.

On November 7, 2019, the People filed a supplemental brief, arguing the electronics search condition is not facially overbroad, and Ricardo P. is inapposite because it did not address an overbreadth claim. The People also note that defendant forfeited any as-applied challenges to her probation conditions by failing to object at sentencing. Alternatively, the People assert that if this court reaches the merits, the court should remand the matter to allow the trial court an opportunity to supplement the record in light of Ricardo P.

On November 25, 2019, defendant filed a supplemental brief, contending the electronics search condition must be narrowly tailored to expressly exclude searches of her electronic devices because, under Ricardo P., an electronics search is not reasonably related to her future criminality.

III

DISCUSSION

At the September 28, 2017 sentencing hearing in case Nos. BAF1700728 and RIF1701190, the trial court imposed the following challenged probation conditions: (1) “Participate and complete at your expense any counseling, rehabilitation/treatment program deemed appropriate by probation officer; and authorize release of information relative to progress” (hereafter Treatment Condition); (2) “Report any law enforcement contacts to Probation Officer within 48 hours” (hereafter Police Contact Reporting Condition); (3) “Inform the probation officer of your place of residence and reside at a residence approved by the probation officer”; “Give written notice to the probation officer 24 hours before changing your residence and do not move without the approval of the probation officer” (hereafter Residency Approval Conditions); (4) “Submit to immediate search/property including all residence/premises/storage units, containers and vehicles under your control; by Probation Officer or law enforcement officer; with or without cause” (hereafter Search Condition); and (5) “Do not associate with any unrelated person you know to be on either probation, parole, mandatory supervision, post community supervision or a gang member”; “Do not associate with any unrelated person you know to be a possessor, user or trafficker of controlled substance” (hereafter No-Contact Conditions).

Defendant argues that the above-noted probationary terms and conditions are unconstitutionally vague, overbroad, and/or violate the separation of powers doctrine and her rights to travel and association. She, therefore, believes the challenged conditions must either be stricken or modified. The People agree that the Police Contact Reporting Condition must be modified, but otherwise urge the court to reject defendant’s remaining claims.

A. Relevant Law and Standard of Review

“When an offender chooses probation, thereby avoiding incarceration, state law authorizes the sentencing court to impose conditions on such release that 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 . . . for the reformation and rehabilitation of the probationer.’” (People v. Moran (2016) 1 Cal.5th 398, 402-403, quoting § 1203.1, subd. (j).) Thus, “a sentencing court has ‘broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.’” (Moran, at p. 403, quoting People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) “If a probation condition serves to rehabilitate and protect public safety, the condition may ‘impinge upon a constitutional right otherwise enjoyed by the probationer, who is “not entitled to the same degree of constitutional protection as other citizens.”’” (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355 (O’Neil), quoting People v. Lopez (1998) 66 Cal.App.4th 615, 624 (Lopez).)

Judicial discretion in selecting the conditions of a defendant’s probation “is not unlimited.” (O’Neil, supra, 165 Cal.App.4th at p. 1355.) A probation condition is unreasonable and will not be upheld if it (1) has no relationship to the crime of which the defendant was convicted, (2) relates to conduct that is not criminal, and (3) requires or forbids conduct that is not reasonably related to future criminality. (People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin); O’Neil, at p. 1355.) “This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.” (Olguin, at p. 379.) Thus, as a general rule, “even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality.” (Id. at p. 380.)

However, “[j]udicial discretion to set conditions of probation is further circumscribed by constitutional considerations.” (O’Neil, supra, 165 Cal.App.4th at p. 1356.) Under this second level of scrutiny, if an otherwise valid condition of probation impinges on constitutional rights, the condition must be carefully tailored so as to be reasonably related to the compelling state interest in the probationer’s reformation and rehabilitation. (Ibid.; People v. Bauer (1989) 211 Cal.App.3d 937, 942 (Bauer); In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.); In re Victor L. (2010) 182 Cal.App.4th 902, 910.) “The essential question . . . is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)

Challenges to probation conditions ordinarily must be raised in the trial court or appellate review of those conditions will be deemed forfeited. (People v. Welch (1993) 5 Cal.4th 228, 234-235 (Welch) [extending the forfeiture rule to a claim that probation conditions are unreasonable, when the probationer fails to object on that ground in the trial court].) On the other hand, the forfeiture rule does not apply, and a defendant who did not object to a probation condition at sentencing may do so on appeal if the appellate claim “amount[s] to a ‘facial challenge’” that challenges the condition on the ground its “phrasing or language . . . is unconstitutionally vague or overbroad” and the determination whether the condition is constitutionally defective “does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court.” (Sheena K., supra, 40 Cal.4th at pp. 885, 887.) Thus, a challenge to a probation condition on the ground it is unconstitutionally overbroad or vague “that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law” (id. at p. 887, italics omitted), and such a challenge is reviewable on appeal even if it was not raised in the trial court (id. at p. 889).

Defendant raised no objection in the trial court with respect to the challenged conditions. Nevertheless, to the extent defendant raises a facial challenge to the constitutional validity of the challenged probation conditions, the claims are not forfeited by defendant’s failure to raise it below and we will reach the merits of defendant’s claims. (Sheena K., supra, 40 Cal.4th at pp. 888-889.) We, however, focus solely on the constitutionality of the challenged conditions, not whether they are reasonable as applied to defendant. (See People v. Lent (1975) 15 Cal.3d 481, 486 (Lent) [test for reasonableness of probation conditions].) By failing to object below, defendant has forfeited all claims except a challenge “based on the ground the condition is vague or overbroad and thus facially unconstitutional.” (Sheena K., at p. 878.)

In addition, defendant does not cite the particular facts relevant to her crime in arguing the electronics search condition is overbroad, but instead contends the sweep of the condition, notwithstanding her conviction, is overly broad. But even if defendant’s overbreadth challenge arguably depends on the record developed in the trial court, we may exercise our discretion to consider the important constitutional issue. (See People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6; see Sheena K., supra, 40 Cal.4th at p. 887, fn. 7 [an appellate court may review a forfeited claim, and whether or not it should do so is entrusted to its sound discretion].) Accordingly, we will consider the merits of defendant’s claims.

Trial courts must fashion precise supervision conditions, so the probationer knows what is required. (Sheena K., supra, 40 Cal.4th at p. 890.) A condition is invalid if it is “‘“‘so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’”’” (People v. Quiroz (2011) 199 Cal.App.4th 1123, 1128.) Nor may a court impose overbroad supervision conditions. Where a condition impinges on a constitutional right, it must be carefully tailored and reasonably related to the compelling state interest in reformation and rehabilitation. (Ibid.; Sheena K., at p. 890.) A “court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court’s order cannot be entirely open-ended.” (O’Neil, supra, 165 Cal.App.4th at pp. 1358-1359 [probation condition forbidding defendant from associating with all persons designated by his probation officer was “overbroad and permit[ted] an unconstitutional infringement on defendant’s right of association”].) “If a probation condition serves to rehabilitate and protect public safety, the condition may ‘impinge upon a constitutional right otherwise enjoyed by the probationer, who is “not entitled to the same degree of constitutional protection as other citizens.”’” (Id. at p. 1355, quoting Lopez, supra, 66 Cal.App.4th at p. 624.)

“Generally, we review the court’s imposition of a probation condition for an abuse of discretion.” (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143, citing Carbajal, supra, 10 Cal.4th at p. 1121.) However, we independently review constitutional challenges to a probation condition. (In re Shaun R., at p. 1143.)

B. Treatment Condition

Defendant contends that the Treatment Condition requiring her to “participate and complete at [her] expense any counseling, rehabilitation/treatment program deemed appropriate by probation officer” is vague because it does not provide her notice as to the type, scope, and conditions of treatment she would be required to attend. Specifically, she argues that the condition did not “sufficiently apprise [her] of the burdens she was assuming, and did not sufficiently fix a standard to determine whether she has satisfied the condition.” She also asserts the condition is overbroad because it is not narrowly tailored and reasonably related to her rehabilitation. For the reasons explained below, we reject these contentions.

Subdivision (a) of section 1202.8 states that “[p]ersons placed on probation by a court shall be under the supervision of the county probation officer who shall determine both the level and type of supervision consistent with the court-ordered conditions of probation.” Subdivision (a) of section 1203 provides in part, “‘probation’ means the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.”

Taken together, these statutes provide that the court orders conditions of probation and the probation officer supervises compliance with them. The conditions do not constitute a delegation of the court’s authority to order probation conditions; rather, the court has already ordered the conditions. Where a court-ordered probation condition provides it applies if “deemed appropriate” by the probation officer, the court has merely vested the probation officer with the power to set the time and place for administration of these court-ordered probation conditions based on the probation officer’s statutory authority to “determine both the level and type of supervision consistent with the court-ordered conditions of probation.” (§ 1202.8, subd. (a); People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240 (Kwizera) [“When the clear words of Penal Code sections 1202.8 and 1203 are applied, the trial court has authority to empower the probation department with authority to supervise the probation conditions.”].) As our high court observed in Olguin, supra, 45 Cal.4th 375, the probation department’s authority to supervise compliance with the conditions of probation does not empower the department to engage in irrational conduct or make irrational demands. (Id. at p. 383.) Thus, we reject defendant’s claim that “[w]hile this court may anticipate that [defendant’s] probation officer would act competently and require enrollment in a program related to alcohol treatment, such a hope and expectation that a probation officer act reasonably in making its decisions does not save facially overbroad language of a probation condition.”

For those if “deemed appropriate” or “if directed” conditions requiring participation in court-ordered programs, another court has noted that “[t]he trial court is poorly equipped to micromanage selection of a program, both because it lacks the ability to remain apprised of currently available programs and, more fundamentally, because entry into a particular program may depend on mercurial questions of timing and availability.” (People v. Penoli (1996) 46 Cal.App.4th 298, 308 (Penoli).) Even if the court could be more specific in its order, that does not necessarily render a condition overbroad. (Ibid. [“Desirable as such a narrowing of the probation officer’s discretion might be, however, we are not prepared at this time to hold that its absence constitutes prejudicial error.”])

As the Penoli court noted, “[a] defendant who is concerned about particular risks can bring those concerns to the court’s attention at or prior to sentencing, asking it (for instance) to approve or disapprove specific programs identified by the defense. Failing that, the defendant can seek judicial intervention—by moving to modify the probation order, if nothing else—if and when the probation officer seeks to exercise the delegated authority. (See § 1203.3.)” (Penoli, supra, 46 Cal.App.4th at p. 308.)

The if “deemed appropriate” or “if directed” conditions are not unconstitutionally vague. As previously noted, to avoid a challenge of vagueness, the condition “must be sufficiently precise for the probationer to know what is required of him [or her], and for the court to determine whether the condition has been violated.” (People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325.) The Penoli court found that notice was satisfied if the probationer’s trial attorney had actual knowledge of what the program ordered by the court would typically entail in terms of treatment and duration. (Penoli, supra, 46 Cal.App.4th at p. 309.) Such an order also does not have to be specific regarding how compliance with the program will be assessed since it is ultimately up to the sentencing court to determine compliance with conditions of probation, not the probation officer. (Id. at p. 310.)

Defendant’s reliance on Penoli is misplaced. The court in Penoli did not find a treatment condition to be facially unconstitutional. Rather, the Penoli court explained that the probationer was not “completely at the mercy of the probation department” because the probationer could seek judicial intervention by moving to modify the probation order, if, and when, the probation officer seeks to exercise that authority. (Penoli, supra, 46 Cal.App.4th at p. 308, citing § 1203.3; see In re Moriah T. (1994) 23 Cal.App.4th 1367, 1375, 1377.) The Penoli court recognized that probation officers possess some discretion in deciding when a probationer would participate in a residential treatment program and in program selection. (Penoli, at p. 308.) As noted, the trial court retains ultimate control over exercise of the probation conditions. (See §§ 1203.2, subd. (b)(1), 1203.3, subd. (a).)

We view the if “deemed appropriate” conditions in light of Olguin and presume a probation officer will not interpret them in an irrational or capricious manner. (Olguin, supra, 45 Cal.4th at p. 383.) If the probation officer interprets the if “deemed appropriate” conditions in any arbitrary manner, defendant can file a petition for modification of her probation condition. (See §§ 1203.2, subd. (b)(1), 1203.3, subd. (a); see People v. Keele (1986) 178 Cal.App.3d 701, 708 [trial court retains jurisdiction to review probation officer’s actions].)

Defendant further asserts that the Treatment Condition “fails to specify the character” of the program or specify “what type of conduct the program is designed to facilitate or curtail.” To the extent defendant attempts to argue the Treatment Condition was unreasonable, which is an as-applied challenge, we find defendant’s argument waived because she failed to object to the reasonableness of the condition below. (Sheena K., supra, 40 Cal.4th at p. 889.) A timely objection would have allowed the court to explain why the Treatment Condition was necessary in this case. (See Welch, supra, 5 Cal.4th at p. 235; Sheena K., at p. 889.)

Notwithstanding, we note that the Treatment Condition is listed under the “Drug/Search/Test Programs Terms” section of the probation condition document. Though it does not state that the treatment program would be for drug and alcohol treatment, its placement under the drug section clearly conveys to defendant and the probation officer that the purpose of the Treatment Condition is to treat drug and alcohol addiction. (See Penoli, supra, 46 Cal.App.4th 298 [court found contested condition was not overly broad or vague because it specified that the treatment was for drug abuse].) Defendant’s convictions stemmed from crimes she committed after consuming enough alcohol to reach a 0.249 blood alcohol content. At sentencing, the court suggested that “maybe you ought not be drinking [alcohol]” because it resulted in defendant making bad decisions. With the agreement of the prosecution and defense, the court referred defendant to the Residential Substance Abuse Treatment Program, or “RSAT.” The undisputed facts in the record show that defendant struggled with alcohol abuse. Thus, the Treatment Condition was neither vague nor overbroad.

Defendant also relies on People v. Cervantes (1984) 154 Cal.App.3d 353 to argue that the Treatment Condition violates the separation of powers doctrine. Cervantes is distinguishable from the present case. In Cervantes, the court placed the defendant on probation “on condition that he ‘pay restitution in an amount and manner to be determined by the Probation Officer.’” (Cervantes, at p. 356.) The Cervantes court further stated “[w]e find no statutory provision sanctioning a delegation of unlimited discretion to a probation officer to determine the propriety, amount, and manner of payment of restitution.” (Id. at p. 358.) In Cervantes, unlike this case, the trial court had allowed probation officers to make a final determination (of probation conditions) without any ensuing judicial review. (Id. at pp. 355-359.) We therefore reject defendant’s assertion that the separations of powers doctrine was violated when the court imposed the Treatment Condition or that judicial authority was delegated to the probation officer to determine a treatment program if “deemed appropriate.” The treatment program was listed under the drug terms portion of the probation document. Moreover, the parties discussed a specific residential treatment program. Thus, defendant had notice that she could potentially be directed to complete a residential treatment program during her probationary period.

Based on the foregoing, we find the Treatment Condition is neither unconstitutionally vague nor overbroad, and it does not improperly delegate power to the probation department or violate the separation of powers.

C. The Police Contact Reporting Condition

Relying on People v. Relkin (2016) 6 Cal.App.5th 1188 (Relkin), defendant contends that the probation condition requiring her to report “‘any law enforcement contacts to probation officer within 48 hours’” is unconstitutionally vague and overbroad. She asserts the condition is vague because it does not delineate “what type of contact with law enforcement would necessitate reporting.” She further argues that the condition is overbroad because reference to “‘any law enforcement’” is too broad and should be limited to incidents involving police officers. The People agree that the type of contact that requires reporting should be modified, but that the term “‘law enforcement’” is commonly understood to mean sworn officers and is not overbroad.

In Relkin, as here, a condition of probation required that the defendant report “‘any contacts with or incidents involving any peace officer.’” (Relkin, supra, 6 Cal.App.5th at p. 1196.) The court found the condition overbroad, explaining: “[T]he portion of the condition requiring that defendant report ‘any contacts with . . . any peace officer’ is vague and overbroad and does indeed leave one to guess what sorts of events and interactions qualify as reportable. We disagree with the People’s argument that the condition is clearly not triggered when defendant says ‘hello’ to a police officer or attends an event at which police officers are present, but would be triggered if defendant were interviewed as a witness to a crime or if his ‘lifestyle were such that he is present when criminal activity occurs.’ The language does not delineate between such occurrences and thus casts an excessively broad net over what would otherwise be activity not worthy of reporting.” (Id. at p. 1197.) Accordingly, the Relkin court remanded the case to the trial court with directions to modify the condition to more clearly inform the defendant of what contacts must be reported.

Here, the condition imposed on defendant suffers from the defect identified in Relkin: by requiring that defendant report any contact with law enforcement, it does not differentiate between casual contact unrelated to any criminality, or even suspicion of criminality, and contact which might warrant some further investigation by a probation officer. The People concede that the police contact reporting condition in this case is nearly identical to Relkin, and agree the matter should be remanded. The People assert that they are also “not opposed to modified language specifying that [defendant] must report contacts related to criminal activity and arrests.” We agree that such a limitation on the condition would cure its overbreadth defect by giving defendant unambiguous guidance with respect to what events she must report. However, rather than providing this limitation on the condition by way of interpretation in an appellate opinion, as a practical matter in order to fully protect defendant’s rights, this limitation on the condition should be expressly modified by the trial court. Accordingly, we will remand with directions that the Police Contact Reporting Condition be expressly modified to give defendant unambiguous guidance.

D. The Residency Approval Conditions

Defendant argues the Residency Approval Conditions are unconstitutionally overbroad and not narrowly tailored to further a compelling state interest. Specifically, she asserts that requiring the probation officer’s “approval” as to her choice of residence and her ability to relocate is overbroad and violates her rights to travel and association because it does not advance her rehabilitation or public safety. Accordingly, defendant asks this court to strike the approval language.

A restriction requiring that a probation officer approve a defendant’s residence clearly imposes a burden on that defendant’s constitutional rights to associate and his or her right to intrastate and interstate travel. (Bauer, supra, 211 Cal.App.3d at p. 944 [probation condition requiring that probation officer approve of residence “impinges on constitutional entitlements—the right to travel and freedom of association”].) Nonetheless, a probation condition may restrict these rights as long as it reasonably relates to reformation and rehabilitation. (In re White (1979) 97 Cal.App.3d 141, 146.)

Defendant relies on Bauer to argue that a probation condition that grants a probation officer unfettered discretion to approve or disapprove of a probationer’s residence is facially unconstitutional. Bauer involved a probationer’s challenge to a condition nearly identical to the one here, which requires that defendant obtain his probation officer’s approval of his place of residence. (Bauer, supra, 211 Cal.App.3d at pp. 943-945.) The Bauer court struck the condition, concluding that any requirement that the defendant obtain his probation officer’s approval of his residence was an “extremely broad” restriction, and was not “narrowly tailored to interfere as little as possible” with the constitutional right of travel and to freedom of association. (Id. at p. 944.) Such a condition gave the probation officer the discretionary power to prohibit the defendant from living with or near whomever the probation officer chose—i.e., it gave the probation officer “the power to banish him.” (Ibid.) Here, in contrast, nothing suggests the Residency Approval Conditions were designed to banish defendant from a particular neighborhood or stop her from living where she desires. (People v. Arevalo (2018) 19 Cal.App.5th 652, 657 (Arevalo); see People v. Stapleton (2017) 9 Cal.App.5th 989, 995 (Stapleton) [distinguishing Bauer because “residence condition imposed here is not a wolf in sheep’s clothing; it is not designed to banish defendant”].)

To the extent that defendant’s argument may be considered to be an as-applied challenge to the Residency Approval Conditions on overbreadth grounds, we reject the challenge. First, the Bauer court did not explain whether it was considering a facial or an as-applied challenge to the residency approval condition. Second, there is no mention in Bauer whether the defendant had raised an objection to the condition in the trial court. Although the Bauer court utilized broad language, including language often used in the context of a facial overbreadth analysis, to conclude that the residency approval condition was unconstitutional in that case, it appears from the court’s analysis that it made this determination only after a particularized assessment of the application of this condition to the specific circumstances of that defendant. In fact, the Bauer court’s conclusory constitutional analysis followed discussion of the fact that there was “nothing in the probation report or otherwise a part of the record in this case suggesting in any way that appellant’s home life (which is exemplary compared to that of most convicted felons) contributed to the crime of which he was convicted.” (Bauer, supra, 211 Cal.App.3d at p. 944.) We are unconvinced that the Bauer court was truly considering whether a residency approval condition was unconstitutional in every potential application, as opposed to determining that it was unconstitutional under the unique facts of that case. For this reason, we read Bauer to hold, narrowly, that a residency approval condition may not be constitutionally applied to a defendant where the record demonstrates that the defendant’s rehabilitation would not be served by placing restrictions on his or her residency, given the specific nature of the offender and the nature of his or her offense.

Furthermore, to the extent that defendant is arguing that a residency approval probation condition is unconstitutional as applied to her, we conclude that she has forfeited such an argument by failing to raise it below. (See Sheena K., supra, 40 Cal.4th at p. 889.) Because we conclude that Bauer is not persuasive with respect to determining whether the challenged probation conditions are facially overbroad, we next consider whether review of the Residency Approval Conditions in the abstract reveals that it is not narrowly tailored to the state’s legitimate purpose in imposing it. (See Sheena K., at p. 885 [appellate claim that the language of a probation condition is unconstitutionally vague or overbroad “does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts”].) We cannot say that the Residency Approval Conditions are facially overbroad based on its language and legal concepts.

Even where a court does not provide an individualized assessment of a particular probationer’s needs with respect to his or her living circumstances, the grant of discretionary authority to a probation officer includes an implicit requirement that the discretion be exercised reasonably. (See Stapleton, supra, 9 Cal.App.5th at pp. 996-997 [“A probation officer cannot issue directives that are not reasonable in light of the authority granted to the officer by the court. Thus, a probation officer cannot use the residence condition to arbitrarily disapprove a defendant’s place of residence.”].) We agree with our decision in Stapleton. A residency approval condition “does not grant a probation officer the power to issue arbitrary or capricious directives that the court itself could not order.” (Ibid., citing Kwizera, supra, 78 Cal.App.4th at pp. 1240-1241 [probation condition requiring a probationer to obey directions from his probation officer does not give probation officer “power to impose unreasonable probation conditions”].) We therefore reject the suggestion that the Residency Approval Conditions must include probationer specific criteria in every case in order to avoid being unconstitutionally overbroad.

Further, in considering the “nature of the case,” (Stapleton, supra, 9 Cal.App.5th at pp. 993-994) based on the undisputed facts and defendant’s rehabilitation and public safety, it is apparent that the Residency Approval Conditions reasonably relate to defendant’s reformation and rehabilitation. As our Supreme Court has observed, “Imposing a limitation on probationers’ movements as a condition of probation is common, as probation officers’ awareness of probationers’ whereabouts facilitates supervision and rehabilitation and helps ensure probationers are complying with the terms of their conditional release.” (Moran, supra, 1 Cal.5th at p. 406.) Moreover, in a facial challenge to the constitutionality of a probation condition, it is not clear that a court is required to consider the individual defendant’s rehabilitative needs. (Stapleton, at pp. 993-994 [distinguishing between degree of specificity required in facial versus “‘as applied’” challenge to probation condition as constitutionally overbroad].) It may be sufficient to consider “the nature of the case and the goals and needs of probation in general,” considering, generally, the type of crime involved. (Ibid.) Additionally, it is important to recognize, “probation is a privilege and not a right, and that adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights . . . . [Citations.]” (Olguin, supra, 45 Cal.4th at p. 384.) “If a defendant believes the conditions of probation are more onerous than the potential sentence, he or she may refuse probation and choose to serve the sentence. [Citations.]” (Id. at p. 379; Stapleton, at p. 997.)

The Residency Approval Conditions here are reasonably necessary to rehabilitate defendant and protect the public. Moreover, as our Supreme Court stated in Olguin, “A probation condition should be given ‘the meaning that would appear to a reasonable, objective reader.’ [Citation.]” (Olguin, supra, 45 Cal.4th at p. 382.) And we presume a probation officer will not withhold approval under the Residency Approval Conditions for irrational or capricious reasons (id. at p. 383) and will appreciate there are limited housing options. (Arevalo, supra, 19 Cal.App.5th at p. 658.)

E. The Search Condition

Defendant also argues that the Search Condition, requiring her to “[s]ubmit to immediate search of person/property including at residences/premises/storage units, containers, & vehicles under your control” is overbroad because it “appears to permit unfettered governmental access to [defendant’s] cell phone, computer, electronic devices, and digital media.” Defendant does not challenge the actual language of the condition but asserts the condition is “overly inclusive,” presuming it applies to cell phones, computers, and other electronic storage devices, and infringes on her “rights of freedom from unreasonable searches and right to privacy.” In her supplemental brief, defendant further asserts that the Search Condition must be narrowly tailored to expressly exclude searches of her electronic devices because, under Ricardo P., an electronics search is not reasonably related to her future criminality.

For the reasons explained below, we find the Search Condition is not impermissibly vague because it is properly construed not to authorize electronic searches. This in turn moots defendant’s overbreadth challenge.

In re I.V. (2017) 11 Cal.App.5th 249 (I.V.) involved essentially the same challenge as the one before us. The minor in I.V. challenged a “probation condition requiring him to submit his ‘person, property, or vehicle, and any property under [his] immediate custody or control to search at any time, with or without probable cause, with or without a search warrant’” as unconstitutionally vague and overbroad because it might encompass searches of electronic devices and data. (Id. at pp. 259-260.) The Court of Appeal found the minor’s failure to challenge the condition in the juvenile court forfeited the overbreadth challenge but did not forfeit the vagueness contention. (Id. at pp. 260-261.) It further found the condition was not vague when properly construed.

The I.V. court found probation conditions authorizing searches of a probationer’s person and property “are ‘routinely imposed.’” (I.V., supra, 11 Cal.App.5th at p. 261.) In many criminal proceedings, electronic search conditions were instead specifically imposed “in addition to the standard search condition where they intend to subject a minor’s electronic data to search.” (Ibid.) Since there was no indication the juvenile court intended to impose an electronic search condition, the Court of Appeal concluded, “[r]easonably construed, the search condition applies only to tangible physical property, and not to electronic data.” (Id. at p. 262.) Accordingly, the I.V. court declined the minor’s “‘invitation to modify [the search condition] simply to make explicit what the law already makes implicit.’” (Id. at p. 263.)

I.V. was distinguished in People v. Sandee (2017) 15 Cal.App.5th 294 (Sandee). The defendant in Sandee was subject to a probation condition authorizing warrantless searches of her property and personal effects when police searched her cell phone without a warrant. (Id. at pp. 297-298.) The Court of Appeal found a reasonable person would find the condition included searches of cell phones because the “condition is worded very broadly and contains no language whatsoever that would limit the terms ‘property’ and ‘personal effects’ to exclude Sandee’s cell phone or other electronic devices and the data stored on them.” (Id. at p. 302.)

The timing of the search was essential to the result in Sandee. (See Sandee, supra, 15 Cal.App.4th at p. 301 [“We conclude that the proper inquiry focuses on what a reasonable, objective person would understand the search condition to mean at the time of the search”].) The Legislature had enacted the Electronic Communications Privacy Act (Pen. Code, § 1546, et. seq.) (ECPA) which prevented a government entity from accessing “electronic device information by means of physical interaction or electronic communication with the electronic device” absent certain enumerated exceptions such as the specific consent of the owner or “[e]xcept where prohibited by state or federal law, if the device is seized from an authorized possessor of the device who is subject to an electronic device search as a clear and unambiguous condition of probation, mandatory supervision, or pretrial release.” (§ 1546.1, subds. (a)(3), (c)(4), (c)(10); Sandee, at pp. 304-305.) The ECPA took effect on January 1, 2016, after the search in Sandee. (Sandee, at p. 304.) “As the ECPA was not in effect at the time of the search, a reasonable, objective person at the time of the search would not have understood the ECPA to restrict the scope of the search permitted by the probation orders.” (Id. at p. 305.) This also allowed the Sandee court to distinguish I.V., as the search condition in that case was promulgated after the ECPA took effect. “In light of the fact that I.V. considered the scope of a search condition imposed after the ECPA became effective in January 2016, although I.V. used broad language in describing its holding, we do not find its analysis regarding the scope of the probation search condition to be applicable in this case, in which the search at issue took place before the ECPA.” (Sandee, at p. 306.)

Ricardo P. is also relevant to this appeal. In that case, the California Supreme Court found the electronics search condition was not reasonably related to future criminality under Lent because the record contained no indication the minor “had used or will use electronic devices in connection with drugs or any illegal activity.” (Ricardo P., supra, 7 Cal.5th at p. 1116.) Ricardo P., at page 1119 mandates “more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality.” (Id. at p. 1121.) Since an electronics search condition significantly burdens the probationer’s right to privacy, such a condition was not reasonable under Lent’s third prong unless the court has “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.)

“From Ricardo P.[, supra, 7 Cal.5th 1113] we glean the following guidelines for determining when an electronic[s] search condition survives the third prong of Lent . . . . First, there must be information in the record establishing a connection between the search condition and the probationer’s criminal conduct or personal history—an actual connection apparent in the evidence, not one that is just abstract or hypothetical. [Citation.] But no nexus between the search condition and the [probationer]’s underlying offense is required. . . . Finally, ‘the burden imposed by [the] probation condition’ must be proportionate to ‘the legitimate interests served by the condition.’ [Citation.] Thus, ‘“[a] condition of probation that enables a probation officer to supervise his or her charges effectively is . . . ‘reasonably related to future criminality,’”’ only if its infringement on the probationer’s liberty is not ‘substantially disproportionate to the ends of reformation and rehabilitation.’” (In re Alonzo M. (2019) 40 Cal.App.5th 156, 166, italics omitted.)

Here, the ECPA was in effect when the trial court imposed the Search Condition on September 28, 2017. While Ricardo P. was decided after the Search Condition was imposed, it is clear that after Ricardo P., a probation search condition cannot authorize a warrantless search of electronic devices absent specific factual findings supporting such a condition under Lent’s third prong. Such findings are absent here because the trial court, like the one in I.V., did not appear to contemplate electronic searches when it imposed the Search Condition.

A probation search condition will support the search of an electronic device only if such a search is specifically authorized by the condition and it is supported by factual findings from the court imposing the condition. Since neither is present here, we construe the Search Condition to apply only to searches for tangible items and not to authorize searches of defendant’s electronic devices. Accordingly, defendant’s overbreadth challenge to the Search Condition is without merit as it is premised entirely on it possibly authorizing electronic searches.

We note that on remand, if the trial court contemplated the Search Condition to include searches of electronic devices, a factual showing that satisfies the standard announced in Ricardo P. must be met, and the electronic devices search condition must be narrowly tailored in a manner that will allow it to pass constitutional muster. (Ricardo P., supra, 7 Cal.5th at p. 1122 [a proper factual showing is made that demonstrates “a degree of proportionality between the burden imposed by [the] probation condition and the legitimate interests served by the condition”]; see Riley v. California (2014) 573 U.S. 373, 393-394, 396 [Riley considered whether the police may conduct a warrantless search of digital information on a cell phone seized from an individual who has been arrested and found 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 a defendant’s private affairs]; People v. Appleton (2016) 245 Cal.App.4th 717, 725 [An electronics search condition “arguably sweeps more broadly than the standard three-way search condition allowing for searches of probationers’ persons, vehicles, and homes.”].)

F. No-Contact Conditions

Defendant claims that the No-Contact Conditions, which forbid association with “‘any unrelated person you know to be . . . a gang member’” and “‘any unrelated person you know to be a possessor, user or trafficker of controlled substances’” are unconstitutionally overbroad. She further asserts that the No-Contact Conditions limit her First Amendment right of association because the conditions are not narrowly tailored to a compelling state interest.

The United States Constitution generally protects freedom of association, certain symbolic or expressive conduct, and the liberty to make certain intimate personal choices (see U.S. Const., Amends. 1, 14; Roberts v. U.S. Jaycees (1984) 468 U.S. 609, 617-618 [freedom of association receives protection as a fundamental element of personal liberty and as an aspect of the First Amendment]). Nevertheless, reasonable probation conditions may infringe upon constitutional rights provided they are closely tailored to achieve legitimate purposes. (See Olguin, supra, 45 Cal.4th at p. 384; Sheena K., supra, 40 Cal.4th at p. 890; see United States v. Knights (2001) 534 U.S. 112, 119 [“Inherent in the very nature of probation is that probationers ‘do not enjoy “the absolute liberty to which every citizen is entitled.”’”].)

The California Supreme Court has observed that “restrictive probation conditions” analogous to a condition of probation barring a defendant from associating with criminals and drug users “have been upheld even though they clearly affect a probationer’s associational rights. (See, e.g., [Lopez, supra, 66 Cal.App.4th at pp. 628-629] [condition prohibiting association with known gang members]; People v. Peck (1996) 52 Cal.App.4th 351, 363 [condition prohibiting association with known possessors, users, or traffickers of controlled substances who were unrelated to probationer]; People v. Garcia (1993) 19 Cal.App.4th 97, 101-103 [(Garcia)] [condition prohibiting association with known users or sellers of narcotics, felons, or ex-felons]; People v. Wardlow (1991) 227 Cal.App.3d 360, 366-367 [condition prohibiting association with child molesters].)” (Olguin, supra, 45 Cal.4th at p. 385, fn. 4.) Nonetheless, probation conditions restricting constitutional rights are scrutinized for overbreadth.

In Garcia, supra, 19 Cal.App.4th 97, an appellate court determined that “[a] condition of probation that prohibit[ed] appellant from associating with persons who, unbeknownst to him, have criminal records or use narcotics” was unconstitutionally overbroad because it forbid “association with persons not known to him to be users and sellers of narcotics, felons or ex-felons.” (Id. at p. 102.) The court modified the condition to provide that he was “not to associate with persons he knows to be users or sellers of narcotics, felons or ex-felons.” (Id. at p. 103, italics added.)

In Lopez, supra, 66 Cal.App.4th 615, the defendant was subjected to the following probation condition: “‘The defendant is not to be involved in any gang activities or associate with any gang members, nor wear or possess, any item of identified gang clothing, including: any item of clothing with gang insignia, moniker, color pattern, bandanas, jewelry with any gang significance, nor shall the defendant display any gang insignia, moniker, or other markings of gang significance on his/her person or property as may be identified by Law Enforcement or the Probation Officer.’” (Id. at p. 622.) The appellate court found that the probation condition was unconstitutionally overbroad because it prohibited him “from associating with persons not known to him to be gang members” and “from displaying indicia not known to him to be gang related.” (Id. at pp. 628-629.) The court modified the condition by inserting a knowledge requirement. (Id. at p. 638.)

In O’Neil, supra, 165 Cal.App.4th 1351, the terms of probation included a condition forbidding the defendant from associating “‘with any person, as designated by your probation officer.’” (Id. at p. 1354.) The appellate court determined that the condition was unconstitutionally overbroad in two respects. (Id. at p. 1357.) The first problem was that the restriction on association was not expressly limited to those persons that the defendant knew had been designated by his probation officer. (Ibid.) The second defect was that the condition did not “identify the class of persons with whom defendant may not associate” or “provide any guideline as to those with whom the probation department may forbid his association.” (Id. at pp. 1357-1358.)

Here, unlike Garcia, Lopez, and O’Neil, the No-Contact Conditions include a knowledge requirement. The No-Contact Conditions direct defendant to not associate with people she knows to be engaged in criminal activity. The conditions prevent defendant from associating with people who are on active probation or parole, who are in gangs, and who use and traffic in controlled substances. The No-Contact Conditions therefore are rationally related to the state’s interest in reforming and rehabilitating defendant and do not place defendant “completely at the mercy” of the probation officer. (Penoli, supra, 46 Cal.App.4th at p. 308.) If she is “concerned about particular risks” arising from the No-Contact Conditions, she may “seek judicial intervention—by moving to modify the probation order . . . if and when the probation officer seeks to exercise the delegated authority. [Citation.]” (Ibid.; see § 1203.3, subd. (a).)

Moreover, as defendant acknowledges, probation conditions forbidding probationers to have contact with gang members or those he or she knows to be users of narcotics have been found constitutional. (See Garcia, supra, 19 Cal.App.4th at pp. 102-103; Lopez, supra, 66 Cal.App.4th at pp. 627-628.) Defendant claims that the record shows “no gang membership by [defendant] or her family, or any criminal history reflecting ties to gang activity or to people possessing, using or trafficking controlled substances.” To the extent defendant challenges the No-Contact Conditions as applied to her, we reject defendant’s claim as she did not object to imposition of the No-Contact Conditions below. (See Welch, supra, 5 Cal.4th at p. 236.)

Based on the foregoing, we find the No-Contact Conditions to be neither unconstitutionally vague nor overbroad.

IV

DISPOSITION

The case is remanded to the Riverside County Superior Court with directions to modify the Police Contact Reporting Condition, consistent with the views expressed in this opinion. If the trial court contemplated the Search Condition to include searches of electronic devices, a factual showing that satisfies the standard announced in Ricardo P. must be met, and the electronic devices search condition must be narrowly tailored in a manner that will allow it to pass constitutional muster. In all other respects, the judgment in both cases are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

SLOUGH

J.