Filed 12/9/19 P. v. Williams 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

DAVID PAUL WILLIAMS,

Defendant and Appellant.

C082895

(Super. Ct. No. 16FE015717)

After defendant David Paul Williams pleaded no contest to possession of methamphetamine for sale, (Health & Saf. Code, § 11378) the trial court granted him five years’ probation. On appeal, defendant contends: (1) the imposition of an electronics search condition as a condition of his probation is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent); and (2) the penalty assessments imposed on the criminal laboratory analysis fee must be stricken. We agree with defendant as to the first claim only. Accordingly, we strike the electronics search condition from the probation order and affirm the judgment as modified.

BACKGROUND

Defendant possessed 7.75 grams of methamphetamine for sale. He pleaded no contest to possession of methamphetamine for sale. The trial court granted defendant five years’ probation, conditioned on serving 150 days in jail.

At the plea hearing, the trial court asked the parties to address the imposition of the electronics search condition. The People argued the condition should be imposed because people convicted of drug sales offenses maintain ledgers of their drug sales on electronic devices; may take pictures of the narcotics, co-conspirators, or manufacturing or sales locations; and keep contact lists of customers, co-conspirators, or competitors. Defense counsel argued that law enforcement found the drugs in the context of a probation search, and there was no indication defendant had used a cell phone or had documenting ledgers.

The parties also filed boilerplate briefs in support of their respective positions. Attached to the People’s brief was a declaration from Sean Smith, a detective with the Sacramento County Sheriff’s Department. The declaration indicates generally Smith’s background and experience as a peace officer and delineates the type of evidence that may be found on electronic devices as to various categories of criminal offenses, including drug sale offenses. As to drug sale offenses, Smith declared those who engage in drug sales may keep records of the sales on their electronic devices; take photographs of the narcotics; use their cellular devices to communicate with customers, co-conspirators or competitors; use social media to post videos, pictures and commentary of their illegal conduct; and geolocation data may be used to place a suspect at a given time and location. The declaration also delineates in general terms, the law enforcement need to have complete access to electronic devices, including all the contents and all passwords. The prosecution’s arguments at the hearing, in the briefs, and in Smith’s declaration do not contain any arguments or information specific to this defendant, his criminal background, or the particular offense he committed. The trial court found the condition reasonably related to the charge defendant pleaded to and imposed the condition.

DISCUSSION

I

Electronic Devices Search Condition

Defendant contends the electronics search condition imposed in this case is invalid under Lent because the condition is not related to the current offense, the conduct to which the condition relates is not, in itself, criminal, and the condition is not related to future criminal conduct.

We review conditions of probation for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) “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 . . . . ’ [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.)” (In re Ricardo P. (2019) 7 Cal.5th 1113, 1118 (Ricardo P.).) Accordingly, even if the probation condition is unrelated to the crime defendant was convicted of and relates to conduct not itself criminal, “the condition is valid as long as the condition is reasonably related to preventing future criminality. [Citation.]” (Olguin, supra, at p. 380.)

Recently, the California Supreme Court clarified the parameters of the Lent test’s third prong, whether the condition “ ‘ “requires or forbids conduct which is not reasonably related to future criminality.” ’ [Citation.]” (Ricardo P., supra, 7 Cal.5th at p. 1119.) In Ricardo P., the minor was placed on probation after admitting to two counts of burglary. The juvenile court imposed drug conditions because the minor had indicated he had previously smoked marijuana, and imposed a condition requiring the minor “submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices.” (Id. at p. 1115.) Nothing in the record indicated the minor had ever used electronic devices to commit, plan, discuss or consider criminal conduct. Nonetheless, the juvenile court imposed the electronics search condition based on its own “observation that teenagers ‘typically’ brag about such drug use on social media.” (Id. at pp. 1117, 1119.) Although the Supreme Court was skeptical about generalization about teenagers’ tendency to brag about drug use on social media, the Supreme Court found that even accepting that premise as true, Lent’s third prong was not satisfied by an abstract or hypothetical relationship between the probation condition and preventing future criminality. (Id. at pp. 1119-1120.)

The Supreme Court also found the third prong of the Lent test “contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition. [Citations.]” (Ricardo P., supra, 7 Cal.5th at p. 1122.) This condition significantly burdened the minor’s privacy interests, given how much sensitive and confidential information can be accessed on devices like cell phones and the limited justification for the condition did not support such a significant burden. (Id. at pp. 1122-1123.) Accordingly, the Supreme Court found the electronics search condition was not reasonably related to future criminality and was, therefore, invalid under Lent. In so doing, the Supreme Court expressly noted its determination was not a blanket invalidation of all such conditions, as there might be cases in which “the probationer’s offense or personal history may provide the []court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality. [Citations.]” (Id. at pp. 1128-1129.)

As in Ricardo P., only the third prong of the Lent test is at issue here. The factual basis for the plea indicates only that defendant possessed methamphetamine for sale. There is no probation report and no evidence regarding any personal history of defendant. Nothing in the record indicates defendant used an electronic device in committing this offense, or had any history of using electronic devices to commit, facilitate or plan criminal conduct, or of using social media to demonstrate he had engaged in criminal conduct. The only support for the condition in the record is the prosecutor’s generalized declaration at the plea hearing and Smith’s generalized declaration, neither of which contained any information as to this defendant or the specific offense he was convicted of. In sum, these statements indicated that defendants in drug sale cases often maintain records of drug sales and customer contact lists on electronic devices; take pictures of the narcotics, co-conspirators, communication with customers, co-conspirators or competitors; post videos, photographs, or comments on social media posts; and geolocation information may reveal manufacturing or sales locations. Even presuming these assertions as true, without more, these generalized, hypothetical statements do not satisfy the requirements of Lent, any more than the juvenile court’s generalized statements about teenagers posting their drug use on social media did in Ricardo P.

This case falls squarely within the concerns articulated in Ricardo P.: “If we were to find this record sufficient to sustain the probation condition at issue, it is difficult to conceive of any case in which a comparable condition could not be imposed, especially given the constant and pervasive use of electronic devices and social media . . . today. In virtually every case, one could hypothesize that monitoring a probationer’s electronic devices and social media might deter or prevent future criminal conduct. . . . [Citation.] Indeed, whatever crime a [probationer] might have committed, it could be said that [probationers] may use electronic devices and social media to mention or brag about their illicit activities.” (Ricardo P., supra, 7 Cal.5th at p. 1123.) If the prosecutor’s generalized and hypothetical declaration was “sufficient to justify the substantial burdens the condition imposes, it is hard to see what would be left of Lent’s third prong.” (Id. at p. 1124.) Accordingly, we find this condition is not reasonably related to future criminality and is therefore invalid under Lent. (Lent, supra, 15 Cal.3d at p. 486.) Having determined this condition is invalid under Lent, we need not address defendant’s additional claims challenging the condition.

II

Penalty Assessment

Relying on People v. Watts (2016) 2 Cal.App.5th 223, defendant next contends the trial court erred in adding penalty assessments on the criminal laboratory fees imposed pursuant to Health and Safety Code section 11372.5, because that laboratory fee is not a punishment.

After the parties submitted their briefing in this matter, our Supreme Court considered whether the criminal laboratory analysis fee (§ 11372.5, subd. (a)) constituted “ ‘punishment,’ ” rendering it permissible to impose these two fees on a defendant who had committed a conspiracy to commit a drug offense that was specified in the statute establishing these two fees. (People v. Ruiz (2018) 4 Cal.5th 1100, 1104.) After considering the legislative history of the statutes enacting both fees, the Ruiz court determined that the fees constituted punishment and could be imposed in conspiracy cases. (Id. at p. 1119.) The Ruiz court also explicitly rejected and disapproved of People v. Watts. Although Ruiz determined that section 11372.5, subdivision (a) constituted “ ‘punishment,’ ” it did not address whether a penalty assessment should be levied for these statutes. Nonetheless, the reasoning of Ruiz supports the conclusion that the criminal laboratory analysis fees are punishment for purposes of the penalty assessments of Penal Code section 1464 and Government Code section 76000, subdivision (a). That is, “it is clear the Legislature intended the fees at issue here to be punishment.” (Ruiz, supra, at p. 1122.) Because it was intended to be punishment, the penalty assessments are mandatory. Accordingly, the trial court did not err in imposing penalty assessments on the crime lab fees.

DISPOSITION

The judgment is modified to strike the electronics search condition. In all other respects the judgment is affirmed. 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/

BUTZ, J.

/s/

HOCH, J.