Filed 12/10/19 P. v. Guerrero CA1/4

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

FABIOLA GUERRERO,

Defendant and Appellant.

A151914

(Marin County

Super. Ct. No. SC191528A)

We here reconsider the propriety of an electronic device search condition upon remand from the Supreme Court following its decision in In re Ricardo P. (2019) 7 Cal.5th 1113.

Defendant Fabiola Guerrero was charged with several crimes arising out of her altercation with a woman who previously dated her boyfriend. Ultimately, she pled guilty to assault by means likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)) and was placed on probation. On appeal, defendant challenges the condition of her probation authorizing searches of her electronic devices. She concedes that imposition of the electronic search condition is not unreasonable under People v. Lent (1975) 15 Cal.3d 481 insofar as limited to monitoring her compliance with the requirement that she have no contact with the victim. She contends, however, that the condition imposed must be narrowed to permit monitoring only for that specific purpose. Following the court’s decision in In re Ricardo P., supra, 7 Cal.5th 1113, we agree.

Background

A. Factual Background
B.
In November 2014, defendant was dating Eduardo Alvarez. Alvarez and a woman named Natalie have a child together.

On November 19, defendant called Natalie from Alvarez’s phone and told her that if she ever called Alvarez again, defendant would beat her. Natalie responded that she needed to have contact with Alvarez because they share a child. Some time afterward, defendant and Alvarez terminated their relationship. On November 20, Alvarez called Natalie and warned her that defendant intended to start a fight with her at her work place. Natalie was concerned but did not call the police.

On November 21, around 7:50 p.m., in the parking lot behind her place of work Natalie was attacked by defendant and two women she did not recognize. Defendant knocked Natalie to the ground, pulled her hair, and punched her in the face several times. One of defendant’s friends participated in the attack while the other recorded it on a cell phone or some other device. Then defendant took Natalie’s purse and another bag of items from Natalie’s car and left.

Natalie reported the attack to the police. Officers took photographs of the visible injuries to her face and itemized the property defendant had stolen, valued at $1,681. The police also arranged for Natalie to call Alvarez, who gave Natalie defendant’s address and Facebook account name, but said defendant had changed her phone number and he did not know it.

On November 22, defendant sent an Instagram message to Natalie’s sister asking for Natalie’s phone number, which the sister provided. Then defendant called Natalie and warned that if she pressed charges, defendant would not return her property. Defendant also warned that even if she went to jail, her friends would “go after” Natalie and “things will only get worse.”

On November 24, Natalie created an Instagram account and exchanged messages with defendant about the attack. Natalie showed the police messages from defendant admitting what she had done to Natalie and also an intimidating phone message defendant left for her.

C. Trial Court Proceedings
D.
A December 2014 complaint charged defendant with three felonies arising out of the November 21 attack: second degree robbery (§ 211), assault by means likely to cause great bodily injury (§ 245, subd. (a)(4) ), and dissuading a witness (§ 136.1, subd. (c)(1)). The complaint further alleged that the first and third charges were serious or violent felonies under several enhancement statutes. (§ 667.5, subd. (c); § 1192, subd. (c); § 1170.12, subds. (a)–(c).)

In May 2017, defendant entered a guilty plea to the felony assault pursuant to a negotiated disposition under which she would be placed on probation and the other two charges would be dismissed. Subsequently the court received a probation report which proposed several terms and conditions, including a “no contact” condition, which stated: “Defendant ordered not to contact, call or otherwise communicate with victim(s) during probationary period.” The department also proposed the following electronic search condition: “Defendant shall submit to search of all electronic devices, including cell phones and computers at any time of the day or night by any law enforcement officer, probation officer, or mandatory supervision officer, with or without a warrant, probable cause or reasonable suspicion over which the defendant has control over or access for electronic communication. Defendant must provide access/passwords to any electronic devices, computers, cell phones, accounts and applications to any law enforcement officer, probation officer, or mandatory supervision officer.”

At the sentencing hearing, defendant’s trial counsel objected to the electronic search condition as both unreasonable under People v. Lent, supra, 15 Cal.3d 481, and unconstitutionally overbroad. Counsel argued that the search condition implicated defendant’s significant constitutional rights and that “electronic search device terms are not permissible in a case like this where there’s really no connection between electronic devices and the crime of conviction.” Counsel elaborated that there was no evidence defendant used a cell phone or electronic device to commit the assault, and that it was the victim who created an Instagram account for the purpose of communicating with defendant.

After the matter was submitted, the court stated: “What I intend to do is carve out this search condition with respect to electronic devices to allow probation to review any electronic devices to look at call log histories, as well as any social media, and that is because of the use of social media, as well as the mobile phone device to contact the victim, regardless of what the victim—whether the victim had a legitimate account or a fake account that she set up. [¶] Additionally, what I see is that with respect to the protective order, which I intend to issue in this case, that would be a condition prohibiting any contact. And I need to give Probation the ability to make sure that the defendant is abiding by that term and condition.”

Before pronouncing defendant’s sentence, the court addressed other objections raised by defendant’s counsel, sustaining some and rejecting others. Then the court suspended imposition of sentence and placed defendant on three years’ probation. The terms and conditions of probation included the following: “You will be subject to search and seizure of any electronic devices, including cell phones, which would include social media. It will be limited to social media and call logs and text messaging and email. You must turn over any passwords with respect to those means of communication and provide that information to law enforcement or any probation officer.”

Defendant’s trial counsel renewed her objection to this condition, stating: “It wasn’t clear to me if you departed in any way from what was proposed in the probation report. You called it carving out an exception, but it didn’t sound like that.” The court responded that it was not giving the probation department “carte blanche” to search defendant’s devices and computer files and documents, but rather was “limiting the search to media communication which would include social media, the actual phone, and then texting and emails.”

Discussion

Defendant acknowledges her “use of electronic devices and social media to communicate with the victim prior to and after the assault” provides a “sufficient factual basis for the court to impose an electronic search condition” designed to monitor her compliance with the no-contact order. (See In re Alonzo M. (2019) 40 Cal.App.5th 156, 166 [electronic search condition may be imposed for purpose of monitoring compliance with probation condition that that requires minor “to stay away from his coresponsibles and from other people of whom his parents or the probation officer disapprove.”].) The language of the electronic search condition imposed in this case, however, is not limited to monitoring defendant’s compliance with the no-contact requirement. It authorizes a search of defendant’s “social media and call logs and text messaging and email” contained on “any electronic devices, including cell phones.” As in In re Alonzo M., supra, 40 Cal.App.5th at page 168, we conclude that, as presently drafted, the search condition burdens defendant’s “privacy in a manner substantially disproportionate to the probation department’s legitimate interest in monitoring [her] compliance with the stay-away orders.” (See also In re Ricardo P., supra, 7 Cal.5th at pp. 1126, 1128 [“ ‘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.”].) Accordingly, we shall modify the electronic search condition to allow search of any medium of communication reasonably likely to reveal whether defendant is communicating with the victim, and solely for that purpose.

Disposition

The electronic search condition is modified to read: “Any medium of communication, including social media, call logs, text messaging and email, on any electronic devices under your control is subject to search for the purpose of monitoring your compliance with the no-contact order. You must turn over any passwords with respect to those means of communication and provide that information to law enforcement or any probation officer.”

As so modified, the judgment and probation order are affirmed.

POLLAK, P. J.

WE CONCUR:

STREETER, J.

BROWN, J.