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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

GAVIN VICTOR CLAY,

Defendant and Appellant.

C082597

(Super. Ct. No. 16FE013001)

Defendant Gavin Victor Clay appeals a judgment entered following his no contest plea to possession of paper and a printer or other thing for the purpose of counterfeiting bank notes or bills (Pen. Code, § 480, subd. (a)) and grant of felony probation for a term of five years. Defendant challenges the electronics search condition and associated provisions imposed as a condition to probation, arguing they are invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent) and also violate the United States Constitution.

We concur that the trial court’s imposition of specific probation conditions No. 6 and No. 9 violated the third prong of Lent as explained in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). Given this finding, we do not reach defendant’s other arguments. Accordingly, we will strike these conditions and otherwise affirm the judgment.

I

The People’s felony complaint charged defendant with “possession of a paper and a printer, or other thing for the purpose of counterfeiting bank notes or bills.” (§ 480, subd. (a).) Defendant pleaded no contest to this charge, with a factual basis that on “June 29, 2015, in the county of Sacramento, the defendant committed a felony violation of Penal Code Section 480(a) in that he willfully, unlawfully, and knowingly, possessed a printer for the purposes of producing counterfeit bills.”

Defendant waived a formal probation report and was sentenced at the same hearing to five years’ felony probation and 120 days in county jail with credit for 29 days served. The court imposed a $300 restitution fine (§ 1202.4), a stayed $300 probation revocation restitution fine (§ 1202.44), a $30 criminal conviction fee (Gov. Code, § 70373), and a $40 court operations fee (§ 1465.8). The court refused to impose the recommended booking and classification fees, but assessed a criminal impact fee (§ 1465.7, subd. (a)) and required defendant pay the monthly costs of probation and urinalysis testing.

Included within the probation conditions imposed by the court were two pertaining to searches of defendant’s electronic information: specific conditions No. 6 and No. 9. Specific condition No. 6 stated: “Defendant shall disclose all e-mail accounts, all Internet accounts, and any other means of access to any computer or computer network, all passwords and access codes. Defendant shall consent to the search of such e-mail and Internet accounts at any time and the seizure of any information or data contained therein without a search warrant or probable cause.”

Specific condition No. 9 stated: “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 phones and computers, to search and seizure by any law enforcement officer or probation officers, 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.”

These provisions were imposed over defendant’s objection, with the court noting that while there was no evidence that defendant had utilized a computer in this offense, defendant may have used a computer to obtain his underlying counterfeiting paraphernalia. The court further noted that defendant had already been on probation for the same offense. Defendant timely appealed.

II

Defendant requests we strike specific conditions No. 6 and No. 9 because they are invalid under Lent. We concur.

“The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. (Pen. Code, § 1203 et seq.)” (Lent, supra, 15 Cal.3d at p. 486.) Consequently, imposition of a probation condition is reviewed for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379.) “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, at p. 486.) The Lent test “is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, 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. [Citation.]” (Olguin, supra, at pp. 379-380.)

Because the challenged electronics search provisions found in specific probation conditions No. 6 and No. 9 neither relate to a crime for which defendant was convicted, nor to conduct which is itself criminal, only the third Lent factor is implicated in this case. Thus, we must decide whether the challenged electronics search conditions were “ ‘reasonably related to future criminality.’ ” (Lent, supra, 15 Cal.3d at p. 486.)

We find the Supreme Court’s recent decision in Ricardo P., supra, 7 Cal.5th 1113, which was decided after briefing concluded here, instructive. In that case, a minor was placed on probation after admitting to two counts of burglary. Included among the conditions of probation was that he “submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices.” (Id. at p. 1115.) While the minor did not use electronic devices in committing the burglaries, the juvenile court “imposed the condition in order to monitor his compliance with separate conditions prohibiting him from using or possessing illegal drugs.” (Ibid.)

Similar to this case, the Supreme Court granted review to determine “whether the electronics search condition satisfies Lent’s third prong—that is, whether it ‘ “requires or forbids conduct which is not reasonably related to future criminality.” ’ [Citation.]” (Ricardo P., supra, 7 Cal.5th at p. 1119.) The court determined 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. [Citations.]” (Id. at p. 1122.)

However, it found that relationship was not met. (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.) The court noted the electronics search condition significantly burdened the minor’s privacy interests given how much sensitive and confidential information can be accessed on devices like cell phones. (Id. at pp. 1120-1123.) In contrast, the record did not support such a significant burden on the minor’s privacy. The only rationale provided by the trial court was evidence that the minor previously used marijuana and its observation that minors often brag about using marijuana or other drugs by posting online pictures of themselves with drugs or paraphernalia. (Ibid.) Such an abstract or hypothetical connection to the interest served by the probation condition was insufficient to justify the significant intrusion into the minor’s privacy. (Ibid.)

The court reasoned: “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 by juveniles 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. For example, an electronics search condition could be imposed on a defendant convicted of carrying an unregistered concealed weapon on the ground that text messages, e-mails, or online photos could reveal evidence that the defendant possesses contraband or is participating in a gang. [Citation.] Indeed, whatever crime a juvenile might have committed, it could be said that juveniles may use electronic devices and social media to mention or brag about their illicit activities.” (Ricardo P., supra, 7 Cal.5th at p. 1123.)

Nor did the court accept the argument that any condition reasonably related to effective supervision was valid under Olguin, which had upheld a probation condition requiring the probationer to notify the probation officer of the presence of any pets at his or her residence. (Ricardo P., supra, 7 Cal.5th at pp. 1124-1127.) Unlike a minimally intrusive notification requirement meant to ensure officer safety, “requiring a probationer to surrender electronic devices and passwords to search at any time is far more burdensome and intrusive, and requires a correspondingly substantial and particularized justification.” (Id. at p. 1126.)

Like the minor in Ricardo P., here, the record is devoid of any information from which we could find a proportionality between the privacy intrusion imposed by specific probation conditions No. 6 and No. 9 and the goal of deterring defendant’s future criminality, to wit, possession of a printer for purposes of counterfeiting bills and/or compliance with the condition that he obey all laws. The People’s suggestion that the term was justified based upon generic information from Detective Sean Smith is materially indistinguishable from the trial court’s generic justification in Ricardo P. that minors often brag about marijuana use on social media. (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123.)

Further, while it is true that an electronic device may have been used to purchase the printer and a printer may receive signals from an electronic device, there is no evidence in the record actually supporting that defendant utilized a computer, cell phone or other electronic storage device in an elicit way either in the offense itself (Lent’s first prong) or at any other time (Lent’s third prong). Thus, while there may be circumstances where a defendant’s personal history may justify an electronics search condition as a means of deterring future criminality (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129), here, there is no evidence that defendant has ever utilized his electronic devices or accounts in a manner so as to justify imposition of these search conditions. Accordingly, specific probation conditions No. 6 and No. 9 cannot withstand scrutiny under Lent and must be stricken. (Id. at p. 1129.)

DISPOSITION

The judgment is modified to strike specific probation conditions No. 6 and No. 9. 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.