Filed 1/14/20 P. v. Sotelo CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOE ANTHONY SOTELO,

Defendant and Appellant.

H045745

(Santa Clara County

Super. Ct. Nos. C1628625;

C1526604; C1779078)
Defendant Joe Anthony Sotelo challenges mandatory supervision conditions imposed as part of a split sentence after he pleaded no contest to, among other things, possessing methamphetamine for sale in multiple cases. Defendant argues the conditions relating to personal electronic devices are unreasonable, as well as unconstitutionally vague and overbroad. Based on guidance from In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), we will strike one condition requiring the retention of Internet browsing history as unreasonable and affirm the judgment as modified.

I. TRIAL COURT PROCEEDINGS
II.
The following factual summary is based on preliminary hearing transcripts in three criminal cases. In the first, a San Jose Police Department officer was on patrol one afternoon in October 2015 when he noticed a car parked in a red zone. Defendant and another person were walking back and forth between that car and another one. When the officer approached, he noticed an open beer can in plain view in the illegally parked car. A car search uncovered a digital scale, $3,200 in cash, and 26 grams of methamphetamine. A cellular phone was recovered, and the officer did not find any text messages suggesting drug sales. Defendant was held to answer and charged in that case (No. C1526604) with possessing methamphetamine for sale (Health & Saf. Code, § 11378), along with allegations that he had served five prior prison terms (Pen. Code, § 667.5, subd. (b)) and had one prior conviction for a drug offense (Health & Saf. Code, § 11370.2).

In the second case, a San Jose Police Department officer was on patrol one night in November 2015 when he observed a car driven by defendant blocking both lanes of traffic. The officer directed a spotlight at the car, causing defendant to move the car and start driving away. The officer stopped defendant for a moving violation a short time later. As the officer approached, defendant immediately got out of his car and accused the officer of racial profiling. Defendant appeared to be under the influence of methamphetamine (he was sweaty, he had burnt fingertips, his eyelids were fluttering, and his pulse appeared elevated). A car search (apparently consensual) revealed almost seven grams of methamphetamine, plastic baggies, a new glass pipe of the sort used to smoke methamphetamine, and over $700 in cash. No cellular phone was recovered. Defendant was held to answer and charged in that case (No. C1628625) with possessing methamphetamine for sale (Health & Saf. Code, § 11378) and two misdemeanors. The information also alleged defendant was on bail when he committed the crimes (Pen. Code, § 12022.1), that he had served five prior prison terms (Pen. Code, § 667.5, subd. (b)), and that he had one prior conviction for a drug offense (Health & Saf. Code, § 11370.2).

Defendant pleaded no contest to the charges in those two cases as part of a negotiated disposition with an indicated prison sentence of three years eight months, based on the upper term of three years for possessing methamphetamine for sale in case No. C1526604 and eight months (one-third the midterm) for possessing methamphetamine for sale in case No. C1628625. All enhancements in both cases would stricken. Defendant was released from custody after the plea with a Cruz waiver. (People v. Cruz (1988) 44 Cal.3d 1247.)

Before defendant was sentenced in those two cases, he was pulled over by a Santa Clara County Sherriff’s deputy early one morning in October 2017. The deputy (who was designated at the preliminary hearing as an expert in investigating possession for sale cases) testified that she ran the license plate on the car defendant was driving and discovered that its registration was expired, even though the car had what appeared to be valid registration tags. During the traffic stop that followed, the deputy learned defendant’s driver’s license was suspended. A car search uncovered over 10 grams of methamphetamine, plastic baggies, and over $600 in cash. The deputy testified that during a consent search of defendant’s cellular phone she saw text messages that in her training and experience indicated drug sales. (The messages themselves were not admitted into evidence because of a sustained hearsay objection.) Defendant was held to answer and charged in the third case (No. C1779078) with possessing methamphetamine for sale (Health & Saf. Code, § 11378), transporting methamphetamine (Health & Saf. Code, § 11379), and two misdemeanors. The information alleged defendant was on bail when he committed the crimes (Pen. Code, § 12022.1) and that he had served one prior prison term (Pen. Code, § 667.5, subd. (b)).

The parties agreed to resolve all three cases in a single disposition. Defendant pleaded no contest to the charges in the third case and the trial court added two years to the original sentence, for a total prison sentence of five years eight months. (The two additional years consisted of one year for transporting methamphetamine (one-third the midterm) and one year for the prior prison term enhancement.) The sentence was imposed as a split sentence (Pen. Code, § 1170, subd. (h)(5)), with the final 727 days to be served on mandatory supervision subject to various conditions.

Four of the mandatory supervision conditions imposed relate to electronic devices: “[7.] The defendant shall, as a condition of probation or mandatory supervision, give specific consent as that term is defined in Penal Code Section 1546 to any peace officer or any law enforcement agency to seize and search all electronic devices, including, but not limited to, cellular telephones, computers, or notepads in his possession or under his control to a search of any text messages, voicemail messages, call logs, photographs, e-mail accounts, social media accounts, including, but not limited to, Facebook, Instagram, Twitter, SnapChat, or any other site which the probation officer informs him of, and/or applications pertaining to set accounts at any time with or without a warrant. [¶] [8.] The defendant shall further agree and specifically consent to provide all passwords necessary to access or search such electronic devices, including, but not limited to, cellular telephones, computers, or notepads, and understand that refusal to provide the password will constitute a violation of the terms of his probation or mandatory supervision. [¶] [9.] The defendant’s computer and all other electronic devices, including, but not limited to, cellular telephones, laptop computers, or notepads shall be subject to forensic analysis search by any peace officer or any law enforcement officer, law enforcement agency at any time with or without a warrant. [¶] … [¶] [11.] The defendant shall not clean or delete internet browsing activity, and must keep a minimum of four weeks of history.” (Condition numbers are from the probation department’s waived referral memorandum.)

III. DISCUSSION
IV.
A. REASONABLENESS CHALLENGE
B.
Defendant’s original briefing challenged the four electronic device conditions as unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent). We granted permission to file a supplemental brief to discuss the recent California Supreme Court decision in Ricardo P., supra, 7 Cal.5th 1113.

1. Ricardo P.
2.
Ricardo was declared a ward of the court after he admitted to participating in two residential burglaries. (Ricardo P., supra, 7 Cal.5th at p. 1115.) According to the probation report, Ricardo told the probation officer he was not thinking when he committed the burglaries and had “ ‘stopped smoking marijuana after his arrest because he felt that [it] did not allow him to think clearly.’ ” (Id. at p. 1116.) The juvenile court placed him on probation, and imposed conditions requiring Ricardo to submit any electronic devices in his control to warrantless search. Addressing a Lent objection, the juvenile court found the condition reasonably related to preventing future crime because “ ‘minors typically will brag about their marijuana usage … by posting on the Internet,’ ” and Ricardo’s statement to the probation officer had “ ‘made reference to the fact that marijuana was involved in the commission of this offense.’ ” (Id. at p. 1117.)

The Supreme Court granted review. The court noted the Lent test has three prongs that must be analyzed when a probation condition is challenged as unreasonable: whether the condition has a relationship to the crime of which the probationer was convicted; whether the condition relates to conduct that is not itself criminal; and whether the condition requires or forbids conduct that is reasonably related to future criminality. (Ricardo P., supra, 7 Cal.5th at p. 1119.) The court confirmed that a probation condition’s reasonableness is reviewed on appeal for abuse of discretion. Importantly, the court assumed the first and second Lent requirements were satisfied, focusing its analysis solely on whether the electronic device search condition governed conduct reasonably related to future criminality. (Id. at p. 1119.) The majority interpreted the third Lent prong to require a “degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” (Id. at p. 1122.)

Applying that standard, the Ricardo P. court found proportionality lacking because the burden of the condition was very high while the legitimate interests to be served were low. “[N]othing in the record suggests that Ricardo has ever used an electronic device or social media in connection with criminal conduct.” (Ricardo P., supra, 7 Cal.5th at p. 1122.) The court made clear, however, that its decision “does not categorically invalidate electronics search conditions.” “In certain cases, the probationer’s offense or personal history may provide the juvenile 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.” (Id. at pp. 1128–1129.)

3. Conditions Derived from Defendant’s Cellular Phone Use
4.
Defendant argues that all four of his electronic device search conditions must be stricken after Ricardo P. But three of the four conditions are consistent with Ricardo P. because they relate directly to one or more of defendant’s crimes. A deputy sheriff testified at the preliminary hearing in defendant’s third case that when she searched defendant’s cellular phone she saw text messages that in her training and experience indicated drug sales. She was designated as an expert in, among other things, investigating possession for sale cases, which reasonably includes expertise in recognizing messages about drug sales. That uncontradicted opinion was adequate to show use of an electronic device in at least one of defendant’s possession for sale offenses. Therefore, the first three challenged conditions related to electronic devices are valid without a showing of proportionality as discussed in Ricardo P.

5. Internet Browsing History Condition
6.
In contrast to the three conditions related to the conviction offenses, a different analysis applies to the condition requiring defendant to maintain four weeks of Internet browsing history. In relation to the first two Lent factors, (1) there was no evidence that defendant was using the Internet to sell drugs, and (2) browsing the Internet is conduct that is not itself criminal. We therefore focus on the third Lent factor—whether the Internet browsing condition is reasonably related to future criminality—and we must analyze the “degree of proportionality between the burden imposed” and the “legitimate interests served by the condition.” (Ricardo P., supra, 7 Cal.5th at pp. 1137–1138.)

We agree with defendant that the Internet browsing condition does not meet the proportionality requirement announced in Ricardo P. The Internet has become the preferred and nearly ubiquitous means of accessing information in the world today. The condition heavily burdens defendant’s use of that important tool by essentially eliminating the privacy of his Internet activity. Yet without any indication that defendant used a website to buy or sell drugs, the interests served by imposing that condition are limited. We find the condition’s burden is disproportionate to its purpose and it is therefore unreasonable.

C. OVERBREADTH CHALLENGE
D.
We review de novo whether a mandatory supervision condition is unconstitutionally overbroad. (People v. Martinez (2014) 226 Cal.App.4th 759, 765.) A condition is unconstitutionally overbroad only if the limitations placed on a defendant’s constitutional rights are not sufficiently tailored to the purpose of the condition. (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) In reviewing the fit between the legitimate purpose of a condition and the burden it imposes on a defendant’s constitutional rights, we are mindful 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.) Defendant contends all four challenged conditions limit his Fourth Amendment right to be free from unreasonable searches, and are unconstitutionally overbroad because they are not closely tailored to their purpose.

1. Conditions Derived from Defendant’s Cellular Phone Use
2.
“[P]arolees and probationers retain some expectation of privacy, albeit a reduced one.” (In re Jaime P. (2006) 40 Cal.4th 128, 137.) And “parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.” (Samson v. California (2006) 547 U.S. 843, 850 [finding California law subjecting all parolees to warrantless searches did not violate the Fourth Amendment].) The California Supreme Court has determined that “probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers.” (People v. Robles (2000) 23 Cal.4th 789, 795.) The concept applies with full force to mandatory supervision search conditions, especially given that individuals under mandatory supervision have a lower expectation of privacy than probationers.

While defendant does retain some expectation of privacy, it is greatly diminished until he completes his term of mandatory supervision. That diminished expectation of privacy is markedly different from the broader privacy guaranteed under the Fourth Amendment to individuals who are not serving sentences or on grants of probation or parole. An individual’s undiminished pre-conviction expectation of privacy was at issue in Riley v. California (2014) 573 U.S. 373 (Riley), where the United States Supreme Court announced the general rule that police may not conduct a warrantless search of a cellular phone seized incident to an arrest. (Id. at p. 386.)

Defendant argues that the challenged conditions are overbroad because evidence showing “the connection between an electronic device and the crime—one officer’s unsupported claim—is tenuous at best.” But as we have already discussed, the trial court was entitled to credit the deputy sheriff’s uncontradicted expert testimony regarding the nature of defendant’s text messages in holding defendant to answer. And we infer from the record that defendant’s no contest plea was based on the facts established at the preliminary hearing. Given that the conditions were imposed in a global resolution of three cases, it is not constitutionally significant to our overbreadth analysis that the evidence of cellular phone use occurred in only one of the cases.

Defendant argues that under the challenged conditions his electronic devices could be searched for “ ‘medical records, financial records, personal diaries, and intimate correspondence with family and friends.’ ” (Quoting People v. Appleton (2016) 245 Cal.App.4th 717, 725.) But defendant is protected by the limitation that warrantless searches carried out under a parole search condition must not be “conducted in an arbitrary, capricious, or harassing manner.” (People v. Schmitz (2012) 55 Cal.4th 909, 923.)

Given the facts of this case, we conclude that the legitimate purpose of the three challenged conditions derived from defendant’s cellular phone use and the burdens they place on defendant’s diminished constitutional expectation of privacy is sufficiently close.

3. Internet Browsing History Condition
4.
As to the Internet browsing history condition, we have already determined the condition is unreasonable under Lent because the burden it imposes is disproportionate to the legitimate interests served by the condition. Its disproportionality suggests that the condition is likewise overbroad, at least as applied to defendant. The purpose of the condition is apparently to make sure defendant does not buy or sell drugs online, but the condition is not tailored to that purpose so as to limit its burden on defendant’s diminished (but still extant) expectation of privacy under the Fourth Amendment. The condition is therefore overbroad as applied to defendant.

E. VAGUENESS CHALLENGE
F.
Defendant argues the four electronic device conditions are unconstitutionally vague because they do not “give fair notice of what devices are to be searched, nor [do they] give fair notice of the scope of those searches.” Probation conditions 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.’ ” (Sheena K., supra, 40 Cal.4th at p. 890.) In conducting our independent review of the challenged conditions, we are “guided by the principles that ‘abstract legal commands must be applied in a specific context,’ and that, although not admitting of ‘mathematical certainty,’ the language used must have ‘ “reasonable specificity” ’ ” (Ibid.)

The conditions at issue here specify three examples of the types of devices that are subject to search: cellular phones, computers, and electronic notepads. Given the focus of the conditions on accessing defendant’s communications, the phrase “electronic devices” as used here is sufficiently clear to meet constitutional standards. The conditions also explicitly limit the scope of permitted searches to “any text messages, voicemail messages, call logs, photographs, e-mail accounts, [and] social media accounts.” By specifying both the types of devices and the types of information to which law enforcement will have access, the conditions give the reasonable specificity and fair warning necessary to withstand a vagueness challenge.

V. DISPOSITION
VI.
The trial court is directed to amend the minute order containing the conditions of mandatory supervision to strike condition No. 11 related to defendant’s Internet browsing history. As so modified, the judgment is affirmed.

____________________________________

Grover, J.

WE CONCUR:

____________________________

Greenwood, P. J.

____________________________

Elia, J.

H045745 – The People v. Sotelo