Filed 1/2/20 P. v. Fiore 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

JOSEPH FRANKLIN FIORE,

Defendant and Appellant.

C084463

(Super. Ct. No. 16FE008792)

After defendant Joseph Frank Fiore pleaded no contest to possession of methamphetamine for sale (Health & Saf. Code, § 11378), the trial court granted him five years’ probation with various conditions, including that he submit to warrantless searches of electronic storage devices. On appeal, defendant challenges the electronics search condition, contending that: (1) it is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) because it is not reasonably related to future criminal conduct, and (2) the matter should be remanded to allow the trial court to separately state the amount of monetary penalties it imposed. We agree as to the electronics search condition, but find the record adequately indicates the fines and fees imposed. Accordingly, we strike the electronics search condition from the probation order and affirm the judgment as modified.

FACTS AND LEGAL PROCEEDINGS

Pursuant to a search warrant, the Sacramento County Sheriff’s Department searched a number of homes. In defendant’s room, they found 13.1 grams of methamphetamine. Defendant was aware of the presence of the methamphetamine and knew its nature as a narcotic substance. Defendant pleaded no contest to possession of a controlled substance for sale. (Health & Saf. Code, § 11378.) The trial court accepted his plea and defendant requested immediate sentencing and waived referral to the probation department.

The proposed conditions of probation included an electronics search condition which read in full as follows:

“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 phone and computers, to search and seizure by any law enforcement officer or probation officer, 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.”

Defense counsel submitted a boilerplate brief objecting to the electronics search condition’s validity and constitutionality. This brief included no specific information relating to defendant or his current or past crimes, whether he owned or used any electronic storage devices, and if so, what information was stored on such devices. The prosecution did not file responsive pleadings. Defense counsel raised the issue again at the plea hearing. The prosecution did not respond.

The trial court imposed the electronics search condition, stating: “there may not always be a nexus to the charged crime, possession for sale, but it is a term and condition of probation of searchable, I should say, of electronic storage devices, et cetera, are needed for proper supervision by the probation department regarding any future criminality.” The trial court also stated it was imposing only the mandatory fees and fines, at the minimum amount, and waived any discretionary fines and fees. The minute order indicates the trial court imposed a $300 restitution fine (Pen. Code, § 1202.4; statutory section references that follow are to the Penal Code unless otherwise noted), imposed and stayed a $300 probation revocation fine (§1202.44), imposed a $40 court security fee (§ 1465.8, subd. (a)), and a $30 court facility fee (Gov. Code, § 70373).

DISCUSSION

I

Electronics Search Conditions

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, [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, 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 p. 1118.) Although the Supreme Court was skeptical about generalization of 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. (Ricardo P.,. at pp. 1119-1120.)

The Court of Appeal in Ricardo P. had upheld the electronics search condition under Olguin, supra, 45 Cal.4th 375, as reasonably related to the supervision of the juvenile on probation. (Ricardo P., supra, 7 Cal.5th at pp. 1124-1125.) Despite some broad language in Olguin, the Supreme Court rejected an interpretation of Olguin that probation conditions reasonably related to enhancing supervision of probationers are valid under Lent. (Ricardo P., at pp. 1125-1127.) Instead, the court limited Olguin to its facts. The probation condition at issue there required defendant to notify the probation officer about any pets at his residence. (Ricardo P., at p. 1124.) The pet notification condition was reasonable because it served to inform and protect the probation officer in his supervision and this protection was reasonably related to the purpose of deterring future criminality. (Id. at p. 1126.) By contrast, the electronics search condition was “far more burdensome and intrusive, and requires a correspondingly substantial and particularized justification.” (Ibid.)

Our high court held the electronics search condition “satisfies Lent’s third prong and is therefore invalid under the Lent test because, on the record before us, the burden it imposes on Ricardo’s privacy is substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society.” (Ricardo P., supra, 7 Cal.5th at p. 1119.)

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 the offenses, or had any history of using electronic devices to commit, facilitate or plan criminal conduct, or of using social media to demonstrate he had committed such conduct. The prosecutor offered no evidence to support imposition of the condition. The trial court’s conclusion that the condition was necessary for proper supervision does 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 . . . . 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.) Accordingly, we find this condition is not reasonably related to future criminality and is therefore invalid under Lent. (Lent, supra, 15 Cal.3d 486.)

However, nothing in this opinion prevents the trial court from exercising its discretion, following a noticed hearing, to modify the terms of probation regarding an electronics search condition if presented with additional facts that would satisfy the Supreme Court’s opinion in Ricardo P. (See § 1203.3, subds. (a), (b).)

II

Statement of Fines and Fees Imposed

Relying primarily on our decision in People v. High (2004) 119 Cal.App.4th 1192 (High), defendant contends the matter should be remanded to allow the trial court to separately state the amount of monetary penalties it imposed. He argues the trial court must separately pronounce each applicable fine, penalty, assessment and fee, and their respective statutory bases, to help assure probationers know what is required, and to allow determination of whether a condition of probation has been violated.

Contrary to defendant’s contention, remand is not warranted. Here, because the probation order separately lists the amount of and statutory basis for each fine, fee, and assessment imposed, the trial court complied with our decision in High. (High, supra, 119 Cal.App.4th at p. 1200.) It is an acceptable practice for a trial court to refer to fines, fees, and assessments in a shorthand manner and leave it to the clerk to specify the penalties in the appropriate amounts in the minutes and the abstract of judgment. (People v. Sharret (2011) 191 Cal.App.4th 859, 864.) In addition, the probation report contained a detailed list of all the fines, fees, and assessments recommended by the probation officer. As such, defendant had notice prior to sentencing of the proposed fines and penalty assessments.

DISPOSITION

The trial court is directed to issue an amended probation order striking the electronics search condition. As modified, the judgment is affirmed.

HULL, Acting P. J.

We concur:

DUARTE, J.

KRAUSE, J.