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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JUAN RAMIRO TAVERA-ESTRADA,

Defendant and Appellant.

C084063

(Super. Ct. No. 15F07683)

After defendant Juan Ramiro Tavera-Estrada pled no contest to possessing methamphetamine and admitting he possessed methamphetamine in excess of four kilograms, the trial court sentenced him to a split term incorporating three years four months on mandatory supervision with various conditions, including that he submit to warrantless searches of electronic storage devices.

On appeal, defendant challenges the electronic search condition.

As we explain, we shall modify the judgment by striking the electronic search condition.

BACKGROUND

During a traffic stop, a trained canine “keyed on” a box inside defendant’s vehicle. There were more than four kilograms of methamphetamine inside that box. Defendant pled no contest to possessing methamphetamine and admitted he possessed more than four kilograms.

Prior to entry of the plea, defense counsel objected to the imposition of an electronic search condition as a condition of mandatory supervision. The People did not file an opposition.

At the plea hearing, defense counsel reiterated her objection to the electronic search condition, stating there was no evidence “that any cell phones confiscated from [defendant] contain any information pertaining to sales or transportation of drugs.” The prosecutor responded that it was typical for a person selling drugs to use electronic devices to “accomplish his or her goals . . . . ” The court imposed the condition finding it was warranted by “the gravity” of defendant’s criminal offense.

The mandatory supervision condition imposed states: “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 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.”

DISCUSSION

I

Probation Search Conditions Generally

Upon granting probation, the court may impose any “reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.” (Pen. Code, § 1203.1, subd. (j).)

“The trial court’s discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, we have interpreted . . . section 1203.1 to require that probation conditions which regulate conduct ‘not itself criminal’ be ‘reasonably related to the crime of which the defendant was convicted or to future criminality.’ ” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121, quoting People v. Lent (1975) 15 Cal.3d 481, 486.)

Our Supreme Court in Lent adopted the three-part test of People v. Dominguez (1967) 256 Cal.App.2d 623: “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 . . . .’ ” (People v. 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 condition of probation.” (People v. Contreras (2015) 237 Cal.App.4th 868, 879.)

II

Ricardo P.

In In Ricardo P (2019) 7 Cal.5th 1113, the juvenile was declared a ward of the court after he committed two felony burglaries; he was placed on probation. The juvenile court imposed various probation conditions, including one which required the juvenile to “ ‘[s]submit . . . electronics including passwords under [his] control to search by Probation Officer or peace office[r] with or without a search warrant at any time of day or night.’ ” (Id. at pp.1116-1117.) Ricardo told a probation officer he committed the crime because he was not thinking and that he had stopped smoking marijuana because it interfered with his ability to think clearly. The court justified the condition on the basis that it believed marijuana was involved in the offense and minors often bragged about marijuana usage on the Internet, and it was important to monitor Ricardo’s drug usage. (Ibid.)

On appeal, Ricardo challenged the electronic search condition under Lent. The Court of Appeal upheld the condition under Lent, but found it was unconstitutionally overbroad. (In re Ricardo P., supra, 7 Cal.5th at p. 1116.) The California Supreme Court granted review on whether the electronic search condition satisfied the third prong of Lent, whether it “ ‘ “requires or forbids conduct which is not reasonably related to future criminality.” ’ ” (Ricardo P., at p. 1119.)

The high court was skeptical about the juvenile court’s inference that Ricardo was using drugs during the burglaries and the generalization that teenagers tend to brag about drug use online. (In re Ricardo P., supra, 7 Cal.5th at pp. 1119-1120.) But even accepting these premises, the court noted that cases “upholding probation conditions under Lent’s third prong have involved stronger connections between the burdens imposed by the challenged condition and a probationer’s criminal conduct or personal history.” (Id. at p. 1120.) 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.” (Ricardo P., at p. 1122.) Our high court found the electronic search condition significantly burdens privacy interests due to type and quantity of information stored on electronic devices. (Id. at p. 1123.) Nothing suggested the juvenile had ever used an electronic device or social media in connection with illegal activity. (Id. at p. 1122.) The court concluded the electronic search condition “imposes a very heavy burden on privacy with a very limited justification.” (Id. at p. 1124.)

The Court of Appeal in Ricardo P. upheld the electronic search condition under People v. Olguin (2008) 45 Cal.4th 375, as reasonably related to the supervision of the juvenile on probation. (In re 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. 1125.) By contrast, the electronic search condition was “far more burdensome and intrusive, and requires a correspondingly substantial and particularized justification.” (Ibid.)

Our high court held the electronic 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 in furthering his rehabilitation and protecting society.” (In re Ricardo P., supra, 7 Cal.5th at p. 1119.)

III

Application Of Ricardo P. To This Case

Although Ricardo P. involved a juvenile, it is applicable here because “the Lent test governs in juvenile and adult probation cases alike.” (In re Ricardo P., supra, 7 Cal.5th at p. 1119.)

Here, as in Ricardo P., the issue is the third prong of the Lent test, whether the electronic search condition is reasonably related to future criminality. The burden imposed by the condition is the same substantial burden seen in Ricardo P. Imposition of the condition must be balanced with a “correspondingly substantial and particularized justification.” (In re Ricardo P., at p. 1126.) Specifically, a justification demonstrating defendant’s historical use of electronic devices to participate in criminal activities. (Id. at p. 1122.) Rather than offering such a justification, the trial court simply said it would impose this sweeping invasion of defendant’s privacy because of the “gravity” of his offense. The gravity of the offense has no bearing on any of the Lent factors. (People v. Lent, supra, 15 Cal.3d at p. 486.) Moreover, this justification demonstrates no connection between defendant’s historical use of electronics and his criminal activity, as required by Ricardo P. Thus, it lacks the requisite degree of proportionality between the burdens imposed and the legitimate interests the condition seeks to serve.

In Ricardo P., our high court declined to consider whether there was a sufficient basis in the record to support the Court of Appeal’s suggestion that the electronic search condition could be restricted so that it was reasonable. (In re Ricardo P., supra, 7 Cal.5th at p. 1124.) Here, the People have not suggested remand or that the electronic search condition could be narrowed to satisfy Lent. Therefore, we will simply strike the challenged probation condition.

DISPOSITION

The electronic search condition is stricken from the mandatory supervision order. The judgment is affirmed as modified.

/s/

Robie, J.

We concur:

/s/

Blease, Acting P. J.

/s/

Murray, J.