Filed 12/30/19 P. v. Gill 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Shasta)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

KENDAL SCOTT GILL,

Defendant and Appellant.

C083128

(Super. Ct. No. 16F3476)

Defendant Kendal Scott Gill pleaded no contest to corporal injury on a cohabitant and admitted a prison prior in exchange for a probationary sentence. One of the imposed conditions of probation was that he submit to warrantless searches of his electronic storage devices.

On appeal, defendant challenges the electronics search condition, contending that it: (1) is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) because it is not reasonably related to future criminal conduct, (2) is unconstitutionally overbroad, (3) infringes on the privacy rights of third parties, and (4) violates his Fifth Amendment right against self-incrimination.

Although we agree with the Attorney General that the then self-represented defendant forfeited his challenge to the condition by failing to raise the concerns he now briefs on appeal, we exercise our discretion and reach the merits as to his challenge under Lent. Our Supreme Court’s recent clarification of the relevant law in In re Ricardo P. (2019) 7 Cal.5th 1113, at page 1116 (Ricardo P.), largely invalidated the type of boilerplate condition seen here, imposed without any articulated factual basis connecting such condition to the facts of a probationer’s case. Accordingly, we strike the condition as currently imposed but remand for consideration of whether a modified electronics search condition may be appropriate and legally justified in light of Ricardo P. We decline to reach defendant’s remaining claims and otherwise affirm the judgment.

BACKGROUND

In March 2016, defendant and the victim lived together and were in a romantic relationship. While arguing over defendant’s infidelity, they struggled over a cell phone and the victim was knocked to the ground. She left the residence as defendant became more agitated and violent.

Two days later, the victim returned to the residence to retrieve her personal belongings; defendant tried to convince her not to move out. When she refused to be convinced, defendant grabbed her by the throat and threw her to the ground, choking her until she was unable to breathe. When she tried to escape, he blocked the door and forced the victim back into a bedroom, where he grabbed her again and threw her to the ground. He punched her multiple times in the head and kicked her in the back. The next day, a Redding police officer observed bruising on the victim’s head and face, as well as broken blood vessels around her neck. Defendant initially denied the conduct but admitted following his arrest that he was at the residence when the incident occurred. He said he and the victim had since reconciled.

Defendant was charged with inflicting a corporal injury on a cohabitant with a prior assault conviction and false imprisonment, as well as a prior prison term allegation. (Pen. Code, §§ 236, 273.5, subds. (a), (f), 667.5, subd. (b).) On June 15, 2016, he pleaded no contest to the corporal injury offense and admitted the prison prior in exchange for a probationary sentence and dismissal of the remaining charges. On the date set for sentencing, defendant sought to dismiss his appointed counsel and withdraw his plea. Thereafter, the court granted defendant’s request to represent himself.

On August 18, 2016, the court suspended imposition of sentence and placed defendant on four years of formal probation years with various terms and conditions, including that he have no contact with the victim without prior written approval of his probation officer, and that he submit to warrantless searches by law enforcement or probation of any electronic device or service and provide necessary passwords for such devices. Although defendant reiterated that he wanted to withdraw his plea, he did not otherwise object to the terms and conditions of probation imposed by the court.

Defendant timely appealed from the resulting judgment.

DISCUSSION

I

Forfeiture

Defendant raises multiple objections to the electronics search condition on this appeal, but although he moved to withdraw his plea and made various other requests of the trial court before and after his sentencing, he never objected to the electronics search condition on any basis below. In an as-applied challenge such as that raised by defendant in the current appeal, the failure to object to the condition in the trial court forfeits the issues defendant now raises. (In re Sheena K. (2007) 40 Cal.4th 875, 880-881; People v. Welch (1993) 5 Cal.4th 228, 234-238 [failure to object that a probation condition is unreasonable under Lent in the trial court, precludes a defendant from raising the issue on appeal].)

Nevertheless, an appellate court may exercise discretion to consider a forfeited claim. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; see also, In re Sheena K., supra, 40 Cal.4th. at p. 887, fn. 7 [an appellate court may review a forfeited claim, and whether or not it should do so is entrusted to its sound discretion].) Because this case presents an important legal issue that recently has been clarified by our Supreme Court in Ricardo P., we shall exercise our discretion to consider defendant’s Lent claim on the merits. (See In re S.B. (2004) 32 Cal.4th 1287, 1293.) We conclude that the current condition cannot stand on the record as currently constituted, and remand for further proceedings consistent with this opinion.

II

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.” (§ 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.’ [Citation.]” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)

The Lent court 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 . . . .’ ” (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.)

III

Ricardo P.

In Ricardo P., supra, 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]ubmit . . . 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 had 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. (Id. at p. 1117.)

On appeal, Ricardo challenged the electronics search condition under Lent, supra, 15 Cal.3d 481. The Court of Appeal upheld the condition under Lent, but found it was unconstitutionally overbroad. (Ricardo P., supra, 7 Cal.5th at p. 1116.) Our Supreme Court granted review on whether the electronics search condition satisfied the third prong of Lent, “whether it ‘ “requires or forbids conduct which is not reasonably related to future criminality.” ’ ” (Id. 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. (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.” (Id. at p. 1122.) Our high court found the electronics 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. (Ibid.) The court concluded the electronics 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. had upheld the electronics search condition under People v. Olguin (2008) 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. (Id. 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. (Id. 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 in furthering his rehabilitation and protecting society.” (Ricardo P., supra, 7 Cal.5th at p. 1119.)

IV

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.” (Ricardo P., supra, 7 Cal.5th at p. 1119.)

Similar to Ricardo P., the issue here is the third prong of the Lent test, whether the electronics search condition is reasonably related to future criminality. And the burden imposed by the condition is the same substantial burden seen in Ricardo P.

Like the juvenile court in Ricardo P., the trial court in this case justified the electronics search probation condition as a means of monitoring whether defendant was complying with other terms of his probation, namely, not contacting his domestic violence victim. (Ricardo P. supra, 7 Cal.5th at pp. 1115, 1119 [court imposed electronics search condition in order to monitor juvenile’s compliance with separate conditions prohibiting him from using or possessing illegal drugs].) But simply because a probation search condition would facilitate supervision of a probationer does not mean it is reasonably related to future criminality. (Id. at p. 1125.) “ ‘Not every probation condition bearing a remote, attenuated, tangential, or diaphanous connection to future criminal conduct can be considered reasonable’ under Lent.” (Id. at p. 1127.)

Here, the trial court imposed the electronics search condition when there was no legitimate basis in the record for inferring that electronic devices were connected to the commission of the domestic violence offense–the same error the trial court committed in Ricardo P. (Id. at p. 1119.) Nothing in the available record before us indicates that defendant had ever used electronic devices to commit, plan, or discuss his crimes or harass his victim. Nor was there any evidence that defendant had otherwise engaged in any other criminal activity using an electronic device, and the prosecutor did not suggest any during sentencing. Instead, the factual basis for the plea established that defendant physically assaulted the victim. Although the stipulated factual basis stated that defendant and the victim had “struggled over a cell phone” earlier, there is no indication in the record that defendant used the electronic device when later physically assaulting the victim–the conduct underlying the corporal injury charge.

“In virtually every case, one could hypothesize that monitoring a probationer’s electronic devices and social media might deter or prevent future criminal conduct.” (Ricardo P., supra, 7 Cal.5th at p. 1123.) If such generalizations were sufficient to justify the substantial burdens of the electronics search condition, “it is hard to see what would be left of Lent’s third prong.” (Id. at p. 1124.) As in Ricardo P., here the burden imposed by the electronics search condition is substantially disproportionate to the interests it serves.

DISPOSITION

The judgment is modified to strike the electronics search probation condition and otherwise affirmed; the case is remanded to the trial court for it to consider whether a modified electronics search condition may be appropriate and legally justified in light of Ricardo P. At the conclusion of the proceedings in the trial court, an amended order of probation should issue.

/s/

Duarte, J.

We concur:

/s/

Hull, Acting P.J.

/s/

Krause, J.