Filed 12/6/19 P. v. Smith 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

KENNETH EUGENE SMITH,

Defendant and Appellant.

C084113

(Super. Ct. No. 16FE022529)

Defendant Kenneth Eugene Smith pled no contest to carrying a concealed firearm in a vehicle. The trial court placed him on probation with various conditions, including that he submit to warrantless searches of his electronic storage devices and obtain permission to leave the state or to remain away from his residence for more than 48 hours. On appeal, defendant challenges these conditions, contending: (1) the trial court abused its discretion in imposing an electronic devices search condition, which he argues is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) because it is not reasonably related to future criminal conduct; (2) the electronic devices search condition is unconstitutionally overbroad; (3) the trial court abused its discretion by refusing to exercise its discretion; and (4) the travel permission condition is unconstitutionally overbroad.

We held this appeal pending resolution of the primary issue by the California Supreme Court. We have now received the awaited guidance.

In In re Ricardo P. (2019) 7 Cal.5th 1113, at page 1116 (Ricardo P.), our high court held that where there is no evidence defendant had used or will use electronic devices in connection with any illegal activity, the substantial burdens imposed by an electronics search condition are not justified. “The probation condition is not reasonably related to future criminality and is therefore invalid under Lent.” (Ibid.) Here, the record contains no indication of defendant’s past or future use of any electronic device for any illegal activity. Accordingly, we modify the judgment by striking the electronics search probation condition. We will otherwise affirm.

I. BACKGROUND

Defendant was a passenger in a vehicle where a loaded 20-gauge shotgun with a pistol grip was found in the trunk. He claimed ownership of the shotgun, which was not registered to him. Pursuant to a negotiated agreement, defendant pled no contest to carrying a concealed firearm in a vehicle. (Pen. Code, § 25400, subd. (a).)

The trial court suspended imposition of sentence and placed defendant on five years’ formal probation on various terms and conditions, including serving 90 days in the county jail. Defense counsel objected to the imposition of an electronic devices search condition, included in specific condition No. 5, arguing that there was no nexus between the search condition and defendant’s offense. The condition required defendant to submit his “electronic storage devices” to search and seizure at any time, “including but not limited to cell phones and computers.” The court imposed the condition over the objection. The court also imposed a travel permission condition, general condition No. 3, which provided that defendant could not leave California or remain away from his regular residence for more than 48 hours without obtaining permission from his probation officer. Defendant did not object to this condition.

II. DISCUSSION

A. Electronic Devices Search Condition

Defendant contends the trial court erred in imposing the electronic devices search condition because it is not reasonably related to future criminality. We agree.

“In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to . . . section 1203.1.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) In general, such a term or condition will not be invalidated “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.) All three prongs must be satisfied before we will invalidate such a condition. (People v. Olguin (2008) 45 Cal.4th 375, 379-380.) Under Lent, we review the imposition of a condition for abuse of discretion. (Id. at p. 379.)

As to electronic devices search conditions specifically, our Supreme Court recently held such a condition invalid under Lent. (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123.) The juvenile in Ricardo P. committed felony burglary and was placed on probation with a condition requiring him to submit to warrantless searches of his electronic devices. (Id. at pp. 1115-1116.) He objected to the condition, but the juvenile court concluded it was reasonably related to preventing future criminality because it enabled effective supervision of the juvenile’s compliance with his drug-related probation conditions, reasoning that minors often brag about their drug use on social media. (Id. at p. 1117.) The Ricardo P. majority, however, concluded that the condition did not satisfy Lent’s third prong because the record before it contained “no indication that Ricardo had used or will use electronic devices in connection with drugs or any illegal activity.” (Id. at p. 1116.) The court reasoned that the burden the condition imposed on the juvenile’s privacy was “substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society.” (Id. at p. 1119.) Because there was no evidence in the record suggesting the juvenile had ever used an electronic device or social media in connection with criminal conduct, the condition was not reasonably related to future criminality. (Id. at pp. 1122-1123.)

While the Supreme Court held the electronics search condition was invalid, it noted that its holding did not categorically invalidate electronics search conditions. (Ricardo P., supra, 7 Cal.5th at p. 1128.) The court reasoned that trial “courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense. [Citation.] [¶] Yet Lent’s requirement that a probation condition must be ‘ “reasonably related to future criminality” ’ 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.) The court concluded that the condition lacked proportionality where it allowed an unlimited search of the juvenile’s devices, social media, and data “which could include anything from banking information to private health or financial information.” (Id. at p. 1123.)

Here, as in Ricardo P., there is nothing in the record suggesting defendant used an electronic device or social media in connection with any crimes. Nor is there any evidence raising a concern about defendant’s future criminality in relation to electronic devices. Without any such evidence, we cannot conclude that a broad electronic devices search condition similar to the one at issue in Ricardo P. was proportionate. The condition was not reasonably related to future criminality under Ricardo P. (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123.) Accordingly, the condition must be stricken from the probation order.

We note that nothing in this opinion prevents the trial court from exercising its discretion, following a noticed hearing, to modify the terms of formal probation if presented with additional facts that would tie an electronic devices search condition to defendant’s future criminality as set forth in Ricardo P. (See § 1203.3, subds. (a), (b); People v. Leiva (2013) 56 Cal.4th 498, 505 [order modifying probation based on the same facts exceeds the court’s jurisdiction].)

B. Travel Permission Condition

Defendant contends the travel permission probation condition infringes on his constitutional right to travel. The People counter that to the extent defendant challenges the condition as it applies to him, his claim is forfeited because he failed to raise it in the trial court. Further, the People contend that the condition is constitutional on its face. We agree that the condition is facially valid.

As an initial matter, defendant may challenge the travel permission probation condition for facial overbreadth despite his failure to object in the trial court. In general, the failure to make a timely objection to a probation condition forfeits the claim of error on appeal. (People v. Welch (1993) 5 Cal.4th 228, 234.) A defendant may, however, assert for the first time on appeal that a probation condition is facially overbroad if the claim presents a pure question of law without reference to the particular sentencing record developed in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 889.) Here, defendant’s challenge is cognizable on appeal because he argues the condition is unconstitutionally overbroad on its face, and thus, his challenge involves a pure question of law and is not forfeited for failure to object.

“If a probation condition serves to rehabilitate and protect public safety, the condition may ‘impinge upon a constitutional right otherwise enjoyed by the probationer, who is “not entitled to the same degree of constitutional protection as other citizens.” ’ ” (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355.) “Where a condition of probation requires a waiver of precious constitutional rights, the condition must be narrowly drawn; to the extent that it is overbroad it is not reasonably related to the compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights.” (People v. Mason (1971) 5 Cal.3d 759, 768, disapproved of on unrelated grounds by Lent, supra, 15 Cal.3d at p. 486, fn. 1.) “The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s constitutional rights . . . .” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)

Defendant contends the travel permission probation condition is facially overbroad “because it impinges upon [defendant’s] constitutional right to travel by giving the probation officer unfettered control over his freedom to do so.” We disagree with the suggestion that, in the context of a facial challenge, a probation condition requiring a probationer to seek and obtain the approval of his or her probation officer before leaving the state or traveling away from his residence for more than 48 hours is not sufficiently tailored and reasonably related to the compelling state interest of facilitating supervision and rehabilitation of the probationer. Indeed, “[i]mposing a limitation on probationers’ movements as a condition of probation is common, as probation officers’ awareness of probationers’ whereabouts facilitates supervision and rehabilitation and helps ensure probationers are complying with the terms of their conditional release.” (People v. Moran (2016) 1 Cal.5th 398, 406.) The imposition of travel permission probation conditions are regularly upheld against overbreadth challenges, even in as-applied challenges. (See People v. Relkin (2016) 6 Cal.App.5th 1188, 1195-1196 [upholding a probation condition requiring defendant to obtain written permission from probation officer prior to leaving state against an as-applied overbreadth challenge].) “Although criminal offenders placed on probation retain their constitutional right to travel, reasonable and incidental restrictions on their movement are permissible.” (Moran, supra, at p. 406.) Thus, we cannot say the imposition of a travel permission restriction is on its face categorically a violation of a probationers’ right to travel. (Id. at pp. 406-407.) We therefore conclude that the contested restriction is not facially overbroad.

III. DISPOSITION

The trial court is directed to issue an amended order of probation, striking the phrases “electronic storage devices,” “including but not limited to cell phones and computers,” “and also specifically consented to searches of his/her electronic storage devices,” and the entire third paragraph from specific condition No. 5. As so modified, the judgment is affirmed.

/S/

RENNER, J.

We concur:

/S/

RAYE, P. J.

/S/

BUTZ, J.