Filed 12/3/19 P. v. Robinson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

MARCUS JAMES ROBINSON,

Defendant and Appellant.

C083487

(Super. Ct. No. 16FE021128)

Defendant Marcus James Robinson pleaded no contest to domestic violence (Pen. Code, § 273.5) and the trial court placed him on 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 the trial court abused its discretion in imposing it because it is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent), as the condition is not reasonably related to his future criminal conduct.

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 or otherwise prohibited activity. Accordingly, we modify the judgment by striking the electronics search probation condition.

BACKGROUND

Defendant was charged with unlawfully using tear gas and domestic violence. (§§ 22810, subd. (g)(1), 275.5, subd. (a).) He agreed to plead no contest to domestic violence with 120 days in county jail and a no-contact order, in exchange for dismissal of the tear gas count and a probationary term. The factual basis for his plea was that he punched a person with whom he had a dating relationship several times in the face, and injured her as a result. 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 that 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.”

Both the prosecution and the defense submitted boilerplate briefs on the electronics search condition’s validity and constitutionality. These boilerplate briefs provided no specific information relating to defendant, his current or past crimes, or whether he owned or used any electronic storage devices and, if so, what information was stored on such devices.

The People’s brief attached a boilerplate declaration of a detective assigned to the Sacramento Valley Hi-Tech Crimes Task Force. The declaration detailed the kinds of evidence found on electronic devices in certain categories of crimes involving drugs, fraud, identity theft, financial crimes, sex offenses, human trafficking, pimping and pandering, domestic violence, weapons, and gangs. It discussed the need to examine the entire contents of electronic devices due to the ease of moving files and hiding information. Finally, it explained the need to require the probationer to provide all passwords.

At sentencing, the People noted only that “this is a domestic violence case and a criminal protective order has been issued.” There is no indication in the record that defendant had attempted to contact the victim or that he had otherwise signaled he might be inclined to violate the order. The trial court imposed the contested condition, without making any findings or articulating any analysis.

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.” (§ 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.)

II

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. (Ibid.)

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 (Olguin), 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 of furthering his rehabilitation and protecting society.” (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.” (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 electronics search condition is reasonably related to future criminality. The burden imposed by the condition is the same substantial burden seen in Ricardo P. Unlike the juvenile court in Ricardo P., here the trial court offered no justification for the condition. The only support the People proffered was the correct observation that this was a domestic violence case with a no contact order; they also submitted the boilerplate declaration, which contained no information about defendant’s situation, inclinations, or future criminality concerns. Such generalizations and generic evidence offer no greater connection to defendant’s conduct or personal history than did the juvenile court’s generalization in Ricardo P. that teenagers tend to brag about drug use online. As our Supreme Court noted, “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.

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 electronics search condition could be restricted so that it was reasonable. (Ricardo P., supra, 7 Cal.5th at p. 1124.) Here, the People have not suggested remand or that the electronics search condition could be narrowed to satisfy Lent. Therefore, we will simply strike the challenged probation condition.

DISPOSITION

The judgment is modified to strike the electronics search condition. In all other respects the judgment is affirmed.

/s/

Duarte, J.

We concur:

/s/

Hull, Acting P. J.

/s/

Krause, J.