Filed 12/12/19 P. v. Antoninetti CA4/1

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

NICKOLAS ANTONINETTI,

Defendant and Appellant.

D072794

(Super. Ct. No. SCD272901)

APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Affirmed, as modified with directions.

Appellate Defenders, Inc. and Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Adrian R. Contreras and Collette Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

Nickolas Antoninetti pleaded guilty to one count of grand theft of property valued more than $950 (Pen. Code, § 487, subd. (a)). The trial court granted Antoninetti probation on various terms and conditions. One of the conditions of probation imposed was a so-called Fourth Amendment waiver. The condition, 6n, provides: “Submit person, vehicle, residence, property, personal effects, computers and recordable media, to search at any time with or without a warrant, and with or without reasonable cause, when required by P.O. or law enforcement officer.”

Antoninetti appeals challenging only the portion of condition 6n which provides “computers and recordable media.” Antoninetti contends there is no nexus for the search of electronic devices and in any event the condition is overbroad and violates the requirements of People v. Lent (1975) 15 Cal.3d 481 (Lent). We previously found the trial court correctly determined the condition was necessary to permit appropriate supervision of Antoninetti on probation.

The Supreme Court granted review in this case and held the case pending its decision in In re Ricardo P. The court has now issued its opinion. (In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.)

The Supreme Court has remanded this case to our court with directions to vacate our previous opinion and reconsider the case in light of its opinion in Ricardo P. We have followed the court’s directions and now issue a new opinion. We will find the electronics search portion of probation condition 6n does not pass muster in light of the court’s analysis in Ricardo P. We will direct the trial court to strike the electronics search language from condition 6n. We will otherwise affirm the judgment.

STATEMENT OF FACTS

Since this appeal is from a guilty plea, we will accept the summary of the facts from the probation officer’s report as set forth in respondent’s brief.

One day in 2017, San Diego Police Department officers conducted a bait bicycle operation on the boardwalk in Pacific Beach. Two bait bicycles, equipped with GPS tracking systems, were locked to a bicycle rack. The locks were coated with a red transfer paste. One night, officers received notification the bicycles had been moved. The bicycles were tracked to appellant’s location on the boardwalk. Officers found appellant with both bicycles and the cut lock and red transfer paste on his hands. Each bicycle was worth more than $950.

In his interview with the probation department before sentencing, appellant said he was under the influence of methamphetamine during the theft.

DISCUSSION

At sentencing, defense counsel objected to the electronics portion of the search waiver in condition 6n. The principal objection was that there was no nexus for such condition in either the crime in this case or the defendant’s personal history; thus, the condition violated Lent, supra, 15 Cal.3d 481. The court overruled the objection, making the following comments:

“And 6 will have in the Fourth waiver, search all media, including cell phones. In this case, the defendant stole more than one bike. It is logical to think he couldn’t use more than one bike at a time; he was going to do something with the other one. And it is consistent with these types of cases that the other bikes, or maybe all of them, are sold. And you can use your cell phone to do that.

“In addition to that, not only was he under the influence in this case by his own admission, but he was on probation for two other cases where it dealt with his having either drugs or drug paraphernalia, indicating that he has a drug issue, and he’s getting his drugs from someone. So given that, and the fact that he admits that his judgment was impaired by drug use, it is logically related to use of a cell phone, and it will be imposed.”

The probation officer also requested the court to impose the condition so that the defendant could be properly supervised. As we will discuss, the assessments of the court and the probation officer are not sufficient to warrant the electronics search condition.

A. Legal Principles

A grant of probation is an act of clemency. (People v. Moran (2016) 1 Cal.5th 398, 402.) The purpose of probation is to protect the public and to attempt to rehabilitate the defendant. (Ibid.) The trial court has broad discretion in determining which conditions of probation are necessary to accomplish the goals of probation. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)

A condition of probation is unreasonable under Lent, supra, 15 Cal.3d at page 486, if it does three things: (1) has no relationship to the crime of which the defendant was convicted, (2) relates to conduct that is not criminal, and (3) requires or forbids conduct that is not reasonably related to future criminality. All three prongs of Lent must be shown before a reviewing court will invalidate a probation condition. (People v. Olguin (2008) 45 Cal.4th 375, 379-380.)

The court in Ricardo P. analyzed the electronics search condition in light of the third prong of the Lent rule for invalidating probation conditions. Specifically, conditions which prohibit otherwise lawful behavior must not unduly intrude on the right to engage in lawful activity. (Lent, supra, 15 Cal.3d at p. 486.) In Ricardo P. the court considered the substantial privacy rights that are implicated by a probation condition giving unfettered access to electronically stored and transmitted data. The court found the condition in Ricardo P. to disproportionally intrude on privacy without showing a compelling need to do so. The court found electronics were not involved in Ricardo P’s criminal activity and the need for general supervision did not establish a proportional justification. (Ricardo P., supra, 7 Cal.5th at p. 1119.)

B. Analysis

It is undisputed there is no evidence that Antoninetti used any electronic devices in the commission of the theft of two expensive bicycles. The only justification for an electronics search condition here is the probation officer’s view, shared by the court, that such condition is necessary to properly supervise this defendant on probation. The justification is based on the nature of the theft of two bicycles, which the court concluded were probably going to be sold. Thefts such as the ones here would ordinarily require the thief to contact someone to sell the items. Thus, the court believed the use of electronics, including social media, were likely mechanisms for use in further theft offenses.

Accordingly, both the court and the probation officer believe searches of such devices are needed to prevent future crimes of the same type.

Here, appellant did not use any electronic devices in the commission of his offense. There is no evidence of the storage of any data regarding the crimes in any electronic devices. Nor is there any showing that appellant is likely to commit any future crimes using electronic devices. All that exists in this record is the demonstrated need to supervise appellant while on probation and the court’s speculation appellant wanted to sell his stolen property and might use electronic devices to make any sales. In short there is no nexus for the offense and the proposed electronic search requirement.

Ricardo P. has made it clear that such justification is not substantially proportionate to the intrusion into appellant’s privacy interest in his electronic devices and any data stored on them.

Appellant has never objected to a general, non-electronic Fourth Amendment waiver in either the trial court or this court on appeal. Thus, we will order only the striking of the electronics search language from condition 6n.

DISPOSITION

The case is remanded to the superior court with directions to strike the electronics search language from probation condition 6n. In all other respects the judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

O’ROURKE, J.

IRION, J.