Filed 12/9/19 P. v. Shaw 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

TYANA RENEE SHAW,

Defendant and Appellant.

C084124

(Super. Ct. No. 16FE022771)

Defendant Tyana Renee Shaw appeals a judgment entered following her no contest plea to forgery (Pen. Code, § 476) and grant of felony probation for a term of five years. Defendant argues the trial court abused its discretion in imposing the electronic search provision found in specific probation condition number 17 (condition 17) because: (1) it is unrelated to her offense and without any factual basis in the record to support its relationship to her future criminality; (2) it is overbroad in violation of the Fourth Amendment; and (3) it violates her right against self-incrimination protected by the Fifth Amendment. We requested supplemental briefing addressing the propriety of specific probation condition number 11 (condition 11) that requires defendant to disclose all e-mail and electronic accounts, as well as the information necessary to facilitate the warrantless search of such accounts.

We now conclude the trial court’s imposition of conditions 11 and 17 violated the third prong of People v. Lent (1975) 15 Cal.3d 481 (Lent) as explained in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). We therefore do not reach defendant’s constitutional arguments. Accordingly, we strike these conditions and affirm the judgment as modified.

BACKGROUND

The People’s amended complaint charged defendant with theft against an elder or dependent adult with a value over $950 (§ 368, subd. (d); count one) and forgery (§ 476; count two). Defendant pleaded no contest to forgery and count one was dismissed in the interests of justice. The stipulated factual basis for the plea was that: “Between October 3rd, 2016, and October 20, 2016, here in Sacramento County, the defendant, Tyana Renee Shaw, committed a felony. It was a violation of . . . Section 476 in that she passed with intent to defraud a person a fictitious or altered check belonging to Sacramento County, which was a real agency. Specifically, between the dates stated, the defendant cashed three checks amounting to $2,489.65 in her own checking account. She also cashed another check amounting to $1,503.04 in Courtney Castillo’s [phonetic] checking account at her behest and another check amounting to $633.32 in her own account. They were fraudulent and she did know they were fraudulent.”

Defendant waived a formal probation report and was sentenced at the same hearing to a grant of felony probation for a term of 5 years and 90 days in county jail with credit for one day served. The court imposed various fines and fees, none of which are challenged on appeal.

Included within the probation conditions imposed by the court were two pertaining to searches of defendant’s electronic information: conditions 11 and 17. Condition 11 stated: “Defendant shall disclose all e-mail accounts, all Internet accounts, and any other means of access to any computer or computer network, all passwords and access codes. Defendant shall consent to the search of such e-mail and Internet accounts at any time and the seizure of any information or data contained therein without a search warrant or probable cause.”

Condition 17 stated: “[Section] 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 officers, 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 . . . section 1546 et seq. in this regard, and having accepted probation, is deemed to have waived same and also specifically consented to search 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.”

Defendant’s counsel objected to the electronics search conditions in a boilerplate written objection that argued in pertinent part the condition did not relate to the crime or future criminality, the nature of the search was too intrusive to be justified in this case, the condition would allow authorities to obtain information from the cloud outside of defendant’s custody and control, and the condition was unconstitutionally overbroad requiring modification. Defendant’s counsel did not orally object at the sentencing hearing to either condition 11 or 17. Nonetheless, the trial court noted it was imposing “the [section] 1546 conditions” over defendant’s objection because the offense had been a theft offense and was a felony. Defendant timely appealed.

DISCUSSION

Defendant requests that we strike conditions 11 and 17 because they are not reasonably related to the offense or future criminality.

“The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. (. . . § 1203 et. seq.)” (Lent, supra, 15 Cal.3d at p. 486.) Consequently, imposition of a probation condition is reviewed for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) “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, at p. 486.) The Lent test “is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. [Citation.]” (Olguin, at pp. 379-380.)

Because the challenged electronics search conditions neither relate to a crime for which defendant was convicted, nor to conduct that is itself criminal, only the third Lent factor is implicated in this case. Thus, we must decide whether the challenged electronics search conditions were “reasonably related to future criminality.” (Lent, supra, 15 Cal.3d at p. 486.)

The Supreme Court’s recent decision in Ricardo P., which was decided after briefing was complete, is instructive. (Ricardo P., supra, 7 Cal.5th 1113.) In that case, a minor was granted probation after admitting two counts of burglary. Included among the conditions of probation was that he “submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices.” (Id. at p. 1115.) While the minor did not use electronic devices in committing the burglaries, the juvenile court “imposed the condition in order to monitor his compliance with separate conditions prohibiting him from using or possessing illegal drugs.” (Ibid.)

The Supreme Court granted review to determine “whether the electronics search condition satisfies Lent’s third prong—that is, whether it ‘ “requires or forbids conduct which is not reasonably related to future criminality.” ’ [Citation.]” (Ricardo P., supra, 7 Cal.5th at p. 1119.) The court determined 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. [Citations.]” (Id. at pp. 1122-1123.)

However, it held that relationship was not met. (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.) The court noted the electronics search condition significantly burdened the minor’s privacy interests given how much sensitive and confidential information can be accessed on devices such as cell phones. (Id. at pp. 1122-1123.) In contrast, the record did not support such a significant burden on the minor’s privacy. The only rationale provided by the trial court was evidence the minor previously used marijuana and its observation that minors often brag about using marijuana or other drugs by posting online pictures of themselves with drugs or paraphernalia. (Ibid.) Such an abstract or hypothetical connection to the interest served by the probation condition was insufficient to justify the significant intrusion into the minor’s privacy. (Id. at pp. 1120-1123.)

The court reasoned: “If we were to find this record sufficient to sustain the probation condition at issue, it is difficult to conceive of any case in which a comparable condition could not be imposed, especially given the constant and pervasive use of electronic devices and social media by juveniles today. In virtually every case, one could hypothesize that monitoring a probationer’s electronic devices and social media might deter or prevent future criminal conduct. For example, an electronics search condition could be imposed on a defendant convicted of carrying an unregistered concealed weapon on the ground that text messages, e-mails, or online photos could reveal evidence that the defendant possesses contraband or is participating in a gang. [Citation.] Indeed, whatever crime a juvenile might have committed, it could be said that juveniles may use electronic devices and social media to mention or brag about their illicit activities.” (Ricardo P., supra, 7 Cal.5th at p. 1123.)

Nor did the court accept the argument that any condition reasonably related to effective supervision was valid under Olguin, supra, 45 Cal.4th 375, which had upheld a probation condition requiring the probationer to notify the probation officer of the presence of any pets at his or her residence. (Ricardo P., supra, 7 Cal.5th at pp. 1124-1127.) Unlike a minimally intrusive notification requirement meant to ensure officer safety, “requiring a probationer to surrender electronic devices and passwords to search at any time is far more burdensome and intrusive, and requires a correspondingly substantial and particularized justification.” (Id. at p. 1126.)

Here, the record is devoid of any information from which we could find proportionality between the privacy intrusion imposed by the electronics search conditions and the goal of deterring defendant’s future criminality, to wit, forgery and/or compliance with the condition that she obey all laws. The trial court’s justification that condition 17 was appropriate because it was a felony theft offense is materially indistinguishable from the trial court’s generic justification in Ricardo P. that minors often brag concerning marijuana use on social media without any evidence that the minor had actually done so. (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123.) Nor are we persuaded by the People’s argument that defendant’s lengthy history of similar behavior justifies the condition.

While there may be circumstances where a defendant’s personal history could justify an electronics search condition as a means of deterring future criminality (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129), here, there is no evidence defendant had utilized a phone or other electronic device in her forgery or that she had otherwise utilized her electronic devices in a way that would justify imposition of these search conditions. In fact, the People’s brief on appeal concedes there is no evidence “that appellant used electronic devices in committing her current or prior crimes.” That an electronic device may be used in committing a forgery is not enough. (Id. at pp. 1122-1123.) Accordingly, the electronics search condition cannot withstand scrutiny under Lent, supra, 15 Cal.3d 481 as understood following Ricardo P. and must be stricken. (Ricardo P. at p. 1129.)

DISPOSITION

The trial court is directed to issue an amended probation order striking probation conditions 11 and 17. The trial court is also directed to modify the probation order and sentencing minute order to reflect defendant’s 90-day jail sentence and one day of custody credit. As modified, the judgment is affirmed.

/s/

HOCH, J.

We concur:

/s/

BUTZ, Acting P. J.

/s/

MAURO, J.