Filed 1/22/20 P. v. Terrado CA4/1

Opinion following rehearing

OPINION ON REHEARING

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

ANTHONY TERRADO,

Defendant and Appellant.

D074330

(Super. Ct. No. SCD277057)

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

Britton Donaldson, 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, Kristine A. Gutierrez and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

Anthony Terrado pled guilty to first degree residential burglary, and admitted an enhancement alleging that a nonaccomplice was present during the burglary. (Pen. Code, §§ 459, 460, subd. (a); 667.5, subd. (c)(21).) The court ordered Terrado to serve 365 days in local custody (with a provision that he could be released to a residential treatment program after serving 130 days) and imposed four years’ formal probation with numerous conditions, including that he submit his electronic devices to warrantless searches. On appeal, Terrado contends the electronics search condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally overbroad.

In our original opinion in this case, we rejected Terrado’s Lent and constitutional overbreadth challenges. After we filed our opinion, the California Supreme Court decided In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo), which clarified the Lent standard as applied to electronics search conditions. We granted Terrado’s Ricardo-based petition for rehearing and received supplemental briefing from the parties.

For reasons we will explain, we conclude the electronics search condition is no longer sustainable on the record before us. Accordingly, we will strike the condition without prejudice to the People seeking to reinstate such a condition on a factual showing that satisfies the standard announced in Ricardo. Because we are striking the condition on Lent/Ricardo grounds, we do not reach Terrado’s constitutional challenge.

As modified to strike the electronics search condition, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2018, Terrado entered a residential unit (a garage that had been converted into a bedroom) when the female resident was at home. The resident ran outside and called the police. When the owner of the main residence returned home, he noticed the door leading into his kitchen was open. The owner found items that did not belong to him, including screwdrivers and clothing. The owner noticed two beer cans had been removed from the refrigerator, one of which had been partially consumed. He was missing $50 in cash and $200 worth of coins.

Based on these facts, Terrado pled guilty to burglary and admitted he “entered a residential building with the intent to commit a theft while [the building] was occupied by another person other than an accomplice.” The parties stipulated to “NOLT” (no opposition to local time). On the plea form, Terrado initialed the clause entitled “Appeal Rights,” which stated that he waived his right “to appeal the following: 1) denial of my 1538.5 motion, 2) issues related to strike priors . . . , and 3) any sentence stipulated herein.”

The probation report showed that at the time of sentencing Terrado was 25 years old, was unemployed and homeless, and had five children (ages 3 to 9) with two former girlfriends. Terrado had a long history of drug and alcohol abuse, and was using methamphetamine three times a day and drinking alcohol every day. When speaking with the probation officer, he denied having a drug problem.

Terrado also had a juvenile criminal history, involving battery on a significant other, damaging property, possessing a switchblade, and cocaine use. He had a battery conviction as an adult, and had violated probation on numerous occasions. He also committed a theft crime the day after the current offense. He told the probation officer he was ” ‘sorry for what I’ve done’ ” and he was ” ‘trying to fly straight.’ ” The probation officer opined that Terrado has a “serious drug problem” and had been participating in theft crimes “for some time as a means to support his methamphetamine use.”

The probation officer recommended 365 days of local custody and three years of formal probation with numerous conditions, including a Fourth Amendment waiver to “aid[] in his rehabilitation” and to “appropriately supervise the defendant.” The proposed Fourth Amendment waiver condition included a requirement that he “[s]ubmit . . . [a]ll electronic devices to search at any time with or without a warrant, and with or without reasonable cause, when required by [his probation officer] or law enforcement officer.”

At the sentencing hearing, defense counsel asked the court to consider releasing Terrado to a residential drug rehabilitation program, stating: “He does now acknowledge he does have a drug problem. His [parents are] here in court today. . . . They support that.” He objected to several probation conditions, including the electronics-search condition, asserting the Fourth Amendment search waiver should not be extended to “computers and recordable media” because “[t]his case involved Mr. Terrado going into a house and taking some cash and coins. It does not involve the use of any electronic devices. I don’t believe there is a nexus either here or based on his prior record.”

Before addressing this specific objection, the court stated: “[T]he concern that I have with Mr. Terrado . . . [he] has five kids, and he’s 25 years old. He does not pay child support for a single one because he’s unemployed . . . . What he seems to do in his spare time is either use drugs or get himself into trouble. So . . . my concern is . . . how is he going to keep himself occupied once he gets out of custody?” Defense counsel replied: “[S]ince this probation interview, [Terrado] has had somewhat of a change of mindset. [¶] The mother of his children has told him that she would not want him to be a part of their lives unless he completes residential [drug] treatment. He is really motivated now because he does want to be back in their lives. It’s new incentive for him to commit to sobriety.”

The prosecutor responded: “[T]he People’s position is Probation’s [recommendation] of 365 [in local custody] is very reasonable. [T]his [crime] . . . teeters on a prison case. [¶] And if the Court is going to allow some kind of release to a treatment program, I would ask that there still be a significant amount of custody before that release, given the seriousness of the [crime] . . . .”

After considering these arguments, the court imposed four years’ formal probation, with Terrado serving 365 days in local custody and a provision he can be released to a residential drug program after serving 120 days. The court also agreed with the probation department’s recommendation that the Fourth Amendment waiver should “extend to all electronic devices.” In explaining its reasoning on this probation condition, the court stated:

“The defendant started using marijuana when he was 13 years old. He then escalated to other drugs, including intravenous methamphetamine up to three times a day. [¶] He is only now willing to admit that he has [a] drug problem, despite the fact that it has motivated his criminality for a significant period of time. And in fact, forced him to be homeless because the family got burnt out on his drug use.

“In any event, in addition to this case, he has another pending burglary case, a [Vehicle Code section] 10851, so the theft seems to support his drug habit. And because phones and other electronic media are used to get drugs and gain access to people with drugs, the Court does think it’s appropriate to extend the [F]ourth waiver to all electronic devices.

“Furthermore, [the probation department] should have that as a resource to further monitor him, given his young age and the fact that he has had his last chance at probation this time.”

After identifying several other probation conditions, including the prohibitions against drug and alcohol use and requiring drug and alcohol testing and a drug treatment program, the court said “Mr. Terrado, do you accept probation on those terms and conditions?” Terrado responded: “Yes, your Honor.” The court then reminded Terrado he will be required to participate in a residential treatment program and noted: “What’s important about this, Mr. Terrado, and your understanding this, if it’s true that you want to have a relationship with any of your five children at this point, is that this is your last chance at probation. And if you go to prison, it’s state prison. It’s not local. So you have to be committed to your sobriety. And if you’re not, you’re going to come right back to where you are right now, sir.” Terrado responded: “Yes, ma’am. I understand.”

DISCUSSION

I. Certificate of Probable Cause

The Attorney General initially urges us to dismiss the appeal because Terrado did not obtain a certificate of probable cause. (See Pen. Code, § 1237.5.) In his plea agreement, Terrado agreed he would be “given . . . [probation] conditions deemed reasonable by the Court” and agreed to waive his right to appeal “any sentence stipulated herein.” In arguing a probable cause certificate is necessary, the Attorney General relies on People v. Espinoza (2018) 22 Cal.App.5th 794 (Espinoza), which interpreted a plea agreement containing different language.

In People v. Patton (2019) 41 Cal.App.5th 934, this court recently held the defendant was not required to obtain a certificate of probable cause to challenge an electronics-search probation condition after agreeing to plead guilty in a form identical to the one signed by Terrado. (Id. at p. 943.) We reasoned the appellate challenge fell outside the scope of the plea agreement and concerned events occurring after the plea, and therefore came within the exception in California Rules of Court, rule 8.304(b)(4)(B). (Patton, at pp. 940-942.) We distinguished Espinoza based on the broader language in the Espinoza defendant’s appellate waiver. (Patton, at p. 942.)

The facts before us are indistinguishable from Patton. We thus conclude Terrado’s electronics-search probation condition challenge is properly before us.

II. Lent Challenge to the Electronics Search Condition

Terrado contends the electronics search condition is unreasonable under Lent, as recently construed by Ricardo. We agree.

Although trial courts have broad discretion in imposing probation conditions, the Supreme Court held in Lent that a condition is “invalid” if 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.) “This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.” (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).)

The parties agree the electronics search condition satisfies the first two prongs of Lent’s invalidation test. But the Attorney General originally argued—and we initially agreed—that the condition failed the third Lent prong because it reasonably related to future criminality by enabling Terrado’s probation officer to effectively supervise him. (See Olguin, supra, 45 Cal.4th at pp. 380-381 [“A condition of probation that enables a probation officer to supervise his or her charges effectively is . . . ‘reasonably related to future criminality,’ ” (italics added)].) However, Ricardo clarified the third Lent prong as it relates to electronics search conditions.

In Ricardo, a juvenile who admitted to committing two burglaries was placed on probation subject to an electronics search condition. (Ricardo, supra, 7 Cal.5th at pp. 1116-1117.) Although the juvenile had not used an electronic device in the charged offenses, the juvenile court justified the condition by (1) construing the juvenile’s statements to his probation officer as admitting he had used marijuana in connection with the offenses, and (2) ” ‘find[ing] that minors typically will brag about their marijuana usage . . . by posting on the Internet, showing pictures of themselves with paraphernalia, or smoking marijuana.’ ” (Id. at p. 1117.) Thus, the juvenile court reasoned the ability to search the juvenile’s electronic devices was ” ‘a very important part of being able to monitor [his] drug usage.’ ” (Ibid.)

The Court of Appeal concluded the electronics search condition was valid under Lent’s third prong, but the Supreme Court disagreed. (Ricardo, supra, 7 Cal.5th at p. 1119.) The high court explained that “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 found “[s]uch proportionality . . . lacking” because “nothing in the record suggests that [this juvenile] has ever used an electronic device or social media in connection with criminal conduct.” (Ibid., italics added; see ibid. [“courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense”].) Thus, the juvenile court’s generalized finding that juveniles use electronic devices to brag about marijuana use was insufficient to justify the condition because “Lent’s third prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality.” (Id. at p. 1121.)

The Ricardo court was careful to note that its “holding does not categorically invalidate electronics search conditions. In certain cases, the probationer’s offense or personal history may provide the juvenile court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality.” (Ricardo, supra, 7 Cal.5th at pp. 1128-1129, citing People v. Appleton (2016) 245 Cal.App.4th 717, 724 [finding electronics search condition reasonable because the defendant lured victim using ” ‘either social media or some kind of computer software’ “]; In re Malik J. (2015) 240 Cal.App.4th 896, 902 [condition allowing officers “to search a cell phone to determine whether [the defendant] is the owner” was reasonable in light of the defendant’s “history of robbing people of their cell phones”]; People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1173, 1176-1177 [finding electronics search condition related to the defendant’s future criminality where the defendant was convicted of making gang-related criminal threats and had previously used social media sites to promote his gang].) But, on the record before it, the Ricardo court found “the electronics search condition imposes a burden that is substantially disproportionate to the legitimate interests in promoting rehabilitation and public safety.” (Ricardo, at p. 1129.)

“From [Ricardo, supra, 7 Cal.5th 1113] we glean the following guidelines for determining when an electronic[s] search condition survives the third prong of Lent . . . . First, there must be information in the record establishing a connection between the search condition and the probationer’s criminal conduct or personal history—an actual connection apparent in the evidence, not one that is just abstract or hypothetical. [Citation.] But no nexus between the search condition and the [probationer]’s underlying offense is required. . . . Finally, ‘the burden imposed by [the] probation condition’ must be proportionate to ‘the legitimate interests served by the condition.’ [Citation.] Thus, ‘ “[a] condition of probation that enables a probation officer to supervise his or her charges effectively is . . . ‘reasonably related to future criminality,’ ” ‘ only if its infringement on the probationer’s liberty is not ‘substantially disproportionate to the ends of reformation and rehabilitation.’ ” (In re Alonzo M. (2019) 40 Cal.App.5th 156, 166.)

In light of Ricardo, the electronics search condition is no longer sustainable on the record before us. The trial court reasonably found that Terrado’s criminality is rooted in his untreated substance abuse problem. In imposing the electronics search condition, the trial court relied on its generalized experience that “phones and other electronic media are used to get drugs and gain access to people with drugs.” But there was “nothing in the record suggest[ing] that [Terrado] has ever used an electronic device or social media in connection with criminal conduct.” (Ricardo, supra, 7 Cal.5th at p. 1122.) Thus, as to Terrado, specifically, the condition was based on nothing “more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality.” (Id. at p. 1121.)

Accordingly, we conclude the electronics search condition is unreasonable under Lent/Ricardo on the record before us.

DISPOSITION

The judgment is modified to strike the electronics search condition (Condition 6.n), without prejudice to the People seeking to reinstate such a condition on a factual showing that satisfies the standard announced in Ricardo. In all other respects, the judgment is affirmed.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

GUERRERO, J.