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People v. Guzman

California Court of Appeals, First District, Fourth Division

May 9, 2018

THE PEOPLE, Plaintiff and Respondent,
v.
BENITO GUZMAN, Defendant and Appellant.

          Sonoma County Superior Court Super. Ct. No. SCR-648774 Hon. Jamie E. Thistlethwaite

          Counsel for Appellant: Richard A. Tamor, under appointment by the Court of Appeal under the First District Appellate Project Independent Case System

          Counsel for Respondent: Xavier Becerra Attorney General of California Gerald E. Engler Chief Assistant Attorney General Jeffrey M. Laurence Senior Assistant Attorney General Seth K. Schalit Supervising Deputy Attorney General Laurence K. Sullivan Supervising Deputy Attorney General

          SMITH, J. [*]

         Benito Guzman appeals from an order modifying the conditions of his supervised probation to explicitly authorize warrantless searches of his electronic devices. Guzman contends (1) the trial court lacked jurisdiction to order the modification because no new circumstances existed and (2) the electronic search probation condition violates Guzman's constitutional right to privacy. We affirm the order.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Guzman's 2015 Offense and Sentence

         In April 2015, Guzman was charged with two felonies: (count 1) arranging a meeting with a minor for the purpose of committing a sexual offense (Pen. Code, § 288.4, subd. (b)[1]); and (count 2) attempting to commit a lewd act with a minor under the age of 14 (§ 664/288, subd. (a)). The charges were based on evidence gathered by officers conducting an undercover “sting” operation, which showed that Guzman used his cell phone and the internet Web site myredbook.com to arrange and negotiate payment for a sexual encounter with a 19-year-old female named “Sexy Shauna” and her 13-year-old sister “Jenny.”

         In July 2015, Guzman pleaded guilty to the count 1 felony sex offense pursuant to a negotiated disposition, which provided that the court would dismiss count 2, suspend imposition of judgment, and impose a sentence of nine months in jail and three years felony probation. As part of the negotiated disposition, Guzman acknowledged that he would be required to register as a sex offender and be subject to “Sex Offender Caseload Conditions” of probation (also called SAFER probation conditions).

         On September 1, 2015, Guzman was sentenced in accordance with the negotiated disposition. At his sentencing hearing, Guzman reviewed and separately acknowledged the SAFER probation conditions, which were incorporated into the terms of his probation. Among other things, the SAFER probation conditions required participation in sex offender treatment/programs, restricted interactions with children, and provided that Guzman may not “view, purchase, possess or have access to any videotapes, films and/or magazines, CD's or any medium which depict minor(s) or people representing themselves as minors(s) in sexual activity.”

         The SAFER probation conditions also impose the following requirements on Guzman: “Submit to warrantless search and seizure of person, property, personal business or vehicle any time of the day or night or residence any time of the day or reasonable hour of the night by any Probation or Law Enforcement Officer”; and “Provide Probation Officer with keys, combinations or access codes to any and all gates or security doors which are required for entry onto any property where you reside.”

         B. The California Electronic Communications Privacy Act (ECPA)

         While Guzman was on probation, the ECPA went into effect on January 1, 2016. (§ 1546, et seq.; Stats. 2015, ch. 651, § 1.) As pertinent here, the ECPA precludes a government entity from accessing “electronic device information by means of physical interaction or electronic communication with the electronic device” unless a statutory exception applies. (§ 1546.1, subds. (a)(3) & (c).) Statutory exceptions include obtaining a warrant (§ 1546.1, subd. (c)(1)), or obtaining the “the specific consent of the authorized possessor of the device” (§ 1546.1, subd. (c)(4)).

         Another exception, which was added by a September 2016 amendment to the ECPA, states: “(c) A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows: [¶]... [¶] (10) Except where prohibited by state or federal law, if the device is seized from an authorized possessor of the device who is subject to an electronic device search as a clear and unambiguous condition of probation, mandatory supervision, or pretrial release.” (§ 1546.1, subd. (c)(10).)

         C. The Modification Order

         In September 2016, Guzman's probation officer filed a petition “for a modification of probation.” The petition alleged that Guzman's offense involved the use of an electronic device to communicate or attempt to communicate with a minor “with the intent to seduce or arrange to meet the minor and engage in sexual acts or to view, download or distribute child pornography.” The petition further stated: “In order to ensure the effective rehabilitation and supervision of the defendant it is recommended ...


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