People v. Wright

          APPEAL from a judgment of the Superior Court of Sacramento County, No. 16FE011619 Jack Sapunor, Judge. Affirmed as modified.

          Jin H. Kim, under appointment by the Court of Appeal for Defendant and Appellant.

          Xavier Becerra, Attorney General, Stephen G. Herndon, Supervising Deputy Attorney General, Matthew A. Kearney, Deputy Attorney General for Plaintiff and Respondent.

          HULL, ACTING P. J.

         Defendant Christopher Wright admitted a felony violation of Penal Code section 530.5, subdivision (c)(3), acquiring personal identifying information with intent to defraud, in relation to the possession of about 60 credit cards, driver's licenses, gift cards and Social Security cards in the names of other persons. (Statutory references that follow are to the Penal Code unless otherwise stated.) The trial court placed defendant on probation with various terms and conditions, including that defendant submit his electronic storage devices and e-mail/Internet accounts to search without a search warrant.

         Defendant now contends (1) the electronic device search condition is invalid under People v. Lent (1975) 15 Cal.3d 481, 486 (Lent)^[1]; (2) the electronic device search condition violates his right to privacy and is overbroad; (3) the electronic device search condition violates his privilege against self-incrimination; (4) the electronic device search condition violates the California Electronic Communications Privacy Act (§ 1546 et seq.); (5) the e-mail/Internet account search condition violates his right to privacy and his privilege against self-incrimination; (6) his counsel was ineffective in failing to object to the e-mail/Internet account search condition; (7) the urinalysis test fee is unauthorized and cannot be made a condition of probation; (8) the order granting probation must be modified to make clear that payment of the court facility fee is not a condition of probation; and (9) the criminal impact fee is unauthorized. Defendant withdrew his contention that certain probation conditions must be modified to include a scienter requirement.

         We modify the order granting probation to strike the urinalysis testing fee and the criminal impact fee, and to provide that the court facility fee is not imposed as a condition of probation, but instead is imposed as an order of the trial court entered at judgment. We affirm the order granting probation as modified.

         Facts and Proceedings

         Defendant entered a plea of no contest to willfully and unlawfully acquiring and retaining the personal identifying information of 10 or more persons with intent to defraud. He waived referral to probation and requested immediate judgment and sentencing.

         The People asked the trial court to impose an electronic device search condition to help the probation department monitor whether defendant was violating the law.

         The People submitted the declaration of Detective Sean Smith in support of the request. Detective Smith was a member of the Sacramento Valley Hi Tech Crimes Task Force, an agency which investigated cyber crimes. Detective Smith averred, based on his training and experience, that persons who committed identity theft and fraud crimes commonly used electronic devices to research and purchase victim information and manufacture counterfeit credit cards, checks and identifications. The detective explained how electronic devices could be used to commit identity theft and fraud crimes. He said, for example, that cell phones were commonly used to photograph and store victim information, identify locations where the defendant intended to commit fraud, and deposit counterfeit checks into bank accounts. Detective Smith explained why it was necessary to search all content on a device and obtain password information in identity theft and fraud cases.

         Defendant's trial counsel objected to the electronic device search condition because there was no indication a cell phone or electronic device was used in this case or that defendant manufactured the items found in his car, and defendant's only prior crime was for driving stolen cars. Defendant's trial counsel argued the electronic device search condition was not tailored to defendant or the current offense and was overbroad. He also argued the condition violated defendant's Fifth Amendment rights in that it required defendant to disclose passwords. Defendant's trial counsel pointed out that another probation condition already required disclosure of e-mail/Internet accounts and access to computers, networks and passwords. Defendant's trial counsel did not object to the e-mail/Internet account search condition.

         The trial court imposed the electronic device search condition over defendant's objection. It said, “It does appear that computers, cell phones, other electronic devices are extremely useful in violating this code section. One can violate it by possessing these things and also the manufacture of these things or the negotiation of various instruments can be facilitated through the use of these electronic devices. So I think there is a nexus here in this case, given the offense.”

         The trial court suspended imposition of sentence and placed defendant on formal probation for five years. It imposed 19 specific conditions of probation including a general search condition which provided, “Defendant shall submit his person, property and automobile and any object under [his] control to search and seizure in or out of... [his] presence..., by any law enforcement officer and/or probation officer, at any time of the day or night, with or without his consent, with or without a warrant.”

         The trial court also imposed an electronic device search condition as follows: “P.C. 1546 searchable - Defendant shall submit his... person, place, property, automobile, electronic storage devices, and any object under his... 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... presence or further consent. [¶] Defendant being advised of his... 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... 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.”

         In addition, the trial court imposed an e-mail/Internet account search condition: “Defendant shall disclose all email 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 email and internet accounts at any time and for the seizure of any information without a search warrant or probable cause.”

         Defendant was also prohibited from possessing, controlling or using a personal checking account, unless authorized by his probation officer; possessing personal identifying information of another person, as defined in section 530.5, without prior approval of the probation department; possessing an access card, as defined in section 484d, subdivision (2), in the name of another without prior approval of the probation department; possessing software designed for manufacturing checks or blank check paper; knowingly possessing a scanner; possessing an access card reader or encoder; intentionally concealing the source, destination or content of any electronic communication transmitted or otherwise sent by defendant; providing false information about his identity to an electronic communications service provider, as defined in section 2510(15) of title 18 of the United States Code, when purchasing or agreeing to purchase any service from that provider which allows defendant to send and receive electronic communications; and possessing any software and/or hardware designed to encrypt or decrypt computer files.

         Defendant was further required to pay restitution, a restitution fine under section 1202.4, subdivision (b), a criminal impact fee pursuant to section 1465.7, subdivision (a), a urinalysis test fee, and a court facility fee pursuant to Government Code section 70373.

         Defendant filed a brief opposing the electronic device search condition after the sentencing hearing. He asserted privacy, overbreadth, the Electronic Communications Privacy Act and his Fifth Amendment privilege against self-incrimination as the basis for his objection and asked the trial court to narrowly tailor the condition to fit the government's purposes. The appellate record does not indicate whether a further hearing was requested or held based on defendant's written brief.

         Discussion

         I

         The Electronic Search Condition Is Not Invalid Under Lent

         Defendant claims the electronic device search condition is invalid under Lent, supra, 15 Cal.3d at page 486, because the condition is unrelated to his current offense, possession of electronic storage devices is lawful, and the condition is not reasonably related to his future criminality. We disagree.

         A grant of probation is an act of clemency. (People v. Moran (2016) 1 Cal.5th 398, 402 (Moran).) Probation is a privilege, not a right. (Ibid.) When an offender chooses probation, thereby avoiding incarceration, the sentencing court may impose reasonable conditions of probation 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).) Section 1203.1 grants sentencing courts broad discretion to impose probation conditions to foster rehabilitation and protect public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.)

         “ ‘Generally, “[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....' [Citation.]” [Citation.] This test[, which the California Supreme Court adopted in Lent, ] 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.]” (Moran, supra, 1 Cal.5th at p. 403.)

         We review the validity of a probation condition under Lent for abuse of discretion. (Moran, supra, 1 Cal.5th at p. 403; People v. Carbajal, supra, 10 Cal.4th at p. 1121.) We will not disturb the trial court's decision to impose a particular condition of probation unless that choice is arbitrary and exceeds the bounds of reason, all of the circumstances being considered. (Moran, supra, 1 Cal.5th at p. 403; People v. Anderson (2010) 50 Cal.4th 19, 32.) As the party challenging the condition, defendant must clearly show that the condition is irrational or arbitrary. (People v. Balestra (1999) 76 Cal.App.4th 57, 63 (Balestra).) Absent such a showing, we presume the sentencing court “ ‘ “acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” [Citation.] Concomitantly, “[a] decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' [Citations.]” [Citation.]' ” (Ibid.)

         Addressing the first and second Lent factors, the Attorney General agrees there is no evidence an electronic device played a role in the current offense, and using an electronic device is not criminal. Turning to the third Lent factor, however, the Attorney General argues the electronic device search condition is reasonably related to preventing future criminality. We agree.

         Probationers “do not enjoy ‘the absolute liberty to which every citizen is entitled, but only... conditional liberty properly dependent on observance of special [probation] restrictions.' [Citation.] [¶] These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large. [Citation.] These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed.” (Griffin v. Wisconsin (1987) 483 U.S. 868, 874-875 [97 L.Ed.2d 709, 718] (Griffin).)

         In general, a probation search condition helps “ ‘deter further offenses by the probationer and to ascertain whether he [or she] is complying with the terms of... probation.' [Citation.]” (People v. Bravo (1987) 43 Cal.3d 600, 610 (Bravo); see People v. Robles (2000) 23 Cal.4th 789, 795 (Robles).) “By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers.” (Robles, supra, 23 Cal.4th at p. 795.) A term of probation that facilitates effective supervision of a probationer is, therefore, reasonably related to deterring future criminality. (People v. Olguin (2008) 45 Cal.4th 375, 378, 380-381 (Olguin).)

         In Olguin, the probationer had agreed to the warrantless search of his residence. The California Supreme Court there held that a condition requiring the probationer to notify his probation officer of the presence of pets at the probationer's residence was reasonably related to future criminality because the pet disclosure condition helped protect probation officers during compliance visits and facilitated unannounced searches of the probationer's residence, aimed at discovering whether the probationer was complying with the terms of his probation. (Olguin, supra, 45 Cal.4th at pp. 381-382.) Similarly, the appellate court in Balestra upheld a condition requiring the probationer to submit her person and property to search with or without probable cause, concluding that such condition served the rehabilitative purpose of helping a probation officer ensure that his or her charge was obeying all laws. (Balestra, supra, 76 Cal.App.4th at pp. 61, 64-68.) For that reason, the condition was reasonably related to future criminality. (Ibid.; see Olguin, supra, 45 Cal.4th at p. 381.) An electronic device search condition is likewise reasonably related to preventing a defendant's future criminality. (People v. Valdivia (2017) 16 Cal.App.5th 1130, 1137-1139, review granted Feb. 14, 2018, S245893 (Valdivia) [electronic device search condition was reasonably related to future criminality because it helped the probation officer ensure that the defendant was complying with the conditions of his probation by obeying all laws]; In re P.O. (2016) 246 Cal.App.4th 288, 293-296 [electronic device search condition was reasonably related to future criminality because it enabled peace officers to review the probationer's electronic activity for indications that the probationer had drugs or was otherwise violating his probation].) ^[2]

         Here, defendant admitted that he willfully, and with intent to defraud, acquired the personal identifying information of 10 or more persons. The trial court found that electronic devices would be extremely useful in manufacturing, obtaining and using the kinds of items found in defendant's possession. The trial court imposed other probation conditions aimed at deterring defendant's commission of identity theft crimes in the future. Defendant does not challenge those other terms of his probation. Searching defendant's cell phone, computers and other electronic storage devices would enable defendant's probation officer to ascertain whether defendant is complying with the other unchallenged conditions of defendant's probation.

         While nothing in the record indicates that defendant used an electronic device to acquire, obtain, manufacture or use the credit cards, driver's licenses, gift cards, and Social Security cards found in his possession, the trial court's finding that electronic devices can facilitate the commission of identity theft crimes is not outside the bounds of reason. (People v. Valenzuela (2012) 205 Cal.App.4th 800, 803 [the defendant possessed credit card information, dates of birth, Social Security numbers, telephone numbers, and addresses for three people which he obtained from a Web site that advertised the sale of people's personal identifying information]; People v. Love (2008) 166 Cal.App.4th 1292, 1295-1296 [use of credit card information belonging to other people to make unauthorized online purchases]; People v. Shabtay (2006) 138 Cal.App.4th 1184, 1188-1189 [same].) Whatever the outer limits of Olguin may be, we conclude that in this case, the electronic device search condition imposed by the trial court would facilitate the effective supervision of defendant during his probation period by helping his probation officer determine whether defendant was complying with the terms of his probation, thereby deterring the future commission of identity theft crimes by defendant, effectuating the rehabilitative purpose of section 1203.1 and protecting the public. (Olguin, supra, 45 Cal.4th at pp. 378, 380-381; Valdivia, supra, 16 Cal.App.5th at pp. 1138-1139, review granted; id. at pp. 1137-1138 [rejecting the contention that a probation condition must have a specific connection to the facts of the current offense or the defendant's past criminal conduct]; In re P.O., supra, 246 Cal.App.4th at p. 295; see People v. Mason (1971) 5 Cal.3d 759, 764 (Mason), [validating a search condition aimed at deterring or discovering subsequent criminal offenses], disapproved on another ground in Lent, supra, 15 Cal.3d at p. 486, fn. 1; Balestra, supra, 76 Cal.App.4th at pp. 65-68.) As the Supreme Court explained in Olguin, as a general rule, “[a] condition of probation that enables a probation officer to supervise his or her charges effectively is... ‘reasonably related to future criminality.' ” (Olguin, supra, 45 Cal.4th at pp. 380-381.)

         Defendant nevertheless argues the electronic device search condition is not reasonably related to his future criminality because there is no reasonable relationship between the condition and his current offense or his social and criminal history. Defendant asks us to follow In re Erica R. (2015) 240 Cal.App.4th 907 and In re J.B. (2015) 242 Cal.App.4th 749.

         The minor in In re Erica R. admitted to misdemeanor possession of Ecstasy after a school counselor found a baggie of pills in her purse. (In re Erica R., supra, 240 Cal.App.4th at p. 909.) The juvenile court placed the minor under supervision with the condition that she submit to searches of her electronic devices and turn over her passwords to her probation officer. (Ibid.) The juvenile court said, “ ‘I found in practice that many juveniles, many minors, who are involved in drugs tend to post information about themselves and drug usage. They post photos of themselves using drugs and drug paraphernalia. This is the way of keeping track [of] her drug usage, not just a way of testing her.' ” (Id. at p. 910, fn. omitted.) The Court of Appeal struck the electronic device search condition under Lent because there was no evidence connecting the minor's electronic device or social media usage to her offense or to a risk of future criminal conduct. (In re Erica R., supra, at pp. 909-910.) With regard to the third factor under Lent, the appellate court said the record did not support a conclusion that the electronic device search condition was reasonably related to future criminality because nothing in the minor's past or current offenses or her personal history showed a predisposition to use electronic devices or social media in connection with criminal activity. (Id. at p. 913.)

         The minor in In re J.B. admitted committing a petty theft. (In re J.B., supra, 242 Cal.App.4th at p. 752.) The trial court placed the minor on probation with the condition that he submit to searches of his electronics and disclose his passwords. (Ibid.) The trial court explained it imposed the condition because the minor admitted using marijuana, people who used drugs tended to record their usage on the Internet, the condition deterred the minor from committing crimes and allowed his probation officer to monitor what he was doing, the minor's grade point average was 0.0, and on one occasion the minor played on his cell phone during an interview with his mother and the probation officer. (Id. at p. 753.) The Court of Appeal held the electronic device search condition was unreasonable because there was no evidence connecting the minor's electronic device or social media usage to his offense or to a risk of future criminal conduct. (Id. at pp. 752, 756-757.)

         We do not find In re Erica R. persuasive because it does not consider the California Supreme Court's interpretation of Lent's third factor in Olguin. The condition in Olguin-requiring notice of the presence of pets kept at the defendant's residence-had no relationship to the defendant's offense of driving under the influence of alcohol. (Olguin, supra, 45 Cal.4th. at pp. 379-380.) That fact, however, did not require invalidating the probation condition under Lent. There is also no indication in the Supreme Court's opinion in Olguin that the defendant had any pets, planned to have a pet, or had a history of engaging in conduct which interfered with compliance visits or unannounced searches. Nevertheless, Olguin held that the pet notice condition was reasonably related to deterring future criminality because it facilitated the effective supervision of the probationer; in particular, the condition helped probation officers make unscheduled visits and conduct unannounced searches of the probationer's residence, which was a term of probation the defendant did not challenge. (Id. at pp. 378, 380-381.) In re Erica R. failed to consider whether the electronic device search condition in that case would aid in the effective supervision of the minor and serve the goals of probation. (In re Erica R., supra, 240 Cal.App.4th at pp. 913-915.)

         In re J.B. considered Olguin but questioned whether Olguin “justifies a probation condition that facilitates [the] general supervision of a ward's activities if the condition requires or forbids noncriminal conduct bearing no relation to the minor's offense that is not reasonably related to potential future criminality as demonstrated by the minor's history and prior misconduct.” (In re J.B., supra, 242 Cal.App.4th at p. 757.) Olguin, however, does not require the risk of future criminality to be established by the probationer's history and prior misconduct. (Olguin, supra, 45 Cal.4th at pp. 380-381.) Also, In re J.B. conflates the analysis under Lent with a determination whether a probation condition is unconstitutionally overbroad. (In re J.B., supra, 242 Cal.App.4th at pp. 757-758; In re P.O., supra, 246 Cal.App.4th at p. 296 [claim of violation of the minor's privacy is better addressed by the overbreadth doctrine and not under Lent); cf. Moran, supra, 1 Cal.5th 398 at pp. 406-408 [examining validity under Lent separately from constitutional claims]; Olguin, supra, 45 Cal.4th at pp. 384-387 [same].) As we have explained, the electronic device search condition in this case is valid under Lent, as interpreted in Olguin.

         II

         The Electronic Device Search Condition Is Not Unconstitutionally Overbroad

         Defendant also claims the electronic device search condition is unconstitutionally overbroad in that it infringes on his state and federal constitutional rights to privacy.

         The Attorney General first responds that defendant waived his privacy claims by consenting to the electronic device search condition. We reject the Attorney General's contention. A defendant who accepts a term of probation may, after objecting in the trial court, challenge the condition as unconstitutional. (Moran, supra, 1 Cal.5th at p. 403, fn. 5; People v. Woods (1999) 21 Cal.4th 668, 678, fn. 5; People v. Brandão (2012) 210 Cal.App.4th 568, 572.) Defendant objected to the electronic device search condition in the trial court, asserting that the condition violated his right to privacy and was overbroad. The record does not show that he waived his right to challenge the condition on appeal on those grounds.

         We also reject the Attorney General's claim that defendant forfeited his state constitutional claims. We interpret defendant's trial court objection to include a state constitutional claim.

         Defendant asserts the search condition is overbroad because it violates his right to privacy under the Fourth and Fourteenth Amendments to the federal constitution and article 1, section 1, of the state constitution. We disagree. But before we explain why, we first discuss the test we are to apply to determine whether the condition violates defendant's right to privacy. It is a different test than what a number of courts have applied to this issue.

         A. The Inapplicability of the “Closely Tailored” Test

         Generally, “ ‘[a] probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.' (In re Sheena K. (2007) 40 Cal.4th 857, 890[.])” (Olguin, supra, 45 Cal.4th at p. 384; People v. Harrisson (2005) 134 Cal.App.4th, 637, 641.) Many of the appellate courts, including a panel of this court, that have evaluated the constitutionality of electronic device search conditions did so using this “closely tailored” test. (See Valdivia, supra, 16 Cal.App.5th at p. 1142, review granted; People v. Appleton (2016) 245 Cal.App.4th 717, 723; In re Ricardo P., supra, 241 Cal.App.4th 676, review granted.) ^[3]

         However, a more deferential standard of review applies where the constitutional right being infringed is the defendant's right to privacy. The privacy right defendant asserts arises from the privacy interests protected by the Fourth Amendment. The test for reviewing infringements of Fourth Amendment privacy is not whether the infringement is closely tailored to its ...