California Court of Appeals, Third District, Sacramento
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 ...