Opinion
H043472
01-07-2020
THE PEOPLE, Plaintiff and Respondent, v. ISMAEL MARTINEZ CABRERA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1514191)
Defendant Ismael Martinez Cabrera challenges two conditions of mandatory supervision imposed during his sentencing on convictions for transporting heroin and methamphetamine for sale (Health & Saf. Code, §§ 11352, subd. (a), 11379, subd. (a)). The challenged conditions subject electronic devices in defendant's possession to warrantless search and require him to provide passwords for those devices whenever requested by law enforcement. Defendant argues the conditions are unreasonable and overbroad. We previously affirmed the judgment. The Supreme Court granted review and transferred the matter to us with directions to vacate our previous decision and reconsider the cause in light of In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). For the reasons stated here, we will again affirm the judgment.
I. TRIAL COURT PROCEEDINGS
This factual summary is based on police reports in the record as defendant waived preparation of a full probation report. Multiple law enforcement agencies investigated a conspiracy to distribute heroin and methamphetamine "in the form of a seven-day-per- week heroin delivery service between San Joaquin and Santa Clara Counties." One member of the conspiracy received "regular telephone orders for heroin," which would then be delivered to customers in Santa Clara County. Based on that investigation, law enforcement concluded that defendant was the "most senior driver/courier" for the organization. Defendant had registered several delivery vehicles in derivations of his name on behalf of the organization.
Law enforcement obtained search and arrest warrants covering several addresses in Stockton and San Jose, and several individuals (including defendant). During surveillance before the search warrants were executed, federal Drug Enforcement Agency agents noticed a car leave one of the Stockton addresses listed in the warrant. Agents followed the car to a gas station in San Jose and contacted the driver, who was one of the individuals named in an arrest warrant. A car search uncovered approximately 100 small balloons in a hidden compartment; some balloons contained heroin and others contained methamphetamine. Execution of the search warrants produced money, firearms, suspected drug ledgers, digital scales, and several cellular phones.
Defendant and five codefendants were charged in a single felony complaint with several drug-related crimes. Defendant was charged with four counts of transporting methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a); counts 1, 3, 6 & 8), five counts of transporting heroin for sale (Health & Saf. Code, § 11352, subd. (a); counts 2, 4, 5, 7 & 9), two counts of possessing heroin for sale (Health & Saf. Code, § 11351; counts 10 & 15), two counts of transporting a controlled substance between noncontiguous counties (Health & Saf. Code, §§ 11352, subd. (b), 11379, subd. (b); counts 11 & 13), two counts of possessing methamphetamine for sale (Health & Saf. Code, § 11378; counts 12 & 16), three counts of using a false compartment to store controlled substances (Health & Saf. Code, § 11366.8, subd. (a); counts 14, 18 & 19), and one count of maintaining a place to sell heroin and methamphetamine (Health & Saf. Code, § 11366; count 17).
As part of a negotiated disposition, defendant pleaded no contest to three counts of transporting heroin for sale (Health & Saf. Code, § 11352, subd. (a); counts 2, 4 & 5), and one count of transporting methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a); count 1). The trial court sentenced defendant to the upper term of five years for count 2, with two years to be served in county jail and the remaining three years to be spent on mandatory supervision. (Pen. Code, § 1170, subd. (h)(5).) The trial court imposed concurrent upper term sentences for the remaining three convictions.
Defense counsel objected at sentencing to two proposed supervision conditions related to searches of defendant's electronic devices. The court asked whether electronic devices had been involved in the case, and the prosecutor responded that the case was an "extensive wire tap investigation that involved hundreds of calls regarding narcotic sales every day during the course of a several month investigation." Defense counsel argued the conditions were overbroad and unreasonable, contending that the use of a cellular phone in a crime does not establish a "sufficient nexus that he gives up all privacy in any electronic communication."
As imposed at the sentencing hearing, the first electronic device condition provides that defendant's "electronic devices, including but not limited to cell phones, laptop computers[,] and notepads will be subject to a forensic analysis search." The second electronic device condition states: "The defendant is to provide the passwords to any of these electronic devices within his custody and control and shall submit those devices to search without the necessity of a warrant whenever requested by any police officer." (The text of the conditions in the summary probation report does not materially differ from the oral pronouncement.)
II. DISCUSSION
Defendant's original briefing argued the two conditions related to electronic devices were unreasonable under the principles articulated in People v. Lent (1975) 15 Cal.3d 481 (Lent), and were also unconstitutionally overbroad. In his supplemental brief filed after the matter was transferred from the Supreme Court, he argues those two conditions must be stricken under the reasoning of Ricardo P. We note at the outset that mandatory supervision is more akin to parole than probation, because it is part of a felony sentence imposed after probation has been denied or revoked. (People v. Martinez (2014) 226 Cal.App.4th 759, 763 (Martinez).) We therefore analyze conditions imposed as terms of mandatory supervision in the same manner as parole conditions. (Ibid.)
A. REASONABLENESS AND RICARDO P.
1. Ricardo P.
Ricardo was declared a ward of the court after he admitted to participating in two residential burglaries. (Ricardo P., supra, 7 Cal.5th at p. 1115.) According to the probation report, Ricardo told the probation officer he was not thinking when he committed the burglaries and had " 'stopped smoking marijuana after his arrest because he felt that [it] did not allow him to think clearly.' " (Id. at p. 1116.) The juvenile court placed him on probation, and imposed conditions requiring Ricardo to submit any electronic devices in his control to warrantless search. Addressing a Lent objection, the juvenile court found the condition reasonably related to preventing future crime because " 'minors typically will brag about their marijuana usage ... by posting on the Internet,' " and Ricardo's statement to the probation officer had " 'made reference to the fact that marijuana was involved in the commission of this offense.' " (Id. at p. 1117.)
The Supreme Court granted review. The court noted the Lent test has three prongs that must be analyzed when a probation condition is challenged as unreasonable: whether the condition has a relationship to the crime of which the probationer was convicted; whether the condition relates to conduct that is not itself criminal; and whether the condition requires or forbids conduct that is reasonably related to future criminality. (Ricardo P., supra, 7 Cal.5th at p. 1119.) The court confirmed that a probation condition's reasonableness is reviewed on appeal for abuse of discretion. Importantly, the court assumed the first and second Lent requirements were satisfied, focusing its analysis solely on whether the electronic device search condition governed conduct reasonably related to future criminality. (Id. at p. 1119.) The majority interpreted the third Lent prong to require a "degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Id. at p. 1122.)
Applying that standard, the Ricardo P. court found proportionality lacking because the burden of the condition was very high while the legitimate interests to be served were low. "[N]othing in the record suggests that Ricardo has ever used an electronic device or social media in connection with criminal conduct." (Ricardo P., supra, 7 Cal.5th at p. 1122.) The court made clear, however, that its decision "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." (Id. at pp. 1128-1129.)
2. The Conditions Here Are Reasonable
In his original briefing, defendant "concede[d] that certain types of cellphones could not meet the Lent test" because "certain types of cellphones were used to facilitate the drug courier enterprise here." But he contended, without citation to the record, that smartphones are generally not an integral part of drug courier enterprises and argued that only "prepaid disposable cellphones [that] are the choice of drug dealers" should be regulated. The problem with defendant's argument is that a smartphone was seized from one of the addresses during the warrant searches, providing support for a conclusion that smartphones were involved in the criminal operation.
Defendant's supplemental brief focuses on electronic devices other than cellular phones. He argues that under Ricardo P., the electronic device search condition must be stricken because its reference to electronic devices other than cellular phones means the condition has no relationship to the crimes of which defendant was convicted. But Ricardo P. involved a case where there was no connection whatsoever between the condition and the probationer's crime. By contrast, here it is undisputed that defendant used an electronic device (specifically a cellular phone) in committing the crime of which he was convicted. As we reasoned in our original opinion, though it appears cellular phones were the primary means of communication for the drug courier enterprise, individuals can communicate using a variety of electronic devices. Limiting the mandatory supervision condition to cellular phones would allow the condition to be easily circumvented by using a different type of electronic device to communicate about illegal activities. Defendant has not demonstrated that the condition has no relationship to the crimes he committed. And allowing searches to a broader variety of electronic devices is reasonably related to deterring future criminal conduct by defendant.
Regarding the requirement to provide passwords to his electronic devices to facilitate a search, defendant argues the Ricardo P. court found a similar condition not reasonably related to deterring future criminality. But the password condition is related to defendant's conviction offenses (in that he used an electronic device in the drug courier enterprise). Because the password condition is based on the crimes defendant committed, it is valid under the first prong of Lent without regard to the third prong discussed in Ricardo P.
B. OVERBREADTH
Because defendant raised no new arguments related to overbreadth in his supplemental brief, we re-file a substantially similar version of our original overbreadth analysis here. We review de novo whether a mandatory supervision condition is unconstitutionally overbroad. (Martinez, supra, 226 Cal.App.4th at p. 765.) A condition is unconstitutionally overbroad only if the limitations placed on a defendant's constitutional rights are not closely tailored to the purpose of that condition. (In re Sheena K. (2007) 40 Cal.4th 875, 890.) In reviewing the closeness of the fit between the legitimate purpose of a condition and the burden it imposes on a defendant's constitutional rights, we are mindful that "perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
1. First Amendment
Defendant argues the challenged conditions limit his First Amendment right to free speech. (Citing In re Stevens (2004) 119 Cal.App.4th 1228.) But Stevens involved restrictions on a parolee's access to the Internet (Id. at pp. 1231-1232), whereas here the conditions allow unfettered access to electronic devices and merely make those devices subject to search. Defendant has not demonstrated that his First Amendment rights are curtailed by the challenged conditions.
2. Fourth Amendment
Defendant contends the challenged conditions limit his Fourth Amendment right to be free from unreasonable searches, and are unconstitutionally overbroad because they are not closely tailored to their purpose. "[P]arolees and probationers retain some expectation of privacy, albeit a reduced one." (In re Jaime P. (2006) 40 Cal.4th 128, 137.) And "parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment." (Samson v. California (2006) 547 U.S. 843, 850 [finding California law subjecting all parolees to warrantless searches did not violate the Fourth Amendment].) The California Supreme Court has determined that "probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers." (People v. Robles (2000) 23 Cal.4th 789, 795.) The concept applies with full force to mandatory supervision search conditions given that individuals under mandatory supervision have a lower expectation of privacy than probationers.
While defendant does retain some expectation of privacy, that expectation is greatly diminished until he completes his term of mandatory supervision. That diminished expectation of privacy is markedly different from the broader privacy guaranteed under the Fourth Amendment to individuals who are not serving sentences or on grants of probation or parole. It is that pre-conviction expectation of privacy that was at issue in Riley v. California (2014) 573 U.S. 373 (Riley), where the United States Supreme Court announced the general rule that police may not conduct a warrantless search of a cellular phone seized incident to an arrest. (Id. at p. 386.)
It is undisputed that defendant used an electronic device while acting as a courier in transporting controlled substances for sale. The purpose of the challenged conditions is to prevent defendant from using electronic devices in the future to buy, sell, or transport controlled substances. Defendant's use of an electronic device in committing the crimes that led to his conviction, as well as his status as an individual on the equivalent of parole instead of probation, distinguishes this case from those where similar probation conditions have been rejected as unconstitutionally overbroad. (See In re P. O. (2016) 246 Cal.App.4th 288, 291-293, 298 [modifying electronic device search juvenile probation condition because condition bore no relationship to public intoxication adjudication]; People v. Appleton (2016) 245 Cal.App.4th 717, 719-720, 728-729.) Here, robust access to defendant's electronic devices is critical to ensure that he does not return to committing crimes while on mandatory supervision.
Defendant argues that under the challenged conditions his electronic devices could be searched for "banking and business information, medical and insurance information, games, music libraries, electronic books, magazines, and newspapers, and information related to his criminal case, including communications with his attorney." But defendant is protected in the enforcement of the mandatory supervision conditions because warrantless searches carried out under a parole search condition must not be "conducted in an arbitrary, capricious, or harassing manner." (People v. Schmitz (2012) 55 Cal.4th 909, 923.)
Given the facts of this case, we conclude that the fit between the legitimate purpose of the mandatory supervision conditions and the burdens they place on defendant's diminished constitutional expectation of privacy is sufficiently close. The conditions are not unconstitutionally overbroad as applied to defendant.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Premo, Acting P. J. /s/_________
Bamattre-Manoukian, J.