Opinion
E067669
08-14-2018
THE PEOPLE, Plaintiff and Respondent, v. PABLO CORONA, Defendant and Appellant.
Paul R. Kraus, 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, Barry Carlton and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 16CR016666) OPINION APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie, Judge. Affirmed as modified. Paul R. Kraus, 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, Barry Carlton and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Pablo Corona challenges a condition of his mandatory supervision requiring him to submit to the search and seizure of his electronic devices. He contends that this condition: (1) is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent); (2) infringes upon his right against self-incrimination under the Fifth Amendment of the United States Constitution; (3) is unconstitutionally overbroad; and (4) is vague and impermissible under the California Electronic Communications Privacy Act (Cal ECPA). (Pen. Code, § 1546 et seq.) We agree that the condition is unconstitutionally overbroad and should be modified. In all other respects, we affirm the judgment.
All further statutory references will be to the Penal Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
On December 29, 2015, police officers executed a search warrant on defendant's residence. When the officers arrived, they saw defendant sitting in a car with his girlfriend. One officer approached the car and advised defendant that he had a search warrant for his residence, and that they were also looking for his girlfriend, who was on felony probation for burglary. The officer observed that defendant pulled some plastic baggies out of his pocket and put them in the inside panel of the door. Defendant got out of the car, and the officer patted him down for weapons. The officer could see the baggies in the door panel, so he removed them. Upon inspection, the officer believed the baggies contained methamphetamine. He performed a field test on the substance, and it tested positive for amphetamines. Defendant then cooperated with the investigation and advised the officer that he had more methamphetamine in his house. The officer found three additional baggies at defendant's house. After the officer arrested him and read him his Miranda rights, defendant admitted he possessed the methamphetamine for sales.
Miranda v. Arizona (1966) 384 U.S. 436.
On December 2, 2016, defendant plead guilty to one count of possession of a controlled substance for sale (Health & Saf. Code, § 11378) pursuant to a plea agreement. In exchange, the court sentenced him to the upper term of three years in county jail and ordered him to serve 12 days in custody, with the balance to be served on mandatory supervision under specified conditions.
ANALYSIS
I. The Condition Requiring Defendant to Submit to the Search and Seizure of His
Electronic Devices Was Reasonable under Lent
One of the conditions of mandatory supervision required defendant to: "Submit to search and seizure by a government entity of any electronic device that [he is] an authorized possessor of pursuant to PC1546.1(C)(10)." Defendant argues that this condition (hereinafter, the electronics search condition) is invalid under Lent. We disagree.
A. Relevant Law
"In general, the courts are given broad discretion in fashioning terms of supervised release, in order to foster the reformation and rehabilitation of the offender, while protecting public safety. [Citations.] Thus, the imposition of a particular condition of probation is subject to review for abuse of that discretion." (People v. Martinez (2014) 226 Cal.App.4th 759, 764 (Martinez).) "The validity and reasonableness of parole conditions is analyzed under the same standard as that developed for probation conditions." (Ibid.) Under Lent, a probation 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; see In re P.O. (2016) 246 Cal.App.4th 288, 294 (P.O.).) A condition is invalid only if all three prongs of Lent are met. (P.O., at p. 294.)
B. The Electronics Search Condition is Valid Under Lent
There is no dispute that the electronics search condition fails the first two prongs under Lent. Thus, the third prong of the Lent test—whether the electronics search condition is reasonably related to future criminality—is the only prong at issue. In People v. Olguin (2008) 45 Cal.4th 375 (Olguin), the California Supreme Court upheld a condition requiring the defendant to notify his probation officer of the presence of any pets. (Id. at p. 380.) Acknowledging that the challenged condition had no relationship to the defendant's crime (driving under the influence) and did not involve criminal conduct, the Supreme Court held that the condition was nevertheless valid under Lent because it protected the safety of the probation officer charged with "supervising [the] probationer's compliance with specific conditions of probation." (Id. at p. 381.) In other words, "the protection of the probation officer while performing supervisory duties [was] reasonably related to the rehabilitation of a probationer for the purpose of deterring future criminality." (Id. at p. 381.) The court held that "[a] condition of probation that enables a probation officer to supervise his or her charges effectively is, therefore, 'reasonably related to future criminality.' " (Id. at pp. 380-381.) This is true "even if [the] condition . . . has no relationship to the crime of which a defendant was convicted." (Id. at p. 380.)
"Whether an electronic search condition is reasonably related to preventing future criminality depends upon the facts and circumstances in each case." (People v. Bryant (2017) 10 Cal.App.5th 396, 402 (Bryant).) Here, the record shows that defendant was a drug dealer. The probation officer recommended the electronics search condition due to the fact that he was a drug dealer and, presumably, because drugs sales are commonly arranged through the use of cell phones. Defendant was also a drug user. He was under the influence of methamphetamine when the crime was committed. He was previously ordered to complete a drug court program in 2001, but failed to do so. He also failed to complete the Proposition 36 program in 2002. The record also shows that he previously associated with a gang and went by the moniker "Trigger."
The electronics search condition here is reasonably related to future criminality since it enables the effective supervision of defendant's compliance with his mandatory supervision conditions. (See Olguin, supra, 45 Cal.4th at pp. 380-381.) His conditions prohibit him from using or possessing any controlled substance (unless prescribed by a medical professional), and from associating with known illegal users or sellers of illegal substances, and persons known to him to be convicted felons or anyone actively engaged in criminal activity. They also require him to participate in rehabilitative programs. The electronics search condition allows peace officers to review defendant's electronic activity for indications that he has drugs or is selling them, or that he is not attending his rehabilitative programs. It also enables officers to monitor his compliance with the nonassociation conditions. Such monitoring is essential since he is a drug dealer and user, he previously associated with a gang, and his girlfriend is a felon. (See Olguin, at pp. 380-381; see P.O., supra, 246 Cal.App.4th at p. 295.)
In light of the facts and circumstances, we conclude that the electronics search condition is reasonably related to preventing future criminality. (Bryant, supra, 10 Cal.App.5th at p. 402.) Therefore, it is valid under Lent, and we cannot say that the court abused its discretion in imposing it.
II. The Electronics Search Condition Does Not Infringe Upon Defendant's
Right Against Self-Incrimination
Defendant next argues that imposing the electronics search condition is impermissible under the Fifth Amendment and the California Constitution because it compels his testimony. He claims that if he submits any devices for search, he "is testifying for purposes of the Fifth Amendment by providing the information in the accounts as well as a factual assertion of the passwords needed to access the accounts." Furthermore, the search of his devices could lead to incriminating evidence used to prosecute him. We disagree.
"The Fifth Amendment to the United States Constitution states that '[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . .' The high court has made clear that the meaning of this language cannot be divorced from the historical practices at which it was aimed, namely, the brutal inquisitorial methods of ' "putting the accused upon his oath and compelling him to answer questions designed to uncover uncharged offenses, without evidence from another source." ' [Citations.] . . . [T]he amendment prohibits the direct or derivative criminal use against an individual of 'testimonial' communications of an incriminatory nature, obtained from the person under official compulsion." (People v. Low (2010) 49 Cal.4th 372, 389-390.)
The search of defendant's electronic devices, subject to a valid warrantless search condition, does not implicate his Fifth Amendment rights. It is a "settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not 'compelled' within the meaning of the privilege [against self-incrimination]." (United States v. Hubbell (2000) 530 U.S. 27, 35-36; accord Fisher v. United States (1976) 425 U.S. 391, 401 ["[T]he Fifth Amendment protects against 'compelled self-incrimination, not [the disclosure of] private information.' "].)
Moreover, even assuming that the provision of his passwords is a "testimonial communication" and that the electronics search condition is compulsive, the condition itself does not violate defendant's Fifth Amendment right against self-incrimination because it does not authorize the direct or derivative use of any compelled statements in a criminal proceeding. In Maldonado v. Superior Court (2012) 53 Cal.4th 1112, the California Supreme Court explained, "[T]he Fifth Amendment does not provide a privilege against the compelled 'disclosure' of self-incriminating materials or information, but only precludes the use of such evidence in a criminal prosecution against the person from whom it was compelled." (Id. at p. 1134, italics added; see Chavez v. Martinez (2003) 538 U.S. 760, 767 [Compelled statements "of course may not be used against a defendant at trial [citation], but it is not until their use in a criminal case that a violation of the Self-Incrimination Clause occurs."].) We are bound by Maldonado and Chavez. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Since the electronics search condition does not purport to authorize the use of any statements against defendant in a criminal proceeding, it does not violate the Fifth Amendment.
III. The Electronics Search Condition is Overbroad
Defense counsel objected to the electronics search condition as overbroad, and the court agreed that it involved a restriction on defendant's right to privacy; however, the court did not view it as overbroad, stating that it was rationally related to his rehabilitation and the goals of his supervision. On appeal, defendant again argues that the electronics search condition is unconstitutionally overbroad "because it is not narrowly tailored to limit its impact on [his] privacy and free speech rights." He contends that it invades his privacy to a much greater extent than revealing information about drug sales. We agree.
When a probation condition imposes limitations on a person's constitutional rights, it " 'must closely tailor those limitations to the purpose of the condition' "—that is, the probationer's reformation and rehabilitation—" 'to avoid being invalidated as unconstitutionally overbroad.' " (Olguin, supra, 45 Cal.4th at p. 384.) We agree the electronics search condition is overbroad in its authorization of searches of electronic devices because it is not narrowly tailored to its purpose of furthering defendant's rehabilitation. (See P.O., supra, 246 Cal.App.4th at p. 298.) In fact, the electronics search condition is not tailored at all. Rather, the condition requires defendant to "[s]ubmit to search and seizure by a government entity of any electronic device that [he is] an authorized possessor of pursuant to PC1546.1(C)(10)." This condition "permits review of all sorts of private information that is highly unlikely to shed any light on whether [defendant] is complying with the other conditions of his probation, drug-related or otherwise." (P.O., at p. 298, citing People v. Appleton (2016) 245 Cal.App.4th 717, 725 ["[A] search of defendant's mobile electronic devices could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity. These could include, for example, medical records, financial records, personal diaries, and intimate correspondence with family and friends."].) Defendant's privacy interests may be infringed, but only to the extent the information searched is reasonably likely to yield evidence of drug sales activity, or other criminal activity and noncompliance with his mandatory supervision conditions. Thus, the electronics search condition must be modified accordingly.
Defendant further contends that the electronics search condition invades the privacy of third parties without their consent. However, he lacks standing to raise the issue of the privacy rights of third parties. (See B.C. Cotton, Inc. v. Voss (1995) 33 Cal.App.4th 929, 947-948 ["Courts are created to resolve cases and controversies and not to render advisory opinions or resolve questions of purely academic interest. Accordingly, courts will not consider issues tendered by a person whose rights and interests are not affected."].)
We conclude the electronics search condition must be modified to limit authorization of searches of defendant's electronic devices to communications or information reasonably likely to reveal whether he is engaging in drug offenses or otherwise not complying with his mandatory supervision conditions.
IV. The Electronics Search Condition Does Not Violate the Cal ECPA
Defendant argues that the electronics search condition is impermissible under the Cal ECPA. He further contends that the condition is vague since it is not clear what information is subject to search and which rights under the Cal ECPA he is giving up or retaining. He claims that, because it was imposed under section 1546, subdivision (c), it applies only to electronic device information and does not include electronic communication information. He further argues that he was not advised of this limitation, and it is not clear that the probation department understood this limitation either. At the same time, defendant contends that the Cal ECPA does not clearly define "electronic communication information" and "electronic device information." Thus, he appears to be arguing that the condition is too vague to enforce and should be stricken. We conclude that the electronics search condition does not violate the Cal ECPA.
A. The Electronics Search Condition is Permissible
The electronics search condition does not violate the Cal ECPA. As relevant to the present case, the Cal ECPA, effective January 1, 2016, prohibits a government entity from accessing device information through physical interaction or electronic communication with the device unless one of several statutory exceptions applies. One of the exceptions is that "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, subds. (a)(3), (c)(10).) Here, defendant is on mandatory supervision. Thus, the electronics search condition is valid. (§ 1546.1, subd. (c)(10).)
B. Defendant's Other Claims are Meritless
Defendant makes several claims that have no merit. First, he claims the electronics search condition applies only to electronic device information, which he defines as "metadata e.g., from which towers the device transmitted," but not to electronic communication information, which he defines as "content [such as] emails and texts." Section 1546.1, subdivision (c), provides that "[a] government entity may access electronic device information . . . ." Section 1546, subdivision (g), defines electronic device information as "any information stored on or generated through the operation of an electronic device, including the current and prior locations of the device." There is no restriction to, or even mention of, "metadata." Moreover, since the government may access "any information stored on or generated through the operation of an electronic device," that would appear to include emails and texts, since they are stored on or generated by cells phones and computers.
Defendant further contends that the Cal ECPA does not clearly delineate between electronic device information and electronic communication information, and that their definitions are too broad to give guidance about what the condition requires. As defendant himself stated, the electronics search condition does not apply to electronic communication information. Thus, its definition is immaterial. Moreover, as explained above, electronic device information includes "any information stored on or generated through the operation of an electronic device, including the current and prior locations of the device." (§ 1546, subd. (g).) This definition, while broad, is sufficiently clear.
Defendant then asserts that it is unclear whether he is "giving up his right to notice under the Cal ECPA when the government seeks to obtain electronic information from a third party such as a service provider." In support of this assertion, he cites section 1546.2, subdivision (a). That section requires the government to give notice when it executes a warrant to obtain electronic information in an emergency. Thus, it is inapplicable here.
Defendant additionally argues that it is unclear whether he is giving up his constitutional and statutory rights under the Cal EPCA to suppress improperly obtained electronic information under section 1546.4, subdivisions (a) and (c). Section 1546.4, subdivision (a), provides that "[a]ny person in a trial, hearing, or proceeding may move to suppress any electronic information obtained or retained in violation of the Fourth Amendment." Subdivision (c) provides that an individual "whose information is targeted by a warrant, order, or other legal process that is inconsistent with this chapter . . . may petition the issuing court to void or modify the warrant, order, or process . . . ." Neither of these provisions is applicable at this point, since there is no trial or hearing, or any warrant, order, or process inconsistent with the Cal EPCA.
In sum, defendant has given us no valid reason to strike the electronics search condition, especially in light of the modification discussed ante. (See Ante, § II.)
DISPOSITION
The electronics search condition should be modified to read: Submit to search and seizure by a government entity of any electronic device that defendant is an authorized possessor of pursuant to Penal Code section 1546.1, subdivision (c)(10). The searches are limited to communications or information reasonably likely to reveal whether defendant is engaging in drug offenses or otherwise not complying with his mandatory supervision conditions.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: SLOUGH
J. FIELDS
J.