Opinion
D072087
04-16-2018
THE PEOPLE, Plaintiff and Respondent, v. RONNIE JONES, Defendant and Appellant.
Rachel M. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami Falkenstein Hennick, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN366957) APPEAL from a judgment of the Superior Court of San Diego County, Michael D. Washington, Judge. Affirmed. Rachel M. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
We are again called upon to address when a sentencing court may require a convicted defendant to submit to warrantless searches of electronic devices as a condition of mandatory supervision or probation, understanding that a similar issue is currently pending before the California Supreme Court in In re Ricardo P., review granted February 17, 2016, S230923, and numerous other cases. In this case, defendant Ronnie Jones failed to object to imposition of the condition in the trial court and for that reason has waived the issue on appeal. But even if the issue was not waived, the record demonstrates that Jones has an extensive criminal history, including numerous theft and drug offenses. Applying the principles of People v. Olguin (2008) 45 Cal.4th 375 (Olguin), we conclude the search condition was properly imposed in this case because it is reasonably related to preventing future criminal behavior by Jones and assuring his compliance with other appropriate terms and conditions of mandatory supervision. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Arising out of his activities over the course of several months, Jones was charged with 12 counts of identity theft (Pen. Code, § 530.5, subd. (a)), two counts of check forgery (§ 470, subd. (d)), single counts of perjury (§ 118, subd. (a)) and filing a false instrument (§ 115, subd. (a)). As part of a plea bargain he pled guilty to four of the counts (two identity theft and two forgery), in exchange for which the prosecutor agreed to dismiss the balance of the charges. The plea agreement included a Harvey waiver.
Further statutory references are to the Penal Code unless otherwise indicated.
See generally People v. Harvey (1979) 25 Cal.3d 754. As part of his plea bargain, Jones agreed the sentencing judge could consider "the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations or cases when . . . imposing sentence." --------
The court imposed a four-year split sentence, including one year in local custody and three years of mandatory supervision. (§ 1170, subd. (h)(5)(B).) The probation report recounted Jones's significant criminal history, which included numerous convictions for various drug and theft offenses. The court's mandatory supervision order requires Jones to refrain from using controlled substances and attend cognitive behavior therapy, drug treatment, and self-help meetings if directed by the probation officer. It also obligates him to submit his person, residence, and property to search at any time, with or without reasonable cause, if requested by a law enforcement officer. This condition specifically includes "computers[] and recordable media" within the scope of the property subject to search.
DISCUSSION
Jones challenges the condition of mandatory supervision that requires him to submit his electronic devices, including cell phones and computers, to warrantless search with or without reasonable cause.
A sentencing court has "broad discretion" to fashion appropriate conditions of probation that facilitate rehabilitation and foster public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Conditions of mandatory supervision and parole are analyzed under the same standards. (People v. Martinez (2014) 226 Cal.App.4th 759, 764.) "We review conditions of probation for abuse of discretion. [Citations.] 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 is conjunctive — all three prongs must be satisfied before a reviewing court will invalidate a probation term." (Olguin, supra, 45 Cal.4th at p. 379, quoting People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1 (Lent).)
1. Waiver
Recognizing that he failed to object to his electronic search condition in the trial court, Jones challenges the condition as overbroad "on its face" to avoid the claim that he waived the argument. (See generally In re Sheena K. (2007) 40 Cal.4th 875, 888-889.) But not every overbreadth challenge to a condition of probation or parole can be characterized as "facial" so as to excuse a failure to object. (Ibid.) A challenge is not facial if the validity of the condition depends on the facts of the particular case. This is unlike the vagueness challenge in Sheena K., where the juvenile was ordered not to "associate with anyone disapproved of by probation." (Id. at p. 880.) Analyzing that condition did not "require scrutiny of individual facts and circumstances but instead require[d] the review of abstract and generalized legal concepts." (Id. at p. 885.) Thus, the issue on appeal presented a pure question of law, and no purpose would have been served by insisting on an objection to preserve the issue for appeal. (Ibid.)
In contrast, not every electronic search condition is overbroad. Under the Lent test, whether such a condition is appropriate depends on the relationship between the challenged condition, the crime of which the defendant was convicted, and the state's interest in preventing future criminality. (Lent, supra, 15 Cal.3d at p. 486.) This analysis necessarily requires factual inquiry into the circumstances of the crime and the defendant. An objection to the electronic search condition in the trial court would have highlighted the need to present evidence addressing these issues. Accordingly, Jones's failure to object waives his claim of error on appeal.
2. The Merits of Defendant's Challenge
Even if Jones's objection were properly preserved, we would nonetheless conclude that the electronic search condition was justified in this case. Citing Riley v. California (2014) 573 U.S. ___ [134 S.Ct. 2473, 189 L.Ed.2d 430] (Riley), Jones contends electronic devices are different than residences, vehicles, or traditional physical containers because of "their immense storage capacity." (Riley, supra, 573 U.S. ___ .) He argues that as a result, an electronic search condition is only proper where it is narrowly tailored to the specific facts of the crime or there is a particularized need for heightened supervision of electronic media and communications. Even accepting his premise, that standard is satisfied here.
The Supreme Court's opinion in Olguin considered a condition requiring the probationer to notify his probation officer of any pets in his residence and give 24 hours' notice before any changes. (Olguin, supra, 45 Cal.4th at p. 380.) The court explained that "conditions of probation '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.' " (Ibid.) As a general rule, "[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.)
Here, even without the focused factual inquiry that would have followed a timely objection by Jones, the record supports the trial court's conclusion that the electronic search condition imposed in this case would significantly assist in deterring future criminality. Identity theft often involves an electronic component, and although his current crimes do not appear to be computer-related, the electronic search condition would logically deter Jones from committing future identity theft crimes using electronic media. Moreover, Jones's criminal history includes numerous theft and drug offenses, and we cannot ignore the frequent connection between these two forms of criminal behavior. Not surprisingly given his history, Jones was ordered to comply with various conditions of mandatory supervision related to preventing substance abuse. The electronic search condition will be critically important in ensuring Jones's continued sobriety. (See In re P.O. (2016) 246 Cal.App.4th 288, 295 ["the condition enables peace officers to review P.O.'s electronic activity for indications that [he] has drugs or is otherwise engaged in activity in violation of his probation"].)
Jones suggests the electronic search condition is not narrowly tailored to its purpose and, therefore, should be struck as unconstitutionally overbroad. We disagree. " '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 constitutionally overbroad.' [Citation.] 'The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights — bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.' " (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.) We review "constitutional challenges to probation conditions de novo." (People v. Appleton (2016) 245 Cal.App.4th 717, 723 (Appleton).)
Relying heavily on Appleton, Jones contends the challenged search condition would permit limitless electronic searches in violation of his Constitutional right of privacy. Certainly, the privacy concerns he points to, as recognized by the United States Supreme Court in Riley, supra, 573 U.S. ___ are not insignificant. The Riley court concluded that those privacy interests were sufficiently weighty to generally require a warrant before law enforcement searches an arrestee's cell phone. (Riley, supra, 573 U.S. at p. ___ [189 L.Ed.2d at pp. 450-451].) But the competing considerations they must be balanced against yield a different result in the specific context of a probation or parole condition. Unlike the defendant in Riley, who had not been convicted of a crime at the time his cell phone was searched and was still protected by the presumption of innocence, a defendant like Jones subject to a mandatory supervision order does not " 'enjoy "the absolute liberty to which every citizen is entitled." ' " (United States v. Knights (2001) 534 U.S. 112, 119.) Indeed, "[j]ust as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens." (Ibid.)
Riley itself made clear that although cell phone data is subject to Fourth Amendment protection, it is not "immune from search." (Riley, supra, 573 U.S. ___ .) And although electronic devices store a wealth of personal information, they are not alone in this character. A home may also contain large amounts of very private personal information. (See People v. Michael E. (2014) 230 Cal.App.4th 261, 277, quoting United States v. Mitchell (11th Cir. 2009) 565 F.3d 1347, 1352 [" 'the hard drive of a computer . . . "is the digital equivalent of its owner's home" ' "].) Yet courts have historically granted probation officers significant authority to search a probationer's residence without a warrant. (See People v. Balestra (1999) 76 Cal.App.4th 57, 62, 65-68 [upholding probationer's broad home search condition]; In re Binh L. (1992) 5 Cal.App.4th 194, 198, 203-205 [upholding search conducted pursuant to juvenile probationer's broad search condition]; People v. Medina (2007) 158 Cal.App.4th 1571, 1575-1580 [upholding search conducted pursuant to probationer's broad home search condition]; People v. Reyes (1998) 19 Cal.4th 743, 746, 754 [upholding search conducted pursuant to parole condition requiring defendant to submit his residence and property under his control to search by law enforcement].)
Moreover, the need to effectively and efficiently monitor compliance with conditions of supervised release is all the more critical in a criminal justice system focused on recovery, restoration and rehabilitation rather than retribution. Violations quickly detected can result in prompt but often relatively minor corrective action that helps ensure the successful completion of supervision. Undetected violations can quickly spin out of control, resulting in new and serious law violations that lead to significant incarceration.
Although an electronic search condition plainly implicates privacy rights, a defendant like Jones subject to mandatory supervision has a legitimately diminished expectation of privacy. The alternative to mandatory supervision would be confinement in state prison or county jail, where he would have no access to personal electronic devices. With these considerations in mind, the search condition here is appropriately tailored to the state's legitimate supervisory interest. It allows probation officers to detect criminal behavior and supervise Jones's compliance with the other unchallenged supervisory terms imposed by the court, a function of crucial importance to community safety and his ultimate success. Given Jones's limited expectation of privacy, we conclude that the state's interest in preventing future criminal behavior justifies the electronic search condition in this case.
DISPOSITION
The judgment is affirmed.
DATO, J. WE CONCUR: HALLER, Acting P. J. O'ROURKE, J.