Opinion
D074636
11-08-2019
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA MANCERA, Defendant and Appellant.
Patricia M. Ihara and Jill M. Kent, 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, Steve Oetting and Kristen Ramirez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS302397) APPEAL from a judgment of the Superior Court of San Diego County, Dwayne K. Moring, Judge. Affirmed, as modified. Patricia M. Ihara and Jill M. Kent, 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, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
As part of a plea bargain, Joshua Mancera pled guilty to one felony count of carrying a concealed dirk or dagger (Pen. Code, § 21310) and one misdemeanor count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The trial court granted him probation subject to certain conditions, including that he submit his electronic devices to warrantless searches. On appeal, Mancera contends this provision is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and unconstitutionally overbroad.
In our original opinion in this case, we concluded the electronics search condition passed muster under Lent, and that Mancera forfeited his constitutional overbreadth challenge by failing to raise it in the trial court. After we filed our opinion, the California Supreme Court decided In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo), which clarified the Lent standard as applied to electronics search conditions. We granted Mancera's Ricardo-based petition for rehearing and received supplemental briefing from the parties.
The Attorney General acknowledges that under Ricardo's clarification of Lent, the record currently before us is insufficient to sustain the electronics search condition. We agree, and will strike the condition without prejudice to the People seeking to reinstate such a condition on a factual showing that satisfies the standard announced in Ricardo. Because we are striking the condition on Lent/Ricardo grounds, we do not reach Mancera's constitutional challenge.
As modified to strike the electronics search condition, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
We base our factual summary on the probation officer's report.
In July of 2018, police officers contacted 20-year-old Mancera after they suspected he was using drugs in public. Mancera identified himself truthfully, but falsely denied he was on probation. A records check revealed his true probationary status, and a subsequent search revealed he had a 10-inch knife in his waistband, and .36 grams of heroin and .04 grams of methamphetamine in his pants pocket.
Mancera was arrested and charged with one felony count of carrying a concealed dirk or dagger (Pen. Code, § 21310), and one misdemeanor count each of unlawfully possessing heroin (Health & Saf. Code, § 11350, subd. (a)) and unlawfully possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)). After initially pleading not guilty, Mancera entered into a plea bargain under which he pled guilty to the weapon-possession and methamphetamine-possession charges, in exchange for dismissal of the heroin-possession charge and a stipulated probationary sentence that included 60 days in custody, to run concurrently with a stipulated 240-day custodial term on his prior convictions for which he was on probation at the time of the instant offenses.
The probation officer prepared a report for the court's use at sentencing. The report included Mancera's self-reported history of marijuana and heroin use beginning at age 17. Mancera admitted daily heroin use and weekly methamphetamine use in the period before his arrest on the instant offenses. He told the probation officer he had "never participated in a substance abuse treatment program and does not believe one is necessary."
The report also described Mancera's criminal history. About five months before his arrest on the instant offenses, Mancera pled guilty to felony counts of reckless evasion (Veh. Code, § 2800.2, subd. (a)) and unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)). He was placed on three years' formal probation and "ordered to serve 180 days on CPAC." Mancera was scheduled to report for CPAC about six weeks after sentencing, and to report to his probation officer periodically in the meantime. Mancera failed to report for one of his interim check-ins. When his probation officer told him to report the next day, Mancera again failed to do so. He also failed to appear for his CPAC report date. Mancera later returned to court and was ordered to report to CPAC in about one month. He again failed to report as ordered. The court issued an arrest warrant, and Mancera was arrested on the instant charges two days later.
The San Diego County Sheriff's Department website describes CPAC as follows: "The County Parole and Alternative Custody Unit (CPAC) was created to provide alternative custody programs. These programs include County Parole, Fire Camp, Home Detention, and Residential Reentry Center/Work Furlough with electronic monitoring. These programs are designed to socially reintegrate offenders through continued treatment and other required programming with a proactive supervision method. This method of supervision is designed to place the CPAC staff in contact with participants so that the goals and objectives of community safety, security, and reintegration can be achieved." (https://www.sdsheriff.net/cpac.html <as of Nov. 7, 2019>.) --------
The probation report summarized the findings of a "research based risk and needs assessment," which determined Mancera "would benefit from some guidance and monitoring in the community via supervision by Probation . . . ." Accordingly, the probation officer recommended "all general conditions of probation," as well as "drug conditions," "[a]lcohol conditions," and, "[i]n order to properly supervise him and ensure his compliance on probation, a Fourth Waiver . . . , to include cell phones." Specifically, the probation officer recommended a condition requiring Mancera to "[s]ubmit person, vehicle, residence, property, personal effects, computers, and recordable media [and] cell phones to search at any time with or without a warrant, and with or without reasonable cause, when required by P.O. or law enforcement officer" (hereafter, the electronics search condition). The probation officer reviewed the proposed conditions with Mancera, who "agreed to comply with any orders imposed by the Court."
At the sentencing hearing, the following exchange occurred between the court and counsel regarding the electronics search condition:
"[THE COURT:] I have read the probation report. Probation is recommending that he be placed on formal probation and sentenced to standard terms.
"[DEFENSE COUNSEL]: And, [y]our Honor, if I can just be heard as to one term of probation here.
"THE COURT: Yes.
"[DEFENSE COUNSEL]: . . . Your Honor, there is no nexus for a Fourth waiver that involves search of his cell phone. [¶] He pled to possession of a controlled substance, which is methamphetamine, and carrying a concealed dirk or dagger. [¶] . . . [¶]
"[PROSECUTOR]: That is a standard condition, [y]our Honor, especially when there is narcotics involved so that probation can assist them with treatment and make sure that they are not involved in any further illegal activity. [¶] . . . [¶]
"THE COURT: I will find there is sufficient nexus in light of the drug use. So I will order that term." (Bolding omitted.)
The court placed Mancera on three years' formal probation subject to various conditions, including the electronics search condition. Mancera acknowledged at sentencing that he reviewed the conditions with his attorney and accepted them.
DISCUSSION
Mancera challenges the electronics search condition under Lent, as recently construed by Ricardo. As noted, based on the Attorney General's acknowledgment that the record currently before us is insufficient to sustain the condition, we will strike the condition without prejudice to the People seeking to reinstate such a condition on a factual showing that satisfies the standard announced in Ricardo.
"When an offender chooses probation, thereby avoiding incarceration, state law authorizes the sentencing court to impose conditions on such release that are 'fitting and proper to the end that justice may be done . . . .' " (People v. Moran (2016) 1 Cal.5th 398, 402-403, quoting Pen. Code, § 1203.1, subd. (j).) "[A] sentencing court has 'broad discretion to impose conditions to foster rehabilitation and to protect public safety . . . .' " (Moran, at p. 403.) " 'If the defendant finds the conditions of probation more onerous than the sentence he would otherwise face, he may refuse probation' [citation] and simply 'choose to serve the sentence' [citation]." (Ibid.)
"The trial court's discretion [to impose probation conditions], although broad, nevertheless is not without limits . . . ." (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) Under Lent, supra, 15 Cal.3d 481, " '[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.]' " (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin), quoting Lent, at p. 486.) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (Olguin, at p. 379.)
It has always been undisputed that the electronics search condition satisfies the first two prongs of Lent's invalidation test. But the Attorney General originally argued—and we agreed—that the condition failed the third Lent prong because it reasonably related to future criminality by enabling Mancera's probation officer to effectively supervise him. (See Olguin, supra, 45 Cal.4th at pp. 380-381 ["a probation condition 'that enables a probation officer to supervise his or her charges effectively is . . . "reasonably related to future criminality." ' "], italics added.) However, Ricardo clarified the third Lent prong as it relates to electronics search conditions.
In Ricardo, a juvenile who admitted to committing two burglaries was placed on probation subject to an electronics search condition. (Ricardo, supra, 7 Cal.5th at pp. 1116-1117.) Although the juvenile had not used an electronic device in the charged offenses, the juvenile court justified the condition by (1) construing the juvenile's statements to his probation officer as admitting he had used marijuana in connection with the offenses, and (2) " 'find[ing] that minors typically will brag about their marijuana usage . . . by posting on the Internet, showing pictures of themselves with paraphernalia, or smoking marijuana.' " (Id. at p. 1117.) Thus, the juvenile court reasoned the ability to search the juvenile's electronic devices was " 'a very important part of being able to monitor [his] drug usage.' " (Ibid.)
The Court of Appeal concluded the electronics search condition was valid under Lent's third prong, but the Supreme Court disagreed. (Ricardo, supra, 7 Cal.5th at p. 1119.) The high court explained that "Lent's requirement that a probation condition must be ' "reasonably related to future criminality" ' contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Id. at p. 1122.) The court found "[s]uch proportionality . . . lacking" because "nothing in the record suggests that [this juvenile] has ever used an electronic device or social media in connection with criminal conduct." (Ibid., italics added; see ibid. ["courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense"].) Thus, the juvenile court's generalized finding that juveniles use electronic devices to brag about marijuana use was insufficient to justify the condition because "Lent's third prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality." (Id. at p. 1121.)
The Ricardo court was careful to note that its "holding 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." (Ricardo, supra, 7 Cal.5th at pp. 1128-1129, citing People v. Appleton (2016) 245 Cal.App.4th 717, 724 [finding electronics search condition reasonable because the defendant lured victim using " 'either social media or some kind of computer software' "]; In re Malik J. (2015) 240 Cal.App.4th 896, 902 [condition allowing officers "to search a cell phone to determine whether [the defendant] is the owner" was reasonable in light of the defendant's "history of robbing people of their cell phones"]; People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1173, 1176-1177 [finding electronics search condition related to the defendant's future criminality where the defendant was convicted of making gang-related criminal threats and had previously used social media sites to promote his gang].) But, on the record before it, the Ricardo court found "the electronics search condition imposes a burden that is substantially disproportionate to the legitimate interests in promoting rehabilitation and public safety." (Ricardo, at p. 1129.)
"From [Ricardo, supra, 7 Cal.5th 1113] we glean the following guidelines for determining when an electronic[s] search condition survives the third prong of Lent . . . . First, there must be information in the record establishing a connection between the search condition and the probationer's criminal conduct or personal history—an actual connection apparent in the evidence, not one that is just abstract or hypothetical. [Citation.] But no nexus between the search condition and the [probationer]'s underlying offense is required. . . . Finally, 'the burden imposed by [the] probation condition' must be proportionate to 'the legitimate interests served by the condition.' [Citation.] Thus, ' "[a] condition of probation that enables a probation officer to supervise his or her charges effectively is . . . 'reasonably related to future criminality,' " ' only if its infringement on the probationer's liberty is not 'substantially disproportionate to the ends of reformation and rehabilitation.' " (In re Alonzo M. (2019) 40 Cal.App.5th 156, 166.)
Under Ricardo's clarification of Lent's third prong, the Attorney General "acknowledges that based on the current record there is an insufficient basis for finding that the electronic[s] search condition is reasonably related to future criminality." But the Attorney General asks that we "not simply strike the condition" but, rather, "remand the matter to the trial court to afford it an opportunity to supplement the record in light of Ricardo . . . ."
Based on the Attorney General's acknowledgment that the electronics search condition is unsustainable on the record currently before us, we must strike the condition. But we do so without prejudice to the People seeking to reinstate such a condition on a proper factual showing that demonstrates "a degree of proportionality between the burden imposed by [the] probation condition and the legitimate interests served by the condition." (Ricardo, supra, 7 Cal.5th at p. 1122.)
DISPOSITION
The judgment is modified to strike the electronics search condition (Condition 6.n). In all other respects, the judgment is affirmed.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. IRION, J.