Opinion
A158307
10-05-2020
THE PEOPLE, Plaintiff and Respondent, v. BENNY PAUSANOS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. 230346)
Following his conviction for misdemeanor battery (Pen. Code, § 243, subd. (e)(1)), defendant was placed on probation for a term of three years. On appeal, defendant contends that the standard warrantless search condition imposed by the court is unreasonable and overbroad under In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). We find no error and affirm the order granting probation.
All statutory references are to the Penal Code.
Background
Following an incident in which defendant injured his then-girlfriend outside of a nightclub in San Francisco, defendant was charged with corporal injury to a spouse or cohabitant (§ 273.5, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)), and two counts of misdemeanor domestic violence battery (§ 243, subd. (e)(1)). Ultimately, the jury found defendant guilty of a single count of misdemeanor domestic violence battery.
On August 16, 2019, the court suspended imposition of sentence and placed defendant on probation. The conditions of defendant's probation include, among other things, six months of home detention, completion of a 52-week domestic violence counseling program and a treatment and rehabilitation program as directed by the probation department, 100 hours of community service and relinquishment of all firearms. The court also issued a 10-year stay away order from the victim. Finally, the court imposed the following warrantless search condition: "You must submit your person, residence, vehicle and any property or area under your custody or control to search by any peace or probation officer at any time of the day or night, with or without your consent, with or without a warrant, and with or without reasonable probable cause." Defendant did not object to the conditions of probation.
Although a defendant's failure to object to the search condition in the trial court generally forfeits any objection to the condition on appeal (People v. Welch (1993) 5 Cal.4th 228, 237), because Ricardo P. was filed the day before his 9:00 a.m. sentencing hearing, we will consider defendant's arguments on the merits.
Defendant timely filed a notice of appeal.
Discussion
A trial 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 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).) Trial courts have broad discretion to "determine whether to grant an eligible defendant probation, and if so, what terms of probation will promote rehabilitation and protect public safety." (People v. Hall (2017) 2 Cal.5th 494, 498.) On appeal, "[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.' " (People v. Lent (1975) 15 Cal.3d 481, 486.) The Lent test "is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (People v. Olguin (2008) 45 Cal.4th 375, 379.)
General search conditions like the one imposed in this case have repeatedly been found reasonable and constitutional. (See, e.g., People v. Ramos (2004) 34 Cal.4th 494, 505-506; People v. Reyes (1998) 19 Cal.4th 743, 753; People v. Balestra (1999) 76 Cal.App.4th 57, 67.) In Balestra, supra, 76 Cal.App.4th page 67, the court upheld a similar search condition as applied to a defendant convicted of elder abuse, even though that offense was unrelated to "theft, narcotics, or firearms." As the Balestra court noted, "[i]nsofar as a probation condition serves the statutory purpose of 'reformation and rehabilitation of the probationer,' [citation] it necessarily follows that such a condition is 'reasonably related to future criminality' and thus may not be held invalid whether or not it has any 'relationship to the crime of which the offender was convicted.' " (Id. at p. 65.) A warrantless search serves the rehabilitative purpose of "ensur[ing] that the subject thereof is obeying the fundamental condition of all grants of probation, that is, the usual requirement (as here) that a probationer 'obey all laws.' " (Id. at p. 67, see also People v. Olguin, supra, 45 Cal.4th at pp. 380-381 [citing Balestra, approvingly for the proposition that "probation conditions authorizing searches 'aid in deterring further offenses . . . and in monitoring compliance with the terms of probation' "].)
Contrary to defendant's argument, Ricardo P. does not invalidate the search condition imposed in this case. In Ricardo P., the court held that a probation condition that allowed warrantless searches of a minor's electronic devices was invalid under Lent's third prong because, on the record before it, the burden it imposed on the minor's privacy was substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society. (Ricardo P., supra, 7 Cal.5th at p. 1119.) The court focused in large part on the unique privacy concerns raised by searches of electronic devices. (Id. at p. 1123 ["The plain language of this electronics search condition would require Ricardo to provide probation officers full access, day or night, not only to his social media accounts but also to the contents of his e-mails, text messages, and search histories, all photographs and videos stored on his devices, as well as any other data accessible using electronic devices, which could include anything from banking information to private health or financial information to dating profiles."].) The court in Ricardo P. briefly addressed and distinguished electronic search conditions from general search conditions like those at issue in this case. (Id. at p. 1127.) The court explained, "The Attorney General also argues that invalidating the electronics search condition here would make it impossible for courts to impose 'common' and 'standard search conditions,' such as those permitting warrantless searches of a juvenile probationer's person, property, and residence. But a property or residence search condition is likewise subject to Lent's three-part test. Under the rule we set forth today, a juvenile court imposing such a condition must consider whether, in light of 'the facts and circumstances in each case' [citation], the burdens imposed by the condition are proportional to achieving some legitimate end of probation. Our determination that the electronics search condition here is not reasonably related to Ricardo's future criminality will not impair juvenile courts' ability to impose traditional search conditions in future cases when warranted. [¶] Moreover, the Attorney General's argument does not sufficiently take into account the potentially greater breadth of searches of electronic devices compared to traditional property or residence searches. [Citation.] As noted, the electronics search condition here is expansive in its scope: It allows probation officers to remotely access Ricardo's e-mail, text and voicemail messages, photos, and online accounts, including social media like Facebook and Twitter, at any time. It would potentially even allow officers to monitor Ricardo's text, phone, or video communications in real time. Further, the condition lacks any temporal limitations, permitting officers to access digital information that long predated the imposition of Ricardo's probation." (Ibid.)
Here, given the conditions of probation prohibiting defendant from possessing a firearm and from having any contact with the victim, the general search condition is a proportional means of deterring defendant from future criminality. Accordingly, it is not unreasonable under the Lent test.
For the same reason, the condition is not unconstitutionally overbroad. (In re Sheena K. (2007) 40 Cal.4th 875, 890 ["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."].) The limited intrusion on defendant's privacy is proportional to and justified by the need to ensure compliance with the conditions of probation imposed in this case.
Disposition
The order granting probation is affirmed.
POLLAK, P. J. WE CONCUR: TUCHER, J.
BROWN, J.