Opinion
C082739
11-07-2019
THE PEOPLE, Plaintiff and Respondent, v. JENNIFER SARA TROWBRIDGE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F07224)
Defendant Jennifer Sara Trowbridge pleaded no contest to possession of a counterfeiting apparatus or machine (Pen. Code, § 480, subd. (a)) and admitted a prior prison term allegation (§ 667.15, subd. (b)). She was sentenced to a stipulated five-year split term consisting of 18 months in county jail and three years six months on mandatory supervision.
Undesignated statutory references are to the Penal Code.
Defendant asserts that an electronic search condition of her mandatory supervision term is invalid and unconstitutionally overbroad. Finding the term reasonably related to her current offense and properly modified by the trial court at sentencing, we conclude the condition is valid and not overbroad. However, the modified condition is not found in the order of probation as it occurs in the record. Hence, we shall affirm and remand to the trial court to modify the language of the probation condition to reflect the tailoring articulated at time of sentencing.
BACKGROUND
We take the facts of defendant's crime from her plea hearing.
Around November 29, 2015, defendant had in her possession a stack of eight and one-half by 11-inch pieces of paper upon which were printed $20 bills, in addition to three "HP printers" and two laptop computers that she was using for counterfeiting $20 bills.
Defendant objected both before and during sentencing to the following specific condition of mandatory supervision:
"Defendant shall submit his/her person, place, property, automobile, electronic storage devices, and any object under his/her control, including but not limited to cell phones and computers, to search and seizure by any law enforcement officer or probation officer, any time of the day or night, with or without a warrant, with or without his/her presence or further consent."
Defendant claimed the condition was invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent), was overbroad, violated the Fifth Amendment, and violated both the California Electronic Communications and Privacy Act of 2016 (§ 1546 et seq.) (ECPA) and the state wiretap law. During argument on the objection, the trial court asked about the circumstances of the counterfeiting. The prosecutor replied, "My understanding is that they were printers, not printer scanner combinations, or something of that sort, and that the laptops were found near the printers with the stack of $20 bills attached—or not attached, but right next to the printers. [¶] So my understanding is that the laptops were used in the creation of templates for these, but we have not performed, as far as I know, a full search."
The trial court also imposed a general search condition, which defendant did not object to at trial and does not contest on appeal.
When the court asked what the justification was for the search of cell phones, the prosecutor replied that the ECPA does not distinguish between computers and cell phones, but the People were "only asking for a search of the electronic storage devices." Defense counsel added that it appeared that detectives looked through the laptop, and she did not believe there was "anything found relating to the making of counterfeit bills." The prosecutor responded, "There were several items booked onto disks. I have not reviewed those disks."
The trial court stated: "My intention is to [allow searches of] computers and/or those electronic storage device portions of cell phones, but not the cell phone itself. So those aspects of the cell phone not related to making phone calls that are capable of doing the same things computers are able to do, that is recreate things such as counterfeit bills and engaging in the type of activity that was going on here. [¶] So it's limited to some degree, but I think that's the problem you've got when computers and hand-held cellular devices are capable of doing the same things in many ways. You do have an overlap here, attempting to try and minimize the intrusion, but also address the particular circumstances of this case." (Italics added.) It then imposed the condition as modified.
DISCUSSION
Defendant contends the condition, as related to searches of electronic devices, is unreasonable under the principles articulated in Lent and is also unconstitutionally overbroad.
Mandatory supervision is "akin to a state prison commitment," and more similar to parole than to probation. (People v. Fandinola (2013) 221 Cal.App.4th 1415, 1422, 1423.) Accordingly, courts review the terms of supervised release "under standards 'parallel to those applied to terms of parole.' " (People v. Malago (2017) 8 Cal.App.5th 1301, 1306.)
"The fundamental goals of parole are ' "to help individuals reintegrate into society as constructive individuals" [citation], " 'to end criminal careers through the rehabilitation of those convicted of crime' " [citation] and to [help them] become self-supporting.' [Citation.]" (People v. Martinez (2014) 226 Cal.App.4th 759, 763 (Martinez).) To further these goals, "[t]he state may impose any condition reasonably related to parole supervision." (In re Stevens (2004) 119 Cal.App.4th 1228, 1233.) These conditions "must be reasonably related to the compelling state interest of fostering a law-abiding lifestyle in the parolee." (Id. at p. 1234.) Just as with parole conditions, we review mandatory supervision conditions for abuse of discretion. (People v. Malago, supra, 8 Cal.App.5th at p. 1306.)
Likewise, we review the reasonableness of a mandatory supervision condition for abuse of discretion. (Martinez, supra, 226 Cal.App.4th at p. 764.) The reasonableness of a parole condition (and by extension, a mandatory supervision condition) is analyzed under the three criteria discussed in Lent. (Martinez, at p. 764.) A mandatory supervision condition will not be found unreasonable unless the condition: (1) has no relationship to the crime of which defendant was convicted; (2) relates to conduct that is not in itself criminal; and (3) requires or forbids conduct that is not reasonably related to future criminality. (Ibid.; citing Lent, supra, 15 Cal.3d at p. 486.)
Supervised release conditions are further circumscribed by constitutional considerations. The Lent test "may be supplemented by a second level of scrutiny: where an otherwise valid condition of probation impinges on constitutional rights, such conditions must be carefully tailored, [and] ' "reasonably related to the compelling state interest in reformation and rehabilitation . . . ." ' " (People v. Bauer (1989) 211 Cal.App.3d 937, 942.) " '[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.' " (People v. Olguin (2008) 45 Cal.4th 375, 384.) Whether such a condition is overbroad presents a question of law, which we review de novo. (Martinez, supra, 226 Cal.App.4th at p. 765.)
According to the factual basis of the plea, defendant used the laptop computers and the printers found in her possession to make counterfeit $20 bills. Since defendant used computers to commit her crimes, the search condition, as applied to computers is valid under Lent's first prong. Many cell phones "are in fact minicomputers that also happen to have the capacity to be used as a telephone." (Riley v. California (2014) 573 U.S. 373, 393 [189 L.Ed.2d 430, 446].) The trial court did not permit general searches of defendant's cell phone. Instead it limited the search condition to the electronic storage portions of cell phones akin to what a computer could do to produce counterfeit bills. While cell phones can also "be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers" (ibid.), the condition, as limited by the trial court, is tailored to avoid intruding upon these functions. As limited, the search condition for cell phones, like the one for computers, is valid under Lent's first prong as it allows for searches of a different type of computer, the computer in a cell phone.
Defendant's use of computers to commit her crime distinguishes the recent case of In re Ricardo P. (2019) 7 Cal.5th 1113, which addressed electronic search conditions under Lent's third prong. Since the condition here is valid under Lent's first prong, Ricardo P. is inapposite. (See Ricardo P., at p. 1119 [first two prongs satisfied, only question is whether Lent's third prong is satisfied].) --------
We likewise find the condition is not overbroad. A probation condition "is unconstitutionally overbroad . . . if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' " (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) Defendant claims the condition is not sufficiently tailored to protect her constitutional right to privacy.
"[B]oth parolees and probationers retain some expectation of privacy, albeit a reduced one." (In re Jaime P. (2006) 40 Cal.4th 128, 137.) Thus, "[t]he 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 . . . ." (In re E.O., supra, 188 Cal.App.4th at p. 1153.) Here, the condition permits only searches of the electronic devices defendant used or could use to commit fraud or counterfeit currency, i.e., computers, and the electronic storage portions of cell phones that can be used like computers to produce counterfeit money, but the cell phone itself is otherwise excluded from the scope of any search. Such a condition is not overbroad, as defendant seems to concede in her briefing.
Specifically, at page 15 of her opening brief, defendant states that "[a]ny electronic search condition should be limited to searching for evidence of counterfeiting or fraud, and not permit wholesale inspection of the entire contents of [defendant's] computers and cell phones." Likewise, at page six of her reply brief, she argues that "the electronic search condition must be limited to the types of data which are reasonably likely to yield evidence of suspected criminal activity or noncompliance with probation conditions." We agree, and this appears to be what the trial court intended.
Although we find the condition as modified by the trial court is constitutional, the modified condition articulated during sentencing is not found in the minute order and order of probation as it appears in the record. The revised specific condition of mandatory supervision filed with the trial court's records shows the original proposed order with the handwritten phrase "electronic storage devices of" inserted before the term "cell phones," so that the condition reads: "Defendant shall submit his/her person, place, property, automobile, electronic storage devices, and any object under his/her control, including but not limited to electronic storage devices of cell phones and computers, to search and seizure by any law enforcement officer or probation officer, any time of the day or night, with or without a warrant, with or without his/her presence or further consent." (Italics added.)
"Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. [Citation.]" (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) The trial court stated it was limiting the electronic search portion of the condition to computers and the electronic storage portion of cell phones that can be used like a computer to help produce counterfeit currency, "but not the cell phone itself." This narrowing is not reflected in the written minute order and order of probation, nor is it made clear that searches of defendant's electronic storage devices must be limited to electronic information that is reasonably likely to reveal whether defendant is engaged in counterfeiting or fraud, which appears to be the intent of the court's ruling. Rather than rewriting the order, we shall direct the trial court to promulgate a new written minute order and order of probation consistent with its oral pronouncement and this opinion.
DISPOSITION
The judgment is affirmed. The trial court is directed to issue a corrected minute order and order of probation reflecting the electronic search condition as modified by the trial court in its pronouncement of judgment and consistent with this opinion.
KRAUSE, J. We concur: MURRAY, Acting P. J. HOCH, J.