Opinion
C083241
12-05-2019
THE PEOPLE, Plaintiff and Respondent, v. GEORGE PAUL REYNAGA, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE019216)
Defendant George Paul Reynaga appeals a judgment following his no contest plea to motor vehicle theft (Veh. Code, § 10851, subd. (a)) and the imposition of five years of felony probation with certain conditions. First, defendant asks that we strike the electronics search term found in specific condition of probation No. 15, arguing it is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent) and overbroad in violation of the United States Constitution. Second, he challenges the trial court's imposition of criminal laboratory analysis and drug program fees, arguing they were unauthorized. The People agree these fees should be stricken.
We conclude the trial court's imposition of specific condition of probation No. 15 violated the third prong of Lent as explained in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). We also agree with the parties that the criminal laboratory analysis and drug program fees were unauthorized. Accordingly, we will strike these provisions. We also will correct an error in the award of custody credits discovered during our review of the record. We otherwise affirm the judgment.
BACKGROUND
The People's complaint charged defendant with motor vehicle theft (Veh. Code, § 10851, subd. (a); count one); buying or receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a); count two); and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count three). The complaint alleged defendant had a prior conviction for motor vehicle theft.
Defendant pleaded no contest to count one, agreed to the imposition of "drug conditions," and the balance of the charges, including the prior conviction allegation, were dismissed with a Harvey waiver. The stipulated factual basis for the plea was that "on or about October 4th, 2016, in the County of Sacramento, the defendant . . . did commit a felony, a violation of 10851(a) of the Vehicle Code when he unlawfully drove and took a certain vehicle that was, to wit, [a] 2010 Red Toyota Rav4 that was the personal property of [E.M.] . . . , without the consent of and with the intent to either personally or temporary [sic] deprive the own [sic] of title and possession of the vehicle."
People v. Harvey (1979) 25 Cal.3d 754.
Defendant waived a formal probation report and, at the same hearing, was placed on felony probation for a period of five years, including 90 days in jail with nine days of custody credit. Defendant requested the court impose the statutory minimum fines and fees because of his indigent status. The court agreed, stating it would "waive costs" and strike the probation and urinalysis costs, as well as the booking and classification fees. The court imposed various fees and fines, including a statutory minimum $300 restitution fine (Pen. Code, § 1202.4) and a $300 probation revocation fine, which was stayed (Pen. Code, § 1202.44). It also imposed the complained of criminal laboratory analysis fee of $50 (Health & Saf. Code, § 11372.5), with $130 in penalty assessments found in specific condition of probation No. 13, as well as a $150 drug program fee (Health & Saf. Code, § 11372.7) and $130 in penalty assessments found in fees and fines No. 4.
Our review of the record has disclosed that while the court's oral pronouncement of judgment included nine days of custody credit, eight days of good time credit to which defendant was entitled (as reflected in two minute orders) was omitted. We will modify the judgment to award defendant a total of 17 days of custody credit. (See Wilson v. Superior Court (1980) 108 Cal.App.3d 816, 818-819 [sentence awarding incorrect custody credits is subject to correction at any time].)
Also included in the probation conditions imposed by the court was specific condition of probation No. 15, which stated: "P.C. 1546 searchable - 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 officers, any time of the day or night, with or without a warrant, with or without his/her presence or further consent. [¶] Defendant being advised of his/her constitutional and statutory rights pursuant to Penal Code section 1546 et seq. in this regard, and having accepted probation, is deemed to have waived same and also specifically consented to searches of his/her electronic storage devices. [¶] Defendant shall provide access to any electronic storage devices and data contained therein, including disclosing and providing any and all information necessary to conduct a search."
Defendant's counsel objected to the imposition of this condition, arguing there was no nexus to his current case, that no electronic devices had been used, and that the condition was overbroad. The People did not respond to this objection, but had filed a boilerplate points and authorities addressing the electronics search condition's validity and constitutionality. Attached to this brief was a declaration of a sheriff's deputy assigned to the Sacramento Valley Hi-Tech Crimes Task Force. This declaration generally detailed the kinds of evidence found on electronic devices for various types of offenses, discussed the need to examine the entire contents of electronic devices due to the ease of moving files and hiding information, and explained the need to require the probationer to provide all passwords.
The court did not expressly rule on defendant's objection to this condition. However, the court did not strike the condition from the filed terms of probation and included the term within the minute order/unexecuted order of probation, implicitly overruling the objection. Defendant timely appealed.
DISCUSSION
I
The Electronics Search Provision
Defendant requests that we strike specific condition of probation No. 15 because it is not reasonably related to the offense or future criminality.
"The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. (Pen. Code, § 1203 et. seq.)" (Lent, supra, 15 Cal.3d at p. 486.) Consequently, imposition of a probation condition is reviewed for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379.) "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.]" (Lent, at p. 486.) The Lent test "is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (Olguin, at pp. 379-380.)
Because the challenged electronics search condition neither relates to a crime for which defendant was convicted, nor to conduct which is itself criminal, only the third Lent factor is implicated in this case. Thus, we must decide whether the challenged electronics search condition was " 'reasonably related to future criminality.' " (Lent, supra, 15 Cal.3d at p. 486.)
We find the Supreme Court's recent decision in Ricardo P., which was decided after briefing was completed here, instructive. (Ricardo P., supra, 7 Cal.5th 1113.) In that case, a minor was placed on probation after admitting to two counts of felony burglary. Included among the conditions of probation was that he "submit to warrantless searches of his electronic devices, including any electronic accounts that could be accessed through these devices." (Id. at p. 1115.) While the minor did not use electronic devices in committing the burglaries, the juvenile court "imposed the condition in order to monitor his compliance with separate conditions prohibiting him from using or possessing illegal drugs." (Ibid.)
Similar to this case, the Supreme Court granted review to determine "whether the electronics search condition satisfies Lent's third prong—that is, whether it ' "requires or forbids conduct which is not reasonably related to future criminality." ' " (Ricardo P., supra, 7 Cal.5th at p. 1119.) The court determined the third prong of Lent "contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Ricardo P., at p. 1122.)
However, it found that relationship was not met. (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129.) The court noted the electronics search condition significantly burdened the minor's privacy interests given how much sensitive and confidential information can be accessed on devices like cell phones. (Id. at pp. 1122-1123.) In contrast, the record did not support such a significant burden on the minor's privacy. The only rationale provided by the trial court was evidence that the minor previously used marijuana and its observation that minors often brag about using marijuana or other drugs by posting online pictures of themselves with drugs or paraphernalia. (Id. at p. 1122.) Such an abstract or hypothetical connection to the interest served by the probation condition was insufficient to justify the significant intrusion into the minor's privacy. (Id. at pp. 1120-1123.)
The court reasoned: "If we were to find this record sufficient to sustain the probation condition at issue, it is difficult to conceive of any case in which a comparable condition could not be imposed, especially given the constant and pervasive use of electronic devices and social media by juveniles today. In virtually every case, one could hypothesize that monitoring a probationer's electronic devices and social media might deter or prevent future criminal conduct. For example, an electronics search condition could be imposed on a defendant convicted of carrying an unregistered concealed weapon on the ground that text messages, e-mails, or online photos could reveal evidence that the defendant possesses contraband or is participating in a gang. [Citation.] Indeed, whatever crime a juvenile might have committed, it could be said that juveniles may use electronic devices and social media to mention or brag about their illicit activities." (Ricardo P., supra, 7 Cal.5th at p. 1123.)
Nor did the court accept the argument that any condition reasonably related to effective supervision was valid under Olguin, which had upheld a probation condition requiring the probationer to notify the probation officer of the presence of any pets at his/her residence. (Ricardo P., supra, 7 Cal.5th at pp. 1124-1127.) Unlike a minimally intrusive notification requirement meant to ensure officer safety, "requiring a probationer to surrender electronic devices and passwords to search at any time is far more burdensome and intrusive, and requires a correspondingly substantial and particularized justification." (Id. at p. 1126.)
Like the minor in Ricardo P., here, the record is devoid of any information from which we could find proportionality between the privacy intrusion imposed by the electronics search condition and the goal of deterring defendant's future criminality, to wit, motor vehicle theft, methamphetamine possession, and/or compliance with the condition that he obey all laws. The People's generic justification that it would generally facilitate his supervision and thus reasonably relate to future criminality was rejected in Ricardo P. (Ricardo P., supra, 7 Cal.5th at pp. 1124-1127.)
While there may be circumstances in which a defendant's personal history could justify an electronics search condition as a means of deterring future criminality (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129), here, there is no evidence that defendant utilized a phone or other electronic device in his crimes or that he had otherwise utilized electronic devices in a way that would justify imposition of this search condition. Accordingly, the electronics search condition cannot withstand scrutiny under Lent as understood following Ricardo P. and must be stricken. (Ricardo P., at p. 1129.)
Nothing in this opinion prevents the trial court from exercising its discretion, following a noticed hearing, to modify the probation terms if presented with additional facts that would tie an electronics search condition to defendant's future criminality as set forth in Ricardo P. (See § 1203.3, subds. (a), (b); People v. Leiva (2013) 56 Cal.4th 498, 505 [order modifying probation based on the same facts exceeds the court's jurisdiction].)
II
The Criminal Laboratory Analysis and Drug Program Fees
Defendant requests that we strike the criminal laboratory analysis and drug program fees and associated penalty assessments found in specific condition of probation No. 13, as well as fees and fines No. 4. The People concur these fees were unauthorized.
We agree with the parties. Vehicle Code section 10851, subdivision (a) is not a qualifying offense for the criminal laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) or the drug program fee (Health & Saf. Code, § 11372.7). Accordingly, we strike these fees and their associated penalty assessments as unauthorized. (See People v. Myles (2016) 6 Cal.App.5th 1158, 1160 [reversing order imposing unauthorized criminal laboratory analysis fee]; People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1249 ["an unauthorized sentence may be corrected at any time even if there was no objection in the trial court"].)
DISPOSITION
For the reasons explained herein, we strike the provisions contained within specific conditions of probation Nos. 13 and 15, as well as fees and fines No. 4. We also modify the judgment to reflect defendant's receipt of nine days actual custody credits and eight days of conduct credits for a total of 17 days presentence custody credits. The court shall prepare and serve an amended order of probation. The judgment is affirmed as modified.
KRAUSE, J. We concur: RAYE, P. J. BLEASE, J.