Opinion
D070514
07-20-2017
THE PEOPLE, Plaintiff and Respondent, v. JASON SANTANA, Defendant and Appellant.
Benjamin P. Lechman, 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, Arlene A. Sevidal, Elizabeth M. Kuchar and Adrian Contreras, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD266755) APPEAL from a judgment of the Superior Court of San Diego County, Daniel F. Link, Judge. Affirmed as modified. Benjamin P. Lechman, 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, Arlene A. Sevidal, Elizabeth M. Kuchar and Adrian Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Jason Santana appeals from a judgment of conviction entered after Santana pled guilty to one count of carrying a concealed firearm. The trial court sentenced Santana, pursuant to a plea agreement, to 240 days in custody and three years of probation. Santana challenges two of the conditions of probation that the trial court imposed. Specifically, Santana first contends that a Fourth Amendment waiver that requires him to submit to searches of his computers and other recordable media is an unreasonable probation condition under the test set forth in People v. Lent (1975) 15 Cal.3d 481 (Lent), and is also unconstitutionally overbroad. Next, Santana contends that a probation condition that prohibits him from being in a building, vehicle or in the presence of a person who possesses a firearm or ammunition is unconstitutionally overbroad and therefore should be stricken.
We conclude that the trial court did not abuse its discretion in imposing the computer and recordable media search condition and that this search condition, as crafted here, is not unconstitutionally overbroad. We further conclude that the probation condition regarding Santana's being present in an area where he knows there are firearms or ammunition is constitutionally infirm, as the People concede, under the holding in People v. Forrest (2015) 237 Cal.App.4th 1074 (Forrest). The appropriate remedy for the imposition of this overbroad probation condition is to modify the condition so that it no longer suffers from the identified constitutional infirmity. We therefore modify this probation condition, and affirm the judgment as modified.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Santana was arrested for carrying a loaded gun while riding the trolley. The gun had been wrapped in a blue bandana and was concealed inside the front pocket of Santana's shorts. When asked why he had the gun, appellant explained that "if worse came to wors[t] he would have to use it for protection."
Given that Santana ultimately pled guilty to the offense for which he was sentenced, we take most of these facts from the probation report, which the trial court utilized in sentencing Santana.
Santana pled guilty to a one-count complaint charging him with carrying a concealed firearm, in violation of Penal Code section 25400, subdivision (a)(2). During the plea proceedings, Santana admitted that "[o]n April 28, 2016, [he] unlawfully carried a concealed gun on [his] person and [he] was not the registered owner of the firearm." He admitted a section 25400, subdivision (c)(6) allegation, conceding that he was not the registered owner of the firearm.
All further statutory references are to the Penal Code unless otherwise indicated.
Santana was sentenced pursuant to the plea agreement to 240 days in custody and three years of formal probation. At sentencing, the trial court imposed two conditions of probation that are at issue in this appeal. Condition 6.n. requires that Santana "[s]ubmit person, vehicle, residence, property, personal effects, computers, and recordable media ___ [space left blank by the court] 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." Condition 12.g. states, "Do not remain in any building, vehicle or in the presence of any person where you know a firearm, deadly weapon, or ammunition exists."
Santana filed a timely notice of appeal from the judgment.
III.
DISCUSSION
A. The search condition allowing searches of Santana's computers and recordable media
Santana challenges the breadth of the search condition imposed as condition 6.n. in the probation order, arguing that the requirement that he submit to unrestricted searches of his computers and recordable media is both unreasonable under Lent and constitutionally overbroad.
Again, the text of the challenged condition requires that Santana "[s]ubmit person, vehicle, residence, property, personal effects, computers, and recordable media ___ 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."
At sentencing, Santana's attorney challenged the search condition specified in condition 6.n., arguing that although a general Fourth Amendment waiver was warranted in Santana's case, there was no ground for extending this condition to permit searches of cell phones. The court ultimately imposed the search condition as phrased on the probation order form, including the reference to "computers, and recordable media," stating, "You will have a search warrant or a Fourth [Amendment] waiver between you and your property, residence, cell phone to be searched at any time[,] no questions asked. Computers, once again[,] the people who have guns unfortunately like to take pictures of them, record them, put them in electronic databases. That's not uncommon at all. There's a nexus that applies."
1. Reasonableness
When an offender accepts a probationary sentence, 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, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and . . . for the reformation and rehabilitation of the probationer." (§ 1203.1, subd. (j).) Accordingly, "[i]n granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety . . . ." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) The broad discretion granted to trial courts to impose probation conditions "is not without limits," however; "a condition of probation must serve a purpose specified in the statute," and conditions regulating noncriminal conduct must be " 'reasonably related to the crime of which the defendant was convicted or to future criminality.' " (Id. at p. 1121.) A condition of probation is generally "invalid [only if] 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.' " (Lent, supra, 15 Cal.3d at p. 486.) "This 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 (Olguin).) We review the reasonableness of a probation condition imposed by the trial court for an abuse of discretion. (Ibid.)
We first address the People's contention that Santana has forfeited his argument that the computer and recordable media search condition is unreasonable under Lent by failing to object to the search condition on that ground in the trial court. The People acknowledge that Santana's trial counsel did object to the condition, but, because counsel failed to specify the basis for such objection, the People argue that trial counsel forfeited an objection that the condition is unreasonable under the Lent test. We conclude that defense counsel's objection to the computer and recordable media search condition was sufficient to preserve Santana's state law challenge to the reasonableness of the search condition for purposes of appeal. Defense counsel raised the issue in such a way as to permit the trial court to consider whether imposing this condition was reasonable in Santana's case; raising the objection allowed the trial court to fashion its line of reasoning in support of imposing the condition.
With respect to consideration of the Lent test as applied to the computer and recordable media search condition, the parties agree that (1) the challenged conditions have no relationship to the crime for which Santana was convicted and (2) the condition relates to conduct that is not criminal (see In re J.B. (2015) 242 Cal.App.4th 749, 755 ["it is beyond dispute that the use of electronic devices . . . is not itself criminal"].) Therefore, the dispositive issue is whether the electronic search condition requires or forbids conduct that is reasonably related to future criminality. Different panels of the Court of Appeal have divided on the reasonableness of electronic search conditions like the one at issue here. Whether such conditions are reasonably related to the defendant's future criminality in a given case will depend on the circumstances of the case and the other probation conditions imposed.
This issue is currently pending before the California Supreme Court. (See In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923; In re Alejandro R. (2015) 243 Cal.App.4th 556, review granted Mar. 9, 2016, S232240; In re Mark C. (2016) 244 Cal.App.4th 520, review granted Apr. 13, 2016, S232849; In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25, 2016, S233932; In re J.E. (2016) 1 Cal.App.5th 795, 800-802, review granted Oct. 12, 2016, S236628; People v. Nachbar (2016) 3 Cal.App.5th 1122, 1130, review granted Dec. 14, 2016, S238210; In re George F. (2016) 248 Cal.App.4th 734, 740-741, review granted Sept. 14, 2016, S236397.)
In Olguin, the Supreme Court considered the validity of a probation condition requiring the probationer to notify his probation officer of any pets in his residence and to give 24 hours' notice prior to any changes to the probationer's residence, cohabitants, or pets. (Olguin, supra, 45 Cal.4th at p. 380.) The Olguin 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.) The Supreme Court upheld the probation condition concerning the notification of pets as reasonably related to "future criminality because it serves to inform and protect a probation officer charged with supervising a probationer's compliance with specific conditions of probation." (Id. at p. 381.)
In In re P.O. (2016) 246 Cal.App.4th 288 (P.O.), the court held that an electronic search condition similar to the one imposed on Santana was reasonably related to future criminality in the context of a juvenile offender because it enabled "the effective supervision of [the juvenile ward's] compliance with other probation conditions. Specifically, the condition enables peace officers to review [the ward's] electronic activity for indications that [the ward] has drugs or is otherwise engaged in activity in violation of his probation." (Id. at p. 295, italics added; see also In re J.E., supra, 1 Cal.App.5th at pp. 800-802, review granted Oct. 12, 2016, S236628 [concluding electronics search condition was reasonable to monitor probationer with drug problems and gang ties]; People v. Nachbar, supra, 3 Cal.App.5th at p. 1130, review granted Dec. 14, 2016, S238210 [upholding electronics search condition where probation officer stated the probationer should be intensively monitored]; In re George F., supra, 248 Cal.App.4th at p. 741, review granted Sept. 14, 2016, S236397 [upholding search condition on the ground that it is "reasonably related to a probationer's supervision" and therefore, under Olguin, is "reasonably related to the probationer's future criminality"].)
In re J.B. (2015) 242 Cal.App.4th 749 (J.B.), however, reached the opposite conclusion from the P.O. court, holding instead that "[t]he fact that a search condition would facilitate general oversight of the individual's activities is insufficient to justify an open-ended search condition permitting review of all information contained or accessible on the minor's smart phone or other electronic devices." (J.B., at p. 758.) The J.B. court relied in part on the distinction between adult probationers and juvenile wards, noting that " ' " '[j]uvenile probation is not, as with an adult, an act of leniency in lieu of statutory punishment; it is an ingredient of a final order for the minor's reformation and rehabilitation.' " [Citation.] A juvenile "cannot refuse probation [citations] and therefore is in no position to refuse a particular condition of probation." ' " (Id. at p. 756; In re Erica R. (2015) 240 Cal.App.4th 907 [also relying on distinction between adult probationers and juvenile wards in determining electronic search condition was unreasonable given circumstances].) The courts in J.B. and In re Erica R. both concluded that the conditions were not reasonably related to the delinquents' future criminality and struck the conditions under Lent. (J.B., at pp. 756-758; In re Erica R., at p. 913.)
The trial court's stated reason for imposing the condition, i.e., that individuals "who have guns unfortunately like to take pictures of them, put them in electronic databases," is speculative, and we are not convinced that the stated reason, alone, would be sufficient to justify the intrusion at issue. However, the record reveals that Santana is a "self reported" gang member, and that the trial court imposed a number of gang conditions on Santana. For example, the trial court imposed conditions prohibiting Santana from associating with known gang members, wearing or possessing "any insignias, photographs, emblems, . . . bandanas, shirts, or other articles of clothing evidencing" his affiliation with the gang, and knowingly displaying "any gang signs or gestures." We conclude that under the reasoning of Olguin, in light of Santana's admitted gang membership, his possession of an illegal weapon, and the fact that the trial court imposed additional gang probation conditions, the trial court's imposition of a computer and recordable media search condition constitutes a reasonable supervision measure. The condition is sufficiently related to Santana's future criminality under Lent's third prong because permitting probation officers to search Santana's computers and recordable media is reasonably related to their effective supervision of him, since a search of these devices could reveal evidence of weapon and/or gang activity that would violate the terms of Santana's probation. (See P.O., supra, 246 Cal.App.4th at p. 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"].)
2. Overbreadth
Santana also asserts that the condition is not narrowly tailored to its purpose and, therefore, should be stricken as unconstitutionally broad. " '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.)
The People assert that Santana has forfeited his constitutional overbreadth argument by failing to object on constitutional grounds in the trial court. Santana acknowledges that his trial counsel failed to raise a challenge to the computers and recordable media search condition on overbreadth grounds, but argues that "[t]he general overbreadth of the condition is a purely legal issue, so the court can decide it without factual development." We disagree with Santana's characterization of his constitutional claim as requiring no factual development. However, given the potentially significant privacy interests at stake, we will exercise our discretion to nevertheless consider Santana's constitutional claim. (See People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6 [appellate court "is generally not prohibited from reaching a question that has not been preserved for review by a party" and decision whether to consider such a question is left to the court's discretion].)
Citing P.O., Appleton, and In re Malik J. (2015) 240 Cal.App.4th 896, Santana contends that the computer and recordable media search condition "compromis[es] Mr. Santana's privacy interests" because it is essentially a "limitless" electronic search condition. He asserts that the condition is "not narrowly tailored in any way." We disagree. Although individuals clearly have privacy interests in their electronic data, there exist significant competing considerations against which those privacy interests must be balanced in the context of a probation condition. A probationer 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.)
Cell phone data, and presumably other electronic data, is not "immune from search." (Riley v. California (2014) 134 S.Ct. 2473, 2493.) Although electronic devices store a wealth of personal information, a person's home also generally contains large amounts of personal information, yet courts routinely grant probation officers significant authority to search a probationer's residence. (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].) Nevertheless, we acknowledge that a probation officer's ability to review a probationer's communications, in the form of emails or text messages, through a search of computers (or other electronic devices such as cell phones) may intrude on a probationer's privacy to a greater degree than the search of a home or vehicle, and in a manner that more clearly implicates a probationer's first amendment rights.
However, the mere fact that a probationer's privacy rights are implicated by a computer and recordable media search condition does not necessarily, by itself, render such a condition overbroad. Given the search condition at issue here and Santana's particular supervisory needs, we do not find such an intrusion in this case to be constitutionally overbroad. Indeed, unlike in some other cases, the particular search condition in this case is limited to the search of electronic devices that belong to Santana, and does not authorize probation officers to require that Santana provide passwords or pass codes to any third party websites or applications that he accesses. Rather, the searches that are authorized are of only the files retained on Santana's devices. We conclude that given this limitation on the types of media that may be searched, the computer and recordable media search condition is appropriately tailored to the state's legitimate supervisory interest over Santana as a probationer. As discussed, the condition allows probation officers to supervise Santana's compliance with a number of other unchallenged probation conditions imposed by the court. Given Santana's limited expectation of privacy resulting from his choice to accept probation in lieu of additional punishment, Santana's admitted gang participation and its relationship to his illegal gun possession justifies the imposition of the computer and recordable media search condition in this case. We therefore conclude that under these circumstances, the electronic search condition imposed by the trial court in this case is not constitutionally overbroad. B. The prohibition against being in the presence of weapons
However, under different circumstances and in relation to a different probationer, such a broad intrusion into a probationer's personal communications may not be sufficiently justified.
Santana contends that condition 12.g., which prohibits him from being in the presence of weapons, is unconstitutionally overbroad and should be stricken. According to Santana, this search condition prohibits him "from entering state and federal courthouses, police stations, military installations, federal and state office buildings and any other building with armed security personnel (such as banks and many shopping malls) as each of these buildings contain armed individuals."
Although Santana's trial counsel did not object to condition 12.g. as stated, we may nevertheless consider the merits of Santana's argument because Santana's contention is that the condition is facially overbroad (see In re Sheena K. (2007) 40 Cal.4th 875, 880, 888 [despite trial counsel's failure to raise the issue in the trial court, "[d]efendant's challenge to her probation condition as facially vague and overbroad presents an asserted error that is a pure question of law, easily remediable on appeal by modification of the condition"]), and because Santana has raised an ineffective assistance of counsel argument on the ground that his trial attorney failed to object to this condition as overbroad.
The People concede that condition 12.g. is constitutionally overbroad, as the court in Forrest, supra, 237 Cal.App.4th 1074 concluded. In Forrest, the defendant challenged the same condition that Santana challenges here. (Id. at pp. 1077, 1083-1084.) The Forrest court agreed that the condition, as stated, is constitutionally overbroad because "it unduly restricts [the probationer's] constitutionally guaranteed freedom of travel and association and her right to access the courts, and because it is not narrowly tailored to safeguard these fundamental rights while restricting her conduct in a manner reasonably designed to promote her rehabilitation and to protect public safety." (Id. at p. 1084.) The Forrest court determined that condition 12.g. had to be modified in order to render it constitutionally valid. We agree with the Forrest court's overbreadth analysis, and similarly conclude that condition 12.g. must be modified. We adopt the modification fashioned by the Forrest court, and order that condition 12.g be modified to read as follows:
" 'Do not remain in the presence of any person who you know illegally possesses a firearm, deadly weapon, or ammunition. Also, do not remain in a building, in a vehicle, or in the presence of any person when you knowingly have ready access to a firearm, regardless of whether it is lawfully possessed or was lawfully acquired.' " (Id. at p. 1085.)
Santana contends that he is entitled to have condition 12.g. striken entirely, rather than modified, because his counsel rendered ineffective assistance in failing to object to the overbroad condition. He argues that the People "cite[ ] to no authority permitting this Court to 'fix' Sixth Amendment errors by rewriting a condition imposed in violation of Mr. Santana's constitutional right to effective assistance of counsel." He further asserts that modification is not a proper remedy in his case because he "is not asking for that remedy" and therefore is in a different position from that of the defendant in Forrest, supra, 237 Cal.App.4th at pages 1084-1085. We find Santana's contention curious. If trial counsel had objected to condition 12.g. in the trial court, Santana would have been entitled to nothing more than a modification of that condition, in line with the modification adopted by the court in Forrest, at page 1085. Additionally, even if we were to strike the condition on appeal, we would remand the case to give the trial court the opportunity to modify the condition in line with the modification adopted in Forrest so that it is no longer constitutionally overbroad. In either case, the end result would be the modification of probation condition 12.g., in line with the holding of Forrest. Given this, we see no reason why we should not act in furtherance of judicial economy and remedy the unconstitutional overbreadth of probation condition 12.g. on appeal. --------
IV.
DISPOSITION
Probation condition 12.g. is modified to read: "Do not remain in the presence of any person who you know illegally possesses a firearm, deadly weapon, or ammunition. Also, do not remain in a building, in a vehicle, or in the presence of any person when you knowingly have ready access to a firearm, regardless of whether it is lawfully possessed or was lawfully acquired." As so modified, the judgment is affirmed.
The matter is remanded to the superior court with the direction to correct probation condition 12.g., as set forth in the order granting formal probation, and to forward a copy of the corrected condition to the probation authorities.
AARON, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.