Opinion
D072918
05-10-2018
THE PEOPLE, Plaintiff and Respondent, v. NATHAN H. VELAZQUEZ, Defendant and Appellant.
Michael C. Sampson, 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, Michael Pulos and Adrian R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD273143) APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Affirmed as modified and remanded with directions. Michael C. Sampson, 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, Michael Pulos and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
Nathan H. Velazquez pleaded guilty to possession of metal knuckles (Pen. Code, § 21810). The remaining counts were dismissed. The court granted immediate sentencing and granted Velazquez probation to the court.
All further statutory references are to the Penal Code unless otherwise specified.
One of the conditions of probation (condition 8j) is a general Fourth Amendment waiver, which includes an electronic search term. Velazquez timely objected to the condition on the grounds there was no nexus between the crime and the electronic search condition. The trial court overruled the objection.
Velazquez appeals contending the search condition is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent). The People first claim forfeiture and on the merits, argue the condition is appropriate for the appellant's supervision on probation. We find the defense objection to condition 8j was timely and invoked the principles of Lent, therefore we will not address the forfeiture argument any further. On the merits, we find nothing in the record to support the additional intrusion on appellant's privacy rights occasioned by the electronic search portion of condition 8j. Accordingly, we will remand the case to the trial court with directions to strike the challenged portion of that condition.
This case arises from a guilty plea before the preliminary hearing, thus there is no record of the facts of the offense. There is no probation officer's report so there is no information on the appellant's criminal history, if any. Indeed, all we know is he pleaded guilty to a weapons charges and some charges relating to illegal drugs were dismissed. Not only does the very sparse record prevent us from setting forth a statement of facts, but as we will note below, it prevents us from discerning any sufficient basis for the enhanced search condition.
The issue of the validity of electronic search conditions before our Supreme Court include In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted February 17, 2016, S230923; In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25, 2016, S233932; People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted December 14, 2016, S238210.
DISCUSSION
Velazquez contends the electronics portion of condition 8j has no nexus to the offense or his background. He argues it is invalid under Lent, supra, 15 Cal.3d 481 and given the privacy interest at stake, is not narrowly tailored to limit unnecessary intrusion into constitutionally protected activity. The People contend the condition is reasonable because it aids in supervision of Velazquez while on probation. While it can be argued that maximum surveillance of probationers would ensure better compliance, Lent does not permit wholesale intrusion into protected, otherwise lawful behavior without justification and appropriate tailoring of the restrictions to properly balance the need for supervision and the intrusion on lawful activities. In this case, with the absence of any obvious nexus and no explanation for the added intrusion, we will find the condition overbroad and will remand the case with directions to strike the challenged portion of condition 8j.
A. Legal Principles
A grant of probation to a person convicted of a felony is an act of clemency by the court. The purpose of probation is the rehabilitation of the offender and to prevent the person from committing new offenses. Trial courts have broad discretion in fashioning conditions designed to achieve the purposes of probation. (People v. Moran (2016) 1 Cal.5th 398, 402-403; People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).)
In Lent, supra, 15 Cal.3d 481, the court discussed circumstances where a probation condition might be invalid where it restricts otherwise lawful activity. "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 . . . .' " (Id. at p. 486.) All three of the Lent factors must be found in order to invalidate a probation condition. (Olguin, supra, 45 Cal.4th at p. 379.)
In cases where there is no demonstrated relationship between the electronic search condition and the offense or the specific needs of supervision of the probationer courts have held such conditions to be invalid under Lent, supra, 15 Cal.3d 481. (In re Erica R. (2015) 240 Cal.App.4th 907, 911.)
Where the record establishes a nexus between the offense and the use of electronic devices, or in the specific needs of supervision, courts have found the search conditions appropriate. In People v. Appleton (2016) 245 Cal.App.4th 717, 724, the court upheld a search condition because " 'either social media or some kind of computer software' " had been involved in the commission of the crime. In People v. Nachbar (2016) 3 Cal.App.5th at page 1130, review granted, this court upheld an electronic search condition where the defendant had communicated with the victim of his sex offense by means of social media.
At issue in many of the cases dealing with searches of electronic media, is the question of the privacy interests in the data contained in such devices. Velazquez cites Riley v. California (2014) 134 S.Ct. 2473 (Riley) for the proposition there is a heightened privacy interest in devices such as computers and smart phones. In Riley, the court dealt with the search of a smartphone, which was done without a warrant and justified by law enforcement, as a search incident to lawful arrest. At base, the court's decision found the search incident to arrest exception to the search warrant rule did not apply to a smartphone. Such devices are not weapons and there is no intrinsic reason to fear evidence seized by police will ordinarily be destroyed once it is in police possession.
In the course of the court's analysis of such searches, it commented extensively about the significantly greater privacy interest in such devices as compared to normal physical items or spaces. The vast amount of data storage capability and the attendant risk to legitimate privacy interests, persuaded the court to refuse to permit search of such devices simply as an incident to lawful arrest. Rather, police must obtain a warrant, or other exigent circumstance to permit such search. Riley, supra, 134 S.Ct. 2473 did not deal with the issue of electronic search conditions on probation or parole.
B. Analysis
The question here is whether there is a nexus between the electronic search condition and the crime or there has been any tailoring of the condition to limit its impact on otherwise protected activity. The People do not argue that either of these requirements have been met. Rather, the People argue the condition is reasonable, will aid in supervision, and it was within the court's discretion. As we have said, it is likely that maximum surveillance will provide better tools for probation supervision, but intrusions on otherwise protected activity must be justified as required by Lent, supra, 15 Cal.3d 481.
Courts do have broad sentencing discretion when imposing conditions of probation. However, where the conditions of probation are not related to the crime or the background of the defendant and intrude on otherwise lawful activity, there needs to be some articulable reason for their imposition. The decision in Lent, supra, 15 Cal.3d 481 contemplates such intrusions or limitations will be narrowly tailored to balance the needs of probation supervision with the need to protect the defendant from otherwise unnecessary limitation on constitutional rights.
The record in this case does not provide any explanation for the need for warrantless intrusion into the data and communications that may be stored in electronic devices.
On this record, the challenged condition fails all three of the Lent factors. It is unrelated to the crime; it intrudes upon otherwise lawful activity (indeed it impacts a constitutional right); and there has been no identifiable tailoring of the condition to balance its intrusion into protected behavior.
Having reviewed the record, we are satisfied the trial court abused its discretion in imposing that portion of condition 8j, which authorizes warrantless searches of computers and recordable media.
As we have noted, there was no probation officer's report and no preliminary hearing. There is no record of any data presented to the court that would justify an electronic search condition. The court's proffered justification was that "oftentimes" people take pictures of themselves with weapons or contraband. Respectfully, that generalization could be used to justify the condition in virtually every case. From all that appears on the record this was treated as a "standard" condition needing no justification.
DISPOSITION
The case is remanded to the trial court with directions to strike that portion of condition 8j that provides: ". . . computers, recordable media . . . ." In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J. I CONCUR: AARON, J. I CONCUR IN THE RESULT: HALLER, J.