Opinion
C078388
06-06-2018
THE PEOPLE, Plaintiff and Respondent, v. LEONARD WAKEFIELD, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 11F07247)
Defendant Leonard Wakefield appeals from revocation of probation for his refusal to disclose his cell phone password to allow his probation officer to search his cell phone communications, in violation of probation conditions requiring him (1) to "submit" his "property" to "search and seizure" by any probation officer "with or without [defendant's] consent, with or without a warrant," and (2) to "follow in all respects any reasonable instructions given to [him] by the probation officer."
At the time the probation officer instructed defendant to disclose the password, he was on probation for the offense of noncompliance with sex offender registration (Pen. Code, § 290.018; unless otherwise stated, statutory section references that follow are to the Penal Code) and was under arrest on a new rape allegation by his ex-fiancée that, ultimately, did not result in charges filed against him.
On appeal (§ 1237), defendant raises Fourth Amendment and Fifth Amendment claims. Under the Fourth Amendment, he argues the "evidence [was] insufficient" to prove a probation violation, because the probation terms did not expressly and specifically obligate him to provide his password, and the record is insufficient to show his "understanding" that he had to provide the password. Though defendant appeared to accept in the trial court that search of cell phone data was within the scope of the probation order, he suggests on appeal that search of cell phone data was outside the scope of the probation order. He also argues that, because he was under arrest on a new allegation, he had a Fifth Amendment right to remain silent that protected him from being compelled to disclose the password.
As to the Fourth Amendment, to the extent defendant contends cell phone search and password disclosure are outside the scope of the probation order, we apply an objective test and determine that at the time the officer demanded the password in September 2014, search of the cell phone data was within the scope of the probation order (People v. Sandee (2017) 15 Cal.App.5th 294 (Sandee)), and defendant's refusal to provide the password violated the probation conditions that defendant submit to search of his property and comply with the officer's reasonable instructions.
To the extent defendant thinks the probation order, as so construed, is unconstitutionally vague as a matter of law, we disagree. (People v. Hall (2017) 2 Cal.5th 494, 500-501 (Hall).)
To the extent defendant views search of his cell phone or demand for the password as unreasonable or unconstitutional under the circumstances of his case, such claim would depend on facts for which the record is undeveloped due to defendant's failure to raise such contentions in the trial court, and he has therefore forfeited them. (In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.); People v. Sanders (2003) 31 Cal.4th 318, 333 (Sanders); People v. Lent (1975) 15 Cal.3d 481 (Lent); People v. Appleton (2016) 245 Cal.App.4th 717 (Appleton).)
The law is evolving regarding search of cell phone data. (E.g., § 1546 et seq. [Electronics Communications Privacy Act or ECPA], operative January 2016 [limiting government access to electronic data but allowing access under specific probation conditions]; In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923) [probation condition requiring minor to disclose passwords to electronic devices was reasonable but overbroad]). These recent developments do not affect our decision, because the proper timeframe for our inquiry is the date on which the probation officer sought to search the cell phone, as stated in Sandee, supra, 15 Cal.App.5th at pages 301, 305. Our Supreme Court denied a petition for review in Sandee (review den. Dec. 20, 2017, S244984). Though we are mindful that denial of a petition for review is not an expression on the merits of the cause (Trope v. Katz (1995) 11 Cal.4th 274, 287, fn. 1), we agree with Sandee.
We also conclude defendant had no Fifth Amendment right to withhold his password.
Accordingly, we affirm the trial court order revoking probation.
FACTS AND PROCEEDINGS
The appeal involves the January 2015 revocation of probation that had been granted in November 2011.
The record on appeal contains little background information. In February 1992, defendant (then age 16) was in custody with the California Youth Authority (CYA). He was required to register as a sex offender for life (§ 290 et seq.) following a juvenile adjudication for violating section 288, subdivision (a), lewd or lascivious act on child or dependent person under age 14.
In October 2011, defendant was charged with two felony counts of violating sex offender registration requirements (§§ 290, 290.018) by (1) failing to register within five days of coming into, and changing his residence, within the city and county in which he was residing, and (2) failing to register in each jurisdiction that he had more than one residence.
In November 2011, defendant pleaded no contest to violating the registration requirement (§§ 290, 290.018), on a factual showing that he registered a Sacramento address that was a business, but he was actually living at a separate address that he had not registered within five days of moving to that different address, and he also claimed he was living in Stockton rather than Sacramento. The trial court found defendant guilty of failing to register within five days, dismissed the other count, and placed defendant on formal probation for five years.
The clerk's transcript on appeal contains a "MINUTE ORDER & ORDER OF PROBATION" with the written probation conditions, including that defendant "shall submit his/her person, property and automobile and any object under defendant's control to search and seizure in or out of the presence of the defendant, by any law enforcement officer and/or probation officer, at any time of the day or night, with or without his consent, with or without a warrant. Defendant being advised of his/her constitutional rights in this regard, and having accepted probation, is deemed to have waived same." Another probation condition stated, "You are to follow in all respects any reasonable instructions given to you by the Probation Officer having your supervision." The minute order contains a signature line for the probationer, but it is unsigned. The clerk's transcript also contains a list of specific and general conditions of probation, listing as a specific condition the warrantless search of defendant's "person, property and automobile and any object under [his] control," and listing as a general condition to "follow in all respects any reasonable instructions given to you by the probation officer."
At the November 16, 2011 hearing, the judge who took the plea said, "The understanding, sir, is in your case is you're going to be on probation on the terms that we spoke about." No prior discussion appears in the record on appeal, but defendant did not dispute that they had reviewed the terms. The court said further probation violation could lead to a three-year prison sentence. Defendant asked if it would have to be for the same violation. The court said it could not say and was hard to predict. Defendant said he had a question. The court said he should ask his attorney. After a recess during which defendant spoke with his attorney and the court heard another matter, the court said it was going to refer this case to the probation department but then realized "We already have probation conditions."
Defendant's trial counsel raised only one objection -- to specific probation condition number four, GPS monitoring. She said, "I have not seen that before. He's -- I don't believe he's ever been on that." Defendant said, "I have to do G.P.S. monitoring too?" Defendant and his attorney spoke off the record. The court asked if there were anything else, and defense counsel said no.
The court then said, "Mr. Wakefield, I'm going to adopt the probation conditions. [¶] . . . [¶] The conditions -- I'm not going to go through all of them. I'll talk about a couple. I'm going to modify some fines. If I don't talk about a condition, it will be adopted without any changes.
"You're ordered to obey all laws. You're ordered to serve [300] days in custody. [¶] [Calculation of credits.] [¶] You're required to register. [¶] Regarding the G.P.S., there's clearly a nexus. So I will order the G.P.S. You may not be required to do it but probation has the discretion to require that. [¶] And then regarding the fines, I'm going to delete [specified fines]. Otherwise, all other conditions are adopted. [¶] Do you understand your probation? [¶] Sir, do you understand your probation?
"THE DEFENDANT: Yeah.
"THE COURT: Do you accept your probation?
"THE DEFENDANT: I don't know why I got to wear that G.P.S.
"[Defendant and his attorney talked off the record.]
"THE DEFENDANT: Yes."
In May 2014, defendant admitted a probation violation relating to the GPS monitor, and the trial court reinstated probation.
In September 2014, defendant went to the probation office for his normal check-in but was arrested for violating probation based on an alleged rape in Oakland and an outstanding warrant in Alameda County for violating the registration requirement. Defendant asserts there was no Miranda advisement. While waiting for his probation officer, defendant sat handcuffed. His cell phone was on a desk. When the probation officer arrived about 20 minutes later, she picked up the cell phone, asked if it was defendant's, and he said yes. The officer pressed the phone's home button, and defendant's picture appeared. She asked defendant for his pass code. He said he did not remember. She said defendant had to disclose the code under the search and seizure conditions of his probation. He then offered several codes, none of which provided access. The probation officer asked for the access code at least six times, but defendant did not provide it. The officer wanted to search the phone for communications between defendant and his ex-fiancée, who was the alleged victim in the alleged rape case in Oakland.
In October 2014, defendant was charged with violating probation on three grounds, but the trial court ultimately found a probation violation only on the second ground, i.e., that he "failed to follow the reasonable directives of his Probation officer on 9/30/14, [and did not allow] a search of his cell phone."
The other two grounds were that defendant failed to appear in Alameda County on August 26, 2014, after that court issued a warrant for his failure to register as a sex offender, and that he had pending charges for new sex offenses in Alameda County. The probation report detailed the new allegations by defendant's ex-fiancée, but noted no charges were filed in Alameda County, and the trial court later observed the probation report got "sidetracked" with excessive detail about the new allegations, which were not before the court. Defendant later asserted his ex-fiancée recanted.
In December 2014 and January 2015, the trial court conducted a hearing, at which the probation officer testified to the foregoing facts.
Defense counsel argued there was no probation violation because defendant did not prevent a search of the phone; he had no affirmative duty to assist a search by disclosing his access code; and the fact he was under arrest gave him a Fifth Amendment right to remain silent.
The prosecutor argued defendant violated probation by preventing a lawful search of his phone and giving "disinformation" to the probation officer.
Defense counsel replied, "I will concede he's certainly subject to search and seizure" but claimed defendant "didn't prevent her from searching at all."
The trial court found defendant violated probation in that he "failed to follow reasonable directives of the probation officer and did not . . . allow a search of his cell phone. [¶] In fact, he actively prevented it." The court revoked probation and sentenced defendant to three years in prison, with 611 days of credit.
DISCUSSION
I
Legal Principles and Standard of Review
A trial court has broad discretion in determining whether to revoke probation. (§ 1203.2.) Probation revocation is not part of a criminal prosecution, and the standard of proof is preponderance of the evidence. (People v. Urke (2011) 197 Cal.App.4th 766, 772 (Urke).) We review the trial court's decision under the substantial evidence standard, giving great deference to the trial court's exercise of discretion. (Id. at p. 773.) The burden of demonstrating abuse of discretion is on the defendant. (Ibid.) Only in an extreme case should an appellate court interfere with the trial court's discretion in the matter of revoking probation. (Ibid.) We review constitutional challenges to probation conditions de novo. (Sheena K., supra, 40 Cal.4th at pp. 888-889.)
II
Insufficiency of Evidence
Defendant argues "THE EVIDENCE WAS INSUFFICIENT" to prove he violated probation, because the probation terms did not explicitly obligate him to provide his cell phone password to the probation officer. Under that heading, defendant in a subheading raises a separate contention that he could be subjected only to "reasonable" probation searches, and search of cell phone data to which he did specifically consent would violate the Fourth Amendment.
Though framed as a substantial evidence argument, defendant is really arguing that, as a matter of law, probation conditions do not encompass search of cell phone data or password disclosure unless the probation order explicitly refers to cell phone data and passwords. We reject this legal argument. A substantial evidence claim would require defendant to overcome the trial court's implicit finding that defendant's withholding of his password was a willful violation of his probation conditions. (Hall, supra, 2 Cal.5th at pp. 500, 502 [case law articulates general presumption that violation of probation condition must be willful, unless excluded expressly or by necessary implication, and willfulness can be inferred].) Defendant does not present a substantial evidence analysis. He cannot prevail in this appeal merely by asserting, as he does, that the record lacks evidence that he affirmatively and expressly understood and agreed to disclose his password and allow search of cell phone data.
The Fourth Amendment applies to searches of cell phone data, which may contain and reveal "the privacies of life" to a greater extent than tangible property. (Riley v. California (2014) 573 U.S. ___ (Riley), [warrantless searches of unlocked phone data were not valid searches incident to arrest because they were not needed for officer safety or to prevent destruction of evidence].)
A warrantless search must be justified by a recognized exception to the warrant requirement. (Riley, supra, 573 U.S. at p. ___ .) A probation search is one of those exceptions, because a probationer consents to the waiver of his Fourth Amendment rights in exchange for the opportunity to avoid service of a state prison term, as long as the search is not undertaken for harassment or for arbitrary or capricious reasons. (People v. Bravo (1987) 43 Cal.3d 600, 608-610 (Bravo).)
As indicated, the law regarding probation searches of cell phone data is evolving. For example, while this appeal was pending, the Legislature enacted the ECPA (§ 1546 et. seq.) limiting governmental access to electronic data but allowing access if a probation condition expressly mentions electronic data. (§ 1546.1.) Additionally, the California Supreme Court has under review various cases with issues regarding reasonableness and constitutionality of warrantless probation searches of cell phone data under the Fourth Amendment. (E.g., People v. Valdivia (2017) 16 Cal.App.5th 1130, review granted Feb. 14, 2018, S245893 (Valdivia) [probation condition for electronics search was reasonable but overbroad under Fourth Amendment]; In re Ricardo P., supra, 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923 [constitutionality of electronics search probation condition and reasonableness of requiring disclosure of password]; People v. Trujillo (2017) 15 Cal.App.5th 574, review granted Nov. 29, 2017, S244650 [electronics-search probation condition was reasonable and constitutional]; In re R.S. (2017) 11 Cal.App.5th 239, review granted July 26, 2017, S242387 [minor forfeited contention that probation condition to search "property" was unconstitutionally vague and overbroad insofar as it may encompass electronic devices].)
However, we agree with Sandee, supra, 15 Cal.App.5th 294, that the appropriate inquiry in determining the reasonable meaning of probation search conditions "focuses on what a reasonable, objective person would understand the search condition to mean at the time of the search. . . . If law enforcement officers cannot be expected to draw fine points based on legal precedent when interpreting the search condition's reasonable meaning, those officers certainly cannot be expected to possess an understanding based on future legal developments." (Id. at p. 301, orig. italics, fn. omitted, & pp. 304-306 [declining to apply ECPA to the extent it might reasonably lead a law enforcement officer to interpret a general probation search condition as excluding electronic device data].)
Sandee, supra, 15 Cal.App.5th 294, was filed while our appeal was pending, but it applied the objective test of Bravo, supra, 43 Cal.3d 600, in holding that a general probation search condition to search the defendant's "property" and "personal effects" without a warrant applied to search of cell phone data. In that case -- a prosecution for a drug offense committed while on probation -- a law enforcement officer stopped the defendant after she left a house under surveillance for drug activity. After confirming with dispatch that she was on searchable probation, the officer searched her cell phone -- which apparently was not password protected at the time -- and found text messages possibly related to narcotics sales. (Id. at p. 298.) The appellate court upheld the trial court's denial of the defendant's motion to suppress the text messages, rejecting her argument that the general probation search condition allowing authorities to search her "property" and "personal effects" did not extend to cell phone data. (Id. at p. 298, review den. Dec. 20, 2017, S244984.)
Sandee, supra, 15 Cal.App.5th at page 301, applied the objective test of Bravo, supra, 43 Cal.3d at pages 606-607: " '[T]he search condition must . . . be interpreted on the basis of what a reasonable person would understand from the language of the condition itself, not on the basis of appellant's subjective understanding, or under a strict test in which a presumption against waiver is applied.' " The reason for this rule is that " '[l]aw enforcement officers who rely on search conditions in probation orders, the probationer himself [or herself], and other judges who may be called upon to determine the lawfulness of a search, must be able to determine the scope of the condition by reference to the probation order. We cannot expect police officers and probation agents who undertake searches pursuant to a search condition of a probation agreement to do more than give the condition the meaning that would appear to a reasonable, objective reader. They can neither inquire into the subjective understanding of the probationer, nor analyze the condition in light of legal precedent drawing fine points based on minor differences in the wording of search conditions in other probation orders.' " (Sandee, supra, 15 Cal.App.5th at p. 301, quoting Bravo, supra, 43 Cal.3d at pp. 606-607.)
Turning to the language of the probation search condition agreeing to submit "property" and "personal effects" to search, Sandee concluded a reasonable, objective person would understand it to encompass a search of the cell phone data. (Id., supra, 15 Cal.App.5th at p. 302.) "The probation search condition is worded very broadly and contains no language whatsoever that would limit the terms 'property' and 'personal effects' to exclude Sandee's cell phone or other electronic devices and the data stored on them. As a cell phone is indisputably the property of the person who possesses it and constitutes part of his or her personal effects, a reasonable person would understand the terms 'property' and 'personal effects' to include Sandee's cell phone and the data on it." (Ibid.) Sandee acknowledged that Riley, supra, 573 U.S. at page ___ observed cell phones differ quantitatively and qualitatively from other objects, making it inappropriate to include them in the search-incident-to-arrest exception to the warrant requirement, but nothing in Riley suggested that cell phones should not be understood as a type of personal property. (Sandee, at p. 302, fn. 5.) Riley does not control in questions of probation searches, because it dealt with nonconsensual searches incident to arrest, not a probation search where the probationer has consented to the waiver of his Fourth Amendment rights in exchange for the opportunity to avoid service of a state prison term. (Bravo, supra, 43 Cal.3d 600.)
Sandee, supra, 15 Cal.App.5th at pages 302-304, rejected the defendant's reliance on a federal case, United States v. Lara (9th Cir. 2016) 815 F.3d 605, which held a probation condition for search of "person and property, including any residence, premises, container or vehicle under [his] control" did not include cell phone data. Sandee, supra, at pages 302-303, explained that Lara was not persuasive because it applied the federal "balancing approach" (United States v. Knights (2001) 534 U.S. 112 ) which balances the degree to which a search intrudes on an individual's privacy against the degree to which the search is needed for the promotion of legitimate governmental interests. California, in contrast, applies a "consent-based approach" under which the probationer is understood to have consented to all searches within the scope of the probation search condition, as interpreted on an objective basis, as long as they are not arbitrary or capricious or for harassment purposes. (Sandee, at pp. 302-303, fn. 6, citing Bravo, supra, 43 Cal.3d at pp. 606-607, 610.)
The United States Supreme Court in Knights, supra, expressly acknowledged California's different approach without disapproving it, instead expressly stating it need not decide the validity of California's consent-based approach because the Knights court found the search there at issue was valid under the alternative balancing approach. (Sandee, supra, 15 Cal.App.5th at p. 303, fn. 6, citing Knights, supra, 534 U.S. at p. 118.) Accordingly, California's "consent-based approach to assessing the validity of a search performed under a probation search condition remains the controlling law in California." (Sandee, at p. 303, fn. 6.)
Sandee, supra, 15 Cal.App.5th at page 304, thus declined to follow Lara and concluded a reasonable person at the time of the search would understand "property" and "personal effects" to include the defendant's cell phone and the data it contained. The defendant did not contend that the search was arbitrary or capricious or conducted to harass her. The detective conducted only a cursory search for text messages, and the case did not present an issue of whether the probation search condition allowed police to access a shared database or social networking site with restricted access. (Id. at p. 299, fn. 3.) The search was constitutionally valid. (Id. at p. 304.)
Sandee, supra, 15 Cal.App.4th at page 306, declined to follow In re I.V. (2017) 11 Cal.App.5th 249 (I.V.), which held that a probation condition for search of property, reasonably construed, applied only to tangible property, not electronic data. Sandee declined to follow I.V., because (1) its search condition was imposed after the ECPA became effective (I.V., at p. 262, fn. 16 [citing ECPA]), and I.V. relied on the federal Lara case that is not controlling in California. (Sandee, at pp. 304, 306; I.V., at pp. 262-263.)
We agree with Sandee.
Applying the consent-based approach here, we conclude that at the time of the probation officer's demand for defendant's cell phone password, the probation condition pursuant to which defendant agreed to "submit" his "property" to "search and seizure" by the probation officer "with or without [defendant's] consent, with or without a warrant" included search of his cell phone data. Because the search of the cell phone data was within the probation order, the probation officer's demand for the password was objectively reasonable, and defendant's refusal to provide the password upon the probation officer's demand violated the probation condition that defendant comply with the officer's reasonable instructions.
Defendant argues the probation condition, construed to require disclosure of the password, is unconstitutionally vague. He cites Sheena K., supra, 40 Cal.4th 875, for its statement that a probation condition must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated, if it is to withstand a challenge on the ground of vagueness. (Id. at p. 890.) Sheena K., which had nothing to do with cell phones or passwords, held that the language of a probation condition -- prohibiting the defendant from associating with "anyone disapproved of by probation" -- was unconstitutionally vague on its face in that it did not expressly state the probationer must know that the probation officer disapproved of the particular person. (Id. at p. 891 & fn. 8 [no need to address whether it was also overbroad].) The defendant's failure to raise the point in the juvenile court did not forfeit the matter on appeal, because the issue presented a pure question of law that did not require scrutiny of individual facts and circumstances. (Id. at pp. 880, 885.) The vagueness could be cured by inserting a qualification that the defendant not associate with anyone "known to be disapproved of" by the probation officer. (Id. at p. 892.) The appellant's death rendered her case moot, but the Supreme Court issued the opinion to clarify that, while the forfeiture doctrine applies if the probation question implicates particular facts and circumstances, forfeiture does not apply to pure questions of law. (Id. at pp. 880-889.)
The Supreme Court later clarified, however, that the probationer in Sheena K. did not object that the condition was vague in failing to articulate the requisite scienter. (Hall, supra, 2 Cal.5th at pp. 502-503.) Hall held that probation conditions barring possession of firearms or illegal drugs were not unconstitutionally vague on their face for failing to specify knowing possession, because knowing possession is implicit. (Id. at p. 497.)
The void-for-vagueness doctrine, which derives from the due process concept of fair warning, bars enforcement of a provision that forbids or requires the doing of act in terms so vague that people of common intelligence must necessarily guess at its meaning and differ as to its application. (Hall, supra, 2 Cal.5th at p. 500.) To withstand a constitutional challenge on the ground of vagueness, a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition. (Ibid.) The vagueness doctrine demands no more than a reasonable degree of certainty. (Id. at pp. 500-501.) We give the probation condition the meaning that would appear to a reasonable, objective reader, and it survives a vagueness challenge if it can be given any reasonable and practical construction. (Ibid.) "Consider, for example, one of the most common probation conditions -- the implicit condition to obey all laws. [Citations.] This condition appears to contemplate that the probationer might need to look beyond the four corners of the probation order to ascertain what conduct is permitted, what is prohibited, and what state of mind must be shown to sustain a violation. The mere fact that defendant is charged with knowledge of all the law that could apply to his situation does not render the condition unconstitutionally vague." (Id. at p. 502.)
Here, at the time the officer wanted to search the cell phone data, the broad probation condition that defendant "submit" to "search" of his "property" reasonably included the cell phone data, as defendant appeared to accept in the trial court. Implicit in his agreement to (1) submit to the search and (2) follow the officer's reasonable instructions, was an agreement to disclose the password.
Construing the probation conditions to require disclosure of the password to allow search of cell phone data does not render the probation conditions unconstitutionally vague on their face.
In addition to a facial challenge, a probation condition may be challenged as unreasonable or unconstitutional under the specific circumstances of the case (balancing the degree of intrusion on privacy and the degree to which the search is needed for promotion of legitimate government interests) if the contention is raised in the trial court where a factual record can be developed. (E.g., Sanders, supra, 31 Cal.4th at p. 333; Lent, supra, 15 Cal.3d 481; Appleton, supra, 245 Cal.App.4th at pp. 724-725 [probation condition requiring consent to search electronic devices for material prohibited by law was sufficiently related to defendant's offense to be valid but was unconstitutionally overbroad].) Appleton noted its issue differed from cases concerning the validity of probation searches where courts did not consider the reasonableness of the search conditions because the defendants in those cases did not challenge the probation conditions on that basis. (Appleton, at pp. 724-725.) Appleton noted the defendant in Bravo, supra, 43 Cal.3d 600, never claimed the search condition was unreasonable. (Id. at p. 725.)
Here, to the extent defendant means to claim that the probation condition requiring him to disclose his password was unreasonable or unconstitutional under the circumstances of his case, the contention would fail for lack of an adequate factual record, attributable to defendant. Although probation was granted on a violation of the sex offender registration requirement (§ 290.018), a trial court in deciding whether to grant or deny probation may consider the defendant's "[p]rior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct." (Cal. Rules of Court, rule 4.414(b).) Here, we do not know the circumstances of defendant's underlying sex offense as a minor, and the record suggests defendant may have also committed homicide as a teen. Thus, when the court was deciding the sentence for the current probation violation of failing to disclose the cell phone password, defense counsel expressed a collateral opinion that the lifetime sex offender registration requirement was excessive because defendant was only 14 when he committed his sex offense in 1989, though he was 16 when sent to CYA in 1992 for both the sex offense and a homicide defendant committed at age 15. Homicide is not mentioned in the current probation report.
Additionally, when the trial court granted probation, it said there was "clearly a nexus" for allowing the probation department to use a G.P.S. monitor on defendant as a probation condition (a condition expressly challenged by defendant in the trial court) -- indicating the court saw a need for close supervision under the circumstances of the case. The primary goal of probation is to ensure the safety of the public through the enforcement of court-ordered probation conditions. (People v. Olguin (2008) 45 Cal.4th 375, 379.)
Defendant cites two cases in which the probation conditions did expressly require the defendant to provide passwords for cell phones and other electronic devices, and the defendant expressly challenged the conditions as unreasonable and overbroad. (People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1172; People v. Pirali (2013) 217 Cal.App.4th 1341, 1345.) Defendant seeks to extrapolate a rule, reached by neither court, that cell phone data cannot be subject to a probation search unless a specific probation condition expressly so states and expressly requires the defendant to disclose the password.
However, cases are not authority for propositions not therein considered. (People v. Barragan (2004) 32 Cal.4th 236, 243; Santisas v. Goodin (1998) 17 Cal.4th 599, 620.) In Ebertowski, the defendant pleaded no contest to making criminal threats and resisting an officer and admitted a criminal street gang allegation. (Ebertowski, supra, 228 Cal.App.4th at p. 1172.) He challenged as unreasonable and overbroad probation conditions requiring that he provide all passwords to electronic devices and any social media sites. The appellate court upheld the restrictions. "Access to all of defendant's devices and social media accounts is the only way to see if defendant is ridding himself of his gang associations and activities, as required by the terms of his probation, or is continuing those associations and activities, in violation of his probation." (Id. at p. 1175.) The minimal invasion of his privacy in the probation officer monitoring his devices and accounts while on probation was outweighed by the state's interest in protecting the public from a dangerous criminal who has been granted the privilege of probation. (Id. at p. 1176.) Ebertowski does not stand for the proposition that a cell phone search is disallowed unless a specific probation condition expressly mentions cell phone data search and passwords.
Defendant claims Pirali, supra, 217 Cal.App.4th 1345, held that when there is a conflict between the oral and written records, the oral record controls. Defendant thinks that means he is not subject to any search condition, because the search condition appears only in the clerk's transcript and was not mentioned orally by the court. However, defendant is wrong. Pirali said the traditional rule was that the oral record controlled, but the modern rule is to adopt whichever should be given greater credence in the circumstances of the case. (Id. at p. 1346.) Moreover, the rule comes into play when there is a conflict. There was a conflict in Pirali, because the oral pronouncement was that the defendant shall not have access to the internet, while the writing said he shall not access the internet. In our case, there is no conflict. Rather, the judge simply stated orally that it would not repeat all of the written probation conditions, which had already been reviewed with defendant.
Contrary to defendant's view, Pirali did not command a specific probation directive about passwords. There, child pornography was discovered during a search of the defendant's computer pursuant to a search warrant arising out of an auto insurance fraud investigation. (Id. at p. 1344.) The probation conditions for the child pornography conviction restricted the defendant's computer usage and required him to report all his passwords to his probation officer. (Ibid.) He did not challenge the conditions in the trial court. On appeal, he did not separately challenge the requirement that he disclose his passwords (other than to argue it and other conditions restricting computer access contradicted the broader condition forbidding him from having access to the internet without prior approval). (Id. at pp. 1346, 1347.) He argued that the probation conditions restricting his access to the internet and forbidding him from possessing pornography were overbroad and unconstitutionally vague. (Id. at p. 1346.)
The Pirali court first decided that the defendant's failure to object in the trial court did not preclude his appellate argument that the internet restriction was overbroad and violated First Amendment rights, because "[s]uch an argument does not rely on facts in the sentencing record, and presents a pure question of law." (Pirali, supra, 217 Cal.App.4th at p. 1347.) The appellate court did conclude, however, that the defendant forfeited any claim that the probation condition was unreasonable (because unnecessary to serve the state's interest) by failing to raise this point in the trial court. (Ibid.) Such argument was specific to the circumstances of his underlying offense and whether the broader internet prohibition would deter future criminality. (Ibid.) The only problem Pirali found was that the probation conditions did not give sufficient notice of what material would be deemed pornographic, so the court modified the condition to restrict access of material without prior approval of the probation officer or having been informed by the probation officer that such material is deemed restricted. (Id. at p. 1353.)
We conclude the probation officer's demand for the password to defendant's cell phone in order to search for phone contacts with an alleged victim was within the scope of defendant's probation conditions, and defendant's Fourth Amendment arguments fail.
III
Fifth Amendment
Defendant argues that "ONCE [HE] WAS ARRESTED" on a new allegation of a sex offense, he had a Fifth Amendment right against self-incrimination and was protected from being compelled to answer probation's demand for his cell phone password. Under the same heading, defendant makes a more general argument that the Fifth Amendment applies to probationers. Though he did not invoke the Fifth Amendment but simply gave false passwords, he contends that revoking his probation for failure to disclose his password violated the Fifth Amendment. We disagree.
The self-incrimination clause of the Fifth Amendment to the United States Constitution provides that "No person . . . shall be compelled in any criminal case to be a witness against himself . . . ." The Fifth Amendment encompasses a compelled statement that is not in itself incriminating but could lead to discovery of incriminating evidence. (United States v. Hubbell (2000) 530 U.S. 27, 29, fn. 1, 36-38 ; People v. Trujeque (2015) 61 Cal.4th 227, 267 [Fifth Amendment applies if witness's answers could "furnish a link in the chain of evidence" needed to prosecute the witness for a crime].)
While the privilege may be asserted in a noncriminal setting (Kastigar v. U.S. (1972) 406 U.S. 441, 444-445 ), the privilege against self-incrimination protects a person only against being incriminated by his own compelled testimonial communications. (Doe v. United States (1988) 487 U.S. 201, 207 .)
Probation revocation proceedings are not criminal proceedings. (Minnesota v. Murphy (1984) 465 U.S. 420, 435, fn. 7 (Murphy); People v. Garcia (2017) 2 Cal.5th 792, 807-808 (Garcia).)
We recently rejected a probationer's Fifth Amendment challenge to compelled disclosure of electronics passwords in Valdivia, supra, 16 Cal.App.5th 1130 (review granted Feb. 14, 2018, S245893), and we adhere to that holding as persuasive though not precedential in light of the grant of review. (Cal. Rules of Court, rules 8.1105, 8.1115.) We there said that, even if a probation condition to disclose a password could be reasonably understood as compelling the probationer to incriminate himself in violation of his Fifth Amendment privilege, no authority supported striking the provision. We rejected the defendant's reliance on Murphy, supra, 465 U.S. 420.
Here, defendant also relies on Murphy, claiming it found that a defendant's probation could not be revoked based on a valid exercise of the Fifth Amendment right to remain silent. Murphy did not so hold.
Murphy was a criminal prosecution for murder in which the defendant sought to suppress the confession he made to the probation officer supervising his probation in an unrelated case on a conviction that postdated the murder. Unlike our case, the defendant in Murphy was not under arrest at the time of his statement. (Id. 465 U.S. at p. 430.) The question in Murphy was "whether a statement made by a probationer to his probation officer without prior warnings is admissible in a subsequent criminal proceeding." (Id. at p. 425.)
Murphy held that the state may not impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself, but the state may require a probationer to appear and discuss matters that affect his probationary status, and such requirement, without more, does not give rise to a self-executing privilege against self-incrimination. (Id. 465 U.S. at pp. 434-440.) Because the probationer there (who was not under arrest) revealed incriminating information instead of timely asserting his Fifth Amendment privilege, his disclosures to his probation officer were not compelled incriminations, even though the probation officer consciously sought incriminating evidence. (Id. at pp. 430, 440.) A different question on the self-executing nature of the Fifth Amendment would have been presented had the defendant been under arrest at the time of his statement. (Id. at p. 429, fn. 5.)
"A state may require a probationer to appear and discuss matters that affect his probationary status; such a requirement, without more, does not give rise to a self-executing privilege. The result may be different if the questions put to the probationer, however relevant to his probationary status, call for answers that would incriminate him in a pending or later criminal prosecution. There is thus a substantial basis in our cases for concluding that if the state, either expressly or by implication, asserts that invocation of the privilege would lead to revocation of probation, it would have created the classic penalty situation, the failure to assert the privilege would be excused, and the probationer's answers would be deemed compelled and inadmissible in a criminal prosecution." (Murphy, supra, 465 U.S. at p. 435.)
The self-executing nature of the privilege is not at issue here, because defendant did not reveal incriminating information, and for purposes of this appeal we assume a Fifth Amendment invocation. More pertinent to our appeal is that Murphy said in an accompanying footnote: "The situation would be different if the questions put to a probationer were relevant to his probationary status and posed no realistic threat of incrimination in a separate criminal proceeding. If, for example, a residential restriction were imposed as a condition of probation, it would appear unlikely that a violation of that condition would be a criminal act. Hence, a claim of the Fifth Amendment privilege in response to questions relating to a residential condition could not validly rest on the ground that the answer might be used to incriminate if the probationer was tried for another crime. Neither, in our [United States Supreme Court] view, would the privilege be available on the ground that answering such questions might reveal a violation of the residential requirement and result in the termination of probation. Although a revocation proceeding must comport with the requirements of due process, it is not a criminal proceeding. [Citations.] Just as there is no right to a jury trial before probation may be revoked, neither is the privilege against compelled self-incrimination available to a probationer." (Murphy, supra, 465 U.S. at p. 435, fn. 7.) Moreover, "a state may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminates the threat of incrimination. Under such circumstances, a probationer's 'right to immunity as a result of his compelled testimony would not be at stake' [citations], and nothing in the Federal Constitution would prevent a State from revoking probation for a refusal to answer that violated an express condition of probation or from using the probationer's silence as 'one of a number of factors to be considered by a finder of fact' in deciding whether other conditions of probation have been violated. [Citations.]" (Ibid.)
We said in Valdivia that the foregoing principles do not support an assertion that a probation condition to disclose passwords must be stricken as violative of the Fifth Amendment. "Rather, at best, assuming (without deciding) that the condition can be reasonably understood as compelling him to incriminate himself in violation of his privilege, and assuming (without deciding) that the condition is sufficient by itself to communicate that a refusal to disclose and provide such information will lead to the revocation of probation, all [Murphy] says is that when (if ever) defendant is asked to disclose and provide such information, he does not have to expressly assert the privilege, the failure to assert the privilege will be excused, and any answers he provides may be deemed compelled and inadmissible in a criminal prosecution. At the same time, however, if defendant refuses to disclose and provide such information, he may be in violation of the terms of his probation and the state can revoke his probation on that basis. Nothing in [Murphy] supports the defendant's contention that the mere existence of the condition requiring him to disclose and provide any and all information necessary to conduct a search of electronic storage devices in his control presently violates his Fifth Amendment privilege against self-incrimination such that the condition cannot lawfully exist and must be stricken. For this reason, defendant's challenge to the condition under the Fifth Amendment is without merit." (Valdivia, supra, 16 Cal.App.5th at p. 1141, review granted Feb. 14, 2018, S245893.)
Our Supreme Court recently discussed Fifth Amendment challenges to probation conditions in Garcia, supra, 2 Cal.5th 792. There, a probationer convicted of sex offenses challenged "Chelsea's Law" (§ 1203.067) requiring convicted sex offenders, as a condition of probation, to waive "any privilege against self-incrimination," to participate in polygraph examinations, and to waive the psychotherapist-patient privilege. (Id. at p. 798.) The Supreme Court concluded the statute required the defendant to answer all questions fully and truthfully, but because his responses were deemed compelled within the meaning of the Fifth Amendment, they could not lawfully be used against him in a criminal proceeding. (Ibid.) "Where, as here, the responses would therefore pose no risk of incrimination, neither the fact that he was compelled to respond nor the fact that his responses were being monitored by a polygraph offends the Fifth Amendment." (Ibid.)
Garcia observed that a probationer "has a diminished expectation of liberty and privacy as compared to an ordinary citizen. [Citation.]" (Id., supra, 2 Cal.5th at p. 810, citing United States v. Knights, supra, 534 U.S. at p. 119.) Sex offender registration is a means of enabling law enforcement to manage the serious risk to the public of recidivism. (Garcia, supra, 2 Cal.5th at p. 797.)
Here, although the probation officer wanted to see if defendant's phone had any communications with his ex-fiancée relevant to the new rape allegation, the Fifth Amendment may have precluded the use of any such communications or defendant's silence in a new criminal prosecution (which was never filed), but it did not preclude use of defendant's silence to revoke probation.
We need not address the Attorney General's argument that we should borrow from case law holding that compelled disclosure of a computer password is nontestimonial under the "foregone conclusion" doctrine, in that the facts that would be conveyed by the defendant's act of decryption -- his ownership and control of the computer and its contents, knowledge of the fact of encryption and knowledge of the encryption key -- are already known to the government and thus are a "forgone conclusion." (E.g., Commonwealth v. Gelfgatt (2014) 11 N.E.3d 605 (468 Mass. 512) [in criminal prosecution alleging defendant used computers to conduct a mortgage fraud scheme, Fifth Amendment did not preclude court from compelling defendant to enter encryption key into computers seized by the state with a warrant, where compelled decryption would not communicate facts of a testimonial nature beyond what the defendant had already admitted to investigators].)
We conclude defendant fails to show grounds for reversal.
DISPOSITION
The judgment (order) revoking probation and sentencing defendant to prison is affirmed.
HULL, Acting P. J. We concur: DUARTE, J. HOCH, J.