People v. Smith

THE PEOPLE, Plaintiff and Respondent, v. NICOLE ARIELE SMITH, Defendant and Appellant.

E069203

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

October 3, 2018

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI17002206)

OPINION

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed.

Jeanine G. Strong, 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, Britton B. Lacy and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

Defendant and appellant Nicole Ariele Smith smuggled three bindles of marijuana into a prison facility in a secret compartment fashioned into a feminine hygiene pad she wore. Subsequently, she pled no contest to possession of contraband in prison (Pen. Code, § 4573.5).¹ In return, defendant was placed on formal probation for a period of three years on various terms and conditions of probation, including an electronic device search condition. On appeal, defendant argues (1) the electronic device search condition is unconstitutionally overbroad and violates her Fourth Amendment rights, and (2) the electronic device search condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent). We reject these contentions and affirm the judgment.

II

FACTUAL AND PROCEDURAL BACKGROUND²

On May 9, 2015, defendant attempted to bring 3.44 grams of marijuana into a prison where her fiancée was incarcerated. Based on a tip from a confidential informant, prison officials detained defendant and asked her permission to search her person. After defendant refused to consent to a search of her person, a search warrant was obtained and executed. Three white latex bindles of marijuana were found tucked into a pocket created inside a feminine sanitary napkin defendant was wearing. Prison officials alsosearched defendant's car and cell phone. There was no evidence of illegal activity either on the cell phone or in her car.

Following a preliminary hearing, on October 23, 2015, in San Luis Obispo County Superior Court, an information was filed charging defendant with one count of possession of contraband, to wit, marijuana, in prison (§ 4573.6, subd. (a)).

On April 3, 2017, defendant pled no contest to section 4573.5 as charged. In return, the San Luis Obispo County Superior Court placed defendant on formal probation for a period of three years on various terms and conditions of probation, including an electronic device search condition. Specifically, the term stated: "Submit to search of any mobile electronic device used to store or transmit digital information under your control, at any time, with or without probable cause, by a Probation Officer or other law enforcement officer."³

On May 31, 2017, the San Luis Obispo County Probation Department filed a notice and motion to transfer defendant's case to San Bernardino County.

On August 1, 2017, after the San Bernardino County Probation Department verified that defendant permanently resided in San Bernardino County, the San Luis Obispo County Superior Court granted the motion to transfer defendant's case to San Bernardino County.

On September 13, 2017, the San Bernardino County Probation Department filed a report requesting additional terms and conditions in San Bernardino County, including that defendant "Submit to search and seizure by a government entity of any electronic device that you are an authorized possessor of pursuant to P[enal ]C[ode section ]1546.1 [subdivision] (c)(10)."

On September 26, 2017, the San Bernardino County Superior Court held a probation modification hearing. At that time, the trial court and the parties mistakenly believed that the terms and conditions of probation imposed by the San Luis Obispo Superior Court did not include the Bravo search condition or the electronic device search condition. Unaware that the conditions had previously been imposed, defense counsel argued that the San Bernardino County Superior Court could not add probationary terms, because a transfer between counties did not constitute a change in circumstances required to modify probationary terms. Defense counsel also objected to the imposition of the electronic device search condition as unconstitutionally overbroad and not reasonably related to defendant's offense of possession of marijuana in prison. The trial court disagreed with defense counsel's arguments and reimposed both of the preexisting search conditions that had been imposed by the San Luis Obispo Superior Court. The court noted that "people who deal in elicit substances tend to do that electronically, and that could be evidence of somebody not comporting with what we have of expectations of a successful probationer." As modified, the court thereafter continued defendant on probation under various terms and conditions of probation.

On September 27, 2017, defendant filed a timely notice of appeal.

III

DISCUSSION

Defendant contends the probation condition requiring her to submit her electronic devices to search or seizure by law enforcement officers is invalid under Lent, unconstitutionally overbroad, and in violation of her Fourth Amendment rights. For the reasons explained below, we disagree.

A. Applicable Principles

A grant of probation is an act of clemency in lieu of punishment. (People v. Moran (2016) 1 Cal.5th 398, 402.) Probation is a privilege, and not a right. A court has broad discretion to impose "reasonable conditions, as it may determine 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, . . . and generally and specifically for the reformation and rehabilitation of the probationer . . . ." (Pen. Code, § 1203.1, subd. (j); People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) "If a probation condition serves to rehabilitate and protect public safety, the condition may 'impinge upon a constitutional right otherwise enjoyed by the probationer, who is "not entitled to the same degree of constitutional protection as other citizens." ' " (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355 (O'Neil).)

A condition of probation will not be upheld, however, if it (1) has no relationship to the crime of which the defendant was convicted, (2) relates to conduct that is notcriminal, and (3) requires or forbids conduct that is not reasonably related to future criminality. (People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin); see Lent, supra, 15 Cal.3d at p. 486.) Our high court has clarified that this "test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (Olguin, at p. 379.)

However, "[j]udicial discretion to set conditions of probation is further circumscribed by constitutional considerations." (O'Neil, supra, 165 Cal.App.4th at p. 1356.) "A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (In re Sheena K. (2007) 40 Cal.4th 875, 890.) "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." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153; accord, People v. Pirali (2013) 217 Cal.App.4th 1341, 1346 (Pirali).)

We generally review the imposition of probation conditions for an abuse of discretion, and we independently review constitutional challenges to probation conditions de novo. (People v. Appleton (2016) 245 Cal.App.4th 717, 723 (Appleton).) Based on the foregoing, we address the merits of defendant's arguments below.

B. Analysis—Reasonableness

Defendant's electronic device search condition states: "Submit to a search and seizure (electronic device) by a government entity of any electronic device that you are an authorized possessor of pursuant to P[enal ]C[ode Section ]1546.1[, subdivision ](c)(10)." Defendant argues that the electronic device search condition has no relationship to the crime of which defendant was convicted, and it involves conduct that is not itself criminal. Defendant further contends that the electronic device search condition is not reasonably related to future criminality because there was no evidence connecting her use of an electronic device to her offense or to a risk of future criminal conduct.⁴

The People do not address the first two Lent prongs—the electronic device search condition has no relationship to defendant's possession of marijuana in prison offense, and the use of electronic devices is not itself criminal. Rather, the parties agree that the validity of the electronic device search condition turns on the application of the third Lent factor—whether the electronic device search condition is reasonably related to preventing future criminality. (See Olguin, supra, 45 Cal.4th at p. 379.)

The issue of the validity of an electronic device search condition under Lent and its progeny is pending before our high court. (See, e.g., People v. Ermin (July 10, 2017, H043777) [nonpub. opn.], review granted Oct. 25, 2017, S243864; People v. Nachbar(2016) 3 Cal.App.5th 1122 (Nachbar), review granted Dec. 14, 2016, S238210; In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25, 2016, S233932; In re Mark C. (2016) 244 Cal.App.4th 520, review granted Apr. 13, 2016, S232...