Filed 4/3/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B271300
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA094777)
v.
CLYDELL BRYANT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael Villalobos, Judge. Affirmed with
directions.
David R. Greifinger, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General,
Gerald A. Engler, Chief Assistant Attorney General, Lance E.
Winters, Assistant Attorney General, Zee Rodriguez, and Andrew S.
Pruitt, Deputy Attorneys General, for Plaintiff and Respondent.
_______________
A jury convicted Clydell Bryant of possessing a concealed,
loaded, unregistered firearm in a vehicle. The court imposed
a two-year sentence, a portion of which was to be served
under mandatory supervision. During the period of mandatory
supervision, the court required Bryant to submit to searches
of text messages, emails, and photographs on any cellular phone
or other electronic device in his possession or residence. He
contends that the requirement is invalid under People v. Lent
(1975) 15 Cal.3d 481, 486 (Lent) and is unconstitutionally
overbroad. We agree that the condition is invalid under Lent
and, accordingly, strike the condition.
FACTUAL AND PROCEDURAL SUMMARY
On a night in August 2014, Pasadena police officers
responded to a call for service outside a housing complex where a
group of individuals were drinking and refusing to leave the area.
Bryant and his girlfriend, Lamaine Jones, were smoking marijuana
in a parked car in the area. Jones sat in the driver‟s seat and
Bryant in the passenger seat. The car belonged to Jones‟s mother.
A Pasadena police officer approached the driver‟s side of the
car and smelled a strong odor of marijuana coming from the car.
The officer asked Jones and Bryant to step out of the car so he could
check for marijuana. Jones and Bryant complied.
The police officer searched the car and found a
semi-automatic .45 caliber Hi-Point handgun under the front
passenger seat. According to the officer, the gun was accessible to a
person in the passenger seat, but not the driver‟s seat. There were
nine bullets in the gun‟s magazine. The police later determined
that the gun was not registered. Bryant‟s DNA matched DNA
found on the gun‟s magazine. DNA from several persons found
on the gun‟s handle could not be matched to any specific person.
2
A jury convicted Bryant of carrying a concealed firearm
in a vehicle (Pen. Code, § 25400, subd. (a)(1)),1 and found that
the firearm was loaded and not registered to him. (§ 25400,
subds. (a) & (c)(6).)
The court sentenced Bryant to two years in county jail
pursuant to section 1170, subdivision (h), and suspended the
last 364 days of the term. During the time the sentence was
suspended, Bryant would be subject to mandatory supervision
by the county probation department pursuant to section 1170,
subdivision (h)(5)(B).
Over Bryant‟s objection, the court required that, during the
term of his mandatory supervision, Bryant submit to searches of
text messages and emails on any cellular phone or other electronic
device in his possession or residence. In response to defendant‟s
objection to the requirement, the court explained: “Well, it seems to
me that while he‟s on either probation or supervision, the probation
officer could go in and search his residence and his person and he
could look in the residence for any indicia of any violations either
weapons or contraband, or he or she could look for evidence that
the defendant is participating or associating with any gangs. [¶]
It seems to me that a part of that search should include, while he‟s
on supervision or probation, access to any computer that he uses
in the home or his cell[]phone; however, I don‟t think it‟s unlimited
access, and I would limit it to maybe his text messages and e-mails
and nothing else.”
At the prosecutor‟s request and over defendant‟s further
objection, the court added photographs to the items subject to
search on Bryant‟s electronic devices, explaining that this was
1 Unless otherwise specified, subsequent statutory references
are to the Penal Code.
3
“reasonable because I think prior experiences have shown there
may be evidence with the photographs.”2
DISCUSSION
The court sentenced Bryant pursuant to subdivision (h)
of section 1170. Under that statute, the court has discretion “to
impose a hybrid or split sentence consisting of county jail followed
by a period of mandatory supervision.” (People v. Catalan (2014)
228 Cal.App.4th 173, 178, citing § 1170, subd. (h)(5)(B).) During
the period of mandatory supervision, “the defendant shall be
supervised by the county probation officer in accordance with
the terms, conditions, and procedures generally applicable to
persons placed on probation.” (§ 1170, subd. (h)(5)(B).) Although
mandatory supervision is comparable in some ways to probation,
it is not identical. (See People v. Martinez (2014) 226 Cal.App.4th
759, 762-763.) A defendant who is offered probation, for example,
may refuse probation if he “ „finds the conditions of probation more
onerous than the sentence he would otherwise face.‟ ” (People v.
Moran (2016) 1 Cal.5th 398, 403). In contrast to a defendant
who is given probation, however, a defendant may not refuse
mandatory supervision. (People v. Rahbari (2014) 232 Cal.App.4th
185, 194-195.) Accordingly, the court did not ask Bryant whether
he would accept the court‟s terms of his mandatory supervision.
2 The court expressed the electronic search condition in a
minute order as follows: “Defendant is to submit to search of any
electronic device either in his possession including cell phone and/or
any device in his place of residence. Any search by probation is
limited to defendant[‟]s text messages, emails, and photos on such
devices.” (Capitalization omitted.)
4
Courts generally have “broad discretion in fashioning terms
of supervised release, in order to foster the reformation and
rehabilitation of the offender, while protecting public safety.”
(People v. Martinez, supra, 226 Cal.App.4th 759, 764.) Under a
test announced in Lent, supra, 15 Cal.3d 481, however, a court
abuses its discretion when it imposes a term or condition that
“ „(1) has no relationship to the crime of which the offender was
convicted, (2) relates to conduct which is not in itself criminal,
and (3) requires or forbids conduct which is not reasonably
related to future criminality . . . .‟ [Citation.]” (Id. at p. 486;
see People v. Martinez, supra, 226 Cal.App.4th at p. 764 [applying
Lent test to mandatory supervision terms]; People v. Relkin (2016)
6 Cal.App.5th 1188, 1194 [same].) “This test is conjunctive—all
three prongs must be satisfied before a reviewing court will
invalidate a . . . term.” (People v. Olguin (2008) 45 Cal.4th 375, 379
(Olguin); In re J.B. (2015) 242 Cal.App.4th 749, 754.)3
3 The Attorney General contends that Bryant waived his
Lent claim by failing to object in the trial court. We disagree.
Bryant‟s counsel objected to the condition, stating that the facts
“do not suggest that any criminal conduct involving a cell[ ]phone
or electr[on]ic device has been committed,” and that there has
not been “a proper showing of the need to impose this term of
probation.” This was sufficient to preserve the issue on appeal.
5
The Attorney General does not dispute that the electronic
search condition fails the first two Lent prongs—the condition has
no relationship to Bryant‟s crime and the use of electronic devices
“is not itself criminal.” (See In re Erica R. (2015) 240 Cal.App.4th
907, 913; In re J.B., supra, 242 Cal.App.4th at pp. 754-755.) The
issue, therefore, is whether the electronic search condition is
reasonably related to preventing future criminality.
Our Supreme Court discussed the future criminality prong
in Olguin, supra, 45 Cal.4th 375, a case the Attorney General
contends is “dispositive” here. In Olguin, our Supreme Court held
that a probation condition that required the defendant to notify
his probation officer of the presence of any pets at the defendant‟s
residence was “reasonably related to future criminality because
it serve[d] to inform and protect a probation officer charged with
supervising a probationer‟s compliance with specific conditions
of probation.” (Id. at p. 381.) “Animals,” the Court explained,
“can be unpredictable and potentially dangerous when faced
with a stranger in their territory, and some pose a great or even
life-threatening hazard to persons in these circumstances. Being
informed at all times of the pets that are present at a probationer‟s
residence thus reduces the possible threat to the probation officer‟s
safety by enabling the officer to be aware of, and prepared for,
situations that may arise should the officer choose to conduct an
unscheduled „compliance visit‟ to the probationer at his or her
residence.” (Ibid., fn. omitted.) “Probation officer safety during
these visits and searches is essential to the effective supervision of
the probationer and thus assists in preventing future criminality.”
(Ibid.) The Court further explained that the defendant failed
to demonstrate that the condition infringed or impaired any
constitutional right, and reasoned that reporting the presence of
6
pets “is a simple task” and “imposes no undue hardship or burden”
on the probationer. (Id. at pp. 382, 384-387.)
The Attorney General contends that Bryant‟s electronic
search condition, like the pet notification condition in Olguin,
facilitates the probation officer‟s ability to supervise the
defendant and determine whether the defendant is complying
with other terms of probation.4 (See Olguin, supra, 45 Cal.4th
at pp. 380-381.) Unlike the pet notification condition in Olguin,
however, a search of a defendant‟s cellular phone and other
electronic devices implicates a defendant‟s constitutional rights.
(See People v. Appleton (2016) 245 Cal.App.4th 717, 724 (Appleton);
see also Riley v. California (2014) ___U.S. ___, ___ [134 S.Ct.
2473, 2489] [Fourth Amendment applies to search of information
on cellular phone]; People v. Keller (1978) 76 Cal.App.3d 827, 832
[a “probationer has the right to enjoy a significant degree of privacy,
or liberty, under the Fourth, Fifth and Fourteenth Amendments to
the federal Constitution”], disapproved on other grounds in People
v. Welch (1993) 5 Cal.4th 228, 237.) In contrast to information
about a defendant‟s pets, a cellular phone search could potentially
reveal “a digital record of nearly every aspect of [its owner‟s life]—
from the mundane to the intimate” (Riley v. California, supra,
134 S.Ct. at p. 2490), including “vast amounts of personal
information unrelated to defendant‟s criminal conduct or his
potential for future criminality” (Appleton, supra, 245 Cal.App.4th
4 In addition to the electronic search condition and other
terms, the court ordered Bryant not to associate with persons
known by him to be drug users or criminal street gang members or
associates, and to stay away from the place of his arrest and places
where he knows drug users or gang members and associates
congregate.
7
at p. 727). Olguin, therefore, does not resolve the question
presented here, and the “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
[individual‟s] smart phone or other electronic devices.” (In re J.B.,
supra, 242 Cal.App.4th at p. 758; but see In re P.O. (2016)
246 Cal.App.4th 288, 295-296 [electronic search condition was
permissible under Olguin].)5
Whether an electronic search condition is reasonably related
to preventing future criminality depends upon on the facts and
circumstances in each case. (See In re J.E. (2016) 1 Cal.App.5th
795, 802 (J.E.), review granted Oct. 22, 2016, S236628; People v.
Burton (1981) 117 Cal.App.3d 382, 391; In re Martinez (1978)
86 Cal.App.3d 577, 584.) Most published decisions addressing
such conditions in California involve juvenile probation conditions.
(See, e.g., In re J.E., supra, 1 Cal.App.5th 795; In re P.O., supra,
246 Cal.App.4th 288; In re J.B., supra, 242 Cal.App.4th 749;
In re Erica R., supra, 240 Cal.App.4th 907; People v. Ebertowski
(2014) 228 Cal.App.4th 1170 (Ebertowski). Although these cases
are instructive, consideration of them must take into account the
fact that “ „ “the power of the state to control the conduct of children
reaches beyond the scope of its authority over adults.” ‟ [Citation.]
5 Our Supreme Court has granted review in In re Ricardo P.
(2016) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923,
to consider the following issue: “Did the trial court err by imposing
an „electronics search condition‟ on the juvenile as a condition of his
probation when that condition had no relationship to the crimes
he committed but was justified on appeal as reasonably related to
future criminality under [Olguin, supra,] 45 Cal.4th 375 because
it would facilitate the juvenile‟s supervision?”
8
This is because juveniles are deemed to be „more in need of guidance
and supervision than adults, and because a minor‟s constitutional
rights are more circumscribed.‟ [Citation.]” (In re Victor L.
(2010) 182 Cal.App.4th 902, 910; see also In re Antonio R. (2000)
78 Cal.App.4th 937, 941; In re P.O., supra, 246 Cal.App.4th
at p. 296.) Thus, a probation condition that would be reasonable
and permissible for a minor under juvenile court supervision
may “ „be unconstitutional or otherwise improper for an adult
probationer.‟ ” (In re Sheena K. (2007) 40 Cal.4th 875, 889; accord
In re Malik (2015) 240 Cal.App.4th 896, 901.)6
In In re Erica R., supra, 240 Cal.App.4th 907, the juvenile
court declared a minor a ward of the court based on her unlawful
possession of the drug Ecstacy. (Id. at p. 910.) The court placed
her on probation with a condition that she submit to “ „a search of
any containers [she] may have or own, [her] vehicle, residence, or
electronics day or night at the request of a Probation Officer or
peace officer.‟ ” (Ibid.) The court also required the minor turn over
her passwords to her probation officer. (Ibid.) The Court of Appeal
6 Two cases involving electronic search conditions imposed
on adult probationers are inapposite. In Appleton, supra,
245 Cal.App.4th 717, the court found that the electronic search
condition satisfied the first prong of Lent—that the condition was
related to the defendant‟s crime—because the defendant had met
his sexual assault victim through “a social medial application for
smartphones.” (Id. at pp. 719, 724.) The court did not consider,
therefore, the third prong that concerns us here.
In People v. Smith (2017) 8 Cal.App.5th 977 [2017 D.A.R.
1519], the defendant used a cellular phone to arrange the
illegal drug transaction for which he was convicted. It was thus
“imperative that his cell phone use be monitored by the probation
officer to ensure that he was not violating his probation by engaging
in drug trafficking.” (Id. at p. 1522.)
9
held that the probation condition was invalid under Lent,
stating: “There is nothing in this record regarding either the
current offense or [the minor‟s] social history that connects her
use of electronic devices or social media to illegal drugs. In fact,
the record is wholly silent about [the minor‟s] usage of electronic
devices or social media. Accordingly, „[b]ecause there is nothing
in [the minor‟s] past or current offenses or [her] personal history
that demonstrates a predisposition‟ to utilize electronic devices
or social media in connection with criminal activity, „there is no
reason to believe the current restriction will serve the rehabilitative
function of precluding [the minor] from any future criminal acts.‟ ”
(Id. at p. 913.)
In re Erica R. was followed in In re J.B., supra,
242 Cal.App.4th 749. In In re J.B., the minor committed petty
theft. (Id. at p. 752.) The court imposed a condition of probation
requiring the minor “to submit to a search of „[his] electronics
including [his] passwords.‟ ” (Ibid.) In rejecting the minor‟s motion
to delete the condition, the trial court explained that the minor
admitted to using marijuana for more than two years, and that
“ „minors do use the Internet to buy and sell . . . drugs,‟ ” and to
“ „brag about their drug use, showing themselves puffing marijuana,
showing themselves with drug paraphernalia and, of course, with
weapons and those other types of improper probation activities.‟ ”
(Id. at p. 753.) The search condition would not only deter the minor
from committing crimes, but also allow the probation officer “to
monitor [the minor] as part of the probation terms and conditions.”
(Ibid.) The court further noted that the minor had played with his
cellular phone during an interview with his mother and a probation
officer, and refused his mother‟s request to put it away. (Ibid.)
“ „Clearly,‟ ” the court stated, the minor is “ „very closely connected
10
with the use of his cell phone, which is disrespectful, not paying
attention, and this connection makes it even more important that
the probation officer be able to monitor what he was doing on
his cell phone, what‟s he doing on his cell phone in an interview,
what‟s he doing on the cell phone in social media when he‟s not
going to school, what‟s he doing with regard to the offenses he may
be committing, what‟s he doing with . . . regards to the drugs he
may[] be trying to purchase, sell or use.‟ ” (Ibid.)
In In re J.B., the Attorney General made an argument
similar to the argument asserted here—that the electronic search
condition was reasonably related to future criminality because
“it was „designed to help probation officers monitor other probation
conditions prohibiting drinking alcohol or taking drugs and
requiring [minor] to stay away from the coparticipant with whom
he committed the theft, avoid those under the influence of an illegal
or intoxicating substance, attend school, and obey parents.‟ ”
(In re J.B., supra, 242 Cal.App.4th at p. 755.) The condition, the
Attorney General argued, was thus “no different from any other
search condition to which the minor is subject.” (Ibid.) The Court
of Appeal, relying on In re Erica R., rejected the Attorney General‟s
argument, and held that the search condition was invalid under
Lent because there was “no showing of any connection between the
minor‟s use of electronic devices and his past or potential future
criminal activity.” (In re J.B., supra, 242 Cal.App.4th at p. 756.)
11
Like the minors in In re Erica R. and In re J.B., there is no
showing of any connection between Bryant‟s use of a cellular phone
and criminality, past or future. Bryant was convicted of possessing
a concealed weapon in a vehicle. No cellular phone or electronic
device was involved in the crime and there is no evidence that
Bryant would use such devices to engage in future criminal
activity. (See In re Erica R., supra, 240 Cal.App.4th at p. 913.)
Nor was there any showing as to how the search condition
would reasonably prevent any future crime or aid in Bryant‟s
rehabilitation. Although it is conceivable that future searches of
Bryant‟s cellular phone might yield information concerning criminal
activity, “[n]ot every probation condition bearing a remote,
attenuated, tangential, or diaphanous connection to future criminal
conduct can be considered reasonable.” (People v. Brandão (2012)
210 Cal.App.4th 568, 574.) The fact that a search of Bryant‟s
cellular phone records might aid a probation officer in ascertaining
Bryant‟s compliance with other conditions of supervision is, without
more, an insufficient rationale to justify the impairment of Bryant‟s
constitutionally protected interest in privacy. (See In re J.B., supra,
242 Cal.App.4th at p. 758.) As in In re Erica R. and In re J.B., in
the absence of facts demonstrating “ „ “a predisposition” to utilize
electronic devices . . . in connection with criminal activity,
“there is no reason to believe the current restriction will serve
the rehabilitative function of precluding [the defendant] from
any future criminal acts.” ‟ ” (In re J.B., supra, 242 Cal.App.4th
at p. 755, quoting In re Erica R., supra, 240 Cal.App.4th at p. 913.)
12
The Attorney General, however, relies on Ebertowski, supra,
228 Cal.App.4th 1170, and In re J.E., supra, 1 Cal.App.5th 795.
In Ebertowski, the minor was a gang member who brandished a
weapon, told an arresting “officer that he was „ “[f]ucking with
the wrong gangster,” ‟ ” and repeatedly threatened the officer
and the officer‟s family. (Ebertowski, supra, 228 Cal.App.4th
at pp. 1172-1173.) The minor pleaded no contest to making
criminal threats and resisting or deterring an officer, and admitted
a gang allegation. The prosecution requested that the court impose
probation conditions requiring the defendant submit to a search
of electronic devices within his custody or control and provide
his passwords to the devices and any social media websites.
(Id. at p. 1172.) The prosecutor explained that these conditions
should be imposed because “ „the defendant has used social media
sites historically to promote the Seven Trees Norteno criminal
street gang.‟ ” (Id. at p. 1173.) The conditions were also a “ „means
to effectuate the already existing warrantless search condition.‟ ”
(Ibid.)
The Court of Appeal upheld the probation conditions,
explaining that the “conditions were related to [the defendant‟s]
crimes, which were plainly gang related because they were
designed to allow the probation officer to monitor defendant‟s gang
associations and activities. Defendant‟s association with his
gang was also necessarily related to his future criminality. His
association with his gang gave him the bravado to threaten and
resist armed police officers. The only way that defendant could be
allowed to remain in the community on probation without posing
an extreme risk to public safety was to closely monitor his gang
associations and activities. The password conditions permitted the
13
probation officer to do so.” (Ebertowski, supra, 228 Cal.App.4th
at pp. 1176-1177.)
In In re J.E., supra, 1 Cal.App.5th 795,7 the Court of Appeal
relied on Ebertowski in upholding an electronic search condition,
and distinguished In re Erica R. and In re J.B., stating that the
minor in the case before it had “deep-seated issues with drugs,”
“struggle[d] with school attendance and grades,” had been
suspended and reprimanded for behavioral issues, brought a
weapon to school, had gang graffiti in his locker and a prior
association with Norteños gang members, and an “unstable home
life.” (Id. at p. 802.) These facts, the court explained, “support
the juvenile court‟s conclusion that the electronic search condition
would „ “serve the rehabilitative function of precluding [Minor] from
any future criminal acts.” ‟ ” (Ibid., quoting In re Erica R., supra,
240 Cal.App.4th at p. 913.)
Ebertowski and In re J.E. are distinguishable. There is no
evidence that Bryant, unlike the minor in Ebertowski, used any
electronic device to promote gang activity. And In re J.E. involved
a minor who “had a constellation of issues requiring intensive
supervision,” including a “ „pretty deep drug issue.‟ ” (In re J.E.,
supra, 1 Cal.App.5th at p. 801.) The electronic search condition was
considered “ „critical ‟ for Minor‟s rehabilitation” by allowing the
probation officer to “ „monitor the purchase, or sales, [or] usage‟ of
drugs.” (Ibid.) Here, although Bryant had been smoking marijuana
in a car, there is nothing to suggest that his phone must be
monitored for drug sales, as in In re J.E. Moreover, because
7 The Supreme Court granted review of In re J.E. and
deferred briefing pending its review of In re Ricardo P., supra,
241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923.
(See fn. 5, ante.)
14
Bryant is an adult, the justification for state supervision of his
personal drug use is weaker than in the case of minors, and his
constitutionally protected interest in his privacy is greater.
(See, e.g., In re Antonio R., supra, 78 Cal.App.4th at p. 941.)
For all the foregoing reasons, we conclude that the electronic
search is invalid under Lent. Bryant also contends that the
electronic search condition is unconstitutionally overbroad.
Because we hold that the condition is invalid under Lent, we do not
reach these issues.8
8 Under an overbreadth challenge, if a probation condition
limits the defendant‟s constitutional rights, it must be closely
tailored to the purpose of the condition—i.e., the defendant‟s
reformation and rehabilitation—to avoid being invalidated as
unconstitutionally overbroad. (See Olguin, supra, 45 Cal.4th
at p. 384; In re J.E., supra, 1 Cal.App.5th at p. 803.) In In re P.O.,
supra, 246 Cal.App.4th 288, for example, an electronic search
condition that survived a Lent challenge was unconstitutionally
overbroad because “it permit[ted] review of all sorts of private
information that is highly unlikely to shed any light on whether
[the minor was] complying with the other conditions of his
probation.” (Id. at p. 298.)
Courts that determine that a condition is overbroad
will generally modify the condition to tailor it more closely
to the purpose of the condition (see, e.g., In re P.O., supra,
246 Cal.App.4th at pp. 299-300; In re Malik, supra, 240 Cal.App.4th
at p. 906), or strike the condition and direct the trial court to
fashion a new condition consistent with the Court of Appeal‟s views
(see, e.g., Appleton, supra, 245 Cal.App.4th at pp. 728-729).
15
DISPOSITION
The terms of Bryant‟s mandatory supervision that he submit
to searches of his cellular phone or other electronic devices is
stricken. The trial court is ordered to file a minute order reflecting
the striking of this term and forward a copy of the order to the
Los Angeles County Probation Department. The judgment is
otherwise affirmed.
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
JOHNSON, J.
16