People v. Bryant

Filed 11/27/19; Opinion following transfer from Supreme Court
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 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.

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 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.
In an opinion filed April 3, 2017, we agreed with Bryant
that the condition is invalid under Lent and struck the condition.
(People v. Bryant (2017) 10 Cal.App.5th 396 (Bryant I), review
granted June 28, 2017, S241937, opn. vacated Sept. 25, 2019.) The
Supreme Court granted Bryant’s petition for review and deferred
consideration of the case pending its decision in another case. After
it decided that other case in In re Ricardo P. (2019) 7 Cal.5th 1113
(Ricardo P.), the Supreme Court transferred the instant case to
this court with directions to vacate our prior opinion (Bryant I) and
reconsider the cause in light of Ricardo P. We have done so, and
again hold that the search condition in this case is invalid under
Lent.

FACTUAL AND PROCEDURAL SUMMARY
On a night in August 2014, Pasadena Police Department
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.

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 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 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.
A jury convicted Bryant of carrying a concealed firearm in
a vehicle (Pen. Code,1 § 25400, subd. (a)(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

1 Unless otherwise specified, subsequent statutory references
are to the Penal Code.

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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
“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 shall impose a hybrid
or split sentence consisting of county jail followed by a period of
mandatory supervision unless, in the interests of justice, it would
not be appropriate in a particular case. (§ 1170, subd. (h)(5).)
During the period of mandatory supervision, “the defendant shall
be supervised by the county probation officer in accordance with

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.)

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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 (Martinez).) 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.
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.
(Martinez, supra, 226 Cal.App.4th at p. 764.) Courts have
evaluated the validity of mandatory supervision terms under a
test announced in Lent, supra, 15 Cal.3d 481. (People v. Malago
(2017) 8 Cal.App.5th 1301, 1306 (Malago); People v. Relkin
(2016) 6 Cal.App.5th 1188, 1194 (Relkin); Martinez, supra,
226 Cal.App.4th at p. 764.) Under Lent, 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.’ ” (Lent, supra, at p. 486.) “This test is
conjunctive—all three prongs must be satisfied before a reviewing
court will invalidate a . . . term.” (People v. Olguin (2008)

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45 Cal.4th 375, 379; accord, Ricardo P., supra, 7 Cal.5th at
p. 1118.)3
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. (2015) 242 Cal.App.4th 749, 754–755.) The
issue, therefore, is whether the electronic search condition is
reasonably related to preventing future criminality.
In Ricardo P., our Supreme Court recently explained
that Lent’s future criminality prong “contemplates a degree of
proportionality between the burden imposed by a probation
condition and the legitimate interests served by the condition.”
(Ricardo P., supra, 7 Cal.5th at p. 1122.) “A probation condition
that imposes substantially greater burdens on the probationer
than the circumstances warrant is not a ‘reasonable’ one.” (Id.
at p. 1128.) In the case of electronic search conditions, the salient
burden on a probationer is the burden imposed on his or her privacy
interest. (Id. at pp. 1122–1123.) A probationer’s interest in privacy
is impacted by such a condition because, as the United States
Supreme Court has observed, cell phones contain “a digital record
of nearly every aspect of their [owner’s] lives—from the mundane
to the intimate,” and “[t]he sum of an individual’s private life can

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.

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be reconstructed through a thousand photographs labeled with
dates, locations, and descriptions.” (Riley v. California (2014)
573 U.S. 373, 394–395; accord, Ricardo P., supra, 7 Cal.5th at
p. 1123.)
Although the future criminality prong of Lent does not
“require ‘a nexus between the probation condition and the
defendant’s underlying offense or prior offenses’ ” (Ricardo P.,
supra, 7 Cal.5th at p. 1122), “there must be information in the
record establishing a connection between the search condition and
the probationer’s criminal conduct or personal history—an actual
connection apparent in the evidence, not one that is just abstract
or hypothetical.” (In re Alonzo M. (2019) 40 Cal.App.5th 156, 166,
petn. for review pending, petn. filed Oct. 22, 2019.) A condition
may be supported by, for example, “information in a probation
report that raises concerns about future criminality unrelated
to a prior offense.” (Ricardo P., supra, 7 Cal.5th at p. 1122.)
In Ricardo P., Ricardo, a juvenile, admitted to committing
two residential burglaries. (Ricardo P., supra, 7 Cal.5th at p. 1116.)
He also “told a probation officer that ‘he wasn’t thinking’ when
he committed the offense and that ‘he stopped smoking marijuana
after his arrest because he felt that [it] did not allow him to think
clearly.’ ” (Ibid.) The court declared Ricardo a ward of the court
and placed him on probation subject to certain conditions. The
conditions included drug testing, prohibition of using illegal drugs
and alcohol, and a requirement that he “ ‘[s]ubmit . . . electronics
including passwords under [his] control to search by [p]robation
[o]fficer or peace office[r] with or without a search warrant at
any time of day or night.’ ” (Id. at pp. 1116–1117.) In rejecting
Ricardo’s challenge to the search condition, the juvenile court found
that Ricardo’s reference to smoking marijuana and his statement

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that “ ‘he wasn’t thinking’ ” during the robberies indicated that
Ricardo had used marijuana during the crimes; and because
juveniles will use the Internet to “brag about their marijuana
usage or drug usage,” the electronic search condition was “ ‘a very
important part of being able to monitor drug usage and particularly
marijuana usage.’ ” (Id. at p. 1117.)
The Supreme Court held that, even if it accepted the juvenile
court’s finding that Ricardo used marijuana during the robberies
and its “generalization about teenagers’ tendency to brag about
drug use online,” the search condition was invalid because it
“impose[d] a very heavy burden on privacy with a very limited
justification.” (Ricardo P., supra, 7 Cal.5th at pp. 1119–1120,
1124.) More particularly, the condition “imposed a sweeping
probation condition requiring [the probationer] to submit all of
his electronic devices and passwords to search at any time” even
though “nothing in the record suggests that [the probationer] has
ever used an electronic device or social media in connection with
criminal conduct.” (Id. at pp. 1122–1123.)
Here, the electronic search condition imposed on Bryant is
a similarly “sweeping . . . condition” that likewise “significantly
burdens [Bryant’s] privacy interests.” (Ricardo P., supra, 7 Cal.5th
at pp. 1122–1123.) The right to search extends to all of Bryant’s
text messages, emails, and photos on any device in his possession
or residence, with the potential to reveal “vast amounts of
personal information unrelated to defendant’s criminal conduct
or his potential for future criminality.” (People v. Appleton (2016)
245 Cal.App.4th 717, 727). Moreover, because the search condition,
like the condition in Ricardo P., “lacks any temporal limitations,”
probation officers could “access digital information that long
predated the imposition of ” Bryant’s sentence. (Ricardo P., supra,

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7 Cal.5th at p. 1127.) Thus, the electronic search condition
similarly “imposes a very heavy burden on privacy.” (Id. at
p. 1124.)
As in Ricardo P., there is “nothing in the record [that]
suggests that [Bryant] has ever used an electronic device or social
media in connection with criminal conduct.” (Ricardo P., supra,
7 Cal.5th at p. 1122.) Nevertheless, the trial court reasoned that
a search of Bryant’s electronic devices was justified because it could
aid the probation officer’s monitoring of other terms of supervision,
such as the proscription against possessing weapons or associating
with gangs. That rationale, however, was rejected in Ricardo P.
because it “would effectively eliminate the reasonableness
requirement in Lent’s third prong, for almost any condition can be
described as ‘enhancing the effective supervision of a probationer.’ ”
(Id. at p. 1127.)
Tellingly, the Ricardo P. Court referred to our prior opinion
in this case to illustrate this point and implicitly disapprove of
the search condition imposed on Bryant. The Court stated: “If
we were to find this record [in Ricardo P.] sufficient to sustain the
probation condition at issue, it is difficult to conceive of any case
in which a comparable condition could not be imposed, especially
given the constant and pervasive use of electronic devices and
social media by juveniles today. In virtually every case, one could
hypothesize that monitoring a probationer’s electronic devices and
social media might deter or prevent future criminal conduct. For
example, an electronics search condition could be imposed on a
defendant convicted of carrying an unregistered concealed weapon
on the ground that text messages, e-mails, or online photos could
reveal evidence that the defendant possesses contraband or is
participating in a gang. (But see [Bryant I, supra,] 10 Cal.App.5th

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[at p.] 405 . . . [invalidating such a condition ‘in the absence of facts
demonstrating “ ‘ “a predisposition” to utilize electronic devices . . .
in connection with criminal activity’ ” ’].)” (Ricardo P., supra,
7 Cal.5th at p. 1123.) As the Court’s citation to Bryant I suggests,
Ricardo P.’s example is based on the facts in this case. The
Court used the example to demonstrate, by way of a reductio
ad absurdum, the type of patently unreasonable electronic search
condition that could be imposed if monitoring a probationer’s
electronic devices for evidence of criminality was a sufficient
justification for the condition. The Court’s implied disapproval
of that type of condition, even if dicta in that case, virtually
compels our disapproval of the condition where, as here, it
was actually imposed. (See County of Fresno v. Superior Court
(1978) 82 Cal.App.3d 191, 194 [“Dicta may be highly persuasive,
particularly where made by the Supreme Court after that court
has considered the issue and deliberately made pronouncements
thereon intended for the guidance of the lower court upon further
proceedings.”].)
In any event, even absent the Supreme Court’s citation to
Bryant I, the Supreme Court’s reasoning and holding in Ricardo P.
is consistent with the conclusion we reached in our prior decision
and supports the same conclusion now. Because of the significant
burden imposed on Bryant’s privacy interest and the absence of
any information in the record to connect the condition with the goal
of preventing future criminality, we again hold that the electronic
search condition imposed on Bryant is invalid under Lent.
(See In re Erica R., supra, 240 Cal.App.4th at p. 913 [electronic
search condition invalid under Lent because there was nothing
in the record demonstrating a predisposition to using electronic
devices in connection with criminal activity]; In re J.B., supra,

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242 Cal.App.4th 749, 756 [electronic search condition 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”].)
The Attorney General, in a brief filed prior to Bryant I and
Ricardo P., relied on People v. Ebertowski (2014) 228 Cal.App.4th
1170 (Ebertowski) and In re J.E. (2016) 1 Cal.App.5th 795, review
granted Oct. 12, 2016, S236628, opinion vacated Sept. 25, 2019.
In Ebertowski, the defendant 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.)4 The defendant 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 conditions requiring the defendant to 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 Norteño criminal street
gang.’ ” (Id. at p. 1173.) The conditions were also a “ ‘means to
effectuate the already existing warrantless search condition.’ ”
(Ibid.)

4 The Ricardo P. Court cited Ebertowski as an example of a
case in which “the probationer’s offense or personal history may
provide the juvenile court with a sufficient factual basis from
which it can determine that an electronics search condition is
a proportional means of deterring the probationer from future
criminality.” (Ricardo P., supra, 7 Cal.5th at pp. 1128–1129.)

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 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 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, 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.” (In re J.E., supra, 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 defendant 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

12
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
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. (2000) 78 Cal.App.4th 937, 941.)
For all the foregoing reasons, we conclude that the electronic
search condition is invalid under Lent.5
In a brief filed after Ricardo P., the Attorney General
concedes that if Ricardo P. controls, “it appears the electronic
search condition here would be invalid.” The Attorney General
contends, however, that Ricardo P. does not control because
Lent and Ricardo P. addressed conditions of probation, and
neither should apply to terms of mandatory supervision imposed
under section 1170, subdivision (h)(5). The Attorney General
explains that mandatory supervision is more akin to parole
than probation because mandatory supervision and parole are
mandatory post-incarceration periods during which convicted felons
serve a portion of their sentences outside of prison; probation, by
contrast, “is a grant of clemency in lieu of a custody commitment.”
Because of the similarities between mandatory supervision and

5 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 this issue.

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parole, and their differences with probation, the Attorney General
argues that mandatory supervision terms should not be evaluated
under the Lent test, but by the standards applicable to searches of
parolees under People v. Burgener (1986) 41 Cal.3d 505 (Burgener),
disapproved in part in People v. Reyes (1998) 19 Cal.4th 743, 752.)
Under Burgener, a warrantless search condition of a felony parolee
does not violate the parolee’s “constitutional protection against
arbitrary and oppressive official action.” (Burgener, supra,
41 Cal.3d at pp. 532–533.)
Burgener’s acceptance of parole search conditions was based
on its determination that such conditions do not violate the Fourth
Amendment’s proscription against unreasonable searches and
seizures and no other law provided greater protection for parolees.
(Burgener, supra, 41 Cal. at pp. 530–536) The Lent test, by
contrast, is not a constitutional requirement; it is the result of
judicial interpretation of section 1203.1, subdivision (j), which
permits a court granting probation to impose “reasonable
conditions, as it may determine are fitting and proper to the end
that justice may be done.” (§ 1203.1, subd. (j); see Lent, supra,
15 Cal.3d at p. 486; Ricardo P., supra, 7 Cal.5th at p. 1128;
People v. Dominguez (1967) 256 Cal.App.2d 623, 627.) Whether
persons subject to mandatory supervision would be protected
no more than the constitution requires or have the benefit of the
greater protection afforded probationers is answered by the text
of section 1170, subdivision (h). That subdivision declares that
persons subject to mandatory supervision “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), italics added.) Because
terms and conditions applicable to persons placed on probation

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are subject to the Lent test, it follows that terms and conditions
applicable to those on mandatory supervision must also satisfy
Lent. Accordingly, the courts that have addressed the issue have
consistently applied the Lent test to mandatory supervision terms.
(See, e.g., Malago, supra, 8 Cal.App.5th at p. 1306; Relkin, supra,
6 Cal.App.5th at p. 1194; Martinez, supra, 226 Cal.App.4th at
p. 764.) The Attorney General offers no contrary authority. We
agree with these cases and conclude that Lent applies to terms and
conditions of mandatory supervision.

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 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.

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