P. v. Magana

Filed 1/27/20 P. v. Magana CA2/7
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
WUENDY M. MAGANA et al.,
Defendants and Appellants.
B280357
(Los Angeles County
Super. Ct. No. PA083962)
APPEALS from judgments of the Superior Court of
Los Angeles County, Daniel B. Feldstern, Judge. Affirmed.
Karyn H. Bucur, under appointment by the Court of
Appeal, for Defendant and Appellant Wuendy M. Magana.
William L. Heyman, under appointment by the Court of
Appeal, for Defendant and Appellant Maria Clemencia Estrada.
Xavier Becerra, Attorney General, Lance E. Winters,
Gerald A. Engler, Chief Assistant Attorneys General, Susan
Sullivan Pithey, Zee Rodriguez, Acting Supervising Deputy

-- 1 of 16 --

2
Attorneys General, Noah P. Hill and Steven E. Mercer, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________
Wuendy M. Magana and Maria Clemencia Estrada each
pleaded no contest to one count of transporting more than
four kilograms of a controlled substance in violation of Health
and Safety Code sections 11352, subdivision (a), and 11370.4,
subdivision (a)(2), and were sentenced to a split term of
three years in county jail and five years of mandatory
supervision. On appeal Magana and Estrada contend the
condition of mandatory supervision authorizing unlimited
searches of their electronic devices, including smart phones, is
unconstitutionally overbroad. In a nonpublished opinion filed
May 14, 2019 we rejected Magana and Estrada’s overbreadth
challenge and affirmed the judgments.
Magana’s and Estrada’s petitions for review were granted
by the Supreme Court in July 2019, but further action was
deferred pending consideration of a related issue in In re
Ricardo P., review granted February 17, 2016, S230923, which
involved the question whether an electronic search condition
imposed as a condition of probation in a juvenile wardship
proceeding was reasonably related to the juvenile’s “future
criminality” within the meaning of People v. Lent (1975)
15 Cal.3d 481 (Lent). A divided Supreme Court decided
In re Ricardo P. on August 15, 2019, holding, based on the record
before it, the electronic search condition was not reasonably
related to future criminality and was therefore invalid. (In re
Ricardo P. (2019) 7 Cal.5th 1113, 1128 (Ricardo P.).) The Court
majority did not reach the question of unconstitutional
overbreadth. (See id. at p. 1118.)

-- 2 of 16 --

3
Following its decision in Ricardo P. the Supreme Court
transferred Magana and Estrada’s case to us with directions to
vacate our prior decision and to reconsider the case in light of its
decision in Ricardo P. (People v. Magana (Oct. 23, 2019,
S256289) [2019 Cal. Lexis 7988].) Estrada and the Attorney
General have submitted supplemental letter briefs. Magana filed
a belated joinder in Estrada’s supplemental brief. We again
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Los Angeles County Sheriff’s Deputy John Leitelt
conducted a traffic stop of an SUV in the area of Interstate 5
north of Castaic on the afternoon of July 22, 2015. Magana was
in the driver’s seat; Estrada in the front passenger seat. After
receiving permission to search the vehicle, Leitelt opened a black
suitcase in the rear storage area of the SUV and found
five wrapped packages that contained a total of 4.992 kilograms
of cocaine. Leitelt also found four cell phones in the SUV.
Magana and Estrada were charged with the sale or
transport of a controlled substance (Health & Saf. Code, § 11352,
subd. (a)), with a special allegation that the weight of the
controlled substance exceeded four kilograms (Health & Saf.
Code, § 11370.4, subd. (a)(2)). After initially pleading not guilty
and prior to a hearing on a motion to suppress evidence (Pen.
Code, § 1538.5), Magana and Estrada each pleaded no contest to
the charge of transporting a controlled substance and admitted
the special allegation that the controlled substance exceeded
four kilograms by weight.
At the sentencing hearing on October 4, 2016 the court
denied probation and sentenced both Magana and Estrada to
eight-year terms in county jail (the lower term of three years for

-- 3 of 16 --

4
the substantive offense plus five years for the weight
enhancement), but suspended execution of five years on each
sentence, placing them instead on mandatory supervision for
five years pursuant to Penal Code section 1170,
subdivision (h)(5).1 One of the conditions of mandatory
supervision imposed by the court is that Magana and Estrada
“submit their person and property to search and seizure at any
time of the day or night by any probation officer or other peace
officer, with or without a warrant, probable cause, or reasonable
suspicion. And this search and seizure condition involves their
person, residence, vehicles, electronic information, and personal
belongings. And [as to the] property subject to search and
seizure, which includes any electronic devices owned or possessed
by the defendants, they are consenting to provide passwords and
any access to those phones or other electronic devices as a
condition of this search and seizure. And that’s pursuant to
California Electronics Communication Privacy Act.”2
1 Magana and Estrada were each awarded eight days of
presentence custody credit.
2 The search condition as recorded in the court’s minute
orders is slightly different: “[S]ubmit your person and property to
search and seizure at any time of the day or night, by any
probation officer or other peace officer, with or without a warrant,
probable cause or reasonable suspicion. [¶] As part of your
supervision, whether probation, mandatory supervision,
community supervision or parole, you will be required to submit
your person, residence, vehicle, electronic information, and
personal belongings to search or seizure, at any time of the day or
night, with or without probable cause by any law enforcement
officer. You will also be waiving all rights under the Electronic
Communications Privacy Act specified in Penal Code section 1546

-- 4 of 16 --

5
Neither Magana nor Estrada objected to any of the
conditions imposed by the court for the five-year period of
mandatory supervision.
DISCUSSION
1. Conditions of Probation and Ricardo P.
a. Statutory and constitutional limits on probation
conditions
A sentencing court “has broad discretion to determine
whether an eligible defendant is suitable for probation and, if so,
under what conditions.” (People v. Carbajal (1995) 10 Cal.4th
1114, 1120.) Penal Code section 1203.1, subdivision (j),
authorizes the sentencing court to impose conditions on a
criminal defendant released on probation that 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, for any injury done to
any person resulting from that breach, and generally and
specifically for the reformation and rehabilitation of the
probationer.” The conditions the court may impose, however, are
not unlimited: “‘[A] condition of probation must serve a purpose
specified in the statute,’ and conditions regulating criminal
conduct must be ‘“reasonably related to the crime of which the
defendant was convicted or to future criminality.”’” (People v.
Moran (2016) 1 Cal.5th 398, 403.)
through 1546.4 for the duration of your supervision period.” The
court’s oral pronouncement of the condition, which included the
requirement that Magana and Estrada provide passwords for
their electronic devices, controls over the clerk’s minute order.
(See People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v.
Mullins (2018) 19 Cal.App.5th 594, 612.)

-- 5 of 16 --

6
Explaining the statutory limits on conditions of probation
in Lent, supra, 15 Cal.3d 481, the Supreme Court held “[a]
condition of probation will not be held invalid unless it ‘(1) has no
relationship to the crime of which the offender was convicted,
(2) relates to conduct which is not in itself criminal, and
(3) requires or forbids conduct which is not reasonably related to
future criminality . . . .’ [Citation; fn. omitted.] Conversely, a
condition of probation which requires or forbids conduct which is
not itself criminal is valid if that conduct is reasonably related to
the crime of which the defendant was convicted or to future
criminality.” (Id. at p. 486.) The Lent test is conjunctive:
“‘[E]ven if a condition of probation has no relationship to the
crime of which a defendant was convicted and involves conduct
that is not itself criminal, the condition is valid as long as the
condition is reasonably related to preventing future criminality.’”
(People v. Moran, supra, 1 Cal.5th at p. 403.)
In addition to the statutory limits on the court’s discretion
to impose probation conditions, “[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 (Sheena K.).) “‘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.’” (People v. Appleton (2016) 245 Cal.App.4th 717,
723, quoting In re E.O. (2010) 188 Cal.App.4th 1149, 1153; see
Williams v. Garcetti (1993) 5 Cal.4th 561, 577 [“[t]he overbreadth

-- 6 of 16 --

7
doctrine provides that ‘a governmental purpose to control or
prevent activities constitutionally subject to state regulation may
not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedom’”].)
b. Ricardo P. and the third prong of the Lent test
Ricardo P. concerned a juvenile defendant who was placed
on probation after admitting he had committed two residential
burglaries. Because Ricardo had told a probation officer that
smoking marijuana did not allow him to think clearly, the
juvenile court imposed as conditions of probation that Ricardo
submit to drug testing, not use illegal drugs or alcohol and not
associate with people Ricardo knew to use or possess illegal
drugs. As an additional condition of probation the court required
Ricardo to permit warrantless searches of his electronic devices,
including any electronic accounts that could be accessed through
those devices. Ricardo challenged the electronics search
condition, arguing it was not reasonably related to the crimes he
had admitted committing or to preventing future criminal
conduct. Although neither electronic devices nor social media
had been used in connection with the burglaries, the juvenile
court justified its imposition of the condition as enabling
probation officers to monitor Ricardo’s compliance with the drug-
related probation conditions because, the court observed,
teenagers tend to brag about drug use online. (Ricardo P., supra,
7 Cal.5th at pp. 1116-1117.)
Ricardo appealed, arguing the electronics search condition
was unreasonable under Lent and unconstitutionally overbroad.
The court of appeal rejected Ricardo’s argument under Lent,
finding the search condition reasonably related to effective
supervision of his compliance with the various drug-related

-- 7 of 16 --

8
conditions of probation. (Ricardo P., supra, 7 Cal.5th at p. 1117.)
But the court held the condition overbroad because it did not
limit the types of data on, or accessible through, his cell phone
that could be searched. (Ibid.) The court suggested a probation
condition limited to emails, text and voicemail messages,
photographs and social media accounts would be constitutional.
(Ibid.)
The Supreme Court granted review limited to the question
whether the electronics search condition imposed by the juvenile
court satisfied Lent. (Ricardo P., supra, 7 Cal.5th at p. 1118.)
More specifically, presupposing the first and second Lent
requirements had been satisfied, the Court considered whether
the electronics search condition was reasonably related to future
criminality and concluded it was not, “because the burden it
imposes on Ricardo’s privacy is substantially disproportionate to
the condition’s goal of monitoring and deterring drug use.”
(Ricardo P., at p. 1120; see id. at p. 1122 [the third prong of Lent
“contemplates a degree of proportionality between the burden
imposed by a probation condition and the legitimate interests
served by the condition”].)3
3 Although Lent involved an adult probationer, the Supreme
Court agreed with the consistent holdings of courts of appeal that
juvenile probation conditions must be judged by the same three-
part standard. (Ricardo P., supra, 7 Cal.5th at pp. 1118-1119.)
However, the court also recognized, given the purposes of juvenile
wardship proceedings, a condition of probation that is
impermissible for an adult offender is not necessarily
unreasonable for a juvenile under the supervision of the juvenile
court. (Id. at p. 1118.)

-- 8 of 16 --

9
The Court, in an opinion by Justice Liu, joined by
Justices Cuéllar, Kruger and Groban, explained Lent’s third
prong requires more than an abstract or hypothetical
relationship between a probation condition and deterring future
criminality conduct by the probationer (Ricardo P., supra,
7 Cal.5th at pp. 1120-1121), noting, “In virtually every case, one
could hypothesize that monitoring a probationer’s electronic
devices and social media might deter or prevent future criminal
conduct.” (Id. at p. 1123.) Moreover, quoting from the United
States Supreme Court’s decision in Riley v. California (2014)
573 U.S. 373 [134 S.Ct. 2473, 189 L.Ed.2d 430] (Riley), which
held the search-incident-to-arrest exception to the general
prohibition of warrantless searches does not apply to cell phones,4
and noting that the search condition at issue could permit access
not only to social media, emails and text messages but also to
private financial and health information, the Court stressed that
requiring Ricardo to submit all of his electronic devices and
passwords to search at any time imposed a very heavy burden on
privacy with a very limited justification. (Ricardo P., at pp. 1123-
1124.)
The Court made clear its holding “does not categorically
invalidate electronics search conditions” (Ricardo P., supra,
7 Cal.5th at p. 1128), recognizing that “[i]n certain cases, the
probationer’s offense or personal history may provide the juvenile
court with a sufficient factual basis from which it can determine
4 The Supreme Court in Riley reasoned that most cell phones
are now “minicomputers that also happen to have the capacity to
be used as a telephone” that “differ in both a quantitative and a
qualitative sense from other objects that might be kept on an
arrestee’s person.” (Riley, supra, 573 U.S. at p. 393.)

-- 9 of 16 --

10
that an electronics search condition is a proportional means of
deterring the probationer from future criminality” (id. at
pp. 1128-1129).
In a dissenting opinion the Chief Justice, joined by
Justices Chin and Corrigan, agreed the electronics search
condition imposed on Ricardo swept too broadly relative to its
rationale, but as a matter of unconstitutional overbreadth, not
under the requirements of Lent as properly understood: “Under
our precedent, search conditions generally have been recognized
as ‘“reasonably related to future criminality”’ [citation], thereby
satisfying Lent, without the additional proportionality
assessment that the majority requires [citation]. Reserving
closer scrutiny of a search condition for the subsequent
overbreadth step of appellate review properly recognizes the
broad discretion generally accorded to the trial courts and
especially juvenile courts in crafting appropriate conditions of
probation. At the same time, it vindicates the principle that
probation conditions that implicate constitutional rights and on
that basis merit closer review must be properly tailored to the
justifications behind them.” (Ricardo P., supra, 7 Cal.5th at
p. 1130 (dis. opn. of Cantil-Sakauye, C. J.).)
2. Magana and Estrada Have Not Forfeited Their Facial
Overbreadth Challenge to the Electronics Search
Condition
In most cases the failure to object to a condition of
probation or mandatory supervision forfeits the issue for
appellate review. (See People v. Welch (1993) 5 Cal.4th 228, 234-
235 [failure to object to the reasonableness of a probation
condition precludes the defendant from raising the challenge on
appeal]; accord, People v. Moran, supra, 1 Cal.5th at p. 404,

-- 10 of 16 --

11
fn. 7.)5 This forfeiture rule applies to constitutional challenges to
probation conditions if the constitutional question cannot be
resolved without reference to the sentencing record developed by
the trial court. (Sheena K., supra, 40 Cal.4th at p. 889.)
However, in Sheena K. the Supreme Court held a constitutional
challenge to a probation condition based on vagueness or
overbreadth may be reviewed on appeal if it presents an error
that is “a pure question of law, easily remediable on appeal by
modification of the condition.” (Id. at pp. 888-889.)
As discussed, unlike Ricardo, Magana and Estrada did not
object to the electronics search condition in the trial court. To the
extent they raise a facial challenge to the constitutional validity
of that condition, their claim has not been forfeited. (Sheena K.,
supra, 40 Cal.4th at pp. 888-889.) However, we address only the
constitutionality of the challenged condition on its face, not
whether it is reasonable as applied to Magana or Estrada as a
matter of constitutional law or within the meaning of Ricardo P.
and Lent.
5 Mandatory supervision following a county jail commitment,
imposed under Penal Code section 1170, subdivision (h), “is akin
to a state prison commitment; it is not a grant of probation or a
conditional sentence.” (People v. Fandinola (2013)
221 Cal.App.4th 1415, 1422; accord, People v. Martinez (2014)
226 Cal.App.4th 759, 763.) Nonetheless, it is similar to probation
in the sense that the terms and conditions of the defendant’s
release are ordered by the court at the sentencing hearing. Thus,
the rationale for the rule of forfeiture applies equally to the trial
court’s order imposing conditions for mandatory supervision.

-- 11 of 16 --

12
3. The Electronics Search Condition Is Not
Unconstitutionally Overbroad
Magana and Estrada acknowledge that cell phones are
frequently used in connection with the transportation and sale of
cocaine6 and concede that requiring a defendant convicted of
violating Health and Safety Code section 11352, subdivision (a),
to permit law enforcement officers to search his or her cell phone
as a condition of mandatory supervision serves a legitimate state
interest.7 However, in their initial briefing in this court they
emphasized the nature of today’s smartphone as a powerful
computer containing for many “the privacies of life,” as
recognized by the United States Supreme Court in Riley, supra,
573 U.S. at pages 393, 403, and argued the condition imposed by
the trial court, by authorizing unlimited searches of their
smartphones and other personal electronic devices, rather than
restricting permissible searches to data that may be reasonably
likely to contain indicia of illegal conduct, was unconstitutionally
overbroad, violating their Fourth Amendment right to be free
from unreasonable searches and seizures and their right to
privacy.8 In her supplemental letter brief Estrada, although
acknowledging the majority opinion in Ricardo P. did not address
constitutional overbreadth, contends the Court’s discussion of the
disproportionate, intrusive nature of the electronics search
condition there at issue applies equally to overbreadth analysis.
6 As discussed, in addition to nearly five kilograms of
cocaine, Deputy Leitelt recovered four cell phones from the SUV
being driven by Magana.
7 This concession necessarily means the electronics search
condition was reasonably related to the crime for which Magana

-- 12 of 16 --

13
Estrada’s argument is to some extent correct: Both the
third prong of Lent, as interpreted in Justice Liu’s majority
opinion in Ricardo P., and constitutional overbreadth analysis
involve an inquiry into proportionality—that is, they both require
a court to assess the relative burdens and benefits of a condition
of probation or mandatory supervision. (See Ricardo P., supra,
7 Cal.5th at p. 1128; Sheena K., supra, 40 Cal.4th at p. 890.) But
for several reasons an evaluation of the facial challenge to the
electronics search condition at issue in this case yields a far
different result from the outcome in Ricardo P.
First, we properly review the validity of terms of supervised
release under standards comparable to those applied to terms of
parole, rather than conditions of probation. (People v. Martinez
(2014) 226 Cal.App.4th 759, 763 [the validity of terms of
supervised release should be analyzed “under standards
analogous to the conditions or parallel to those applied to terms
of parole”]; see People v. Fandinola (2013) 221 Cal.App.4th 1415,
1423 [“mandatory supervision is more similar to parole than
probation”].) Because parolees have an even more limited
and Estrada were convicted—the first prong of the Lent test.
Accordingly, even if Magana and Estrada had preserved an
objection under Lent, we would not need to apply Ricardo P.’s
third-prong proportionality analysis to uphold the condition as
within the trial court’s statutory sentencing discretion. (See
People v. Olguin (2008) 45 Cal.4th 375, 379 [all three prongs of
the Lent test must be satisfied before a reviewing court will
invalidate a probation term].)
8 We review de novo a constitutional challenge to a condition
of mandatory supervision. (See People v. Appleton, supra,
245 Cal.App.4th at p. 723; In re Malik J. (2015) 240 Cal.App.4th
896, 901.)

-- 13 of 16 --

14
expectation of privacy than do probationers (see Samson v.
California (2006) 547 U.S. 843, 850 [126 S.Ct. 2193, 165 L.Ed.2d
250] [“parolees have fewer expectations of privacy than
probationers, because parole is more akin to imprisonment than
probation is to imprisonment”]; People v. Schmitz (2012)
55 Cal.4th 909, 921 [same]), the impingement on a
constitutionally protected interest is far less significant in this
case than in Ricardo P.
Second, the justification for the electronics search condition
in Ricardo P. was, at best, strained, as the Supreme Court
recognized. (See Ricardo P., supra, 7 Cal.5th at pp. 1119-1120
[“[l]ike the Court of Appeal, we ‘share some of Ricardo’s
skepticism’ about the juvenile court’s inference that he was using
drugs at the time he committed the burglaries, as well as the
juvenile court’s generalization about teenagers’ tendency to brag
about drug use online”].) Here, in contrast, the connection
between cell phone use and the transportation and sale of cocaine
is strong. Indeed, Magana and Estrada concede that permitting
at least some searches of their electronic devices as a condition of
mandatory supervision serves a legitimate state interest.
Third, the electronics search condition in Ricardo P.
expressly included not only the juvenile’s electronic devices but
also “any electronic accounts that could be accessed through these
devices.” (Ricardo P., supra, 7 Cal.5th at p. 1115.) No similar
language is included in the search condition imposed on Magana
and Estrada. Yet it was this additional provision that raised the
greatest privacy concern in Ricardo P., prompting the Court to
note the plain language of the condition required Ricardo to
provide full access to “any other data accessible using electronic
devices, which could include anything from banking information

-- 14 of 16 --

15
to private health or financial information to dating profiles.” (Id.
at p. 1123.)
In fact, because Magana and Estrada did not object to the
electronics search condition in the trial court, we do not know
what type of electronic devices they own or possess and whether
searching any of those devices would permit access to anything
more than emails, text and voicemail messages, call logs and,
perhaps, photographs. Their facial challenge to the
constitutional validity of that condition cannot be based on
assumed facts that might have been, but were not, developed at
the time of sentencing. (See Sheena K., supra, 40 Cal.4th at
p. 885 [facial challenge “requires the review of abstract and
generalized legal concepts,” not “scrutiny of individual facts and
circumstances”]; People v. Patton (2019) 41 Cal.App.5th 934, 946
[same].)9
Viewing these factors together, unlike the situation in
Ricardo P. where the electronics search condition imposed
a burden that was “substantially disproportionate to the [state’s]
legitimate interests in promoting rehabilitation and public
safety” (Ricardo P., supra, 7 Cal.5th at p. 1129), the balance here
strongly favors the state’s interest in reducing recidivism and
protecting the public from future criminal conduct over Magana’s
9 Even if Magana’s and Estrada’s electronic devices do
permit access to other electronic accounts containing sensitive
information such as medical records, they are protected by the
principle that a probation search “will not be conducted in an
arbitrary, capricious, or harassing manner.” (People v. Schmitz,
supra, 55 Cal.4th at p. 923; see People v. Woods (1999) 21 Cal.4th
668, 682 [probation search may not be “undertaken in a
harassing or unreasonable manner”].)

-- 15 of 16 --

16
and Estrada’s limited privacy interests. (See People v. Schmitz,
supra, 55 Cal.4th at p. 923 [“[T]he state’s interest in supervising
parolees is substantial. [Citation.] Parolees ‘“are more likely to
commit future criminal offenses”’ [citation] and pose ‘grave safety
concerns that attend recidivism’ [citation; fn. omitted].
Additionally, because of their conditional release into society,
parolees have an even greater ‘incentive to conceal their criminal
activities and quickly dispose of incriminating evidence than the
ordinary criminal’”]; compare United States v. Johnson (9th Cir.
2017) 875 F.3d 1265, 1273 [permitting the warrantless search of
a parolee’s cell phone] with United States v. Lara (9th Cir. 2016)
815 F.3d 605, 612 [applying Riley to the warrantless search of a
probationer’s cell phone].)
DISPOSITION
The judgments are affirmed.
PERLUSS, P. J.
We concur:
ZELON, J.
FEUER, J.

-- 16 of 16 --