P. v. Bryant

Filed 11/27/19; Opinion following transfer from Supreme Court; THE SUPREME COURT OF CALIFORNIA HAS GRANTED REVIEW
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

CLYDELL BRYANT,

Defendant and Appellant.

B271300

(Los AngelesCounty
Super. Ct. No. GA094777)

APPEALfrom a judgment of the SuperiorCourtofLos AngelesCounty, 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 Rodriguezand 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 atwoyear sentence, a portion of which was to be served undermandatory supervision. During the period of mandatory supervision, the court required Bryant to submit to searches oftextmessages, 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 agreedwith Bryant thatthe 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.) TheSupreme Court granted Bryant’s petition for review and deferred consideration of the case pending its decision inanother case. After it decided that other case in Inre Ricardo P. (2019) 7Cal.5th 1113 (Ricardo P.), the Supreme Court transferred the instant case to thiscourt with directions to vacate our prior opinion (Bryant I) andreconsider 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, PasadenaPolice 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 seatand Bryant in the passenger seat. The car belonged to Jones’s mother.
A Pasadena police officer approached the driver’s side of thecar 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 semiautomatic .45caliber 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 inthe gun’s magazine.The police later determined that the gun was not registered. Bryant’s DNA matched DNA found on the gun’smagazine. 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 inavehicle (Pen. Code, § 25400, subd. (a)(1)), and found that thefirearm was loaded and not registered to him. (§ 25400, subds. (a) & (c)(6).)
The court sentenced Bryant to two yearsin county jail pursuant to section 1170, subdivision (h), and suspended the last364 days of the term. During the time the sentence was suspended, Bryant would be subject to mandatory supervision bythe 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 tome 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, whilehe’s on supervision or probation, access to any computer that heuses 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.”
DISCUSSION
The court sentenced Bryant pursuant to subdivision (h) of section 1170. Under that statute, the court shall impose a hybrid or splitsentence consisting of county jail followed by a period of mandatorysupervision unless, in the interests of justice, it would not beappropriate in a particular case. (§ 1170, subd. (h)(5).)During the period of mandatory supervision, “the defendant shall besupervised 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 (Martinez).) A defendant who is offered probation, forexample, may refuse probation if he “ ‘finds the conditions ofprobation more onerous than the sentence he would otherwise face.’ ” (People v. Moran (2016) 1 Cal.5th 398, 403.) In contrast toadefendant who is given probation, however, a defendant maynot refuse mandatory supervision. (People v. Rahbari (2014) 232Cal.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 termsofsupervised release, in order to foster the reformation andrehabilitation of the offender, while protecting public safety.(Martinez, supra, 226 Cal.App.4th at p. 764.) Courts haveevaluated the validity of mandatory supervision terms underatestannounced 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,226Cal.App.4th at p. 764.) Under Lent, a court abusesitsdiscretion when it imposes a term or condition that “ ‘(1) hasnorelationship tothe crime of which the offender was convicted,(2)relates to conduct which is not in itself criminal, and(3)requiresor forbids conduct which is not reasonably relatedtofuture criminality.’ ” (Lent, supra, at p. 486.) “This testisconjunctive—allthree prongs must be satisfied before a reviewingcourt will invalidate a . . . term.” (People v. Olguin (2008)45Cal.4th 375, 379; accord, Ricardo P., supra, 7 Cal.5th atp.1118.)
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 reJ.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 thatLent’s future criminality prong“contemplates a degree ofproportionality 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 thanthe circumstances warrant is not a ‘reasonable’ one.” (Id.atp.1128.) In the case of electronic search conditions, thesalient burden on a probationer is the burden imposed on his orherprivacy interest. (Id. at pp. 1122–1123.)A probationer’s interest in privacy is impacted by such a condition because, as theUnited States Supreme Court has observed, cell phonescontain “a digital record ofnearly every aspect of their [owner’s] lives—from the mundane tothe intimate,”and “[t]he sum of an individual’s private life can bereconstructed through a thousand photographs labeled with dates, locations, and descriptions.” (Riley v. California (2014) 573U.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, 7Cal.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 orhypothetical.” (In re AlonzoM.(2019) 40 Cal.App.5th 156, 166, petn. for review pending, petn. filed Oct. 22, 2019.) Acondition maybe supported by, for example, “information in a probation report that raises concerns about future criminality unrelated toaprior offense.” (Ricardo P., supra, 7 Cal.5th at p.1122.)
In Ricardo P., Ricardo, a juvenile, admitted to committing tworesidential burglaries. (Ricardo P., supra, 7 Cal.5th at p. 1116.) He also “told a probation officer that ‘he wasn’t thinking’ when hecommitted the offense and that ‘he stopped smoking marijuana after his arrest because he feltthat [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 anytime 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 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 usageor 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 hiselectronic 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 isasimilarly “sweeping . . . condition” that likewise “significantly burdens [Bryant’s] privacy interests.” (RicardoP., supra, 7Cal.5th at pp.1122–1123.) The right to search extends to all ofBryant’s text messages, emails, and photos on any device in hispossession orresidence, with the potential to reveal “vast amounts of personalinformation unrelated to defendant’s criminal conduct orhis 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 thatlong predated the imposition of” Bryant’s sentence. (Ricardo P., supra,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, 7Cal.5th at p. 1122.) Nevertheless, the trial court reasoned that asearch 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 inthis case to illustrate this point and implicitly disapprove of thesearch condition imposed on Bryant. The Court stated: “If wewere to find this record [in Ricardo P.] sufficient to sustain the probation condition at issue, it is difficult to conceive of any case inwhich acomparable condition could not be imposed, especially given the constant and pervasive use of electronic devices and socialmedia byjuveniles today. In virtually every case, one could hypothesize that monitoring a probationer’s electronic devices and social mediamight deter or prevent future criminal conduct. For example, anelectronics search condition could be imposed on a defendant convicted of carrying an unregistered concealed weapon on theground that text messages, e-mails, or online photos could revealevidence that the defendantpossessescontrabandorisparticipatinginagang.(Butsee[Bryant I, supra,]10 Cal.App.5th [at p.] 405 . . .[invalidatingsucha condition ‘in the absence of factsdemonstrating “ ‘“a predisposition” to utilize electronic devices. . . in connection with criminal activity’ ”’].)” (Ricardo P., supra, 7Cal.5th at p. 1123.)As theCourt’s citation toBryant Isuggests, RicardoP.’s example is based on the facts in this case. The Courtused the example to demonstrate, by way of a reductio adabsurdum, thetype of patently unreasonableelectronic searchcondition that could be imposed if monitoring aprobationer’s electronic devices for evidence of criminality was asufficient justification for the condition. The Court’s implied disapproval ofthat type of condition, even if dicta in that case, virtually compelsour disapproval of the condition where, as here, itwasactually imposed. (See County of Fresno v. Superior Court (1978)82Cal.App.3d 191, 194 [“Dicta may be highly persuasive, particularly where made by the Supreme Court after that court hasconsidered 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 andsupports the same conclusion now. Because of the significant burden imposed on Bryant’s privacy interest and the absence of anyinformation in the record to connect the condition with the goal ofpreventing future criminality, we again hold that the electronic search condition imposed on Bryant is invalid under Lent. (SeeInreErica R., supra, 240Cal.App.4th at p. 913 [electronic searchcondition invalid underLent because there was nothing intherecord demonstrating a predisposition to using electronic devicesinconnection with criminal activity]; In reJ.B., supra, 242 Cal.App.4th 749, 756 [electronic search condition invalid under Lent because there was “no showing of any connection between theminor’s use of electronic devices and his past or potential future criminal activity”].)
The Attorney General, in a brief filed prior toBryant I andRicardo P., relied on People v.Ebertowski(2014)228 Cal.App.4th 1170 (Ebertowski)and In reJ.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 aweapon, told an arresting “officer that he was ‘“[f]ucking withthewrong gangster,” ’ ” and repeatedly threatened the officer andtheofficer’s family. (Ebertowski, supra, 228 Cal.App.4th atpp. 1172–1173.) Thedefendant pleaded no contest to making criminal threats and resisting or deterring an officer, and admitted a gang allegation. The prosecution requested that the court imposeconditions requiring the defendant to submit to a search ofelectronic devices within his custody or control and provide hispasswords tothe devices and any social media websites. (Id.atp.1172.) Theprosecutor explained that these conditions should beimposed because “ ‘the defendant has used social media sites historically topromote the Seven Trees Norteño criminal street gang.’” (Id. atp.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 designedto allow the probation officer to monitor defendant’s gangassociations and activities. Defendant’s association with his gangwas 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 theprobation officer to do so.” (Ebertowski, supra, 228 Cal.App.4th at pp. 1176–1177.)
In In reJ.E., supra, 1 Cal.App.5th 795, the Court of Appeal relied on Ebertowskiin upholding an electronic search condition, and distinguished In reErica R. and In reJ.B., stating that theminor in the case before it had “deep-seated issues with drugs,”“struggle[d] with school attendance and grades,” had beensuspended and reprimanded for behavioral issues, brought aweapon to school, had gang graffiti in his locker and a prior association with Norteños gang members, and an “unstable home life.” (In reJ.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 reErica R., supra, 240 Cal.App.4th at p. 913.)
Ebertowski and In reJ.E. are distinguishable. There is no evidence that Bryant, unlike the defendant in Ebertowski, used any electronic device to promote gang activity. And In reJ.E. involved a minor who “had a constellation of issues requiring intensive supervision,” including a “‘pretty deep drug issue.’” (In reJ.E., supra, 1 Cal.App.5th at p. 801.) The electronic search condition wasconsidered “‘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 mustbe monitored for drug sales, as in In reJ.E. Moreover, because Bryant is an adult, the justification for state supervision ofhis 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.
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.” TheAttorney General contends, however, that Ricardo P. does notcontrol becauseLentandRicardo P.addressed conditions ofprobation, and neithershould apply to terms of mandatory supervision imposed under section 1170, subdivision (h)(5). The Attorney General explains thatmandatory supervision is more akinto parole thanprobation because mandatory supervision andparole are mandatory postincarceration periods during which convicted felons serve a portion of their sentences outside of prison; probation, by contrast, “isagrant of clemency in lieu of a custody commitment.” Because ofthesimilarities between mandatory supervision and parole, andtheir differences with probation, the Attorney General arguesthatmandatory supervision terms should not be evaluated underthe Lent test, but by the standards applicable to searches ofparolees 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 paroleedoes not violate the parolee’s “constitutional protection against arbitrary and oppressive official action.”(Burgener, supra, 41Cal.3d at pp. 532–533.)
Burgener’s acceptance of parole search conditions was basedon its determination that such conditionsdo not violate theFourth 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 resultofjudicial interpretation of section 1203.1, subdivision (j), whichpermits a court granting probation to impose “reasonable conditions, as it may determine are fitting and proper to the endthat justice may be done.” (§ 1203.1, subd. (j); see Lent, supra,15Cal.3d at p. 486; Ricardo P., supra, 7 Cal.5th atp. 1128; Peoplev. Dominguez (1967) 256 Cal.App.2d 623, 627.)Whether persons subject to mandatory supervision would be protected nomore thanthe constitution requires or have the benefit ofthe greater protection afforded probationers is answered by the text ofsection1170, subdivision (h). That subdivision declares thatpersons subject to mandatory supervision “shall be supervised bythe county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed onprobation.” (§1170, subd.(h)(5)(B), italics added.) Because terms and conditions applicable topersons placed on probation aresubject to the Lenttest, it follows that terms and conditions applicable to those onmandatory supervision must also satisfy Lent. Accordingly, thecourts that have addressed the issue haveconsistently appliedtheLent testtomandatory supervision terms.(See, e.g.,Malago,supra, 8Cal.App.5th at p. 1306; Relkin, supra,6 Cal.App.5th at p.1194;Martinez, supra, 226 Cal.App.4th atp. 764.)The Attorney General offers no contrary authority. Weagree with these cases and conclude that Lent applies to termsand conditions of mandatory supervision.
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.