P. v. Reed

Filed 1/31/19 P. v. Reed CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT WILLIAM REED,
Defendant and Appellant.
F075285
(Tuolumne Super. Ct.
No. CRF50066)
OPINION
APPEAL from a judgment of the Superior Court of Tuolumne County. Kevin M.
Seibert, Judge.
Kent D. Young, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Michael
Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

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INTRODUCTION
Appellant/defendant Robert William Reed was driving a vehicle that went through
a stop sign and police officers initiated a traffic stop. The officers determined defendant
was driving a stolen car. During the search of the car, the officers found approximately
37 grams of methamphetamine and 20 clonazapam pills under the front passenger seat.
Defendant was in possession of over $1,000 cash in various denominations. Defendant
said he did not know the car was stolen or that the drugs were under the seat.
After a jury trial, defendant was found not guilty of receiving stolen property, the
vehicle. He was convicted of transportation for sale and possession for sale of
methamphetamine, possession for sale of clonazepam, and possession of narcotics
paraphernalia. He was placed on probation.
On appeal, defendant contends the criminalist who tested the methamphetamine
and clonazepam found in the car relied on inadmissible testimonial hearsay, the
introduction of her testimony was prejudicial, and his convictions must be reversed.
Defendant further argues the trial court had a sua sponte duty to instruct on simple
possession as lesser included offenses of possession for sale of methamphetamine and
clonazapam. Finally, defendant challenges two of the terms imposed as conditions of his
probation. We affirm.
FACTS
The stolen car
In March 2016, Carol Ann Miller owned a 1994 Buick Regal that needed repairs.
Ms. Miller left her car with Daniel Broadway, an acquaintance, who said that he could
perform the repairs; she paid him for parts. On or about April 1, 2016, Broadway told
Ms. Miller that he had broken a key in the ignition and it also needed repair.
After repeated requests, Broadway failed to return the car to Ms. Miller, refused to
tell her where the car was, and kept avoiding her.

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On or about April 11, 2016, Ms. Miller reported to the police that the Buick had
been stolen.
The traffic stop
On the morning of April 20, 2016, Sergeant Rogers of the Sonora Police
Department was in his marked patrol car. He was parked near the intersection of Hope
Lane and Lyons Street to monitor the area because there had been recent complaints that
drivers were running through the stop signs.
At approximately 8:12 a.m., Sergeant Rogers saw a Buick Regal traveling on
Lyons Street that failed to make a complete stop and continued through the intersection.
Rogers followed the car and determined it was traveling 35 to 40 miles per hour in a zone
that was marked 25 miles per hour.
Sergeant Rogers informed dispatch that he was conducting a traffic stop and
checked the license plate number. Rogers was advised the vehicle had been reported
stolen.
Sergeant Rogers and Officer Bowley conducted a felony traffic stop of the stolen
car. The driver pulled to the side of the road, and the officers ordered the occupants to
get out.
Defendant was in the driver’s seat, and codefendant Daniel Oliver was sitting in
the front passenger seat.
Search of the car
The officers searched the stolen vehicle. Sergeant Rogers testified he found one
glass smoking pipe on top of the front seat. Rogers opened the lid of the center console
compartment, between the front seats, and found two more glass smoking pipes. Rogers
testified the pipes could be used to smoke methamphetamine and/or marijuana.
Officer Bowley testified he found a pouch under the front passenger seat that
appeared to contain methamphetamine. He placed the pouch on the hood of the car and
alerted Sergeant Rogers.

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Sergeant Rogers testified that he opened the pouch and found six plastic bags;
each bag contained a white crystal-like substance that appeared to be methamphetamine.
The pouch had another plastic bag that contained 20 small, blue pills. A separate plastic
bag contained several smaller plastic bags that were empty; these empty bags were
similar to the kind used to package controlled substances.
Sergeant Rogers found a backpack in the rear of the vehicle, and it contained a bag
of apparent marijuana.
Sergeant Rogers found a ring of keys inside the Buick. There were multiple GMC
keys and one key with a broken tip. Rogers testified there were lots of papers in the
glove box; he found a bill of sale in defendant’s name for a travel trailer but not for the
Buick.1
Arrest and search of defendant
Sergeant Rogers arrested both defendant and Oliver at the scene of the traffic stop.
Sergeant Rogers searched defendant and found $1,138 in cash in his wallet
consisting of one $100 bill, forty-six $20 bills, eleven $10 bills, one $5 bill, and three $1
bills.
Sergeant Rogers searched codefendant Oliver and did not find any cash or
contraband.
Defendant’s postarrest statements
At the jail, Sergeant Rogers advised defendant of the warnings pursuant to
Miranda v. Arizona (1966) 384 U.S. 436, and he agreed to answer questions.
Defendant said he bought the Buick from “Danny” for $600 on April 5, 2016.
Defendant picked it up at Danny’s apartment, located in the general area of Sparrow Lane
1 Ms. Miller subsequently recovered her car and testified it was drivable, but the
ignition was damaged. She looked through the papers in the glove box and found a bill
of sale and a release from liability for the Buick. Ms. Miller testified she did not sign the
documents, and her signature had been forged.

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in Sonora, but he was unable to give an address or telephone number, and he was not sure
about Danny’s last name. Defendant said he did not have title to the car because it
belonged to Danny’s mother.
Sergeant Rogers asked defendant about the narcotics and paraphernalia found in
the car. Defendant said he had no knowledge of the items.
Sergeant Rogers asked defendant about the large amount of cash that he was
carrying. Defendant said he earned the money by doing odd jobs for his father. Rogers
asked for his father’s address and telephone number. Defendant said he did not know his
father’s address or telephone number, but generally knew where he lived in Columbia.
The criminalist’s testimony2
Megan Gallagher, a criminalist in the Department of Justice’s Central Valley
Crime Laboratory in Ripon, testified she tested the six bags of suspected
methamphetamine. She determined that each bag contained methamphetamine with the
following net weights: item one was 0.615 grams; item two was 15.373 grams; item
three was 13.850 grams; item four was 1.259 grams; item five was 0.708 grams; and item
six was 5.667 grams.
Gallagher tested one of the 20 tablets that were submitted for testing. The tablet
contained clonazepam. She did not weigh the tablet, but the inscription marked on it
stated it was a one-milligram clonazepam tablet.
Gallagher testified that another item was submitted for testing, with the indication
that it contained suspected marijuana. Gallagher did not open that package or test the
contents because “[w]e triage our cases … if it looks like it’s under an ounce of
2 Defendant contends his narcotics convictions must be reversed because the
criminalist’s testimony was based on inadmissible and testimonial hearsay that the
substances submitted for testing were associated with defendant and codefendant Oliver.
In parts I and II, post, we address the relevant testimony in detail and reject defendant’s
contentions.

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marijuana, then we don’t analyze it since that’s a misdemeanor. That’s our department
policy” unless the Department of Justice (DOJ) is advised about a pending sales charge or
specifically asked to test it.
Expert testimony
Sergeant Serrano of the Tuolumne County Sheriff’s Department testified as a
prosecution expert about “possession of narcotics, specifically methamphetamine and
clonazepam sales.”3
Sergeant Serrano testified that methamphetamine usually had a street value of $10
for a tenth of a gram, which amounted to $100 for one gram. It was very common to
smoke it through a pipe, and there were different kinds of pipes for that purpose. A pipe
with a white crystalline substance inside would be consistent with being used to smoke
methamphetamine.
Sergeant Serrano testified that people who sell drugs commonly carry more than
one type at the same time and will often try to hide the narcotics in vehicles.
The prosecutor asked Sergeant Serrano a hypothetical question about a traffic stop
where the driver had $1,138 in cash in certain denominations; the search of the car
revealed methamphetamine pipes; a pouch was under the front passenger seat contained a
bag with 20 clonazepam pills; a bag in the pouch contained six separate baggies of
methamphetamine with weights similar to those found in this case, for a total of 37.472
grams; and marijuana was in a backpack located in the back seat.
Sergeant Serrano testified that, based on his training and experience, he believed
the methamphetamine was possessed for the purposes of sale. The total weight of 37
grams was significant and too large a quantity for someone to carry for personal use. The
total weight amounted to “roughly 370 uses” with a street value of approximately $3,700.
3 The court granted the prosecutor’s motion to designate Sergeant Serrano as an
expert; defendant did not object.

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Serrano explained that “no one wants to catch a sales case. Nobody wants to walk
around with that kind of dope on them, that amount.” The packaging and the amount of
cash was also significant and consistent with possession for sale.
Sergeant Serrano testified to his opinion that the clonazepam was also possessed
for sale, based on the packaging of the pills in a small baggie instead of a labeled
prescription bottle. It was significant the pills were in the same pouch as the
methamphetamine because “drug dealers commonly keep all of their stuff together.”
Sergeant Serrano testified that someone who sells drugs may also possess drugs
for their own personal use.
On cross-examination, Sergeant Serrano was asked if his opinion would change if
the vehicle had been sold to the driver by Daniel Broadway, it had been reported stolen
by the owner, and the pouch with the drugs was found under the front passenger seat.
Serrano testified his opinion that the drugs were possessed for purposes of sale would not
change based on the amount of drugs and the cash that was found on one person. It was
very common to hide drugs under seats or in compartments.
DEFENSE EVIDENCE
Defendant testified at trial that he met Daniel Broadway through codefendant
Oliver. He bought the car from Broadway and did not know it was stolen. Broadway
gave him a bill of sale on March 30, 2016. Defendant picked up the car on the morning
of April 20, 2016, after he made the final payment for it. Broadway gave him a broken
key. Defendant realized the key had already broken off in the ignition, but he was not
concerned about that.
Defendant testified he was taking the car for a test drive with Daniel Oliver when
the police stopped him. He did not know there were methamphetamine and clonazepam
in the car until the police found the narcotics. He admitted the marijuana and the pipe on
the driver’s seat belonged to him, and he used the pipe to smoke marijuana. He did not
know about the pipes in the center console and had never opened it.

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Defendant testified he earned the cash from working at a market and trimming
trees with his father in Columbia. He did not know his father’s telephone number, but it
was stored in his cell phone, and the arresting officers would not let him look at the
phone to retrieve the number.
Defendant had a prior conviction for unlawful possession of a firearm in 2007
(Pen. Code, § 12021, subd. (c)(1)).
Charges and convictions
Defendant was charged with count I, receiving stolen property, a motor vehicle
(Pen. Code, § 496d, subd. (a)).
Defendant and codefendant Oliver were jointly charged with count II,
transportation for sale of a controlled substance, methamphetamine (Health & Saf. Code,
§ 11379, subd. (a)); count III, possession for sale of a controlled substance,
methamphetamine (Health & Saf. Code, § 11378); count IV, possession for sale of a
designated controlled substance, clonazepam (Health & Saf. Code, § 11375, subd.
(b)(1)); count V, misdemeanor possession of paraphernalia used for smoking a controlled
substance (Health & Saf. Code, § 11364, subd. (a)); and count VI, the infraction of
possession of marijuana (Health & Saf. Code, § 11357, subd. (b)).
On November 21, 2016, the joint jury trial began for defendant and Oliver.
On November 22, 2016, defendant was found not guilty of count I, receiving
stolen property, a motor vehicle. Defendant was convicted of the narcotics offenses in
counts II through VI.
Codefendant Oliver was found not guilty of all charges.
Sentencing
On March 8, 2017, the trial court adopted the probation department’s
recommendation and placed defendant on probation. In doing so, the court overruled the
prosecutor’s argument that defendant should be sentenced to prison.

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The court suspended imposition of sentence for five years and placed defendant on
probation under certain terms and conditions, including service of one year in jail; not to
possess any controlled substance without a prescription from a medical doctor; not to
possess any drug paraphernalia; to register as a narcotics offender; and to submit to drug
and/or alcohol testing at the direction of the probation officer or at the request of any
peace officer. Defendant was also ordered to “[s]ubmit your person and property,
including any residence, premises, container, electronic device, or vehicle under your
control to search and seizure at any time of the day or night by any law enforcement or
probation officer with or without a warrant.”
On March 20, 2017, the court found defendant’s conviction in count VI,
possession of marijuana, was no longer a chargeable offense and dismissed the infraction
on its own motion.
DISCUSSION
I. The Criminalist’s Testimony About the Methamphetamine
Defendant contends he was deprived of his Sixth Amendment right to confront
and cross-examine witnesses when Gallagher, the criminalist, testified that she tested the
six bags of methamphetamine, and the evidence was associated with defendant and
codefendant Oliver. Defendant’s argument is based on Gallagher’s trial testimony that an
“unknown officer” filled out the DOJ form that accompanied the suspected narcotics, and
that the unknown officer wrote that the suspected narcotics were associated with
defendant and Oliver.
Defendant asserts Gallagher’s expert testimony constituted inadmissible hearsay
that was testimonial and introduced for the truth of the matter – that the six packages of
methamphetamine were the items that were associated with defendant and Oliver, and
thus seized from the stolen car at the time of defendant’s arrest. Defendant argues that
his constitutional rights were violated by Gallagher’s testimony because he was “never
afforded an opportunity to confront and cross-examine the unknown officer” who

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submitted the substances for testing, in violation of People v. Sanchez (2016) 63 Cal.4th
665 (Sanchez).
Defendant further argues the error is prejudicial and requires reversal of his
convictions because there was no other evidence that the items found in the stolen car
were associated with him or tested positive.
A. Sanchez
Defendant’s hearsay arguments are based on Sanchez, supra, 63 Cal.4th 665,
where an officer testified as a gang expert about general gang culture, and specifically
about statements the defendant had made to other officers about his gang affiliation. The
expert relied on defendant’s statements that were in reports prepared by other officers,
and gave his opinion that defendant was a member of a criminal street gang. On appeal,
the defendant argued the admission of the expert’s testimony about the contents of the
records created by other officers was testimonial hearsay and violated Crawford v.
Washington (2004) 541 U.S. 36 (Crawford). (Sanchez, supra, 63 Cal.4th at pp. 672–
674.)
Sanchez held that when “an expert relies on hearsay to provide case-specific facts,
consider the statements as true, and relates them to the jury as a reliable basis for the
expert’s opinion, it cannot logically be asserted that the hearsay content is not offered for
its truth….” (Sanchez, supra, 63 Cal.4th at p. 682.) Sanchez reviewed the plurality
opinion in Williams v. Illinois (2012) 567 U.S. 50 and found that it “call[ed] into question
the premise that expert testimony giving case-specific information does not relate
hearsay….” (Sanchez, supra, 63 Cal.4th at p. 683.)
Sanchez held that “[w]hen any expert relates to the jury case-specific out-of-court
statements, and treats the content of those statements as true and accurate to support the
expert’s opinion, the statements are hearsay….” (Sanchez, supra, 63 Cal.4th at p. 686.)
Factual assertions are “case-specific” if they relate to “the particular events and
participants alleged to have been involved in the case being tried.” (Id. at p. 676.)

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“What an expert cannot do is relate as true case-specific facts
asserted in hearsay statements, unless they are independently proven by
competent evidence or are covered by a hearsay exception….” (Sanchez,
supra, 63 Cal.4th at p. 686, first italics in original, second italics added.)
Sanchez further held that such evidence violated the confrontation clause, as
interpreted in Crawford, “[i]f the case is one in which a prosecution expert seeks to relate
testimonial hearsay [as the basis for his or her opinion], there is a confrontation clause
violation unless (1) there is a showing of unavailability and (2) the defendant had a prior
opportunity for cross-examination, or forfeited that right by wrongdoing.” (Sanchez,
supra, 63 Cal.4th at p. 686.) “Testimonial statements are those made primarily to
memorialize facts relating to past criminal activity, which could be used like trial
testimony.” (Id. at p. 689.) Information contained in a police report is generally
construed as testimonial hearsay because police reports “relate hearsay information
gathered during an official investigation of a completed crime.” (Id. at p. 694.)
With this background in mind, we turn to the trial evidence about the chain of
custody of the items that were tested by Gallagher.
B. Trial Testimony
Defendant’s hearsay arguments must be considered in the context of the entirety of
the trial testimony from both Gallagher and Sergeant Rogers.
As set forth above, Officer Bowley testified he found a pouch under the front
passenger seat that appeared to contain methamphetamine. He placed the pouch on the
hood of the car and alerted Sergeant Rogers. Rogers testified that he opened the pouch
and found six plastic bags that contained a white crystal-like substance that appeared to
be methamphetamine; a bag with 20 small, blue pills, and another bag that contained
empty plastic bags.
Sergeant Rogers testified that he took possession of the suspected narcotics that
were found in the stolen car at the scene of the traffic stop.

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“[THE PROSECUTOR]: Did you take possession of the
substances that you believed were controlled?
“[ROGERS]: Yes.
“Q: And what did you do with them?
“A. They were transported back to the Sonora Police Department
where I conducted a field – called a field NIK test, which is a test basically
where a substance is put into a chemical compound, and you follow
instructions on the instruction manual of – of how to – how to perform the
test, and then it should be a certain color that pops up if it’s the narcotics
that you are suspecting that it is.
“Q. Okay. After you tested it, did you also weigh the substances?
“A. Yes.
“Q. Okay. And after you do that, do you then seal the substances
in any way?
“A. Yes.
“Q. Can you describe that?
“A. When you confiscate narcotics, they have to be placed into a
specific envelope that the California Department of Justice supplies to
departments. The reason being, all suspected controlled substances
eventually get sent to the Department of Justice for examination and for
testing. They –they are put into that – to that bag and then there’s proper –
there’s procedures that they require before they receive the bag. There’s
portions of the bag that have to be filled out. There’s certain information
you as the booking officer writes on the bag. The bag is sealed with tape.
Then you then initial the tape putting your initials half on the tape and
envelope to show that seal is genuine, it’s not been tampered with prior to
the Department of Justice receiving it.
“Q. Part of the information, does it identify who the suspects were
that the drugs were related to?
“A. Yes.
“Q. And does it have your case number?
“A. Yes.”

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On cross-examination, defense counsel questioned Sergeant Rogers about where
the contraband was found in the stolen car. He did not ask Rogers any questions about
how he took possession of the suspected drugs or processed the items for testing.
After Sergeant Rogers testified, Gallagher testified as the prosecution’s expert on
how the substances were tested. Gallagher began her testimony with a general
description of how the DOJ laboratory receives items for analysis.
“[THE PROSECUTOR]: [J]ust what is a BFS case number?
“[GALLAGHER]. When a case comes into our laboratory, is
submitted, it’s given a BFS case number. The unique number pertaining to
that specific case that we refer to our laboratory system. It ties to the
agency case that submits it.
“Q. So when you – how does the lab receive a case?
“A. Cases are submitted either by somebody coming and
dropping them off or sending them via FedEx or UPS, so they come into
the property department and our property controllers log the cases into our
lab system.
“Q. And are there specific envelopes or ways that you permit
agencies to submit cases to DOJ?
“A. Yes, we have a form that has to be filled out for controlled
substance cases. That form is actually printed right on an envelope. So for
controlled substance cases we like to have that – the controlled substances
or suspected controlled substances placed inside that envelope and that
form to be filled out.”
Gallagher further testified that when items are submitted for testing, she begins
with a color screening test and then conducts an instrumental analysis “to do
determinative or confirmatory analysis.”
The prosecutor then turned to the specific items that Gallagher tested.
“Q So I will refer you to BFS Case Number CV167446. What
agency did you receive that case from?

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“[GALLAGHER]. The property department received that case
from the Sonora Police Department.
“Q. Okay. Who were the subjects attached to that case?
“A. [Codefendant] Daniel Oliver and [defendant] Robert Reed.
“Q. What is the date of offense on that case?
“A. It was April 20th, 2016.
“Q. Now, attached to this case, did you test seven different
substances?
“A. Yes, I did.
“Q. Okay. Were – when the substances come in to you, are they
suspected to be a specific controlled substance sometimes?
“A. Sometimes, yes.”
Gallagher testified she generated two reports about her tests of these items, dated
September 19 and November 21, 2016.
“Q. Okay. In this case were there six packages that were
suspected to be methamphetamine?
“A. Yes. Whoever filled out the form, the officer or the person
dropped off the evidence, when they filled out the form, they wrote that
they suspected or they indicated that it was meth. That’s their suspicion.
“Q. Did you test these six separate suspected packages of
methamphetamine?
“A. Yes, I did.” (Italics added.)
Gallagher testified about the content and weight of each bag of methamphetamine,
as set forth in the factual statement.
Gallagher next testified about the tablets:
“Q. Did you also test another substance?
“A. Yes, I also tested a tablet. There were 20 tablets submitted. I
tested one of those tablets. It contained clonazepam.”

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Gallagher testified she did not weigh the tablet, but the inscription marked on it stated it
was a one milligram clonazepam tablet.
On cross-examination, Gallagher testified that her report of September 19, 2016,
stated that “item seven” was not analyzed at that time. “It was submitted to the
laboratory later, and then I retested the item seven, so the agency resubmitted it last week
and requested that I test item number seven,” and she generated the second report that
was dated November 21, 2016.
Gallagher testified that another item was submitted for testing, with the indication
that it contained suspected marijuana, but the contents were not examined or tested.
C. Failure to Object
We first note that defendant did not object to any aspect of the trial testimony from
either Gallagher or Sergeant Rogers about the chain of custody, processing or testing of
the substances, or that the items were associated with defendant and codefendant Oliver.
Ordinarily, “the failure to object to the admission of expert testimony or hearsay at trial
forfeits an appellate claim that such evidence was improperly admitted. [Citations.]”
(People v. Stevens (2015) 62 Cal.4th 325, 333.)
Defendant acknowledges that he did not raise this objection during Gallagher’s
testimony, but argues the issue has not been forfeited because Sanchez had just been
decided and announced a new rule of law. Sanchez was decided on June 30, 2016.
(Sanchez, supra, 63 Cal.4th 665.) Defendant’s jury trial was held five months later in
November 2016. Defendant did not object on the grounds of hearsay and has forfeited
any Sanchez claim on appeal.
In the alternative, defendant argues his attorney was prejudicially ineffective for
failing to raise hearsay objections to Gallagher’s testimony. “In order to demonstrate
ineffective assistance, a defendant must first show counsel’s performance was deficient
because the representation fell below an objective standard of reasonableness under
prevailing professional norms. [Citation.] Second, he must show prejudice flowing from

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counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. [Citation.]” (People v. Williams (1997) 16
Cal.4th 153, 214–215 (Williams).)
“[D]eciding whether to object is inherently tactical, and the failure to object will
rarely establish ineffective assistance. [Citation.]” (People v. Hillhouse (2002) 27
Cal.4th 469, 502.) The failure to raise a meritless objection is not ineffective assistance
of counsel. (People v. Bradley (2012) 208 Cal.App.4th 64, 90.)
D. Defendant’s Hearsay Contentions
Defendant argues that based on Sanchez and Williams, Gallagher’s testimony that
she tested substances that were associated with the names of defendant and codefendant
Oliver constituted inadmissible testimony hearsay because Gallagher said an “unknown
officer” had filled out the DOJ forms that accompanied the contraband and listed
defendant’s name, and defendant did not have the opportunity to confront or cross-
examine that “unknown officer.”
Defendant’s argument is based on this limited portion of Gallagher’s testimony:
“Whoever filled out the form, the officer or the person dropped off the evidence, when
they filled out the form, they wrote that they suspected or they indicated that it was meth.
That’s their suspicion.” (Italics added.)
Gallagher’s testimony, taken in a vacuum, may appear to fall within the type of
hearsay found inadmissible in Sanchez. As set forth above, however, the entirety of the
trial testimonies from both Gallagher and Sergeant Rogers refute defendant’s hearsay
contentions. Gallagher began her testimony by generally explaining how documents are
prepared and items are submitted to the DOJ for testing. “[W]e have a form that has to
be filled out for controlled substance cases. That form is actually printed right on an
envelope. So for controlled substance cases we like to have that – the controlled

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substances or suspected controlled substances placed inside that envelope and that form
to be filled out.”
Gallagher then testified that “BFS case number CV167446” was submitted from
the Sonora Police Department to the DOJ’s property department, the subjects were
identified as defendant and codefendant Oliver, and it contained seven items for testing.
Gallagher testified that she tested six bags, each bag contained methamphetamine, and
stated the weights for each item. As she discussed the six bags of methamphetamine, the
following exchange occurred:
“[THE PROSECUTOR]: Okay. In this case were there six
packages that were suspected to be methamphetamine?
“A. Yes. Whoever filled out the form, the officer or the person
dropped off the evidence, when they filled out the form, they wrote that
they suspected or they indicated that it was meth. That’s their suspicion.”
Gallagher further testified that the seventh item consisted of a bag of pills, she
tested one pill, and it contained clonazepam.
While Gallagher did not know who submitted the items to the DOJ, Sergeant
Rogers’s trial testimony supplies the answer. Rogers took possession of the contraband
found in the pouch. Rogers testified that he took the contraband to the Sonora Police
Department, conducted a field test, and then sealed the substances to submit to the DOJ
for testing.
“Q. Okay. After you tested it, did you also weigh the substances?
“[ROGERS]. Yes.
“Q. Okay. And after you do that, do you then seal the substances
in any way?
“A. Yes.
“Q. Can you describe that?

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“A. When you confiscate narcotics, they have to be placed into a
specific envelope that the California Department of Justice supplies to
departments. The reason being, all suspected controlled substances
eventually get sent to the Department of Justice for examination and for
testing. They – they are put into that—to that bag and then there’s proper –
there’s procedures that they require before they receive the bag. There’s
portions of the bag that have to be filled out. There’s certain information
you as the booking officer writes on the bag. The bag is sealed with tape.
Then you then initial the tape putting your initials half on the tape and
envelope to show that seal is genuine, it’s not been tampered with prior to
the Department of Justice receiving it.
“Q. Part of the information, does it identify who the suspects were
that the drugs were related to?
“A. Yes.
“Q. And does it have your case number?
“A. Yes.” (Italics added.)
Sanchez held that an expert “cannot … relate as true case-specific facts asserted in
hearsay statements, unless they are independently proven by competent evidence or are
covered by a hearsay exception….” (Sanchez, supra, 63 Cal.4th at p. 686, first italics in
original, second italics added.) Sanchez further held that “the evidence can be admitted
through an appropriate witness ….” (Id. at p. 684.) That is exactly what happened in this
case. Gallagher testified the items were submitted for testing by the Sonora Police
Department. She did not specifically identify who prepared and submitted the
contraband to the DOJ or who wrote that the items were associated with the arrest of
defendant and codefendant Oliver on April 20, 2016. However, Sergeant Rogers testified
in detail about his collection, preservation, and transmittal of the contraband found in the
stolen car to the DOJ. The entirety of the record reveals Rogers was the “unknown
officer” who identified the items as being associated with defendant’s arrest.
Defendant “anticipates” the argument that Sergeant Rogers testified that he
prepared the DOJ form and submitted the items for testing. Defendant rejects this
interpretation of Rogers’ testimony for the following reasons:

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19.
“Although Rogers testified about the procedures for sending suspected
narcotics to the DOJ for testing, Rogers never testified that he was the
officer who attested to the information on the DOJ form. Rather, Rogers
testified that suspected narcotics ‘have to be placed into a specific envelope
that the California Department of Justice supplies to departments.’ Rogers
further testified that, under these procedures, the suspected narcotics are
placed into ‘that bag’ and that, ‘[t]here’s portions of the bag that have to be
filled out. There’s certain information you as the booking officer writes
[sic] on the bag. The bag is sealed with tape. Then you then initial the tape
putting your initials half on the tape and envelope to show that seal is
genuine, it’s not been tampered with prior to the Department of Justice
receiving it.
“At no point, however, did Rogers testify that he was the person who
wrote the information on the bag or form that was sent to the Department of
Justice. Gallagher likewise did not indicate the identity of the unknown
officer who attested to the information on the DOJ form.”
“An appellate court must accept logical inferences that the [finder of fact] might
have drawn from the circumstantial evidence. [Citation.]” (People v. Maury (2003) 30
Cal.4th 342, 396.) Given defendant’s failure to make any hearsay objections at trial, we
find the logical inferences from the record are that Gallagher received from the Sonora
Police Department six baggies of suspected methamphetamine, one bag with 20 pills, and
a quantity of marijuana; and that Sergeant Rogers of the Sonora Police Department took
possession of the contraband found in the stolen car – six baggies of suspected
methamphetamine, a baggie with 20 pills, and a quantity of suspected marijuana – and he
packaged the items in the manner required by the DOJ and transmitted the items to that
agency for testing. Rogers testified at trial and was subject to cross-examination. While
Rogers completed his testimony just before Gallagher’s appearance, there is nothing in
the record to indicate the court would have denied a defense motion to recall Rogers for
further cross-examination. Gallagher’s testimony did not violate Sanchez or Crawford.
II. The Criminalist’s Testimony About Clonazepam
Defendant raises a similar argument about the criminalist’s testimony regarding
the test of the clonazepam pill and contends his conviction for possession of clonazepam

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for sale must be reversed because the prosecution failed to prove that he possessed that
drug. Defendant asserts that “[u]nlike the methamphetamine Gallagher tested, Gallagher
did not provide any information regarding the DOJ form associated with the twenty
tablets. No testimony was provided by Gallagher as to the agency that submitted the
twenty tablets or the suspects associated with the twenty tablets. Gallagher effectively
testified that she tested one of twenty tablets, submitted by an unknown law enforcement
agency, that were associated with unknown suspects. At no point did Gallagher testify
that the tablets were associated with [defendant].”
“When a defendant challenges the sufficiency of the evidence, ‘ “[t]he court must
review the whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence – that is, evidence which is reasonable, credible,
and of solid value – such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” [Citation.]’ [Citations.] ‘Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn from that evidence.
[Citation.]’ [Citation.] We ‘ “ ‘presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.’ ” [Citation.]’
[Citation.]” (People v. Clark (2011) 52 Cal.4th 856, 942–943.)
We have already set forth the entirety of the testimony from Sergeant Rogers and
Gallagher. As relevant to defendant’s contentions about the bag of pills, Gallagher
testified as follows:
“Q So I will refer you to BFS Case Number CV167446. What
agency did you receive that case from?
“[GALLAGHER]. The property department received that case
from the Sonora Police Department.
“Q. Okay. Who were the subjects attached to that case?
“A. [Codefendant] Daniel Oliver and [defendant] Robert Reed.
“Q. What is the date of offense on that case?

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“A. It was April 20th, 2016.
“Q. Now, attached to this case, did you test seven different
substances?
“A. Yes, I did.” (Italics added.)
Gallagher testified that she tested the six individual bags that contained
methamphetamine.
“Q. Did you also test another substance?
“[GALLAGHER]. Yes, I also tested a tablet. There were 20 tablets
submitted. I tested one of those tablets. It contained clonazepam.”
As explained in part I, ante, the entirety of the record raises the logical inference
that Sergeant Rogers preserved and transmitted to the DOJ the contraband found in the
car, and he was the “unknown officer” who identified defendant and codefendant Oliver
as being associated with the items. Gallagher testified that she received seven items for
testing from the Sonora Police Department that were associated with defendant and
codefendant Oliver: six bags that tested positive for methamphetamine, and one pill from
the bag of 20 pills that contained clonazepam. Gallagher did not test the item identified
as suspected marijuana, eliminating that item as one of the seven that she tested.
Gallagher further testified that she tested the seventh item at a separate time from
the methamphetamine. “It was submitted to the laboratory later, and then I retested the
item seven, so the agency resubmitted it last week and requested that I test item number
seven,” and she generated the second report that was dated November 21, 2016.
However, there is nothing in Gallagher’s testimony to refute the inference that the bag of
pills was part of the package of evidence submitted to the DOJ that was identified with
defendant and codefendant Oliver, and that she tested “seven different substances” that
were “attached to this case.”
We find the entirety of the evidence and the inferences thereon establish that the
bag of pills was submitted to the DOJ along with the methamphetamine by Sergeant

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Rogers; Rogers identified the items as being associated with defendant and codefendant
Oliver; and Gallagher tested one of the pills from the bag, and it was positive for
clonazepam.
III. Failure to Instruct on Lesser Included Offenses
Defendant was charged and convicted of count III, possession for sale of a
controlled substance, methamphetamine; and count IV, possession for sale of a
designated controlled substance, clonazepam. The jury was not instructed on any lesser
included offenses for these charges.
Defendant contends the court had a sua sponte duty to instruct on simple
possession of methamphetamine and clonazepam as lesser included offenses of counts III
and IV, and the error was prejudicial and requires reversal.
A. Lesser Included Offenses
“A trial court has a sua sponte duty to instruct the jury on a lesser included
uncharged offense if there is substantial evidence that would absolve the defendant from
guilt of the greater, but not the lesser, offense. [Citation.] Substantial evidence is
evidence from which a jury could conclude beyond a reasonable doubt that the lesser
offense was committed. [Citations.] Speculative, minimal, or insubstantial evidence is
insufficient to require an instruction on a lesser included offense. [Citations.]” (People
v. Simon (2016) 1 Cal.5th 98, 132.) “We review de novo a trial court’s decision not to
give an imperfect self-defense instruction. [Citations.]” (Id. at p. 133.)
“[T]he failure to instruct sua sponte on a lesser included offense in a noncapital
case is, at most, an error of California law alone, and is thus subject only to state
standards of reversibility. [S]uch misdirection of the jury is not subject to reversal unless
an examination of the entire record establishes a reasonable probability that the error
affected the outcome. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 165,
citing People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)

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“Further, the Watson test for harmless error ‘focuses not on what a reasonable jury
could do, but what such a jury is likely to have done in the absence of the error under
consideration. In making that evaluation, an appellate court may consider, among other
things, whether the evidence supporting the existing judgment is so relatively strong, and
the evidence supporting a different outcome is so comparatively weak, that there is no
reasonable probability the error of which the defendant complains affected the result.’
[Citations.]” (People v. Beltran (2013) 56 Cal.4th 935, 956, original italics.)
B. Simple Possession and Possession for Sale
Simple possession of a controlled substance is generally a lesser included offense
of the crime of possession of the same contraband for purposes of sale. (See, e.g., People
v. Becker (2010) 183 Cal.App.4th 1151, 1157; People v. Oldham (2000) 81 Cal.App.4th
1, 16; People v. Walker (2015) 237 Cal.App.4th 111, 115–116; People v. Adams (1990)
220 Cal.App.3d 680, 690; People v. Magana (1990) 218 Cal.App.3d 951, 954.)
However, a defendant “is entitled to instructions on lesser included offenses only
if some basis exists, ‘other than an unexplainable rejection of prosecution evidence, on
which the jury could find the offense to be less than that charged.’ [Citations.] ‘[I]f there
is no proof, other than an unexplainable rejection of the prosecution’s evidence, that the
offense was less than that charged, such instructions shall not be given.’ [Citation.]”
(People v. Walker, supra, 237 Cal.App.4th at p. 117.)
Defendant contends that the court had a sua sponte duty in this case to instruct on
simple possession of both methamphetamine and clonazepam as lesser included offenses
of the charged crimes of possession of those same narcotics for sale. Defendant’s
argument is based on People v. Saldana (1984) 157 Cal.App.3d 443 (Saldana).) In that
case, officers arrived at a house to execute a search warrant for the defendant’s brother.
There were several members of the defendant’s family in the house. When the officers
arrived, they found the defendant lying on his mother’s bed in a room he shared with her.
He reached inside the headboard, and the officers immediately took him into custody.

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The officers found 18 balloons of heroin inside the headboard. The defendant’s brothers
were in the basement; one brother was under the influence of heroin when officers
arrived, and he was a known user and seller of heroin. The police found materials related
to both sales and use in the basement. The defendant denied any knowledge of the
heroin, and it was established that he did not use heroin. There was contradictory
testimony from family members about who might have been using heroin in that house.
The defendant was charged and convicted of possession of heroin for sale. The jury was
instructed that joint or constructive possession was sufficient to prove the possession
element of possession for sale, but it was not instructed on simple possession. (Id. at
pp. 450–453, 455.)
Saldana held the trial court had a sua sponte duty to instruct on the lesser included
offense of simple possession of heroin, and the instructional error was prejudicial because
there had been sufficient evidence for the jury to consider the alternative charge.
(Saldana, supra, 157 Cal.App.3d at p. 453.) The court held that where there is direct
evidence of simple possession, but only circumstantial evidence of intent to sell, a jury
must be instructed on both simple possession and possession for sale. Saldana noted that
some of the balloons found in the headboard were cut open, raising the inference that the
heroin was for the brother’s personal use since he was a known user, and the defendant
may have been holding the drugs for him. (Id. at pp. 456–458.)
In People v. Walker, supra, 237 Cal.App.4th 111, the court held an instruction
should have been given for simple possession of marijuana to the charged offense of
possession of marijuana for sale, because the police did not observe any sales activities or
find scales or documents to indicate sales activity; the defendant possessed a medical
marijuana card and claimed the marijuana was for his own personal medical use; and the
other evidence did not compel the conclusion of his intent to sell. (Id. at p. 117.)
In People v. Douglas (1987) 193 Cal.App.3d 1691, the court held the failure to
instruct on simple possession as a lesser included offense of possession for sale was not

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prejudicial where the defendant was found in possession of 14 individual baggies of
marijuana in an area known for drug trafficking. (Id. at pp. 695–1696.)
In People v. Goodall (1982) 131 Cal.App.3d 129, the defendant was charged with
possession of PCP for sale. The court held a simple possession instruction was not
required because the police found the defendant in possession of a large amount of liquid
PCP that was enough to dip thousands of PCP cigarettes, the prosecution introduced
expert testimony that the PCP was possessed for sale, and the evidence was not
contradicted. (Id. at pp. 138, 145.)
C. Analysis
Defendant asserts that his case is identical to the situation in Saldana, and the trial
court had a sua sponte duty to instruct on simple possession as lesser included offenses to
possession for sale of both methamphetamine and clonazepam. Defendant argues:
“[Defendant], like the defendant in Saldana, was not the only person who
had access to the narcotics at issue. Indeed, the methamphetamine was
found in a pouch hanging underneath the front passenger seat, where co-
defendant Oliver sat. [Citation.] Thus, like the jury in Saldana, the jury in
[defendant’s] case could have inferred that the methamphetamine was
possessed by Oliver for the purpose of sale. Like the defendant in Saldana,
[defendant] admitted to possessing marijuana found in a different location,
but denied knowing of the methamphetamine concealed underneath
Oliver’s seat. [Citation.] And, like the defendant in Saldana, ‘the
prosecution’s evidence was purely circumstantial that [the defendant] was a
nonuser and in the detectives’ expert opinions the narcotics were packaged
for sale.’ [Citation.]”
Defendant asserts that it is impossible to determine whether the jury could have
found he simply possessed the narcotics without the intent to sell. “The jury may have
believed it was faced with an all or nothing verdict,” and felt compelled to convict him of
the charged offenses.
Even if simple possession instructions should have been given, it is not reasonably
probable that, if given the choice between the greater and lesser offenses, the jury would
have convicted defendant only of the lesser offenses. (People v. Breverman, supra, 19

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26.
Cal.4th at p. 178, fn. 25.) Contrary to defendant’s arguments, the jury was not given an
all or nothing choice in this case.
Defendant claimed he went to Danny’s house with codefendant Oliver, he had just
picked up the car from Danny, and he did not know it was stolen. The pouch with the
methamphetamine and clonazepam was found under the front passenger seat, where
codefendant Oliver was sitting. Defendant claimed he did not know about the drugs
under the seat. Defendant possessed over $1,000 cash in different denominations. The
prosecution’s expert testified without contradiction that the methamphetamine and
clonazepam were possessed for purposes of sale based on the quantities and packaging.
Defendant and Oliver were jointly charged with the same drug offenses. The jury
had four alternatives. It could have found that Oliver solely possessed for sale the large
amount of narcotics in the pouch, since the pouch was found under the seat where he was
sitting. The jury could have found defendant and Oliver jointly possessed the drugs for
sale. A third alternative would have been to find both defendant and Oliver not guilty if
the jury believed that Danny or someone else left the drugs in the stolen car. Instead, the
jury found Oliver not guilty of all charges and convicted defendant of the drug offenses.
It is not reasonably probable that defendant would have been convicted only of
simple possession if the jury had been so instructed on counts III and IV.
IV. Probation Condition for Alcohol Testing
As part of the terms and conditions of probation, the court ordered defendant not
to possess any controlled substance without a prescription from a medical doctor; not to
possess any drug paraphernalia; to register as a narcotics offender; and to submit to drug
and/or alcohol testing at the direction of the probation officer or at the request of any
peace officer.
Defendant contends the order for him to submit to alcohol testing is unreasonable
pursuant to People v. Lent (1975) 15 Cal.3d 841 (Lent) and must be stricken because he
was only convicted of drug-related offenses in this case.

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27.
Defendant did not object to any of the conditions of probation, even though the
conditions were set forth in the probation report that was received by the defense prior to
sentencing and subsequently followed by the superior court at the sentencing hearing.
“In general, the failure to make a timely objection to a probation condition forfeits the
claim of error on appeal. [Citations.] ‘A timely objection allows the court to modify or
delete an allegedly unreasonable condition or to explain why it is necessary in the
particular case. The parties must, of course, be given a reasonable opportunity to present
any relevant argument and evidence.’ [Citation.] An objection may be raised for the first
time on appeal only where it concerns an unauthorized sentence involving pure questions
of law. [Citations.]” (People v. Relkin (2016) 6 Cal.App.5th 1188, 1194–1195.)4
Defendant’s appellate challenge is based on People v. Kiddoo (1990) 225
Cal.App.3d 922 (Kiddoo) (overruled on other grounds in People v. Welch (1993) 5
Cal.4th 228, 236–237), where the defendant, who was 33 years old at the time, pleaded
guilty to possession of methamphetamine. He was placed on probation on condition of
alcohol testing. The defendant told the probation officer that he had become involved in
the sale of drugs to support a gambling habit; he had used marijuana, methamphetamine,
amphetamine, cocaine, and alcohol since he was 14 years old; he had “ ‘no prior
problem;’ ” and he was a social drinker and sporadically used methamphetamine. The
defendant’s prior record consisted of unlawfully taking or driving a vehicle when he was
a teenager and possession of marijuana when he was 22 years old. (Kiddoo, supra, 225
Cal.App.3d at p. 927.)
Kiddoo held the condition for alcohol testing was invalid because it was not
related to the crime of possession or the defendant’s future criminality. Kiddoo explained
4 A constitutional challenge to a condition of probation may not be forfeited under
certain circumstances. (See, e.g., In re Sheena K. (2007) 40 Cal.4th 875, 887.) However,
defendant’s appellate objections to the alcohol testing condition are limited to whether
that condition was reasonable under Lent.

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28.
that nothing in the defendant’s record suggested alcohol was related to his current
convictions. Kiddoo further held that since it was not a crime to possess or consume
alcohol, or to frequent places where alcoholic beverages were the chief item of sale, the
probation condition had to be reasonably related to future criminal activity in order to be
valid. The court found no factual indication in the record that, in the defendant’s case,
the proscribed behavior was reasonably related to future criminal behavior. (Kiddoo,
supra, 225 Cal.App.3d at pp. 927–928.)
As noted by the Attorney General (RB 30-31), Kiddoo has been repeatedly
criticized. For example, in People v. Beal (1997) 60 Cal.App.4th 84, the court perceived
several flaws in Kiddoo’s rationale:
“[W]e disagree with the fundamental assumptions in Kiddoo that alcohol
and drug abuse are not reasonably related and that alcohol use is unrelated
to future criminality where the defendant has a history of substance abuse.
[Citation.]
“Rather, empirical evidence shows that there is a nexus between
drug use and alcohol consumption. It is well documented that the use of
alcohol lessens self-control and thus may create a situation where the user
has reduced ability to stay away from drugs. [Citation.] Presumably for
this very reason, the vast majority of drug treatment programs … require
abstinence from alcohol use. [Citation.]
“Based on the relationship between alcohol and drug use, we
conclude that substance abuse is reasonably related to the underlying crime
and that alcohol use may lead to future criminality where the defendant has
a history of substance abuse and is convicted of a drug-related offense.
Whether the trial court determines to impose such a condition is thus within
its sound discretion and, if it does, the defendant must either submit to the
condition or, if she considers the condition ‘more harsh than the sentence
the court would otherwise impose, [exercise] the right to refuse probation
and undergo the sentence.’ [Citations.] That the use of alcohol is not
otherwise illegal does not render the defendant’s decision to accept such a
condition subject to challenge on appeal. [Citation.]” (People v. Beal,
supra, 60 Cal.App.4th at p. 87; see also People v. Malago (2017) 8
Cal.App.5th 1301, 1308; People v. Balestra (1999) 76 Cal.App.4th 57, 69.)

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29.
Even if we were to consider defendant’s arguments based on Kiddoo, our review
of the record before the superior court suggests the reasons it ordered defendant to
comply with alcohol testing. Defendant admitted to the probation officer that he
occasionally used both alcohol and marijuana. Defendant also told the probation officer
he had participated in domestic violence counseling, attended “12 Step” meetings, and
was willing to participate in counseling as a condition of probation. Defendant’s prior
convictions included domestic violence offenses in 1999 and 2004 (Pen. Code, § 273.5,
subd. (a)); and several convictions for driving on a suspended license, including one for
violating Vehicle Code section 14601.2, subdivision (a) in 2003, driving on a suspended
license after being convicted of violating Vehicle Code sections 23152 or 23153, driving
under the influence.5 The court did not abuse its discretion when it imposed the
condition for alcohol testing.
V. Search Condition
As another term of probation, the court imposed a search condition for defendant
to “[s]ubmit your person and property, including any residence, premises, container,
electronic device, or vehicle under your control to search and seizure at any time of the
day or night by any law enforcement or probation officer with or without a warrant.”
Defendant contends the search condition is overly broad because “it implicates
[his] constitutional right to be free of unreasonable search and seizure and is not limited
to searches for material prohibited by law or other evidence of illegal conduct.”
Defendant further argues the search condition improperly includes electronic devices.6
5 Defendant acknowledges the probation reports lists this 2003 offense but asserts
the report fails to identify when he was convicted of driving under the influence. As
noted above, however, defendant never objected to any of the information or
recommendations in the probation report and has waived his challenge on this point.
6 The probation report recommended a general search condition to “[s]ubmit your
person and property, including any residence, premises, container, electronic device, or
vehicle under your control to search and seizure at any time of the day or night by any
law enforcement or probation officer with or without a warrant.”

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30.
As explained in part IV, ante, defendant did not object to any of the terms and
conditions of probation. His challenge to the search condition, however, is based on the
argument that it is unconstitutionally vague and/or overly broad. A constitutional
challenge to a condition of probation is not forfeited if it raises a facial challenge, i.e., “a
challenge to a term of probation on the ground of unconstitutional vagueness or
overbreadth that is capable of correction without reference to the particular sentencing
record developed in the trial court can be said to present a pure question of law.” (In re
Sheena K., supra, 40 Cal.4th at p. 887, original italics.) “Although a probation condition
may be overbroad when considered in light of all the facts, only those constitutional
challenges presenting a pure question of law may be raised for the first time on appeal.
[Citation.] [N]ot all constitutional defects in conditions of probation may be raised for
the first time on appeal; some questions cannot be resolved without reference to the
particular sentencing record developed in the trial court. [Citation.]” (People v. Pirali
(2013) 217 Cal.App.4th 1341, 1347.)
Defendant’s contentions about the search conditions appear to raise facial
challenges to whether the conditions are constitutional.
A. Validity of Search Conditions
“Generally speaking, conditions of probation ‘are meant to assure that the
probation serves as a period of genuine rehabilitation and that the community is not
harmed by the probationer’s being at large. [Citation.] These same goals require and
At the sentencing hearing, the court verbally stated this particular condition as
submitting “his person and property including residence to search,” without going into
the same detail or including electronic devices. At the conclusion of the sentencing
hearing, the court stated that defendant had signed the order that set forth the terms and
conditions of probation. The court’s written order states that defendant was ordered to
“[s]ubmit your person and property, including any residence, premises, container,
electronic device, or vehicle under your control to search and seizure at any time of the
day or night by any law enforcement or probation officer with or without a warrant.”
Defendant signed this form and acknowledged that he understood the terms and
conditions of probation.

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31.
justify the exercise of supervision to assure that the restrictions are in fact observed.’
[Citation.] For example, probation conditions authorizing searches ‘aid in deterring
further offenses … and in monitoring compliance with the terms of probation.
[Citations.] By allowing close supervision of probationers, probation search conditions
serve to promote rehabilitation and reduce recidivism while helping to protect the
community from potential harm by probationers.’ [Citation.] A condition of probation
that enables a probation officer to supervise his or her charges effectively is, therefore,
‘reasonably related to future criminality.’ [Citations.]” (People v. Olguin (2008) 45
Cal.4th 375, 380–381.)
A warrantless search condition “is intended to ensure that the [probationer] is
obeying the fundamental condition of all grants of probation, that is, the usual
requirement … that a probationer ‘obey all laws.’ ” (People v. Balestra, supra, 76
Cal.App.4th at p. 67.) This is true “even if [the] condition … has no relationship to the
crime of which a defendant was convicted ....” (People v. Olguin, supra, 45 Cal.4th at
p. 380.)
The purpose of requiring Fourth Amendment search waivers as a condition of
probation and parole is “to determine not only whether [the offender] disobeys the law,
but also whether he obeys the law. Information obtained [from an unexpected and
unprovoked search] afford[s] a valuable measure of the effectiveness of the supervision
given the defendant ....” (People v. Olguin, supra, 45 Cal.4th at p. 382.)
To the extent defendant challenges the validity of the basic search conditions for
his person and property, such conditions have repeatedly been found reasonable and
constitutional. (See, e.g., People v. Ramos (2004) 34 Cal.4th 494, 505–506; People v.
Middleton (2005) 131 Cal.App.4th 732, 739; People v. Reyes (1998) 19 Cal.4th 743, 753;
People v. Bravo (1987) 43 Cal.3d 600, 607.) “ ‘[W]hen defendant in order to obtain
probation specifically agreed to permit at any time a warrantless search of his person, car

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and house, he voluntarily waived whatever claim of privacy he might otherwise have
had.’ [Citations.]” (People v. Ramos, supra, 34 Cal.4th at p. 506.)
B. Electronic Search Condition
The search condition in this case also required defendant to submit any “electronic
device” to search and seizure. Defendant relies on a series of federal and state rulings
and argues the electronic search condition is unconstitutional because it is vague and
overly broad.
In Riley v. California (2014) __ U.S. __ [134 S.Ct. 2473] (Riley), the court held
that the search incident to arrest exception to the warrant requirement did not apply to
searches of data on a cell phone seized from an arrestee. (Id. at p. 2485.) Riley explained
the ordinary justifications for searches incident to arrest were to prevent harm to officers
and destruction of evidence, but there were “no comparable risks when the search is of
digital data.” (Ibid.) “Digital data stored on a cell phone cannot itself be used as a
weapon to harm an arresting officer or to effectuate the arrestee’s escape. Law
enforcement officers remain free to examine the physical aspects of a phone to ensure
that it will not be used as a weapon – say, to determine whether there is a razor blade
hidden between the phone and its case. Once an officer has secured a phone and
eliminated any potential physical threats, however, data on the phone can endanger no
one.” (Ibid.)
Riley contrasted the government’s interests with the heightened privacy interests
that people have in their cell phone data. Riley compared cell phones to
“minicomputers,” and noted both the volume of sensitive data they contain and the
pervasiveness of cell phone usage. (Riley, supra, 134 S.Ct. at p. 2489.) Cell phone data
is “qualitatively different” (id. at p. 2490) from physical records and could include
information like location data or Internet browsing history, that would “typically expose
to the government far more than the most exhaustive search of a house.” (Id. at p. 2491,
original italics.)

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33.
“Modern cell phones are not just another technological convenience.
With all they contain and all they may reveal, they hold for many
Americans ‘the privacies of life,’ [citation]. The fact that technology now
allows an individual to carry such information in his hand does not make
the information any less worthy of the protection for which the Founders
fought. Our answer to the question of what police must do before searching
a cell phone seized incident to an arrest is accordingly simple –get a
warrant.” (Id. at pp. 2494–2495.)
Riley reversed and remanded the case but emphasized that its holding was only
that cell phone data is subject to Fourth Amendment protection, “not that the information
on a cell phone is immune from search.” (Riley, supra, 134 S.Ct. at p. 2493.) “Even
though the search incident to arrest exception does not apply to cell phones, other case-
specific exceptions may still justify a warrantless search of a particular phone,” such as
the exigent circumstances exception. (Ibid.)
In Carpenter v. United States (2018) __ U.S. __ [138 S.Ct. 2206] (Carpenter), the
police arrested four men who were suspecting of committing several robberies. One of
the men provided the police with cell phone numbers for other accomplices. Based on
this information, the FBI applied for and obtained court orders under the Stored
Communications Act to obtain cell phone records for the suspected accomplices from
wireless carriers, that showed location-related data obtained from their cell phones. The
orders were issued under the statute and not pursuant to a search warrant. (Id. at
pp. 2212–2213.)
Carpenter held the orders were invalid because the statute only required the
government to show “reasonable grounds” to believe the records were relevant to an
ongoing investigation. (Carpenter, supra, 138 S.Ct. at p. 2212) “[T]his Court has never
held that the Government may subpoena third parties for records in which the suspect has
a reasonable expectation of privacy.” (Id. at p. 2221.) “If the choice to proceed by
subpoena provided a categorical limitation on Fourth Amendment protection, no type of
record would ever be protected by the warrant requirement.” (Id. at p. 2222)

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Carpenter rejected the government’s arguments that the information was rendered
less private because it was part of business records or because, by using the cell phone,
the individual had technically disclosed the location information to the wireless carrier.
Carpenter acknowledged its previous holding in Riley and the “unique nature of cell
phone location records.” (Carpenter, supra, 138 S.Ct. at p. 2217.) Carpenter concluded
“that the Government must generally obtain a warrant supported by probable cause
before acquiring such records.” (Id. at p. 2221.)
In People v. Appleton (2016) 245 Cal.App.4th 717 (Appleton), the defendant was
charged with sex offenses committed on a minor that he met on social media. He later
pleaded guilty to false imprisonment by means of deceit and was placed on probation.
One of the probation conditions was for his electronic devices to be subject to “ ‘forensic
analysis search for material prohibited by law.’ ” (Id. at p. 721.) Appleton held the
search condition was valid under Lent because it was reasonably related to his crime.
However, it was unconstitutionally overly broad under Riley because it allowed “for
searches of vast amounts of personal information unrelated to defendant’s criminal
conduct or his potential future criminality,” (Appleton, supra, at p. 727) such as his
medical and financial records, “personal diaries, and intimate correspondence with family
and friends.” (Id. at p. 725.)
In United States v. Lara (9th Cir. 2016) 815 F.3d 605, 610, the court held a
probation condition for search of “person and property, including any residence,
premises, container or vehicle under [his] control” did not include cell phone data.
In People v. Sandee (2017) 15 Cal.App.5th 294 (rev. den.) (Sandee), the defendant
was on probation and subject to a search condition for her property and personal effects.
An officer stopped the defendant after she left a house that was under surveillance for
drug activity. The officer confirmed the search condition, searched her cell phone, and
found text messages that were possibly related to drug sales. (Id. at pp. 298–299.)

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Sandee held the defendant’s suppression motion was properly denied and the
officer’s search of the cell phone was valid under the probation search condition.
“[A]t the time the search was conducted a reasonable, objective person
would understand it to encompass a search of [defendant’s] cell phone. In
the probation search condition, [defendant] agreed to submit her ‘property’
and ‘personal effects’ to search at any time. The probation search condition
is worded very broadly and contains no language whatsoever that would
limit the terms ‘property’ and ‘personal effects’ to exclude [defendant’s]
cell phone or other electronic devices and the data stored on them. As a cell
phone is indisputably the property of the person who possesses it and
constitutes part of his or her personal effects, a reasonable person would
understand the terms ‘property’ and ‘personal effects’ to include [the
defendant’s] cell phone and the data on it.” (Sandee, supra, 15 Cal.App.5th
at p. 302, fn. omitted.)
Sandee rejected the Ninth Circuit’s holding in Lara because it “did not follow the
approach normally employed by the California Supreme Court in assessing the validity of
a search conducted pursuant to a probation search condition, under which the probationer
is understood to have consented to all searches within the scope of the probation search
condition, as interpreted on an objective basis. [Citation.]” (Sandee, supra, 15
Cal.App.5th at p. 302.) Sandee acknowledged Riley but concluded there was nothing in
Riley to suggest that cell phones “should not be understood as a type of personal
property” within the scope of a probation search. (Sandee, supra, at p. 302, fn. 5, original
italics.)
C. Analysis
Defendant contends the electronic search condition is unconstitutionally vague and
overbroad. Neither Riley nor Carpenter addressed the constitutionality of search
conditions imposed pursuant to probation or parole. The defendants in those cases had
not been convicted of crimes at the time of the searches, and Riley acknowledged that
there could be circumstances where a warrantless search of electronic devices would be
valid. Neither Riley nor Carpenter are applicable to defendant’s case.

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36.
“Warrantless searches are justified in the probation context because they aid in
deterring further offenses by the probationer and in monitoring compliance with the terms
of probation. [Citations.] By allowing close supervision of probationers, probation
search conditions serve to promote rehabilitation and reduce recidivism while helping to
protect the community from potential harm by probationers. [Citation.]” (People v.
Robles (2000) 23 Cal.4th 789, 795.)
This case is fundamentally different than Riley since a defendant has a
significantly diminished expectation of privacy as a probationer, and the government has
a greater interest to protect the safety of the public from future criminal offenses
committed by probationers.
While searches involving electronic devices may raise unique issues of privacy not
found in searches of these more traditional categories, there is no reason to depart from
the well-recognized treatment of search conditions when that condition implicates
electronic devices. Indeed, a person’s home also contains considerable personal and
confidential information and is a place where a person has the absolute right to be left
alone, but conditions which grant broad authority to search the home of a probationer or
parolee without a warrant or reasonable cause have been upheld. (People v. Reyes, supra,
19 Cal.4th at pp. 746, 754; People v. Ramos, supra, 34 Cal.4th at 494, 505–506; In re
Binh L. (1992) 5 Cal.App.4th 194, 203–205; People v. Balestra, supra, 76 Cal.App.4th at
pp. 66–68; see also United States v. Mitchell (11th Cir. 2009) 565 F.3d 1347, 1351, 1352
[comparing “the hard drive of a computer” to the “ ‘the digital equivalent of its owner’s
home, [as] capable of holding a universe of private information’ ”].)
In the absence of further guidance from the United States or California Supreme
Court, we agree with the analysis in Sandee that the inclusion of a search condition for
electronic devices is not vague or overly broad based on defendant’s limited expectation

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37.
of privacy. We find the state’s interest in preventing future criminal behavior justified
the search conditions imposed in this case, and they are not unconstitutional under Riley.7
DISPOSITION
The judgment is affirmed.
______________________
POOCHIGIAN, Acting P.J.
WE CONCUR:
______________________
DETJEN, J.
______________________
PEÑA, J.
7 There are several cases pending before the California Supreme Court regarding
the reasonableness and constitutionality of electronic search conditions, and there is a
split of authority in those cases regarding the validity of such conditions. (See, e.g.,
People v. Trujillo (2017) 15 Cal.App.5th 574, 223 Cal.Rptr.3d 268, review granted Nov.
29, 2017, S244650; In re R.S. (2017) 11 Cal.App.5th 239, 219 Cal.Rptr.3d 665, review
granted July 26, 2017, S242387; People v. Bryant (2017) 10 Cal.App.5th 396, 215
Cal.Rptr.3d 740, review granted June 28, 2017, S241937; People v. Nachbar (2016) 3
Cal.App.5th 1122, 207 Cal.Rptr.3d 855, review granted Dec. 14, 2016, S238210; In re
J.E. (2016) 1 Cal.App.5th 795, 205 Cal.Rptr.3d 28, review granted Oct. 12, 2016,
S236628; In re A.S. (2016) 245 Cal.App.4th 758, 200 Cal.Rptr.3d 100, review granted
May 25, 2016, S233932; In re Mark C. (2016) 244 Cal.App.4th 520, 197 Cal.Rptr.3d
865, review granted Apr. 13, 2016, S232849; In re Alejandro R. (2015) 243 Cal.App.4th
556, 196 Cal.Rptr.3d 651, review granted Mar. 9, 2016, S232240; In re Ricardo P.
(2015) 241 Cal.App.4th 676, 193 Cal.Rptr.3d 883, review granted Feb. 17, 2016,
S230923; In re Patrick F. (2015) 242 Cal.App.4th 104, 194 Cal.Rptr.3d 847, review
granted Feb. 17, 2016, S231428.)

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