People v. Magana CA2/7 ( 2021 )

Filed 12/8/21 P. v. Magana CA2/7
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B280357
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA083962)
v.
WUENDY M. MAGANA et al.,
Defendants and
Appellants.
APPEALS from judgments of the Superior Court of
Los Angeles County, Daniel B. Feldstern, Judge. Affirmed.
Karyn H. Bucur, under appointment by the Court of
Appeal, for Defendant and Appellant Wuendy M. Magana.
William L. Heyman, under appointment by the Court of
Appeal, for Defendant and Appellant Maria Clemencia Estrada.
Xavier Becerra, Rob Bonta, Attorneys General, Gerald A.
Engler, Lance E. Winters, Chief Assistant Attorneys General,
Lance Winters, Susan Sullivan Pithey, Senior Assistant
Attorneys General, Zee Rodriguez, Supervising Deputy Attorney
General, Steven E. Mercer, Noah P. Hill and Michael C. Keller,
Deputy Attorneys General, for Plaintiff and Respondent.
___________________
Wuendy M. Magana and Maria Clemencia Estrada pleaded
no contest to the charge of transporting a controlled substance
and were given a split sentence of jail time followed by
mandatory supervision. This is the third time we have
considered their appeals challenging as unconstitutional the
electronics search condition imposed as a requirement of
mandatory supervision. We vacated our initial opinion rejecting
their constitutional argument and affirming the judgments
following the Supreme Court’s grant of review and transfer to
this court with instructions to reconsider our decision in light of
the Court’s opinion addressing a related issue in In re Ricardo P.
(2019) 7 Cal.5th 1113, 1128 (Ricardo P.). We again upheld the
search condition and affirmed the judgments. We now vacate
that second opinion and, at the Supreme Court’s direction,
reconsider Magana and Estrada’s appeal in light of People v.
Bryant (2021) 11 Cal.5th 976 (Bryant). We once again uphold the
search conditions and affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
1. Magana and Estrada’s No-contest Pleas and Sentence
On July 22, 2015 Los Angeles County Sheriff’s Deputy John
Leitelt conducted a traffic stop of an SUV in the area of
Interstate 5 north of Castaic. Magana was in the driver’s seat;
her sister, Estrada, was in the front passenger seat. After
receiving permission to search the vehicle, Leitelt opened a black
suitcase in the rear storage area of the SUV and found
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five wrapped packages containing a total of 4.992 kilograms of
cocaine. Leitelt also found four cell phones in the SUV.
Magana and Estrada were charged with the sale or
transport of a controlled substance (Health & Saf. Code, § 11352,
subd. (a)), with a special allegation that the weight of the
controlled substance exceeded four kilograms (Health & Saf.
Code, § 11370.4, subd. (a)(2)). After initially pleading not guilty
prior to an unsuccessful motion to suppress evidence, Magana
and Estrada each pleaded no contest to the charge of
transporting a controlled substance and admitted the special
allegation the controlled substance exceeded four kilograms by
weight.
The trial court sentenced both Magana and Estrada to
eight-year terms in county jail (the lower term of three years for
the substantive offense plus five years for the weight
enhancement), but suspended execution of five years on each
sentence and placed both women on mandatory supervision for
five years pursuant to Penal Code section 1170,
subdivision (h)(5). (See generally Bryant, supra, 11 Cal.5th at
pp. 982-983 [the 2011 Realignment Act (Stats. 2011, ch. 15, § 1)
authorized in Penal Code section 1170, subdivision (h)(5), a
hybrid sentence of jail time followed by mandatory supervision, a
category of supervision distinct from both probation and parole].)
One of the conditions of mandatory supervision imposed by
the court required Magana and Estrada to “submit their person
and property to search and seizure at any time of the day or night
by any probation officer or other peace officer, with or without a
warrant, probable cause, or reasonable suspicion. And this
search and seizure condition involves their person, residence,
vehicles, electronic information, and personal belongings. And
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[as to the] property subject to search and seizure, which includes
any electronic devices owned or possessed by the defendants, they
are consenting to provide passwords and any access to those
phones or other electronic devices as a condition of this search
and seizure. And that’s pursuant to California Electronics
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Communication Privacy Act.”
Neither Magana nor Estrada objected to this (or any)
condition the court imposed for the five-year period of mandatory
supervision.
2. The History of Magana and Estrada’s Appeal
Challenging the Electronics Search Condition
In May 2019 we affirmed the judgment, rejecting Magana
and Estrada’s argument the electronics search condition was
unconstitutionally overbroad in violation of the Fourth
1
The search condition as recorded in the court’s minute
orders is slightly different: “[S]ubmit your person and property to
search and seizure at any time of the day or night, by any
probation officer or other peace officer, with or without a warrant,
probable cause or reasonable suspicion. [¶] As part of your
supervision, whether probation, mandatory supervision,
community supervision or parole, you will be required to submit
your person, residence, vehicle, electronic information, and
personal belongings to search or seizure, at any time of the day or
night, with or without probable cause by any law enforcement
officer. You will also be waiving all rights under the Electronic
Communications Privacy Act specified in Penal Code section 1546
through 1546.4 for the duration of your supervision period.” The
court’s oral pronouncement of the condition, which included the
requirement that Magana and Estrada provide passwords for
their electronic devices, controls over the clerk’s minute order.
(See People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v.
Mullins (2018) 19 Cal.App.5th 594, 612.)
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Amendment to the United States Constitution. In July 2019 the
Supreme Court granted Magana’s and Estrada’s petitions for
review and deferred further action pending its consideration of a
related issue in In re Ricardo P., S230923, which involved the
question whether an electronics search condition imposed as a
condition of probation in a juvenile wardship proceeding was
reasonably related to the juvenile’s “future criminality” within
the meaning of People v. Lent (1975) 15 Cal.3d 481 (Lent).
(See Lent, at p. 486 [articulating a case-by-case three-prong test
to determine whether a probation condition is unreasonable].) A
divided Supreme Court held in Ricardo P. that, based on the
record before it, the electronics search condition was not
reasonably related to future criminality, the third prong of the
Lent test, and was therefore invalid. (Ricardo P., supra,
7 Cal.5th at p. 1128.) The Court majority did not reach the
question of overbreadth. (See id. at p. 1118.)
Following its decision in Ricardo P., the Supreme Court
transferred Magana and Estrada’s case to us with directions to
vacate our prior decision and reconsider the matter in light of its
decision in Ricardo P. We once again affirmed the judgment in
January 2020, rejecting Magana and Estrada’s overbreadth
challenge. Among the grounds for our decision, we held
individuals on mandatory supervised release possess a
diminished privacy interest comparable to that of parolees rather
than probationers. (People v. Magana (Jan. 27, 2020, B280357)
[nonpub. opn.].) We further held that, unlike in Ricardo P., the
electronics search condition in this case bore a reasonable
relationship to the crime of transporting a controlled substance
and furthered the state’s interest in preventing future
criminality. We explained any challenge to the search condition
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other than facial overbreadth had been forfeited based on
Magana and Estrada’s failure to object to the condition at
sentencing.
The Supreme Court granted Magana and Estrada’s
petitions for review and subsequently transferred the matter to
this court for reconsideration in light of its decision in Bryant,
supra, 11 Cal.5th 976, which held the privacy interest at issue for
those on mandatory supervision is more akin to that possessed by
probationers than parolees. (Id. at pp. 983, 985-986.) The Bryant
Court further held the Lent case-by-case analysis for
reasonableness of probation conditions applies to conditions of
mandatory supervision just like conditions of probation. (Bryant,
at p. 983.) Although not included in the Supreme Court’s
transfer order, we again vacate our prior decision in the case at
bar to fully reconsider Magana and Estrada’s overbreadth
challenge in accordance with the Court’s most recent
2
pronouncements in Bryant.
DISCUSSION
1. Governing Law
In Bryant the Supreme Court resolved a question not
directly addressed by the Legislature in the 2011 Realignment
Act, namely, how the validity of mandatory supervision
conditions are to be reviewed. (See Bryant, supra, 11 Cal.5th at
p. 983 [“The Realignment Act does not speak directly to how the
validity of mandatory supervision conditions are to be
assessed”].) The Court held the Lent test, historically used to
2
Estrada and the Attorney General filed supplemental briefs
addressing the Court’s decision in Bryant. Magana joined
Estrada’s arguments.
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evaluate the reasonableness of conditions of probation, should
also be employed “in this new context.” (Ibid. [“[Our] review of
the statutory provisions governing mandatory supervision
reveals a scheme similar to that governing probationers with
respect to conditions of release. The balance of interests between
effective supervision and an individual’s privacy concerns does
not substantially differ between probation and mandatory
supervision settings”].)
a. Statutory limits on sentencing court’s discretion to
impose conditions of probation
A sentencing court has broad discretion to determine
whether an eligible defendant is suitable for probation and, if so,
under what conditions. (Bryant, supra, 11 Cal.5th at p. 984;
People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.) Penal
Code section 1203.1, subdivision (j), authorizes the sentencing
court to impose conditions on a criminal defendant released on
probation that are “fitting and proper to the end that justice may
be done, that amends may be made to society for the breach of
the law, for any injury done to any person resulting from that
breach, and generally and specifically for the reformation and
rehabilitation of the probationer.” The conditions the court may
impose, however, are not unlimited. “‘[A] condition of probation
must serve a purpose specified in the statute,’ and conditions
regulating noncriminal conduct must be ‘“reasonably related to
the crime for which the defendant was convicted or to future
criminality.”’” (People v. Moran (2016) 1 Cal.5th 398, 403.)
In Lent, supra, 15 Cal.3d at page 486 the Court explained
“[t]he Legislature has placed in trial judges a broad discretion in
the sentencing process, including the determination as to
whether probation is appropriate and, if so, the conditions
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thereof. (Pen. Code, § 1203 et seq.) A condition of probation will
not be held invalid unless it ‘(1) has no relationship to the crime
of which the offender was convicted, (2) relates to conduct which
is not in itself criminal, and (3) requires or forbids conduct which
is not reasonably related to future criminality . . . .’ [Citation.]
Conversely, a condition of probation which requires or forbids
conduct which is not itself criminal is valid if that conduct is
reasonably related to the crime of which the defendant was
convicted or to future criminality.” (See Ricardo P., supra,
7 Cal.5th at p. 1128 [“Lent is an interpretation of the
Legislature’s requirement [in Penal Code, section 1203.1,
subdivision (j)] that probation conditions be ‘reasonable’”].)
In Bryant the defendant (Bryant) was convicted of carrying
a concealed firearm in a vehicle, with related findings. The court
imposed a split sentence (Penal Code, § 1170, subd. (h)(5)) of
two years in the county jail with the last 364 days to be served on
mandatory supervision. Over Bryant’s objection the court
imposed an electronics search condition requiring Bryant “‘to
submit to search of any electronic device either in his
possession[,] including cell phone[,] and/or any device in his place
of residence. Any search by probation is limited to defendant[’s]
text messages, emails, and photos on such devices.’” (Bryant,
supra, 11 Cal.5th at p. 981.)
On appeal Bryant challenged the search condition as
unreasonable under Lent, supra, 15 Cal.3d 481. The court of
appeal, applying Lent, agreed. Following the Supreme Court’s
grant of their petition for review, the People argued the
electronics search condition was categorically reasonable,
comparing the privacy interest for persons on mandatory
supervision to those on parole and insisting the individualized
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3
Lent assessment did not apply. The Bryant Court rejected that
comparison, holding, “[e]mploying the Lent test to assess
mandatory supervision conditions best implements the
Legislature’s stated goals. The trial court retains broad
discretion to fashion these conditions subject to review for abuse
of discretion. [¶] As in the probation context, imposing an
electronics search condition for those on mandatory supervision
requires the court to balance the need for meaningful supervision
and rehabilitation with the burden imposed by the condition.
There may, indeed, be valid reasons for such a condition, but they
must be supported by information in the record relating the
condition to the defendant’s criminal conduct or personal
history.” (Bryant, supra, 11 Cal.5th at p. 991.)
b. Constitutional limitations/overbreadth
In addition to the statutory limits on the court’s discretion
to impose probation conditions, a “probation condition that
imposes limitations on a person’s constitutional rights must
closely tailor those limitations to the purpose of the condition to
avoid being invalidated as constitutionally overbroad.” (In re
Sheena K. (2007) 40 Cal.4th 875, 890.) “‘The essential question in
an overbreadth challenge is the closeness of the fit between the
legitimate purpose of the restriction and the burden it imposes on
the defendant’s constitutional rights—bearing in mind, of course,
3
The People did not argue, and the Bryant Court expressly
did not consider whether, the electronics search condition was
valid under the Lent test. (Bryant, supra, 11 Cal.5th at p. 992
[the People concede the “‘electronics search condition would be
invalid if assessed . . . in the same way as a probation condition.’
We accept that concession and do not review the Court of
Appeal’s determination as to the condition imposed on Bryant”].)
9
that perfection in such matters is impossible and that practical
necessity will justify some infringement.’” (People v. Appleton
(2016) 245 Cal.App.4th 717, 723, quoting In re E.O. (2010)
188 Cal.App.4th 1149, 1153; see Ricardo P., supra, 7 Cal.5th at
p. 1128 [recognizing that “‘[w]here a condition of probation
requires a waiver of precious constitutional rights, the condition
must be narrowly drawn; to the extent it is overbroad it is not
reasonably related to the compelling state interest in reformation
and rehabilitation and is an unconstitutional restriction on the
exercise of fundamental constitutional rights’”]; see generally
Williams v. Garcetti (1993) 5 Cal.4th 561, 577 [“the overbreadth
doctrine provides that a ‘governmental purpose to control or
prevent activities constitutionally subject to state regulation may
not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms’”].)
2. Magana and Estrada Have Forfeited All but Their
Facial Overbreadth Challenge to the Electronics Search
Condition
Unlike the defendant in Bryant, Magana and Estrada did
not object to the electronics search condition in the trial court.
Accordingly, whether that condition is reasonable as applied to
them within the meaning of Lent has been forfeited. (See People
v. Moran, supra, 1 Cal.5th at p. 404, fn. 7; In re Sheena K., supra,
40 Cal.4th at p. 889 [the forfeiture rule applies to constitutional
challenges to probation conditions if the constitutional question
cannot be resolved without reference to the sentencing record
developed by the trial court]; People v. Brand (2021)
59 Cal.App.5th 861, 867-868 [failure to object in trial court to
conditions of mandatory supervision resulted in forfeiture of any
challenge to condition based on the requirements in Lent];
cf. Ricardo P., supra, 7 Cal.5th at pp. 1125-1127 [reaching
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reasonableness of condition under Lent if defendant objected to
the condition in juvenile court].)
Magana and Estrada’s facial challenge to the constitutional
validity of the condition—their overbreadth challenge—in
contrast, is amenable to appellate review. (See In re Sheena K.,
supra, 40 Cal.4th at p. 889 [a constitutional challenge to a
probation condition based on vagueness or overbreadth may be
reviewed on appeal if it presents an error that is “a pure question
of law, easily remediable on appeal by modification of the
condition”]; People v. Brand, supra, 59 Cal.App.5th at p. 868
[although failure to object to condition of mandatory supervision
resulted in forfeiture of Lent challenge on appeal, appellant’s
facial constitutional challenge, which did not require scrutiny of
individual facts and circumstances of his case, had not been
4
forfeited].)
3. The Electronics Search Condition Is Not Overbroad
Emphasizing that today’s smartphone is a powerful
computer containing for many “‘the privacies of life’” (Riley v.
California (2014) 573 U.S. 373, 373, 403; accord, Bryant, supra,
11 Cal.5th at p. 990 [“When it comes to electronics searches we,
and the United States Supreme Court, have recognized that the
4
Although Magana and Estrada have forfeited any
argument relating to the reasonableness of the condition under
Lent, we recognize some overlap between the overbreadth
analysis and the third prong of Lent, as interpreted by the
Supreme Court in Ricardo P. (See Ricardo P., supra, 7 Cal.5th at
p. 1128 [“both Lent, as we interpret it here, and a constitutional
overbreadth analysis require a court to assess the relative
burdens and benefits of probation [and mandatory supervision]
conditions”].)
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degree of intrusion posed by sweeping access to such devices is
great in light of their ‘“immense storage capacity”’ and the highly
personal nature of the information stored on them”]), Magana
and Estrada argue the condition authorizing unlimited searches
of their smartphones and other personal electronic devices,
rather than restricting permissible searches to data that may be
reasonably likely to contain indicia of illegal conduct, was
unconstitutionally overbroad in violation of their Fourth
Amendment right to be free from unreasonable searches and
5
seizures and their right to privacy.
As Magana and Estrada acknowledged in their opening
appellate briefs, however, cell phones are frequently used in
connection with the transportation and sale of cocaine and
requiring a defendant convicted of violating Health & Safety
Code section 11352, subdivision (a), to permit law enforcement
officers to search his or her cell phone as a condition of
mandatory supervision serves a legitimate state interest.
Accordingly, unlike the electronics search condition in Ricardo P.,
involving burglary offenses, the connection between the use of
cell phones, four of which were found in the SUV at the time of
Magana’s and Estrada’s arrests, and the crime with which they
were charged, is plain and undisputed. (Cf. Ricardo P., supra,
7 Cal.5th at pp. 1119-1120 [expressing skepticism about juvenile
court’s inference Ricardo was on drugs at time of the burglaries
“as well as the juvenile court’s generalization about teenagers’
tendency to brag about drug use online”].)
5
We review de novo a constitutional challenge to a condition
of mandatory supervision. (See People v. Brand, supra,
59 Cal.App.5th at p. 867; Appleton, supra, 245 Cal.App.4th at
p. 723.)
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Magana and Estrada stress the electronics search condition
in the case at bar is not limited to particular content on the cell
phone or even to a particular electronic device. However, they
presented no evidence in the trial court that cell phones used in
drug transactions are utilized in a particular manner. Moreover,
because Magana and Estrada did not object to the electronics
search condition in the trial court, we do not know what type of
electronic devices they own or possess and whether searching any
of those devices would permit access to anything more than
emails, text and voicemail messages, call logs and, perhaps,
photographs. (Cf. Ricardo P., supra, 7 Cal.5th at p. 1123
[electronics search condition allowed not only for a warrantless
search of juvenile’s electronic devices, but also “any electronic
accounts that could be accessed through these devices” and
required Ricardo to provide full access to “any other data
accessible using electronic devices, which could include anything
from banking information to private health or financial
information to dating profiles”].) Their facial challenge to the
constitutional validity of that condition cannot be based on the
assumed facts that might have been, but were not, developed at
the time of sentencing. (See In re Sheena K., supra, 40 Cal.4th at
pp. 885, 892 [facial challenge “requires the review of abstract and
generalized legal concepts,” not “scrutiny of individual facts and
circumstances”]; People v. Patton (2019) 41 Cal.App.5th 934, 946
[same].)
Magana and Estrada insist no developed factual record was
necessary for this court to conclude, as part of an overbreadth
analysis, that an electronics search condition that allows
unlimited searches of electronic devices with their substantial
storage capacity and wide ranging content is categorically
13
unreasonable and overbroad, regardless of the crime or
circumstances. In finding the electronics search condition in
Ricardo P. unreasonable under Lent, however, the Supreme
Court made clear its “holding does not categorially invalidate
electronics search conditions. In certain cases, the probationer’s
offense or personal history may provide the juvenile court with a
sufficient factual basis from which it can determine that an
electronics search condition is a proportional means of deterring
the probationer from future criminality. [Citations.] But in this
case, on the record before us, the electronics search condition
imposes a burden that is substantially disproportionate to the
legitimate interests in promoting rehabilitation and public
safety.” (Ricardo P. at pp. 1128-1129.) It may well be that a fully
developed factual record like the one in Ricardo P. would have
revealed a need to more narrowly tailor the search condition at
issue to be valid under Lent, or even to pass constitutional
muster as applied to Magana and Estrada. However, in this
case, absent such a factual record, we reject Magana and
Estrada’s contention that an electronics search condition that
allows for law enforcement’s unrestricted access to the content on
electronic devices for individuals convicted of transporting a large
quantity of illegal drugs is, a priori, constitutionally overbroad on
its face, even under the greater privacy interest for those on
mandatory supervision the Court recognized in Bryant.
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DISPOSITION
The judgments are affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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