People v. Escobar CA2/8

Filed 6/16/23 P. v. Escobar CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B324277
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA120181)
v.
MELODY ESCOBAR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Tomson T. Ong, Judge. Affirmed in part; reversed
in part and remanded with directions.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kenneth C. Byrne and Blake Armstrong, Deputy
Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Melody Escobar pled no contest to
one count of taking or driving a vehicle without permission. The
trial court placed her on two years formal probation. One of the
conditions of probation required defendant to submit to the search
and seizure of all electronic devices. Defendant’s sole contention on
appeal is that the electronics search condition is overbroad and not
reasonably related to the underlying crime or preventing future
criminality.
We strike the electronics search condition as phrased based
on overbreadth and remand with directions for the limited purpose
of allowing the trial court the opportunity to impose a more
narrowly tailored electronics search condition. We otherwise affirm
the judgment of conviction.
FACTUAL AND PROCEDURAL SUMMARY
Defendant was charged, along with codefendant Luis
Armando Morales, with carjacking (Pen. Code, § 215, subd. (a);
count 1). Codefendant Morales was charged with three additional
felonies, including assault with a semiautomatic firearm.
The charges arose from an incident that occurred in July
2022. Defendant asked the victim for a ride to her home, which was
only about a block away. When the victim stopped his car in front
of defendant’s apartment building, Morales drove up and parked
right behind him. Morales got out and confronted the victim,
pointing a gun at him and telling him to get out of the car and hand
over the keys or he would kill him. In fear for his life, the victim
complied. Defendant and Morales then walked into the apartment
building where defendant lived. The next day, the victim saw
defendant driving his car and contacted the police. When the police
detained defendant driving the victim’s car, she was found in
possession of a glass pipe and two baggies containing a substance
resembling methamphetamine.
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On August 24, 2022, the court granted the prosecution’s
motion to amend the complaint by interlineation to add a count
charging defendant with driving or taking a vehicle without
permission (Veh. Code, § 10851, subd. (a); count 5). Defendant pled
no contest to count 5. The court accepted defendant’s waivers on
the record, found them to be made voluntarily and knowingly and,
with counsels’ stipulation, found a factual basis for the plea.
Defendant had no prior criminal history and no known
involvement with gangs. The court placed defendant on two years
of formal probation. Defendant was ordered to serve 210 days in
county jail and was credited with 20 days of presentence custody
credits (10 actual, 10 conduct). The court imposed various terms
and conditions of probation, including that defendant not use or
possess any controlled substances and not associate with any
persons known to her to be users or sellers of controlled substances.
Over defense counsel’s objection, the court also ordered that
defendant must submit herself and her property “at any time, day
or night” to search and seizure “including electronic searches.”
After defense counsel objected to including defendant’s electronic
devices in the search condition, the court did not articulate any
reason why the search condition was reasonable under the
circumstances.
This appeal followed.
DISCUSSION
Defendant contends the court’s electronics search condition is
overbroad and that there is no evidentiary basis in the record for
imposing it. We review conditions of probation under the
deferential abuse of discretion standard. (In re Ricardo P. (2019)
7 Cal.5th 1113, 1118 (Ricardo P.).) “Specifically, we review a
probation condition ‘for an indication that the condition is
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“arbitrary or capricious” or otherwise exceeds the bounds of reason
under the circumstances.’ ” (Ibid.)
In selecting probation as the appropriate sentence, the trial
court may impose such “reasonable conditions, as it may determine
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.” (Pen. Code, § 1203.1, subd. (j).)
Where, as here, a condition of probation requires or forbids
conduct that is not itself criminal, the condition is nonetheless valid
“ ‘if that conduct is reasonably related to the crime of which the
defendant was convicted or to future criminality.’ ” (Ricardo P.,
supra, 7 Cal.5th at p. 1118.) A reviewing court will not invalidate a
condition of probation “ ‘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.” ’ ” (Ibid.,
quoting People v. Lent (1975) 15 Cal.3d 481, 486.) All three
elements, of what is commonly referred to as the Lent test, must be
satisfied for the condition to be found invalid. (Ricardo P., at
p. 1118.) “[T]he Lent test governs in juvenile and adult probation
cases alike.” (Id. at p. 1119.)
In Ricardo P., the minor admitted two counts of felony
burglary and was placed on probation. (Ricardo P., supra, 7 Cal.5th
at p. 1115.) There was no evidence the minor used an electronic
device during the commission of the burglaries or was on drugs or
high at the time. The minor had told the probation officer he had
stopped smoking marijuana because he said he did not think clearly
when he used it. (Id. at pp. 1115-1116.) The juvenile court imposed
as conditions of probation various prohibitions against using illegal
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drugs and also required the minor to submit to warrantless
searches of his electronic devices at any time. (Ibid.) The court
imposed the electronics search condition to facilitate the monitoring
of the minor’s compliance with the other terms and conditions of his
probation. (Ibid.)
The minor challenged the electronics search condition on
appeal, but the Court of Appeal upheld the condition, reasoning
“that the electronics search condition ‘is reasonably related to
enabling the effective supervision of [the minor’s] compliance with
his other probation conditions,’ namely, the various drug-related
conditions.” (Ricardo P., supra, 7 Cal.5th at p. 1117.)
The Supreme Court reversed, concluding that the burden
imposed on the minor’s privacy by the unlimited search condition on
his electronic devices was “substantially disproportionate to the
countervailing interests of furthering his rehabilitation and
protecting society.” (Ricardo P., supra, 7 Cal.5th at p. 1119.)
Ricardo P. explained that requiring a probationer to submit
all electronic devices to a search at any time “significantly burdens
privacy interests.” (Ricardo P., supra, 7 Cal.5th at p. 1123.) When
compared to traditional searches of homes or property routinely
allowed as reasonable probationary conditions, the search of an
electronic device presents the potential for a significantly greater
breadth of access to large amounts of information and data. (Id. at
p. 1127.) The plain language of an unlimited search condition
would allow a probation officer full access to the probationer’s e-
mails, text messages, internet search histories, social media
accounts, photographs, videos, personal exchanges with third
parties, and other private information and data stored or accessible
through health and financial applications. (Id. at p. 1123.) Such a
broad and open-ended search condition cannot be justified on the
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ground that it may enhance the “ ‘effective supervision of a
probationer.’ ” (Id. at p. 1127.)
The court may be justified in crafting a more limited
electronics search condition that is tailored to the facts and focused
on defendant’s potential for future criminality. (Ricardo P., supra,
7 Cal.5th at p. 1122 [“courts may properly base probation conditions
upon information in a probation report that raises concerns about
future criminality unrelated to a prior offense”].) But the current
unlimited search condition is overbroad and cannot stand.
DISPOSITION
The electronic search condition as phrased is stricken as
overbroad. The matter is remanded for the limited purpose of
allowing the trial court to exercise its discretion to impose a more
narrowly tailored electronic search condition that is reasonably
related to preventing future criminality within the meaning of
Ricardo P., supra, 7 Cal.5th 1113.
In all other respects, the judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
VIRAMONTES, J.
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