No. D070668.

THE PEOPLE, Plaintiff and Respondent, v. RANDALL LEWIS, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division One.

Attorney(s) appearing for the Case

Patrick Dudley , under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra , Attorney General, Gerald A. Engler , Chief Assistant Attorney General, Julie L. Garland , Assistant Attorney General, Charles C. Ragland and Marvin E. Mizell , Deputy Attorneys General, for Plaintiff and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



Randall Lewis pleaded guilty to one count of grand theft of property with a value exceeding $950 (Pen. Code § 487, subd. (a); count 1).1 The court placed Lewis on three years of formal probation and imposed certain probation terms and conditions. The court committed Lewis to 90 days in county jail with 85 days of credit for time served. On appeal, Lewis challenges two of the probation conditions. First, he contends the condition requiring him to obtain approval from the probation officer regarding his residence is unconstitutionally overbroad. Second, he contends the portion of the Fourth Amendment waiver condition permitting warrantless searches of "computers, and recordable media" is unreasonable and constitutionally overbroad. We conclude Lewis forfeited his challenge to the residence approval condition and, even if he did not, the condition is not unconstitutional. We conclude the warrantless electronic search condition is valid under People v. Lent (1975) 15 Cal.3d 481, 486 (Lent) and is not unconstitutionally overbroad. We affirm the judgment.



Lewis took a bicycle, which a police officer had placed against a tree. Police officers observed Lewis take the bicycle, walk it around a building, and then ride the bicycle down the block. The officers stopped and arrested Lewis for theft. The bicycle was appraised at $4,300 based upon global positioning and radio frequency equipment integrated in the bicycle.


Lewis's criminal history spanned nearly 30 years with numerous misdemeanor and felony convictions, most of which involved crimes related to drugs and alcohol. Although he was granted summary probation on more than 20 occasions over the years, he was unable to remain law abiding.

Based upon the stipulated guilty plea, the court granted formal probation in this case, but imposed various conditions. These conditions included completion of treatment, therapy, and counseling programs, including substance abuse and anti-theft programs. The conditions also prohibited use of controlled substances and alcohol when required by the probation officer and submission to drug and alcohol testing.

Pertinent to this appeal, one probation condition required Lewis to obtain prior approval of his residence. The general Fourth Amendment waiver condition required Lewis to "[s]ubmit [his] person, vehicle, residence, property, personal effects, computers, and recordable media to search at any time with or without a warrant, and with or without reasonable cause. . . ." (Italics added.)

Lewis's counsel objected to probation condition 6.n. regarding warrantless searches in its entirety, and specifically objected to the part of the search condition regarding Lewis's computers and recordable media based on Lent, supra, 15 Cal.3d at page 481 and In re J.B. (2015) 242 Cal.App.4th 749, 758 (J.B.). The court rejected Lewis's objection stating, "I'm imposing 6[.n.], all of it. Full fourth waiver, you, your personal property, your residence can be searched at any time by law enforcement no questions asked. It's a theft case. Again, like guns, like alcohol, unfortunately—that's not my determination, but pictures can be taken of evidence. I think it's appropriate."



General Principles and Standard of Review

Trial courts enjoy wide discretion when determining the conditions and scope of probation. (§ 1203.1 et seq.) A trial court may impose any "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, . . ., and generally and specifically for the reformation and rehabilitation of the probationer. . . ." (§ 1203.1, subd. (j).) Accordingly, a condition will only be invalid if it is: (1) not reasonably related to the defendant's crime, (2) conduct that is otherwise legal, and (3) not reasonably related to preventing future criminality. (Lent, supra, 15 Cal.3d at p. 486.) A party seeking to invalidate a condition must show each of the three prongs is satisfied. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).)

When a probation condition imposes limitations on a constitutional right, the limitations must be closely tailored to the purpose of the condition so as to avoid being unconstitutionally overbroad. (Olguin, supra, 45 Cal.4th at p. 384.) "The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re. E.O. (2010) 188 Cal.App.4th 1149, 1153.)

Probation is not an inherent right; it is an act of leniency. (People v. Wardlow (1991) 227 Cal.App.3d 360, 365.) The purpose of probation is to serve as a "period of genuine rehabilitation." (Griffin v. Wisconsin (1987) 483 U.S. 868, 875.) In California, probationers may consent to limiting their constitutional rights in preference to incarceration. (Olguin, supra, 45 Cal.4th at p. 384.) In other words, a defendant may choose to serve the prison sentence and reject probation if a condition appears too onerous. (Id. at p. 379.)

Generally, we review conditions of probation for abuse of discretion. (Olguin, supra, 45 Cal.4th at p. 379.) However, when a probation condition is challenged on constitutional grounds, we review the condition de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)


Condition Requiring Approval of Lewis's Residence

Lewis contends the probation condition requiring approval of his residence violates his right to travel and freedom of association under the First Amendment. The People contend Lewis forfeited this challenge by failing to object to the condition at the sentencing hearing because the challenge does not present a pure question of law, easily remediable on appeal without reference to the factual record. (In re Sheena K. (2007) 40 Cal.4th 875, 888 (Sheena K.).)

"[A]bsent an objection, a defendant may, on appeal, argue a condition is unconstitutional if the claim presents a `"`pure question[] of law that can be resolved without reference to the particular sentencing record developed in the trial court.'"' ([Sheena K., supra,] 40 Cal.4th [at p.] 889, quoting People v. Welch (1993) 5 Cal.4th 228, 235.) In the usual case, however, probationers are well advised to object at sentencing to conditions they find improper or unjustified, thereby ensuring they have preserved the issue for appeal." (People v. Moran (2016) 1 Cal.5th 398, 403, fn. 5.)

Lewis admitted, "whether the residence approval condition impedes appellant's constitutional right to travel cannot be assessed without at least a glance at the record, given that the condition is not necessarily overbroad in the abstract." Lewis did not object to the residence approval requirement at the sentencing hearing and did not develop a factual record to show an unreasonable impingement of his constitutional rights. As such, he forfeited the challenge to this condition.

Even if we were to exercise our discretion to consider the challenge, the condition is not unconstitutionally overbroad. Although conditions requiring prior approval of a probationer's residence may affect the constitutional rights to travel and freedom of association (People v. Bauer (1989) 211 Cal.App.3d 937, 944 (Bauer)), courts have the authority to do so if there is an indication the probationer's living situation contributed to the crime or would contribute to future criminality. (People v. Soto (2016) 245 Cal.App.4th 1219, 1228.)

Similarly, the right to free association may be limited if it is reasonably necessary to meet the essential needs of rehabilitation and public order. (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1356.) A probation condition limiting the right to association "`is permissible if it is "(1) primarily designed to meet the ends of rehabilitation and protection of the public and (2) reasonably related to such ends."'" (Ibid.)

Lewis's history of substance abuse and criminal activity spans nearly three decades and appears to impact his living situation. He has repeatedly been found sleeping on sidewalks or under trees. He also was involved in disturbances at his prior residences. Unlike in Bauer, supra, 211 Cal.App.3d 937, where the condition appeared designed to prohibit the defendant from living with his overprotective parents, the condition here is reasonably related to Lewis's rehabilitation and protection of the public. Requiring approval of Lewis's residence will allow probation officers to supervise Lewis and limit his exposure to sources of temptation for future criminality. Probation officers cannot withhold residential approval for irrational or capricious reasons. Therefore, the requirement is not unduly burdensome. (Olguin, supra, 45 Cal.4th at p. 383.)


Condition Requiring Warrantless Electronic Searches

Lewis does not challenge on appeal the general waiver of Fourth Amendment protections against warrantless searches. However, he contends the portion of the condition authorizing warrantless searches of computers and recordable media does not satisfy the applicable three-prong test under Lent and is unconstitutionally overbroad. The People concede the electronic search condition is not reasonably related to Lewis's current theft crime and owning computers or recordable media is not itself illegal. Thus, Lewis's condition is only valid if it is reasonably related to preventing future criminality.2

Generally, probation conditions allowing probation officers to effect supervision or enforce other probation requirements are conditions that prevent future criminality. (Olguin, supra, 45 Cal.4th at p. 381.) However, "[n]ot every probation condition bearing a remote, attenuated, tangential, or diaphanous connection to future criminal conduct can be considered reasonable." (People v. Brandao (2012) 210 Cal.App.4th 568, 574.)

We conclude the electronic search condition is reasonable in this case. The trial court approved the electronic search condition as part of the full Fourth Amendment waiver stating it is "a theft case" and "pictures can be taken of evidence." In the same sentence, the court referenced gun and alcohol conditions. We interpret the trial court's scant statement justifying the condition to mean the electronic search condition, along with gun and alcohol restrictions, would aid in Lewis's probation supervision and is reasonably related to deterring future criminality. There was no abuse of discretion in this determination because Lewis's long criminal history and poor performance on probation, largely related to Lewis's chronic drug and alcohol use, shows the need for intensive supervision of Lewis. (See In re J.E. (2016) 1 Cal.App.5th 795, 801, review granted Oct. 12, 2016, S2366283 [electronic search condition is appropriate as "means of effectively supervising" minor with "constellation of issues requiring intensive supervision"], In re P.O. (2016) 246 Cal.App.4th 288, 295 [electronic search condition is reasonably related to future criminality because it enables peace officers to review electronic activity for drugs or probation violations, but condition modified to address overbreadth].)

We are not persuaded the cases of In re Erica R. (2015) 240 Cal.App.4th 907, 914 (Erica R.) and J.B., supra, 242 Cal.App.4th at pages 752, 756 should govern this case. The court in both cases struck electronic search conditions for juvenile probationers because there was no showing of a connection between electronic devices and the crimes committed by the juveniles or for preventing potential future criminal activity. (Erica R., supra, at p. 914; J.B., at p. 756.) Both cases pointed out the difference between adult and juvenile probation. "`"`[J]uvenile probation is not, as with an adult, an act of leniency in lieu of statutory punishment; it is an ingredient of a final order for the minor's reformation and rehabilitation.'" [Citation.] A juvenile "cannot refuse probation [citations] and therefore is in no position to refuse a particular condition of probation." [Citation.] Courts have recognized that a "minor cannot be made subject to an automatic search condition; instead, such condition must be tailored to fit the circumstances of the case and the minor."'" (J.B. at p. 756, quoting Erica R. at p. 914.)

Although not every condition that may aid in supervision of an adult probationer necessarily will be reasonable, Olguin does not require that the supervision method relate to the defendant's past criminal conduct. As the court in Olguin observed, "probation is a privilege and not a right, and that adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights—as, for example, when they agree to warrantless search conditions." (Olguin, supra, 45 Cal.4th at p. 384.)

In this case, Lewis's history as a repeat offender with significant probation noncompliance justifies intensive supervision, including warrantless searches of electronic devices to ensure compliance with the probation conditions. After the court overruled objections to the search condition, Lewis confirmed he agreed with the terms and conditions of probation.

We also conclude Lewis has not established the electronic search condition is unconstitutionally overbroad. Lewis does not identify any specific privacy interests that would be infringed or any harm stemming from imposition of an electronic search condition. (See In re J.E., supra, 1 Cal.App.5th at p. 806 ["Nothing in the record shows Minor even has a cell phone or any electronic devices, and Minor does not point us to anything in the record showing any actual harms stemming from their inspection"].)

Lewis cites to Riley v. California (2014) 573 U.S. ___ [134 S.Ct. 2473], to support his general contention that digital devices contain private information and searches of such devices are intrusive. The United States Supreme Court recognized electronic devices contain personal data, but Riley only held that the information on a cell phone is subject to the Fourth Amendment's protection, "not that the information on a cell phone is immune from search." (Id. at p. 2493.) Further, the Supreme Court in Riley was analyzing the privacy interests of arrestees who are afforded the assumption of innocence until proven guilty. (Id. at pp. 2488-2489.) Here, Lewis pleaded guilty to grand theft. As a probationer, Lewis does not enjoy the same absolute liberty afforded to every citizen. (See United States v. Knights (2001) 534 U.S. 112, 119.) Given the legitimate purpose of an electronic search condition and Lewis's diminished privacy expectations as an adult probationer, we conclude the condition is not overbroad. (In re J.E., supra, 1 Cal.App.5th at pp. 799, 804.)


The judgment is affirmed.

AARON, J. and DATO, J., concurs.


1. All further statutory references are to the Penal Code unless otherwise indicated.
2. The Supreme Court is considering the issue of whether an electronic search condition of probation may be justified for a juvenile as reasonably related to future criminality when the condition has no relationship to the crime committed. (In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923.)
3. Effective July 1, 2016, a published opinion may be cited only for potentially persuasive value while review is pending. (Cal. Rules of Court, rule 8.1115(e).)


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