Filed 10/26/18 P. v. Bahou CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Evan P. Kirvin, Judge. Affirmed.

Christine M. Aros, 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, A. Natasha Cortina, Kelley Johnson, and Amanda E. Casillas, Deputy Attorneys General for Plaintiff and Respondent.

A jury convicted Simone Bahou of evading a police officer with reckless driving (Veh. Code, § 2800.2, subd. (a)), driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)), and resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). The trial court suspended imposition of sentence for five years and granted formal probation. The court ordered Bahou to serve 365 days in custody with credit for 161 days, and allowed Bahou to serve the balance of this term in a residential program for alcohol and drug treatment. As a condition of probation, Bahou agreed to submit to warrantless searches of his computers and recordable media. On appeal, Bahou contends this probation condition is unconstitutionally overbroad and violates his Fourth Amendment rights. We conclude the challenged probation condition is not facially unconstitutional and Bahou has forfeited any as-applied challenge. We therefore affirm.

Factual and procedural BACKGROUND

On April 28, 2017, a San Diego County deputy sheriff responded to a call directing him to a parking lot in La Mesa, California. The deputy approached Bahou, who was sitting in the driver's seat of a parked white Mazda Miata. As the deputy walked over, Bahou started the car and drove past the deputy. The deputy could smell alcohol emanating from Bahou's car as it passed him. The deputy returned to his patrol car and attempted to initiate a traffic stop. Bahou sped away and a pursuit ensued for approximately 26 miles. The chase ended only when a California Highway Patrol (CHP) officer forced Bahou's car off the road and a second officer pinned the Miata against a concrete barrier.

Once Bahou's car was stopped, the deputy approached the car with his canine partner. The deputy warned Bahou that if he did not comply with his orders, Bahou could be bitten by the dog. When Bahou failed to comply, the deputy deployed his canine partner until Bahou put his hands up. CHP officers then removed Bahou from his car and took him into custody.

Bahou was eventually tried and convicted by a jury of all charges. During sentencing, the trial court imposed formal probation for five years. Bahou stated he and his attorney reviewed the conditions of probation. Bahou objected to two conditions, but not to the electronic search condition at issue here. The electronic search condition states Bahou shall "[s]ubmit 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, when required by [probation officer] or law enforcement officer."

DISCUSSION

Bahou contends the electronic search condition is unconstitutionally overbroad because it gives officers access to vast quantities of private and irrelevant information.[1] Because Bahou failed to object in the trial court, he now asserts a facial challenge to this probation condition. We will therefore limit our review to consider Bahou's claim only to the extent he asserts the probation condition is facially overbroad and violates fundamental constitutional rights. (In re Sheena K. (2007) 40 Cal.4th 875, 880 (Sheena K.).) The facial constitutionality of a probation condition is subject to de novo review. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)

"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; see also Sheena K., supra, 40 Cal.4th at p. 890.) The state has an interest in the close supervision of probationers to further their rehabilitation and protect public safety. (People v. Olguin (2008) 45 Cal.4th 375, 378.) Because the state has an obligation to monitor a broad range of probationers with varying needs of supervision, there are numerous circumstances in which courts may validly impose the type of electronic search condition challenged here. (See Trujillo, supra, 15 Cal.App.5th 574, review granted; People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted Dec. 14, 2016, S238210; In re J.E. (2016) 1 Cal.App.5th 795, review granted Oct. 12, 2016, S236628 (J.E.).)[2] We therefore cannot say that a probation condition allowing the search of a probationer's computers and recordable media is not sufficiently narrowly tailored to the state's legitimate interest in reformation and rehabilitation of probationers in all possible applications. (See People v. Pirali (2013) 217 Cal.App.4th 1341, 1347 ["[a]lthough 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"].)

Bahou relies on the United States Supreme Court's decision in Riley v. California (2014) __ U.S. __ [134 S.Ct. 2473] (Riley) to contend that the electronic search condition is unconstitutionally overbroad on its face under the Fourth Amendment. In Riley, the United States Supreme Court held a warrant is generally required prior to the search of a cell phone incident to arrest. (Riley, supra, __ U.S. __ [134 S.Ct. at p. 2495].) However, the Riley case did not address any issues regarding probation search conditions. The privacy expectation of an arrestee is significantly different than that of a probationer. (See United States v. Knights (2001) 534 U.S. 112, 119 ["Inherent in the very nature of probation is that probationers 'do not enjoy "the absolute liberty to which every citizen is entitled." ' "]; see also J.E., supra, 1 Cal.App.5th at p. 804, review granted ["Riley, however, did not involve probation conditions and, as a result, is inapposite in this context."].) As this court previously held in Trujillo, "although computers and cell phones can contain highly personal information, the overbreadth analysis is materially different from the warrant requirement at issue in Riley." (Trujillo, supra, 15 Cal.App.5th at p. 587, review granted.) Pending further guidance from our Supreme Court, we will continue to adhere to the analysis in Trujillo and accordingly reject Bahou's claim that the challenged probation condition is facially unconstitutional.

Bahou also argues that absent particularized facts, allegedly not present here, the electronic search condition is overbroad. Specifically, Bahou contends there is no reason to impose a search condition "[u]nless the defendant has a history of storing illegal content on his computer, utilizing electronic means to embezzle money, stalking, hacking, or otherwise perpetrating an offense that is related to usage of a computer . . . ." We are not persuaded that an electronic search condition could only be authorized under these limited circumstances. (See Trujillo, supra, 15 Cal.App.5th at p. 588, review granted [rejecting overbreadth challenge, noting electronic search probation condition "was a necessary means of imposing the level of supervision required to protect public safety and prevent future criminality, as an alternative to prison"].) To the extent Bahou's argument presents an as-applied challenge which would require us to consider the particularized facts of his case—including the specifics of his crime, his criminal history, and risk factors relevant to reoffending—he forfeited this argument when he failed to object in the trial court. (Sheena K., supra, 40 Cal.4th at p. 889.)

Finally, Bahou contends a limitless search of his electronic devices is significantly overbroad because it can implicate the privacy interests of third parties. Bahou did not raise this issue in the trial court and has therefore forfeited the argument on appeal. (Sheena K., supra, 40 Cal.4th at p. 885.) Bahou's claim also fails because he lacks standing to bring a constitutional claim for any potential or speculative impact on the constitutional rights of unidentified third parties. (In re Q.R. (2017) 7 Cal.App.5th 1231, 1237, review granted Apr. 12, 2017, S240222.)

In sum, we reject Bahou's facial challenge to the probation condition, and he has forfeited any challenge which requires us to consider the particularized facts of his case.

DISPOSITION

The judgment is affirmed.

GUERRERO, J.

WE CONCUR:

McCONNELL, P. J.

DATO, J.