Filed 11/6/18 P. v. Cisneros CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

INTRODUCTION

Appellant Jaime L. Cisneros appeals from the trial court’s imposition of an electronic search condition as a term of his probation after he pleaded guilty to the sale of stolen property by means of a cellular phone application. Cisneros contends the search condition is unconstitutionally overbroad and violates his Fourth Amendment rights. He also argues the court’s oral pronouncement of sentence does not conform to the written minutes and this clerical error must be corrected. We conclude the search condition is proper and affirm with instructions to the trial court to conform the written order to the court’s oral pronouncement.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Cisneros attempted to sell a stolen industrial paint sprayer and two spray guns via the LetGo application. Belvedere Police Department officers pretended to be potential buyers and met with Cisneros at a park. At the park, the officers confirmed the paint sprayer matched the serial number for a paint sprayer stolen from the Sherwin Williams store in San Rafael, California. At the time of the sale, Cisneros had his six-year-old son waiting in the car along with a loaded assault weapon on the passenger side floorboard.

Cisneros admitted he posted the paint sprayer on the LetGo application and communicated with the buyer through the application.

The Marin County District Attorney’s Office filed a complaint charging Cisneros with receiving stolen property valued at more than $950 in violation of Penal Code section 496, subdivision (a)[1] (count one), possession of an assault weapon in violation of section 30605, subdivision (a) (count two), possession of a large capacity magazine in violation of section 32310 (count three), and placing the health of a child in danger in violation of section 273a, subdivision (b) (count four). It further alleged a sentencing enhancement for being armed with an assault weapon in the commission of count one in violation of section 12022, subdivision (a)(2).

Cisneros pleaded guilty to receiving stolen property while armed with an assault weapon and misdemeanor child endangerment. The court dismissed the remaining counts.

The probation department recommended probation which included an electronic search condition. At the sentencing hearing, Cisneros objected to the electronic search condition on constitutional grounds claiming it was overbroad. Cisneros’s counsel argued under Riley v. California (2014) 573 U.S. ­­­___, 134 S.Ct. 2473 (Riley) that cell phones contain vast amounts of information and searching a cell phone is arguably more invasive than searching someone’s home. Counsel argued the “minimal conduct” in this case of selling a piece of property by using a cell phone application does not warrant an electronic search condition.

The court suspended imposition of sentence and placed Cisneros on probation for four years. The court stated it had considered counsel’s constitutional objection to the electronic search condition and concluded there is a compelling state interest to “protect the public and rehabilitate the defendant.” Cisneros “put this stolen property out for sale into the world at large through this application on his cellphone, communicated with potential buyers about it, set a place to meet to sell this stolen property. All of that in the Court’s mind provides a nexus between the defendant’s conduct and imposition of” the condition.

The court imposed the following condition:

“The defendant shall submit to the search of electronic devices at any time of the day or night by any law enforcement officer, probation officer, or mandatory supervision officer with or without a warrant, probable cause, or reasonable suspicion. This includes cellphones, computers, tablets, video recording devices, and cameras over which the defendant has control or access to for electronic communications content information.

“The search should be confined to areas of these electronic devices including social media accounts, applications, and websites where such evidence of criminality or any type of supervision violation [may be] found.”

III.

DISCUSSION

1. The Trial Court Properly Imposed an Electronic Search Condition

We review constitutional challenges to probation conditions de novo. (People v. Appleton (2016) 245 Cal.App.4th 717, 723 (Appleton).)

Cisneros does not challenge the validity of the search condition under People v. Lent (1975) 15 Cal.3d 481 (Lent),[2] presumably because the condition is supported by his use of his cellular phone to advertise and sell the stolen paint sprayer, but he contends the electronic search condition is unconstitutionally overbroad.[3]

“[P]robation is a privilege and not a right, and . . . 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.” (People v. Olguin (2008) 45 Cal.4th 375, 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.’ ” (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.)

The electronic search condition authorizes searches of Cisneros’s cell phone, computer, tablet, and cameras but limits the search “to areas of these electronic devices including social media accounts, applications, and websites where such evidence of criminality or any type of supervision violation [may be] found.” It does not allow for unlimited open-ended searches of all data stored on his electronic devices. (See People v. Maldonado (2018) 22 Cal.App.5th 138, 142, review granted June 20, 2018, S248800 [condition authorizing search of “electronic devices only for specific categories of information (i.e., ‘text messages, voicemail messages, call logs, photographs, email accounts, [and] social media accounts’)” was narrowly tailored and did not “provide officers carte blanche to search anything and everything on the devices”].)

Cisneros’s probation status does not eliminate his constitutional privacy rights (Appleton, supra, 245 Cal.App.4th at p. 724), but it does differentiate this case from Riley, supra, 134 S.Ct. 2473. Riley held that the warrantless search of a suspect’s cell phone implicated the suspect’s Fourth Amendment rights. (Id. at p. 2493.) This division has held that Riley is inapposite in this context because it did not involve probation conditions. (In re J.E. (2016) 1 Cal.App.5th 795, 804, review granted Oct. 12, 2016, S236628.) “ ‘Inherent in the very nature of probation is that probationers “do not enjoy ‘the absolute liberty to which every citizen is entitled.’ ” [Citations.] Just as other punishments for criminal convictions curtail an offender’s freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.’ ” (Id. at pp. 804–805, quoting United States v. Knights (2001) 534 U.S. 112, 119.)

In Appleton, the court, applying the reasoning in Riley, found an electronic search condition was overbroad since it allowed the search of “vast amounts of personal information unrelated to defendant’s criminal conduct or his potential for future criminality.” (Appleton, supra, 245 Cal.App.4th at pp. 724, 727.) The probation condition read: “ ‘Any computers and all other electronic devices belonging to the defendant, including but not limited to cellular telephones, laptop computers or notepads, shall be subject to forensic analysis search for material prohibited by law. [The defendant] shall not clean or delete internet browsing activity on any electronic device that [he] own[s] and [the defendant] must keep a minimum of four weeks of history.’ ” (Id. at p. 721.) The court concluded that the probationary goals could be served through narrower means, such as by requiring the defendant to submit his social media accounts and passwords for monitoring or obtaining his probation officer’s approval before using them. (Id. at p. 727.)[4]

The condition here does not allow a “ ‘forensic analysis search for material prohibited by law.’ ” (Appleton, supra, 245 Cal.App.4th at p. 721.) The condition is limited to specified types of information. The trial court ordered the condition to be “confined to areas of these electronic devices including social media accounts, applications, and websites where such evidence of criminality or any type of supervision violation [may be] found.” The condition is reasonably tailored to detect if Cisneros is using his electronic devices to commit additional crimes.

In People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1172, the defendant challenged probation conditions requiring him to provide passwords to his electronic devices and social media sites and to submit to warrantless searches of those devices and sites. The court concluded the conditions were not overbroad because the “minimal invasion” into the defendant’s privacy resulting from enforcement of the electronic search condition was outweighed by the government’s interest in protecting the public by ensuring that the defendant complied with his anti-gang probation conditions. (Id. at p. 1176.)

Here, the trial court considered counsel’s constitutional objection to the electronic search condition and found there was a compelling state interest to “protect the public and to rehabilitate the defendant.” The trial court further found that Cisneros had used an application on his cell phone to “put this stolen property out for sale into the world at large,” communicated with potential buyers about it, and arranged a place to meet to sell the stolen property. The trial court concluded this provided a “nexus” between the defendant’s conduct and the electronic search condition. We agree.

We therefore conclude the electronic search condition is not unconstitutionally overbroad.

2. The Court’s Minute Order Must Be Amended for Clerical Error

At the sentencing hearing, the court imposed the following condition:

“The defendant shall submit to the search of electronic devices at any time of the day or night by any law enforcement officer, probation officer, or mandatory supervision officer with or without a warrant, probable cause, or reasonable suspicion. This includes cellphones, computers, tablets, video recording devices, and cameras over which the defendant has control over or access to for electronic communications content information.

“The search should be confined to areas of these electronic devices including social media accounts, applications, and websites where such evidence of criminality or any type of supervision violation [may be] found.”

The minute order reads: “Defendant shall submit to search and seizure of all call logs, text and voicemail messages, photographs, emails, and social medial account contents contained on any device or internet connected storage owned, operated, or controlled by him/her, including cell phones, computers, gaming consoles, mobile devices, and mobile or electronic storage devices. Defendant shall also disclose and provide any security information required to gain access to any of the aforementioned devices or social media accounts.”

Both parties agree that the minute order should be corrected to conform to the court’s oral pronouncement of the electronic search condition, but respondent argues the condition should retain the last sentence included in the minute order that was not part of the court’s oral pronouncement.

Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185–186.) Here, the oral pronouncement contains no language about Cisneros’s passwords and we cannot simply read this language into the order. Respondent cites no authority for us to take part of the language from the court’s oral pronouncement and part from the minute order. The minute order clearly does not reflect the condition the court sought to impose. (People v. Connors (2016) 3 Cal.App.5th 729, 734, fn. 3 [“we presume that the court’s oral pronouncement of the new probation condition prevails over the clerk’s conflicting recordation of it”].) Additionally, “[w]e conclude that the oral pronouncement controls because there is no clear indication that the court intended to impose the version in [] the minute order . . . .” (In re D.H. (2016) 4 Cal.App.5th 722, 725.) This view is reinforced by the fact the court’s oral pronouncement mirrors what is contained in the probation report.

However, we agree that the requirement that Cisneros provide his security information, i.e., information which is necessary to gain access to his electronic devices and social media accounts, appears implicit in the trial court’s order that Cisneros submit to the search of those devices and accounts. We therefore remand the matter back to the trial court for further clarification as to whether it intended to include this specific provision in Cisneros’s conditions of probation.

IV.

DISPOSITION

The judgment is affirmed but the case is remanded to the trial court to modify the written order to conform to the oral pronouncement of the electronic search condition and to clarify whether Cisneros is also required to disclose and provide any security information required to gain access to his electronic devices or social media accounts.

_________________________

LEE, J.^*

We concur:

_________________________

TUCHER, Acting P. J.

_________________________

REARDON, J.^{* *}

^* Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

^{* *} Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

A152022, People v. Cisneros