Filed 10/19/17 P. v. Galbadores CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. PAULA DARLINE GALBADORES, Defendant and Appellant.

H044531 (Santa Clara County Super. Ct. No. C1634599)

Defendant Paula Darline Galbadores pleaded no contest to two counts of using personal identifying information without authorization. (Pen. Code, § 530.5, subd. (a).)[1] The trial court placed her on probation, ordering her to serve 60 days in county jail and imposing probation conditions that allow searches of email on her electronic devices and require her to provide email account passwords.

On appeal, defendant’s appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) that states the case and facts, but raises no issue. We notified defendant of her right to submit written argument on his own behalf within 30 days. That period has elapsed and we have received no written argument from defendant. Pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106 (Kelly), we have reviewed the entire record. We agree with defendant’s appellate counsel that there is no arguable issue on appeal. Therefore, we will affirm the order of probation.

FACTUAL AND PROCEDURAL BACKGROUND

Following the California Supreme Court’s direction in Kelly, supra, 40 Cal.4th at page 110, we provide a brief description of the facts and the procedural history of the case.

Defendant was charged by felony complaint with five counts of using personal identifying information without authorization (§ 530.5, subd. (a); counts 1-5) and one count of grand theft (§§ 484, 487, subd. (a); count 6). The facts underlying the offenses are not contained in the record.

At a hearing on November 16, 2016, the People indicated that they were willing to enter into a plea agreement in light of the fact that defendant had made “significant restitution in this matter.” Pursuant to that plea agreement, defendant pleaded no contest to counts 1 and 2. The plea agreement provided that defendant would be placed on formal probation for three years. After 18 months, defendant could move for a reduction of the felonies to misdemeanors pursuant to section 17, subdivision (b), and the People would not oppose such a motion if defendant performed well on probation.

At the sentencing hearing held on February 2, 2017, the probation officer requested the trial court impose four probation conditions to enable supervision of defendant’s email. The probation officer explained, “[T]his crime was committed using e-mail accounts and changing passwords.” Defendant’s trial attorney confirmed that defendant “had access to her uncle’s e-mail because he had willingly given her his password,” and that defendant had “used his e-mail to essentially facilitate purchasing unauthorized gift cards.” Defendant’s trial counsel objected to the proposed conditions pursuant to People v. Lent (1975) 15 Cal.3d 481 and on due process and First Amendment grounds.

The trial court found that defendant had used her uncle’s email “to steal” and that if the requested probation conditions were “tailored specifically to address only e-mails,” they would “withstand constitutional review.”

The trial court then placed defendant on three years of formal probation, ordered her to serve 60 days in jail, dismissed counts 3 through 6, and indicated that the felony convictions would be reduced to misdemeanors after 18 months if defendant had “no new law violations” and had made restitution.

The trial court imposed a number of probation conditions, including the following: (1) “The defendant shall . . . give specific consent, as that term is defined in Penal Code section 1546, to any peace officer or any law enforcement agency to seize and search all electronic devices including, but not limited to, cell phones, computers, or notepads . . . [¶] . . . [¶] . . . in his or her possession or under her control to any search of any e-mail accounts at any time with or without a warrant;” (2) “Defendant shall further agree and specifically consent to provide all passwords necessary to access or search such electronic devices and understand that refusal to provide the password will constitute a violation of the [terms] of her probation;” (3) “Defendant’s computer and all other electronic devices that [were] stated previously shall be subject to forensic analysis search [by] any peace officer or law enforcement agency at any time with or without a warrant;” and (4) “The defendant shall report all personal e-mail addresses used, shall report websites with passwords to the probation officer that [are] used for e-mails.” The trial court then limited the scope of the third condition by specifying that it was “limited to e-mail searches only.”

Discussion

Having carefully reviewed the entire record, we conclude that there are no arguable issues on appeal. (Wende, supra, 25 Cal.3d at pp. 441-443.)

DISPOSITION

The order of probation is affirmed.

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