Filed 8/18/17 P. v. Goria 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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, Daniel B. Goldstein, Judge. Affirmed as modified and remanded with directions.

Law Office of Kurt David Hermansen and David W. Beaudreau, 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 Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.

In January 2013, Ziad Goria was charged with criminal threats (Pen. Code,[1] § 422); vandalism (§ 594, subd. (a), (b)(1)) and burglary (§ 459). In October 2013, Goria was found not competent to stand trial and was committed to Patton State Hospital. Criminal proceedings were suspended. In June 2016, the court found Goria's competency had been restored.

In July 2016, Goria pleaded guilty to an added count of assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)). Goria was granted three years' formal probation on various conditions. The court imposed a custody condition of 1,804 days, with credit for 1,804 days served. The defense objected to that portion of condition 6n, which includes searches of computers and recordable media. The trial court rejected the objection and imposed the condition. The court deleted two of the proposed conditions, but they were included in the written order, contrary to the oral pronouncement.

Goria appeals, contending (1) the trial court erred in imposing an 1,804-day jail sentence as a condition of probation; (2) the excess custody credits in this case should be used to satisfy Goria's base fine and restitution fine; (3) the "electronic search" condition is overbroad and there is no nexus to the offense or the offender in this case; and (4) the written probation order is not consistent with the oral pronouncement of sentence. The People agree with contentions (1), (2) and (4).

We will accept the People's concession regarding the 1,804-day jail condition and its impact on the various punitive fines, and that the written order must be amended to comport with the court's oral pronouncement of sentence. We will disagree with the People on the validity of the electronic search condition in this case and order the search condition modified accordingly. We will remand the case for resentencing.

STATEMENT OF FACTS

Since this is an appeal following a guilty plea we will use the brief summary of the facts in the probation report as set forth in the respondent's brief.

On January 19, 2013, appellant entered a car dealership and demanded cash and car keys from a salesman. When the salesman refused, appellant became agitated and demanding. The salesman became afraid and asked appellant to leave. Appellant approached the salesman, backing him into a wall, and then appellant used his elbow to jab the salesman in his arm and side. Appellant got in the salesman's face and yelled, "I will fuck you up and the cars, go ahead and call the cops." Appellant left the dealership, picked up rocks, and threw them at one of the vehicles, breaking several windows and causing damage to the body of the vehicle. The estimated damage to the car was $5,500. Appellant told police officers that he was tired of being homeless and that he wanted a new car.

DISCUSSION

1. Jail Sentence

By the time of sentencing Goria had accumulated a total of 1,804 days of custody credits. The court assumed it had to impose the total days and then offset them with credits. As the parties agree, such jail sentence was unauthorized. We agree the court erred.

When a court grants probation, it may condition the grant on a period of jail custody. (§ 1203.1, subd. (a).) Any jail sentence as a condition of probation cannot exceed one year. (§ 19.2.) Thus, Goria's sentence must be modified to impose a jail term of not more than one year, to be offset by the custody credits Goria has accrued.

2. Excess Custody Credits

Goria argues, and the People agree, that the custody credits in excess of one year must be used to offset the $820 base fine and the $300 restitution fine. Section 2900.5, subdivision (a),[2] as it existed at the time of the offense in 2013, provided, in part: "In all felony and misdemeanor convictions . . . when the defendant has been in custody, . . . all days of custody of the defendant, including days . . . credited to the period of confinement pursuant to Section 4019 . . . , shall be credited upon his or her term of imprisonment, or credited to any fine on a proportional basis . . . at the rate of not less than thirty dollars ($30) per day. . . . In any case where the court has imposed both a prison or jail term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be applied to the fine on a proportional basis, including, but not limited to, base fines and restitution fines." (See People v. McGarry (2002) 96 Cal.App.4th 644, 647.)

3. Electronic Search Condition

Over defense objection, the court imposed condition 6n which provides: "Submit 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 P.O. [probation officer], or law enforcement." The defense objection focused on "computers, and recordable media," contending the condition was overbroad and vague. Counsel directed the court's attention to People v. Lent (1975) 15 Cal.3d 481 (Lent) in support of the argument there was no nexus to the current offense.

The trial court acknowledged the criminal activity in this case had nothing to do with computers or electronic devices. The court recognized this crime arose from an encounter Goria had with a car dealer in which he "demanded the keys and threatened to injure the salesperson." Although the court recognized nothing in this case related to the use of any electronic device, it concluded search of such device by the probation officer could make supervision of Goria more effective.

The discussion between court and counsel produced some confusion whether cell phones were included in the search condition. The court said: "A cell phone isn't a computer to me, but I don't think there is a differentiation between one type of hardware device. It isn't sold as a stand alone computer, or a phone. I don't know everything about phones but they are being made and not sold as a computer. I see a distinction but with no difference." We interpret these somewhat cryptic comments to mean cell phones are included in the condition, although not specifically mentioned in condition 6n.

The decision to grant probation is within the trial court's broad sentencing authority. The court may seek to ensure the safety of the public through conditions of probation. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) A defendant placed on probation may be required to accept limitations on otherwise constitutionally protected rights, where necessary to meet the goals of rehabilitation and protection of the public. (People v. Bauer (1989) 211 Cal.App.3d 937, 940-941; United States v. Knights (2001) 534 U.S. 112, 119.)

Where a condition intrudes on otherwise lawful activity, such condition may be found improper if 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."'" (People v. Olguin (2008) 45 Cal.4th 375, 379.)

The parties agree that use of electronic devices is not related to the offense for which Goria was convicted. Similarly, there is no dispute that the use of such devices is lawful and that the information stored in such devices has a substantial impact on personal privacy. (See Riley v. California (2014) 573 U.S. ___ [134 S.Ct. 2473].) The question presented here is whether the restriction on otherwise protected activity is reasonably related to the supervision of the probationer. We are aware there has been considerable division among the Courts of Appeal on this issue, and that our Supreme Court has the issue under consideration. (In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923.)

Goria contends we should follow the decision of the court in In re J.B. (2015) 242 Cal.App.4th 749, 755 (J.B.). There the court struck a similar condition because it burdened privacy rights, was not related to the offenses and did not facilitate any specific, unchallenged probation condition. (Id. at pp. 757-758.) The court held that any benefit to "general supervision" was insufficient to justify a broad search of electronic devices. (Id. at p. 757.)

The People contend this case should be controlled by our opinion in People v. Nachbar (2016) 3 Cal.App.5th 1122. (Review granted Dec. 14, 2016, S238210.) In that case, we upheld a similar search condition, in part, based on the legitimate need to supervise the defendant. The circumstances in Nachbar are distinguishable from this case. There the defendant contacted the rape victim using social media. He was required to register as a sex offender and posed a risk of using some form of electronic media to reoffend. This case is different.

In the present case, the defendant was a homeless person with significant mental health issues. Consistent with those characteristics, the current crime involves approaching a car salesman to demand a car because he is homeless and needs a car. His threats and vandalism when denied the car illustrate his mental problems.

The trial court justified the electronic search condition based on general supervision considerations that would apply to virtually every probationer under supervision. Plainly, the more surveillance conducted on probationers, the greater supervision. However, the third prong of Lent, supra, 15 Cal.3d 481, requiring intrusions into protected rights to be reasonably related to preventing future criminality does not permit wholesale intrusions into privacy without a clearer relationship to the current or future criminal conduct. (Id. at p. 486.) On the facts of this case we believe the court's analysis in J.B., supra, 242 Cal.App.4th at pages 752 to 753 and 759, is appropriate here.

We will remand the case to the trial court with directions to strike the portion of condition 6n, which reads "computers, and recordable media."[3]

4. Correcting the Order to Comport with the Oral Pronouncement of Sentence

The proposed probation order included condition 5c, which required Goria to complete 20 hours of community service. Condition 6b required Goria to follow such course of conduct as may be communicated by the probation officer. The court, however, ordered both conditions to be deleted.

The parties agree the court's written order does not accurately reflect the oral pronouncement. Accordingly, we will also direct the court to modify the written order to delete conditions 5c and 6b.

DISPOSITION

The sentence is vacated and the case is remanded to the trial court with directions to do the following: (1) resentence Goria by deleting the 1,804 days of jail time as a condition of probation and to impose a jail term of not more than one year with credit for time served; (2) apply Goria's excess custody credits to reduce, or eliminate the punitive fines; (3) strike the language "computer, and recordable media" from condition 6n; and (4) correct the probation order to delete conditions 5c and 6b. In all other respects the judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.