Filed 5/15/18 P. v. Gregor CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

CORINNE RENEE GREGOR,

Defendant and Appellant.
C082285

(Super. Ct. No. 16FE008125)



Defendant Corinne Renee Gregor was placed on probation after pleading no contest to identity theft. The trial court imposed a probation condition requiring her to disclose all email and internet accounts, provide passwords for all such accounts, and consent to warrantless searches of those accounts for computer related offenses. Defendant contends the electronic search condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent), precluded by the Electronic Communications Privacy Act (ECPA) (Pen. Code, § 1546 et seq.), and unconstitutionally overbroad. Defendant also contends the condition violates her Fifth Amendment privilege against self-incrimination. We conclude the condition is unconstitutionally overbroad and reverse for further proceedings.
I. BACKGROUND
Defendant and a co-defendant (defendant’s mother, who is not a party to this appeal) were each charged with one count of burglary (§ 459—count one), one count of forgery (§ 470, subd. (d)—count two), one count of identity theft (§ 530.5, subd. (a)—count three), and one count of possession of a forged document with intent to defraud (§ 475, subd. (a)—count five). Defendant was also charged with one count of identity theft with a prior conviction (§ 530.5, subd. (c)(2)—count 4), and her mother was charged with one count of misdemeanor identity theft (§ 530, subd. (c)(1)—count six).
Pursuant to a plea agreement, defendant agreed to plead no contest to count three in exchange for dismissal of the remaining counts. The agreement contemplated that defendant would be placed on formal probation for five years on various terms and conditions, including 365 days in county jail with credit for time served.
At the change in plea hearing, the prosecutor requested the following electronic search conditions:
“11. Defendant shall not intentionally conceal the source, destination or content of any electronic communication transmitted or otherwise sent by the defendant;
“12. Defendant shall not knowingly provide false information about his or her identity to an electronic communications service provider as defined under 18 U.S.C. [section] 2510(15) when purchasing or agreeing to purchase any service from that provider which allows the defendant to send or receive electronic communications;
“13. Defendant shall disclose all [email] accounts, all Internet accounts, and any other means of access to any computer or computer network, all passwords and access codes. Defendant shall consent to the search of such [email] and Internet accounts at any time and the seizure of any information or data contained therein without a search warrant or probable cause; [and]
“14. Defendant shall not knowingly possess any software and/or hardware designed for the purpose of encrypting or decrypting computer files[.]”
Defense counsel objected, stating, “I don’t believe that this case had anything to do with electronics. It was just good, old-fashioned appearing in a bank with some checks and some letters and some—there was no electronic fraud in this case, your Honor. There was apparently a notary seal that had disappeared from some location.”
The trial court asked the prosecutor to provide a factual basis for the plea to provide “context with regard [to] these conditions.” The prosecutor responded: “On April 25, 2016[,] within the County of Sacramento[,] [defendant] and her mom . . . go into the Chase [B]ank in Sacramento County. Previously they had deposited a tax refund check made out to [M.S.] . . . for $7,465. They’re now trying to withdraw money from that account. They have a forged letter from the Elko County, Nevada sheriff that [M.S.] is in custody in Elko, Nevada of which the Elko, Nevada sheriff would indicate he never signed that.”
The prosecutor continued: “They also have a forged notary letter which purports to give power of attorney from [M.S.] to both [defendant] and [defendant’s mother]. The notary who was signed on that actually works for the bank, was contacted, indicates she never indicated—never executed that notary. The notary is fake. [¶] [M.S.], if called to testify, would state he doesn’t know these defendants nor do they have permission to have a $7,000—in excess of $7,000 check.”
The prosecutor concluded: “It appears as if all these documents were generated electronically through a computer and software. So we have a fake check, a fake notary, and a fake letter from the Elko County, Nevada sheriff.”
Defense counsel clarified that the check was genuine, adding that defendant intended to accept the plea offer, regardless of the trial court’s decision as to whether or not to impose the electronic search conditions. Defendant then entered her plea. Moments later, defense counsel submitted a memorandum of points and authorities objecting to the electronic search conditions. The trial court postponed sentencing to review defendant’s memorandum.
Defendant appeared for sentencing several days later. At the sentencing hearing, the trial court modified condition No. 11 as indicated in italics: “Defendant shall not intentionally conceal the source, destination or content of any electronic communication transmitted or otherwise sent by the defendant on a computer.” The trial court modified condition No. 13 as follows: “Defendant shall disclose all [email] accounts, all Internet accounts, and any other means of access to any computer or computer network, all passwords and access codes. Defendant shall consent to the search of such [email] and Internet accounts at any time and the seizure of any information or data contained therein without a search warrant or probable cause for computer related offense.”
The trial court rejected defendant’s other objections to the electronic search conditions, prompting the following colloquy:
“[Defense Counsel]: I’m sorry, your Honor, I didn’t understand what you did with 13. You modified it?
“THE COURT: On 11 and 13 what I wanted to make sure that it was only for computer-related offenses is basically the limitation.
“[Defense Counsel]: This isn’t a computer-related offense.
“THE COURT: As it was described to me by the People, it involved that because of copies or something that was printed.
“[Defense Counsel]: My understanding is it was a genuine check.
“THE COURT: You had indicated that there was something that was generated, Mr. [prosecutor]?
“[Prosecutor]: Yes, your Honor. There was a fake notary as well as a fake letter from the Elko County, Nevada sheriff.
“THE COURT: My understanding is that was effected by way of a computer.
“[Defense Counsel]: My—well, the letter I don’t—I suppose it was typed
on some sort of device that may involve—
“THE COURT: Well, was it done [on] a typewriter or computer?
“[Defense Counsel]: That I don’t know. I would assume it [is] a word processor, since that’s the way most people do it. [¶] In terms of the notary, however, that was a notary seal that appears to have been obtained somehow. It’s a genuine notary seal. Didn’t belong to the people using it.
“THE COURT: All right. Unless it was by a typewriter, the order is going to stand.”
The trial court then suspended imposition of sentence and placed defendant on formal probation on the terms and conditions set forth above.
II. DISCUSSION
On appeal, defendant contends condition No. 13 (the passwords condition) (1) is unreasonable under Lent, (2) is precluded by the ECPA, (3) is unconstitutionally overbroad, and (4) violates her Fifth Amendment rights. We agree with defendant that the passwords condition is overbroad. We reject defendant’s other contentions.


A. The Lent Test
“The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof.” (Lent, supra, 15 Cal.3d at p. 486.) Consequently, we review conditions of probation for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) “A condition of probation will not be held invalid unless 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.’ ” (Lent, supra, at p. 486.) The Lent test “is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. [Citation.]” (Olguin, supra, at pp. 379-380.)
The parties expend considerable energy on the third Lent factor, whether the condition is reasonably related to future criminality. Numerous courts of appeal, including a divided panel of this court, have construed the third Lent factor broadly, holding that electronic search conditions that prevent future criminality by facilitating effective supervision of the offender can be justified under Lent, despite the absence of any connection between the offender’s criminal activity and the use of electronics. (See People v. Valdivia (2017) 16 Cal.App.5th 1130, 1138-1139 (Valdivia), review granted Feb. 14, 2018, S245893 [electronic storage device search condition was reasonably related to future criminality, despite lack of connection to criminal activity, because condition facilitates supervision of defendant]; In re Ricardo P. (2015) 241 Cal.App.4th 676, 686-687, review granted February 17, 2016, S230923 [electronics search condition reasonably related to future criminality, despite lack of connection to criminal activity].) Other courts have required a nexus between the defendant’s use of electronics and criminal activity. (See, e.g., People v. Bryant (2017) 10 Cal.App.5th 396, 404, review granted June 28, 2017, S241937 [striking electronic search condition because there was “no showing of any connection between [the defendant]’s use of a cellular phone and criminality, past or future”]; In re J.B. (2015) 242 Cal.App.4th 749, 756 [striking electronic search condition because there was “no showing of any connection between the minor’s use of electronic devices and his past or potential future criminal activity”].) The scope of the third Lent factor is now pending in our Supreme Court, awaiting disposition of the lead case, In re Ricardo P.
We need not anticipate the Supreme Court’s analysis, as the password condition fails Lent’s first factor for invalidity. The trial court found that defendant used a computer running word processing software to generate fraudulent documents to commit the present offense. Many modern word processing programs are free, cloud-based services hosted by third parties via the Internet. (See Constantine, Cloud Computing: The Next Great Technological Innovation, the Death of Online Privacy, or Both? (2012) 28 Ga. St. U. L.Rev. 499, 499-500 (Constantine).) Some word processing programs, such as Google Docs, are connected to personal email accounts, which can also be used to commit identity theft. (Ibid.; see also 1 Koepsel, Data Sec. & Privacy Law (2017) Electronic Security Risks and the Need for Privacy - Identity Theft, §1:7.) Because defendant generated fraudulent documents to commit the present offense, and because such documents are frequently generated online, the trial court could reasonably conclude that a probation officer should have the ability to monitor defendant’s online accounts to ensure that she was not violating the terms of her probation.
We find support for our conclusion in People v. Appleton (2016) 245 Cal.App.4th 717, 723-724 (Appleton)). There, the defendant met the victim through a social media application. (Id. at p. 719.) The defendant and two other men forced the victim to orally copulate them at the defendant’s house. (Id. at p. 720.) The defendant pleaded no contest to false imprisonment by means of deceit and was granted probation. (Ibid.) The trial court imposed a condition providing that electronic devices belonging to the defendant would be subject to search, and prohibiting the defendant from deleting the Internet browsing history on his electronic devices. (Id. at p. 721.) The trial court explained that it was imposing the electronic search condition because contact between the defendant and the victim was originally initiated through social media. (Ibid.) The defendant appealed, arguing that the search condition was unrelated to the offense of which he was convicted. (Id. at p. 724.) The court of appeal agreed “that the nexus between the offense and the probation condition is somewhat attenuated.” (Ibid.) Nevertheless, “under the deferential standard of review required in the Lent analysis,” the court found “no abuse of discretion in the trial court’s finding that ‘either social media or some kind of computer software’ was involved in the offense.” (Ibid.) “Accordingly,” the court concluded, “the probation condition does not run afoul of the first Lent factor requiring ‘no relationship to the crime.’ ” (Ibid.)
Likewise, in the present case, we perceive no abuse of discretion in the trial court’s finding that defendant used a computer running word processing software in the commission of the present offense, such that a search condition requiring her to provide access to email and internet accounts would be reasonably related to the crime of identity theft. We therefore conclude that the passwords condition challenge fails under the first Lent factor. “Because the probation condition must trigger all three Lent factors to be invalid, we conclude the condition is valid under Lent.” (Appleton, supra, 245 Cal.App.4th at p. 724.)

B. The ECPA
Defendant next argues that the passwords condition violates the ECPA. As relevant here, the ECPA, which became effective January 1, 2016, prohibits a government entity from accessing device information through physical interaction or electronic communication with the device unless one of several statutory exceptions applies, including that the government entity has obtained a warrant or has obtained the consent of the possessor of the device. (§ 1546.1, subd. (a)(3), (c); Stats. 2015, ch. 651, § 1.) Effective January 1, 2017 (after defendant’s June 2016 disposition hearing), the ECPA was amended to provide that a government entity may physically access electronic device information “[e]xcept where prohibited by state or federal law, if the device is seized from an authorized possessor of the device who is subject to an electronic device search as a clear and unambiguous condition of probation, mandatory supervision, or pretrial release.” (§ 1546.1, subd. (c)(10); Stats. 2016, ch. 541, § 3.5.)
Defendant contends the passwords condition violates the ECPA because she objected to all of the electronic search conditions, and therefore cannot be said to have consented to any of them. We are not persuaded. Although defendant reserved objections to the electronic search conditions to preserve the issues for appeal, she consented to the conditions, including the passwords condition, when she accepted the offer of probation. Having accepted probation, defendant cannot be heard to complain that she did not consent to the passwords condition. (See Olguin, supra, 45 Cal.4th at p. 379 [“If a defendant believes the conditions of probation are more onerous than the potential sentence, he or she may refuse probation and choose to serve the sentence”].) We reject defendant’s contention that the passwords condition violates the ECPA.
C. Overbreadth
Next, defendant contends the password condition is unconstitutionally overbroad. We agree.
“A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) “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 . . . .” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) “A probation condition ‘is unconstitutionally overbroad . . . if it (1) “impinge[s] on constitutional rights,” and (2) is not “tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.” ’ [Citations.]” (Valdivia, supra, 16 Cal.App.5th at p. 1142, rev. granted.) We independently review defendant’s constitutional challenge to the passwords condition. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
We agree with defendant that the passwords condition impinges on her constitutional rights under the Fourth Amendment (see Validivia, supra, 16 Cal.App.5th at p. 1142, rev. granted; see also Appleton, supra, 245 Cal.App.4th at p. 724), and is not narrowly tailored to its purpose. As currently stated, the passwords condition “could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity. These could include, for example, medical records, financial records, personal diaries, and intimate correspondence with family and friends.” (Appleton, supra, at p. 725.) We therefore conclude that the passwords condition is not sufficiently tailored to its purpose, and must be modified to limit authorization of searches to email and internet accounts that are reasonably likely to reveal whether defendant has engaged in identity theft or otherwise violated the terms of her probation.
D. Fifth Amendment Privilege Against Self-Incrimination
Finally, defendant argues that the passwords condition violates her Fifth Amendment right against self-incrimination because it requires her to provide access to email and internet accounts containing information that may be incriminating. We review defendant’s Fifth Amendment challenge to the passwords condition de novo. (Appleton, supra, 245 Cal.App.4th at p. 723.)
“The Fifth Amendment to the United States Constitution states that ‘[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . .’ The high court has made clear that the meaning of this language cannot be divorced from the historical practices at which it was aimed, namely, the brutal inquisitorial methods of ‘ “putting the accused upon his oath and compelling him to answer questions designed to uncover uncharged offenses, without evidence from another source.” ’ [Citations.] . . . [T]he amendment prohibits the direct or derivative criminal use against an individual of ‘testimonial’ communications of an incriminatory nature, obtained from the person under official compulsion.” (People v. Low (2010) 49 Cal.4th 372, 389-390.)
The passwords condition does not implicate defendant’s Fifth Amendment rights. It is a “settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not ‘compelled’ within the meaning of the privilege [against self-incrimination].” (United States v. Hubell (2000) 530 U.S. 27, 35-36.) Even assuming arguendo that the passwords condition, by requiring the disclosure of defendant’s passwords, amounts to “compelled testimonial communications” (Fisher v. United States (1976) 425 U.S. 391, 409), the condition does not violate defendant’s Fifth Amendment right against self-incrimination because it does not authorize the use of any compelled statements in a criminal proceeding. As our Supreme Court has explained, “the Fifth Amendment does not provide a privilege against the compelled ‘disclosure’ of self-incriminating materials or information, but only precludes the use of such evidence in a criminal prosecution against the person from whom it was compelled.” (See Maldonado v. Superior Court (2012) 53 Cal.4th 1112, 1134.) There is no such use contemplated here. Because the password condition does not purport to authorize the use of any compelled testimonial communication against defendant in a criminal proceeding, it does not violate the Fifth Amendment. (See Valdivia, supra, 16 Cal.App.5th at pp. 1140-1141, rev. granted.)
III. DISPOSITION
The passwords condition (condition No. 13) is stricken. The matter is remanded to the trial court with directions to tailor the electronic search condition more narrowly. In all other respects, the judgment is affirmed.


/S/

RENNER, J.



We concur:


/S/

BLEASE, Acting P. J.


/S/

MAURO, J.