People v. Bryant

• Decision Date: 03 April 2017
• Docket Number: B271300
• Citation: 10 Cal.App.5th 396,215 Cal.Rptr.3d 740
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Clydell BRYANT, Defendant and Appellant.

10 Cal.App.5th 396

215 Cal.Rptr.3d 740

The PEOPLE, Plaintiff and Respondent,

v.Clydell BRYANT, Defendant and Appellant.

B271300

Court of Appeal, Second District, Division 1, California.

Filed April 3, 2017

As Modified April 17, 2017

As Modified on Denial of Rehearing May 2, 2017

David R. Greifinger, Santa Monica, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez, and Andrew S. Pruitt, Deputy Attorneys General, for Plaintiff and Respondent.

ROTHSCHILD, P.J.

A jury convicted Clydell Bryant of possessing a concealed, loaded, unregistered firearm in a vehicle. The court imposed a two-year sentence, a portion of which was to be served under mandatory supervision. During the period of mandatory supervision, the court required Bryant to submit to searches of text messages, emails, and photographs on any cellular phone or other electronic device in his possession or residence. He contends that the requirement is invalid under People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545 (Lent ) and is unconstitutionally overbroad. We agree that the condition is invalid under Lent and, accordingly, strike the condition.

FACTUAL AND PROCEDURAL SUMMARY

On a night in August 2014, Pasadena police officers responded to a call for service outside a housing complex where a group of individuals were drinking and refusing to leave the area. Bryant and his girlfriend, Lamaine Jones, were smoking marijuana in a parked car in the area. Jones sat in the driver's seat and Bryant in the passenger seat. The car belonged to Jones's mother.

A Pasadena police officer approached the driver's side of the car and smelled a strong odor of marijuana coming from the car. The officer asked Jones and Bryant to step out of the car so he could check for marijuana. Jones and Bryant complied.

The police officer searched the car and found a semi-automatic .45 caliber Hi-Point handgun under the front passenger seat. According to the officer, the gun was accessible to a person in the passenger seat, but not the driver's seat. There were nine bullets in the gun's magazine. The police later determined that the gun was not registered. Bryant's DNA matched DNA found on the gun's magazine. DNA from several persons found on the gun's handle could not be matched to any specific person.

A jury convicted Bryant of carrying a concealed firearm in a vehicle (Pen. Code, § 25400, subd. (a)(1) ),¹ and found that the firearm was loaded and not registered to him. (§ 25400, subds. (a) & (c)(6).)

The court sentenced Bryant to two years in county jail pursuant to section 1170, subdivision (h), and suspended the last 364 days of the term. During the time the sentence was suspended, Bryant would be subject to mandatory supervision by the county probation department pursuant to section 1170, subdivision (h)(5)(B).

Over Bryant's objection, the court required that, during the term of his mandatory supervision, Bryant submit to searches of text messages and emails on any cellular phone or other electronic device in his possession or residence. In response to defendant's objection to the requirement, the court explained: "Well, it seems to me that while he's on either probation or supervision, the probation officer could go in and search his residence and his person and he could look in the residence for any indicia of any violations either weapons or contraband, or he or she could look for evidence that the defendant is participating or associating with any gangs. [¶] It seems to me that a part of that search should include, while he's on supervision or probation, access to any computer that he uses in the home or his cell[ ]phone; however, I don't think it's unlimited access, and I would limit it to maybe his text messages and e-mails and nothing else."

At the prosecutor's request and over defendant's further objection, the court added photographs to the items subject to search on Bryant's electronic devices, explaining that this was "reasonable because I think prior experiences have shown there may be evidence with the photographs."²

DISCUSSION

The court sentenced Bryant pursuant to subdivision (h) of section 1170. Under that statute, the court shall impose a hybrid or split sentence consisting of county jail followed by a period of mandatory supervision unless, in the interest of justice, it would not be appropriate in a particular case. (§ 1170, subd. (h)(5)(B).) During the period of mandatory supervision, "the defendant shall be supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation." (§ 1170, subd. (h)(5)(B).) Although mandatory supervision is comparable in some ways to probation, it is not identical. (See People v. Martinez (2014) 226 Cal.App.4th 759, 762-763, 172 Cal.Rptr.3d 320.) A defendant who is offered probation, for example, may refuse probation if he " ‘finds the conditions of probation more onerous than the sentence he would otherwise face.’ " ( People v. Moran (2016) 1 Cal.5th 398, 403, 205 Cal.Rptr.3d 491, 376 P.3d 617 ). In contrast to a defendant who is given probation, however, a defendant may not refuse mandatory supervision. (People v. Rahbari (2014) 232 Cal.App.4th 185, 194-195, 181 Cal.Rptr.3d 220.) Accordingly, the court did not ask Bryant whether he would accept the court's terms of his mandatory supervision.

Courts generally have "broad discretion in fashioning terms of supervised release, in order to foster the reformation and rehabilitation of the offender, while protecting public safety." (People v. Martinez , supra , 226 Cal.App.4th 759, 764, 172 Cal.Rptr.3d 320.) Under a test announced in Lent , supra , 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545, however, a court abuses its discretion when it imposes a term or condition that " ‘(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....’ [Citation.]" (Id . at p. 486, 124 Cal.Rptr. 905, 541 P.2d 545 ; see People v. Martinez , supra, 226 Cal.App.4th at p. 764, 172 Cal.Rptr.3d 320 [applying Lent test to mandatory supervision terms]; People v. Relkin (2016) 6 Cal.App.5th 1188, 1194, 211 Cal.Rptr.3d 879 [same].) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a ... term." (People v. Olguin (2008) 45 Cal.4th 375, 379, 87 Cal.Rptr.3d 199, 198 P.3d 1 (Olguin ); In re J.B. (2015) 242 Cal.App.4th 749, 754, 195 Cal.Rptr.3d 589.)³

The Attorney General does not dispute that the electronic search condition fails the first two Lent prongs—the condition has no relationship to Bryant's crime and the use of electronic devices "is not itself criminal." (See In re Erica R. (2015) 240 Cal.App.4th 907, 913, 192 Cal.Rptr.3d 919 ; In re J.B. , supra , 242 Cal.App.4th at pp. 754-755, 195 Cal.Rptr.3d 589.) The issue, therefore, is whether the electronic search condition is reasonably related to preventing future criminality.

Our Supreme Court discussed the future criminality prong in Olguin , supra , 45 Cal.4th 375, 87 Cal.Rptr.3d 199, 198 P.3d 1, a case the Attorney General contends is "dispositive" here. In Olguin , our Supreme Court held that a probation condition that required the defendant to notify his probation officer of the presence of any pets at the defendant's residence was "reasonably related to future criminality because it serve[d] to inform and protect a probation officer charged with supervising a probationer's compliance with specific conditions of probation." (Id. at p. 381, 87 Cal.Rptr.3d 199, 198 P.3d 1.) "Animals," the Court explained, "can be unpredictable and potentially dangerous when faced with a stranger in their territory, and some pose a great or even life-threatening hazard to persons in these circumstances. Being informed at all times of the pets that are present at a probationer's residence thus reduces the possible threat to the probation officer's safety by enabling the officer to be aware of, and prepared for, situations that may arise should the officer choose to conduct an unscheduled ‘compliance visit’ to the probationer at his or her residence." (Ibid. fn. omitted.) "Probation officer safety during these visits and searches is essential to the effective supervision of the probationer and thus assists in preventing future criminality." (Ibid. ) The Court further explained that the defendant failed to demonstrate that the condition infringed or impaired any constitutional right, and reasoned that reporting the presence of pets "is a simple task" and "imposes no undue hardship or burden" on the probationer. (Id. at pp. 382, 384-387, 87 Cal.Rptr.3d 199, 198 P.3d 1.)

The Attorney General contends that Bryant's electronic search condition, like the pet notification condition in Olguin , facilitates the probation officer's ability to supervise the defendant and determine whether the defendant is complying with other terms of probation.⁴ (See Olguin , supra , 45 Cal.4th at pp. 380-381, 87 Cal.Rptr.3d 199, 198 P.3d 1.) Unlike the pet notification condition in Olguin , however, a search of a defendant's cellular phone and other electronic devices implicates a defendant's constitutional rights. (See People v. Appleton (2016) 245 Cal.App.4th 717, 724, 199 Cal.Rptr.3d 637 (Appleton ); see also Riley v. California (2014) ––– U.S. ––––, –––– , 189 L.Ed.2d 430 [Fourth Amendment applies to search of information on cellular phone]; People v. Keller (1978) 76 Cal.App.3d 827, 832, 143 Cal.Rptr. 184 [a "probationer has the right to enjoy a significant degree of privacy, or liberty, under the Fourth, Fifth and Fourteenth Amendments to the federal Constitution"], disapproved on other grounds in People v....