People v. Guzman

• Decision Date: 09 May 2018
• Docket Number: A149740
• Citation: 23 Cal.App.5th 53,232 Cal.Rptr.3d 503
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Benito GUZMAN, Defendant and Appellant.

23 Cal.App.5th 53

232 Cal.Rptr.3d 503

The PEOPLE, Plaintiff and Respondent,

v.Benito GUZMAN, Defendant and Appellant.

A149740

Court of Appeal, First District, Division 4, California.

Filed May 9, 2018

Counsel for Appellant: Richard A. Tamor, Oakland, under appointment by the Court of Appeal under the First District, Appellate Project Independent Case System

Counsel for Respondent: Xavier Becerra Attorney General of California Gerald E. Engler Chief Assistant Attorney General Jeffrey M. Laurence Senior Assistant Attorney General Seth K. Schalit Supervising Deputy Attorney General Laurence K. Sullivan Supervising Deputy Attorney General

SMITH, J.^*

Benito Guzman appeals from an order modifying the conditions of his supervised probation to explicitly authorize warrantless searches of his electronic devices. Guzman contends (1) the trial court lacked jurisdiction to order the modification because no new circumstances existed and (2) the electronic search probation condition violates Guzman's constitutional right to privacy. We affirm the order.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Guzman's 2015 Offense and Sentence

In April 2015, Guzman was charged with two felonies: (count 1) arranging a meeting with a minor for the purpose of committing a sexual offense ( Pen. Code, § 288.4, subd. (b)¹ ); and (count 2) attempting to commit a lewd act with a minor under the age of 14 (§ 664/288, subd. (a) ). The charges were based on evidence gathered by officers conducting an undercover "sting" operation, which showed that Guzman used his cell phone and the internet Web site myredbook.com to arrange and negotiate payment for a sexual encounter with a 19-year-old female named "Sexy Shauna" and her 13-year-old sister "Jenny."

In July 2015, Guzman pleaded guilty to the count 1 felony sex offense pursuant to a negotiated disposition, which provided that the court would dismiss count 2, suspend imposition of judgment, and impose a sentence of nine months in jail and three years felony probation. As part of the negotiated disposition, Guzman acknowledged that he would be required to register as a sex offender and be subject to "Sex Offender Caseload Conditions" of probation (also called SAFER probation conditions).

On September 1, 2015, Guzman was sentenced in accordance with the negotiated disposition. At his sentencing hearing, Guzman reviewed and separately acknowledged the SAFER probation conditions, which were incorporated into the terms of his probation. Among other things, the SAFER probation conditions required participation in sex offender treatment/programs, restricted interactions with children, and provided that Guzman may not "view, purchase, possess or have access to any videotapes, films and/or magazines, CD's or any medium which depict minor(s) or people representing themselves as minors(s) in sexual activity."

The SAFER probation conditions also impose the following requirements on Guzman: "Submit to warrantless search and seizure of person, property, personal business or vehicle any time of the day or night or residence any time of the day or reasonable hour of the night by any Probation or Law Enforcement Officer"; and "Provide Probation Officer with keys, combinations or access codes to any and all gates or security doors which are required for entry onto any property where you reside."

B. The California Electronic Communications Privacy Act (ECPA)

While Guzman was on probation, the ECPA went into effect on January 1, 2016. (§ 1546, et seq.; Stats. 2015, ch. 651, § 1.) As pertinent here, the ECPA precludes a government entity from accessing "electronic device information by means of physical interaction or electronic communication with the electronic device" unless a statutory exception applies. (§ 1546.1, subds. (a)(3) & (c).) Statutory exceptions include obtaining a warrant (§ 1546.1, subd. (c)(1) ), or obtaining the "the specific consent of the authorized possessor of the device" (§ 1546.1, subd. (c)(4) ).

Another exception, which was added by a September 2016 amendment to the ECPA, states: "(c) A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows: [¶] ... [¶] (10) Except 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).)

C. The Modification Order

In September 2016, Guzman's probation officer filed a petition "for a modification of probation." The petition alleged that Guzman's offense involved the use of an electronic device to communicate or attempt to communicate with a minor "with the intent to seduce or arrange to meet the minor and engage in sexual acts or to view, download or distribute child pornography." The petition further stated: "In order to ensure the effective rehabilitation and supervision of the defendant it is recommended that probation be modified," and that the court order a "search and seizure term and conditions pertaining to all electronic devices."

A hearing on the petition was held in September and October 2016. Guzman objected that a modification was improper absent "some new facts or changed circumstances or a violation." The People argued that "the change in the law would be sufficient for this Court to find a change in circumstances to now impose the search and seizure conditions which would have applied previously." The trial court stated that there was a "nexus" between the search condition and Guzman's offense because Guzman used a data processing and storage device—his cell phone—to commit the crime. The court also found that Guzman was previously ordered to submit to search and seizure and it was "important to both supervision and rehabilitation that his personal data storage devices be subject to search as well and based on the fact that that's what he used to complete the activity which formed the basis for this crime." Therefore, the court made the following order:

"I'm going to be ordering that—you are already subject to search and seizure, and now it's going to be specific to include your personal electronic devices ... pursuant to Penal Code sections 1546, 1546.1, 1546.2 and 1546.4. And you must submit to search of all computers, hard drives, flash drives, thumb drives, disks, removable media, computer networks, electronic data storage devices, personal digital assistants, cell phones of any kind, notebooks or computers of any kind under the custody or control of the defendant to which he has either sole, shared, partial or limited access, without a search warrant at any time of the day or night.

"His residence is subject to search at any time of the day or reasonable hour of the night. So if these are in his residence, it would only be at a reasonable time. These search terms are to include a waiver of any password or encryption protection. He must provide his probation officer with all the passwords, log-ins, access codes or other information necessary to access any of the data storage devices or any social media that is accessed through the personal device.

"The defendant shall not possess or utilize any program or application on any computer or personal data storage device or through a remote control [that] deletes or scrubs data from the electronic device. If any device is seized as evidence, the defendant may not contact his service provider to remove, alter or destroy data from the electronic device. Failure to provide a password or surrender the device will be considered a violation of probation.

"I'm making this order based on the fact that a personal data storage device was used as an integral part of the crime, that there is an absolute nexus."

Following this ruling, Guzman's counsel objected again that "there is not sufficient new facts or changed circumstances." The People disputed this claim, reiterating that the ECPA went into effect in January 2016, after Guzman entered his plea and received his original sentence.

Before concluding the hearing, the court made the following statement: "And the Court will put on the record that I have reviewed the facts and circumstances of the offense. There is an absolute nexus with the original search and seizure order that was ordered at his sentencing. It should have included all personal data storage devices, because that is only appropriate in this case."

II. DISCUSSION

A. The Trial Court Had Jurisdiction to Modify the Probation Condition

Guzman contends that the trial court lacked jurisdiction to order a modification of Guzman's probation conditions to include an electronic search condition. According to Guzman, jurisdiction to modify the terms of a defendant's probation requires new facts or changed circumstances, and in this case the trial court erroneously relied on the same facts "that were in existence at the time of the original order."

A sentencing court has broad power to revoke or modify a term of probation at any time during the probationary period, which includes the power to extend the probationary term. ( People v. Cookson (1991) 54 Cal.3d 1091, 1095 & 1100, 2 Cal.Rptr.2d 176, 820 P.2d 278 ( Cookson ).) This power is not limited to cases where a probation violation has been committed. ( Id . at p. 1098, 2 Cal.Rptr.2d 176, 820 P.2d 278.) However, "[a] change in circumstances is required before a court has jurisdiction to extend or otherwise modify probation.... ‘An order modifying the terms of probation based upon the same facts as the original order granting probation is in excess of the jurisdiction of the court, for the reason that there is no factual basis to support it.’ [Citation.]" ( Id. at p. 1095, 2 Cal.Rptr.2d 176, 820 P.2d 278, italics omitted, quoting In re Clark (1959) 51 Cal.2d 838, 840, 337 P.2d 67.)

In Cookson , supra , 54 Cal.3d 1091, 2 Cal.Rptr.2d 176, 820 P.2d 278, a condition of the...