People v. Wright

• Decision Date: 02 July 2019
• Docket Number: C082729
• Citation: 37 Cal.App.5th 120,249 Cal.Rptr.3d 410
• Parties: The PEOPLE, Plaintiff and Respondent, v. Christopher WRIGHT, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

37 Cal.App.5th 120

249 Cal.Rptr.3d 410

The PEOPLE, Plaintiff and Respondent,

v.Christopher WRIGHT, Defendant and Appellant.

C082729

Court of Appeal, Third District, California.

Filed July 2, 2019

Jin H. Kim, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Stephen G. Herndon, Supervising Deputy Attorney General, Matthew A. Kearney, Deputy Attorney General, for Plaintiff and Respondent.

HULL, Acting P. J. Defendant Christopher Wright admitted a felony violation of Penal Code section 530.5, subdivision (c)(3), acquiring personal identifying information with intent to defraud, in relation to the possession of about 60 credit cards, driver's licenses, gift cards and Social Security cards in the names of other persons. (Statutory references that follow are to the Penal Code unless otherwise stated.) The trial court placed defendant on probation with various terms and conditions, including that defendant submit his electronic storage devices and e-mail/Internet accounts to search without a search warrant.

Defendant now contends (1) the electronic device search condition is invalid under People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545 ( Lent )¹ ; (2) the electronic device search condition violates his right to privacy and is overbroad; (3) the electronic device search condition violates his privilege against self-incrimination; (4) the electronic device search condition violates the California Electronic Communications Privacy Act (§ 1546 et seq.); (5) the e-mail/Internet account search condition violates his right to privacy and his privilege against self-incrimination; (6) his counsel was ineffective in failing to object to the e-mail/Internet account search condition; (7) the urinalysis test fee is unauthorized and cannot be made a condition of probation; (8) the order granting probation must be modified to make clear that payment of the court facility fee is not a condition of probation; and (9) the criminal impact fee is unauthorized. Defendant withdrew his contention that certain probation conditions must be modified to include a scienter requirement.

We modify the order granting probation to strike the urinalysis testing fee and the criminal impact fee, and to provide that the court facility fee is not imposed as a condition of probation, but instead is imposed as an order of the trial court entered at judgment. We affirm the order granting probation as modified.

FACTS AND PROCEEDINGS

Defendant entered a plea of no contest to willfully and unlawfully acquiring and retaining the personal identifying information of 10 or more persons with intent to defraud. He waived referral to probation and requested immediate judgment and sentencing.

The People asked the trial court to impose an electronic device search condition to help the probation department monitor whether defendant was violating the law.

The People submitted the declaration of Detective Sean Smith in support of the request. Detective Smith was a member of the Sacramento Valley Hi Tech Crimes Task Force, an agency which investigated cyber crimes. Detective Smith averred, based on his training and experience, that persons who committed identity theft and fraud crimes commonly used electronic devices to research and purchase victim information and manufacture counterfeit credit cards, checks and identifications. The detective explained how electronic devices could be used to commit identity theft and fraud crimes. He said, for example, that cell phones were commonly used to photograph and store victim information, identify locations where the defendant intended to commit fraud, and deposit counterfeit checks into bank accounts. Detective Smith explained why it was necessary to search all content on a device and obtain password information in identity theft and fraud cases.

Defendant's trial counsel objected to the electronic device search condition because there was no indication a cell phone or electronic device was used in this case or that defendant manufactured the items found in his car, and defendant's only prior crime was for driving stolen cars. Defendant's trial counsel argued the electronic device search condition was not tailored to defendant or the current offense and was overbroad. He also argued the condition violated defendant's Fifth Amendment rights in that it required defendant to disclose passwords. Defendant's trial counsel pointed out that another probation condition already required disclosure of e-mail/Internet accounts and access to computers, networks and passwords. Defendant's trial counsel did not object to the e-mail/Internet account search condition.

The trial court imposed the electronic device search condition over defendant's objection. It said, "It does appear that computers, cell phones, other electronic devices are extremely useful in violating this code section. One can violate it by possessing these things and also the manufacture of these things or the negotiation of various instruments can be facilitated through the use of these electronic devices. So I think there is a nexus here in this case, given the offense."

The trial court suspended imposition of sentence and placed defendant on formal probation for five years. It imposed 19 specific conditions of probation including a general search condition which provided, "Defendant shall submit his person, property and automobile and any object under [his] control to search and seizure in or out of ... [his] presence ..., by any law enforcement officer and/or probation officer, at any time of the day or night, with or without his consent, with or without a warrant."

The trial court also imposed an electronic device search condition as follows: " P.C. 1546 searchable - Defendant shall submit his ... person, place, property, automobile, electronic storage devices, and any object under his ... control, including but not limited to cell phone and computers, to search and seizure by any law enforcement officer or probation officer, any time of the day or night, with or without a warrant, with or without his ... presence or further consent. [¶] Defendant being advised of his ... constitutional and statutory rights pursuant to Penal Code section 1546 et seq. in this regard, and having accepted probation, is deemed to have waived same and also specifically consented to searches of his ... electronic storage devices. [¶] Defendant shall provide access to any electronic storage devices and data contained therein, including disclosing and providing any and all information necessary to conduct a search."

In addition, the trial court imposed an e-mail/Internet account search condition: "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 for the seizure of any information without a search warrant or probable cause."

Defendant was also prohibited from possessing, controlling or using a personal checking account, unless authorized by his probation officer; possessing personal identifying information of another person, as defined in section 530.5, without prior approval of the probation department; possessing an access card, as defined in section 484d, subdivision (2), in the name of another without prior approval of the probation department; possessing software designed for manufacturing checks or blank check paper; knowingly possessing a scanner; possessing an access card reader or encoder; intentionally concealing the source, destination or content of any electronic communication transmitted or otherwise sent by defendant; providing false information about his identity to an electronic communications service provider, as defined in section 2510(15) of title 18 of the United States Code, when purchasing or agreeing to purchase any service from that provider which allows defendant to send and receive electronic communications; and possessing any software and/or hardware designed to encrypt or decrypt computer files.

Defendant was further required to pay restitution, a restitution fine under section 1202.4, subdivision (b), a criminal impact fee pursuant to section 1465.7, subdivision (a), a urinalysis test fee, and a court facility fee pursuant to Government Code section 70373.

Defendant filed a brief opposing the electronic device search condition after the sentencing hearing. He asserted privacy, overbreadth, the Electronic Communications Privacy Act and his Fifth Amendment privilege against self-incrimination as the basis for his objection and asked the trial court to narrowly tailor the condition to fit the government's purposes. The appellate record does not indicate whether a further hearing was requested or held based on defendant's written brief.

DISCUSSION

I

The Electronic Search Condition Is Not Invalid Under Lent

Defendant claims the electronic device search condition is invalid under Lent, supra , 15 Cal.3d at page 486, 124 Cal.Rptr. 905, 541 P.2d 545, because the condition is unrelated to his current offense, possession of electronic storage devices is lawful, and the condition is not reasonably related to his future criminality. We disagree.

A grant of probation is an act of clemency. ( People v. Moran (2016) 1 Cal.5th 398, 402, 205 Cal.Rptr.3d 491, 376 P.3d 617 ( Moran ).) Probation is a privilege, not a right. ( Ibid. ) When an offender chooses probation, thereby avoiding incarceration, the sentencing court may impose reasonable conditions of probation as it "may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer." (§ 1203.1, subd. (j).) Section 1203.1 grants sentencing c...