P. v. Trujillo

Filed 1/31/17 P. v. Trujillo CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JESSE TRUJILLO,
Defendant and Appellant.
D070215
(Super. Ct. No. SCD262041)
APPEAL from a judgment of the Superior Court of San Diego County, David M.
Gill, Judge. Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and
Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.

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In this case, Jesse Trujillo was convicted by a jury of fraudulent appropriation by
clerk, agent or employee in excess of $950 (Pen. Code,1 § 508). Trujillo was placed on
formal probation, subject to various terms and conditions.
Trujillo appeals challenging only a portion of one of the probation conditions. He
does not challenge the admissibility or sufficiency of the evidence to support his
conviction. At the sentencing hearing, the court imposed the following condition of
probation without objection: "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. or law enforcement officer."
(Italics added.) Trujillo challenges only that portion of the search waiver that deals with
computers and recordable media.
Although no objection was made in the trial court, Trujillo now contends the
highlighted portion of the condition is constitutionally overbroad. Thus, he contends the
forfeiture doctrine should not be applied. (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
We will treat the issue as properly before us and address the merits. We will find the
challenged provision does not constitute an unreasonable intrusion into constitutionally
protected activity and is a reasonable condition given the covert nature of this crime, as
well as Trujillo's past theft offenses and his history of repeated violations of probation.
Rehabilitation of this defendant requires that the probation officer have the tools
necessary to monitor him while on probation.
1 All further statutory references are to the Penal Code unless otherwise specified.

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STATEMENT OF FACTS
Since Trujillo does not challenge the admissibility or the sufficiency of the
evidence to support his conviction, we will adopt the brief summary of the facts from the
respondent's brief as an accurate statement.
Appellant began working at SeaWorld as a games technician on December 23,
2014. As a technician in the games and arcade facility, appellant was responsible for
maintaining and servicing the game changing machines, i.e., by filling them with tokens
and fixing any malfunctions.
On appellant's first day of work, management noticed that the game changing
machines were short a total of $320. One of SeaWorld's loss prevention investigators,
Pauline Lozano, began investigating the situation. After determining that machine
malfunction was not the cause of the money shortage, Lozano began looking into the
employees. The investigative team monitored the pattern of shortages by reviewing the
employees' timecards and installing surveillance cameras. Lozano discovered that the
shortages began on December 23, 2014, which was appellant's first day of work, and
stopped on May 4, 2015, appellant's last shift before being terminated. During that
period of time, the shortages coincided with appellant's shifts and amounted to thousands
of dollars.
On May 8, 2015, Lozano met with appellant and confronted him about the money
shortages. Appellant became defensive and denied taking any money from the game
changing machines. SeaWorld security officers detained appellant and called the police.
While waiting for the police to arrive, appellant made some incriminating statements,

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admitting that he took a few hundred dollars, to Lozano and one of the security officers.
He also told Lozano, "I know I messed up. My family is so mad at me. I shouldn't have
done this."
Appellant testified on his own behalf. He denied making any incriminating
statements to Lozano and the security officer. Appellant also denied taking money from
the SeaWorld game changing machines.
DISCUSSION
It is important here to repeat that Trujillo does not challenge the general "Fourth
waiver" requiring him to submit to searches of his home, person, vehicle, property and
effects. Given the covert nature of his current crime and his prior thefts, he could not
effectively make such a challenge. Rather, he challenges the search condition only as it
relates to computers and recordable media.
Trujillo's challenge here relies principally on People v. Appleton (2016) 245
Cal.App.4th 717, 723 (Appleton).) That case based its rejection of a similar search
condition on the premise that Riley v. California (2014) ___ U.S. ___ [134 S.Ct. 2473,
2493] (Riley) which held that police could not ordinarily search a smartphone incident to
arrest, and that absent other exigent circumstances a warrant is required to make such
search. The court in Riley based its decision in large part on the extent of personal
information now contained in such electronic devices.
We recently disagreed with Appleton, supra, 245 Cal.App.4th 717, in People v.
Nachbar (2016) 3 Cal.App.5th 1122 (Nachbar). In that case, we upheld imposition of the
identical search condition as used in this case. We are aware that our Supreme Court has

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granted review in Nachbar2 pending resolution of In re Ricardo P. (2015) 241
Cal.App.4th 676 (review granted Feb. 17, 2016, S230923). Pending further direction
from our Supreme Court, we continue to adhere to the views we expressed in Nachbar, as
we will discuss below.
A grant of probation is an act of clemency in lieu of punishment. (People v.
Moran (2016) 1 Cal.5th 398, 402.) Probation is a privilege, and not a right. Thus, trial
courts have considerable discretion in formulating conditions of probation, which may
assist in rehabilitation and also protect the public. (Id. at pp. 402-403.)
In People v. Lent (1975) 15 Cal.3d 481, 486, the court held 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.' "
(People v. Olguin (2008) 45 Cal.4th 375, 379.) "This test is conjunctive--all three prongs
must be satisfied before a reviewing court will invalidate a probation term." (Ibid.)
Where a condition of probation restricts the exercise of constitutional rights we
examine the condition to determine if the restriction is rationally related to furthering the
goals of probation and whether the restriction is not greater than necessary to achieve the
legitimate goals. (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346; In re Sheena K.,
supra, 40 Cal.4th at p. 890.)
2 Review was granted in Nachbar, supra, 3 Cal.App.5th 1122 on December 14,
2016 (S238210).

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Appleton, supra, 245 Cal.App.4th at pages 728 through 729, struck a probation
condition allowing probation access to recordable media and computers based on the fact
personal information may be on such devices thus making the intrusion too broad. As we
have noted the court in Appleton relied heavily on the discussion in Riley, supra, 134
S.Ct. 2473, about the privacy interests people have in their smart phones. The level of
such privacy interests required the use of a search warrant to access those devices.
The court in Riley, supra, 134 S.Ct. 2473 did not hold that electronic devices are
immune from search, but only that they cannot be searched incident to lawful arrest as an
ordinary exception to the warrant requirement. We are not concerned here with such
exception to the warrant clause. Here we deal with the application of probation
conditions which may lawfully be used to restrict the exercise of constitutional rights of
persons convicted of crime and who must be supervised for the rehabilitation and
prevention of crime. (United States v. Knights (2001) 534 U.S. 112, 119.)
Although the crime in this case was not committed using an electronic device, it
was a covert crime, committed repeatedly over a period of several months. It appears this
was the second time that Trujillo had been involved in an embezzlement type offense. It
also appears from the record that Trujillo is almost impossible to supervise on probation.
He has violated past grants of probation on numerous occasions. He has failed to appear
and failed to pay fines as a regular habit. Trujillo has accumulated a significant number
of arrests for driving on a suspended license largely because he will not address his legal
responsibilities. Thus, Trujillo cannot be relied on to properly report his activities, follow

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the probation officer's directions, or provide any assurance that he will not continue his
covert theft offenses.
We have some difficulty with Trujillo's specific challenge in light of the record.
As we have noted, there was no objection to the probation conditions raised in the trial
court. Thus, we do not know why Trujillo now objects to the search of electronic
devices, but does not object to the search of his person, home, vehicles, and effects. We
assume Trujillo concedes his crime and criminal history justify a full Fourth Amendment
waiver, but for some reason he now objects to searching electronic devices. If there is a
valid need to potentially intrude into the home, or to search his person, we do not
understand why that need would not potentially include examining electronic devices
where information regarding his activities might well be stored. Certainly, all of the
mentioned categories in the search condition are protected under the Fourth Amendment.
Government intrusion into any of the identified areas requires a search warrant unless a
valid exception exists. Nothing in Riley, supra, 134 S.Ct. 2473 indicates the court
viewed the privacy expectations of electronic devices as being greater than those of the
home or the materials that may be found in the home. The privacy intrusion caused by a
search waiver as a condition of probation is justified where the probation officer has a
compelling need to monitor the activities of the probationer, particularly as here where
there is a need to prevent the person from reoffending.
We believe the privacy concerns expressed in Riley, supra, 134 S.Ct. 2473 are
inapposite to this case where there is a legitimate basis for a waiver of Fourth
Amendment rights.

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We find the challenged portion of the search condition in the probation order is
reasonable, given the need to supervise this specific defendant on probation. The
condition is not overbroad.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.

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