P. v. Gilbert

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Filed 7/2/18 P. v. Gilbert CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
OLIVIA CHRISTINA GILBERT,
Defendant and Appellant.
E068495
(Super.Ct.No. FWV1600482)
OPINION
APPEAL from the Superior Court of San Bernardino County. Michael R. Libutti,
Judge. Affirmed.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,
Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and
Respondent.

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FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On February 11, 2015, a felony complaint charged defendant and appellant Olivia
Christina Gilbert and codefendant Tjen Hin Thjin1 with grand theft of personal property,
in violation of Penal Code2 section 487, subdivision (a) (count 1). On June 1, 2017,
defendant pled guilty to grand theft of personal properly. On the same day, the trial court
placed defendant on formal probation.
On June 7, 2017, defendant filed a timely notice of appeal.
B. FACTUAL HISTORY
Over the course of six months in 2016, defendant, working with coparticipants,
embezzled approximately $50,000 from her employer, Staples. This activity appeared to
be part of a larger embezzlement scheme that included other Staples stores. The fraud
involved the creation of hundreds of fraudulent online accounts in the names of the
coparticipants. Defendant would post fictitious ink cartridge redemptions to the
fraudulent accounts. The coparticipants would then use the redemption monies in the
accounts to purchase new ink cartridges at Staples stores. For her role in the scheme, the
coparticipants paid defendant with cash and gift cards. Defendant personally input
approximately 1,555 separate transactions.
1 Codefendant Tjen Hin Thjin is not a party to this appeal.
2 All further statutory references are to the Penal Code unless otherwise indicated.

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DISCUSSION
Defendant contends that an electronic-search condition is unconstitutionally
overbroad. We disagree.
When the court placed defendant on probation, it imposed various terms and
conditions. The term required defendant to “submit to search and seizure (electronic
device) by a government entity of any electronic device that you are an authorized
processor of pursuant to PC 1546.1(c)(10).” Defendant objected to the term. The
prosecutor asked for the search term based on the complex fraud scheme in the
underlying matter and identity theft.
“If a probation condition serves to rehabilitate and protect public safety, the
condition may ‘impinge upon a constitutional right otherwise enjoyed by the probationer,
who is “not entitled to the same degree of constitutional protection as other citizens.” ’ ”
(People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355, quoting People v. Lopez (1998) 66
Cal.App.4th 615, 624.) However, “ ‘[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 constitutionally overbroad.’ [Citation.] ‘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—bearing in mind, of course, that perfection in such matters is
impossible, and that practical necessity will justify some infringement.’ ” (People v.
Pirali (2013) 217 Cal.App.4th 1341, 1346; accord, In re Sheena K. (2007) 40 Cal.4th
875, 890.)

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In Riley v. California (2014) ___ U.S. ___ [134 S.Ct. 2473], the United States
Supreme Court rejected the government’s argument that law enforcement may, without a
warrant, search a cell phone seized from an arrested individual. The court discussed the
fact that a modern cell phone can hold an immense amount of confidential information,
including past and current medical records, past and current financial records, Internet
searches involving highly personal issues, personal diaries, photographs, and intimate
correspondence. (Id. at pp. 2489-2491.) The court balanced the strong privacy intrusion
arising from a search of this type of information against the law enforcement
justifications for dispensing with the warrant requirement, and found the arrestee’s
privacy concerns outweighed the law enforcement justifications. (Id. at pp. 2485-2493.)
The Supreme Court, however, made clear it was not holding that “a cell phone is immune
from search” (id. at p. 2493), and recognized its ruling would not necessarily extend to
other situations in which law enforcement needs are stronger. (Id. at pp. 2493-2494.)
Relying on Riley, the Court of Appeal in People v. Appleton (2016) 245
Cal.App.4th 717 concluded an electronics-search probation condition was
constitutionally overbroad because it would allow the search of “vast amounts of personal
information unrelated to defendant’s criminal conduct or his potential for future
criminality” (id. at p. 727), and remanded for the trial court to fashion a more narrowly
tailored electronics-search condition (id. at pp. 724-727; accord, In re P.O. (246
Cal.App.4th 268, 297-298).
In two recent decisions, the Fourth District Court of Appeal, Division One, found
Appleton’s analysis unpersuasive. (People v. Trujillo (2017) 15 Cal.App.5th 574, 587-

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589, rev. granted Nov. 29, 2017, S244650; People v. Nachbar (2016) 3 Cal.App.5th
1122, 1128-1130, rev. granted Dec. 14, 2016, S238210.) In Trujillo, the court explained
that, although Riley’s description of the general privacy concerns pertaining to cell
phones went into their decision making, Riley’s ultimate conclusion regarding the need
for a warrant did not necessarily apply in the probation condition context without specific
facts showing a heightened privacy interest. (Trujillo, at pp. 587-589; Nachbar, at p.
1129; accord In re J.E. (2016) 1 Cal.App.5th 795, 803-807, rev. granted Oct. 12, 2016,
S236628.) The appellate court emphasized a probationer’s reduced privacy rights (as
compared to an arrestee’s rights); the existence of facts showing the need for intensive
supervision; the absence of any evidence showing the probationer’s electronics contained
the type of sensitive information identified in Riley; and the fact that neither defendant
established the electronic searches would be materially different from a search of their
homes and/or challenged the Fourth Amendment waiver as to their residences. (Trujillo,
at pp. 586-589; Nachbar, at pp. 1128-1129.) While Nachbar and Trujillo remain pending
before the California Supreme Court, we continue to find their reasoning persuasive,
absent a contrary direction from the high court. (See Cal. Rules of Court, rule 8.1115(e).)
The record in this case does not contain the necessary particularized information
supporting the need for a more narrowly tailored Fourth Amendment waiver condition.
Here, defendant was convicted of perpetrating a $50,000 embezzlement. She personally
used her employer’s computer system to input 1,555 fraudulent transactions. She
maintained electronic correspondence with her coparticipants to plan and communicate
about the months-long embezzlement scheme. Moreover, although there is no probation

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report for this case, the prosecutor referenced an identity theft case that defendant was
also involved in, and added that this conviction was not defendant’s “first time around the
block.”
Because of the nature of her crime, defendant concedes that the electronic search
term is not an abuse of discretion. She, however, asserts that the condition should be
narrower. She suggested that the condition could be limited “to a specified list of social
media websites, email accounts, or applications.” Notwithstanding defendant’s
argument, the evidence here showed that defendant was texting with her coparticipants
over the course of many months. She was not using a social media site or an email
account. Moreover, using her cash register at work, defendant accessed one or more
databases to input the transactions. She and her coparticipants were successful in their
fraudulent efforts because they succeeded in taking $50,000, and avoided detection for
several months. If the probation officer is to have any success in facilitating defendant’s
rehabilitation, an electronics search condition is imperative. Limitations would only flag
for defendant which sites or email accounts she would need to avoid to avoid detection of
any criminal activity.
Moreover, there are no facts showing that defendant uses her electronic devices to
hold the type of sensitive medical, financial, or personal information described in Riley
and Appleton. In the proceedings below, defendant failed to identify any particular
category of private information contained on her electronic devices or devices she uses
that should be off-limits to a probation officer. Additionally, there are no facts in the
record showing a search of defendant’s electronics would be any more invasive than an

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unannounced, without-cause, warrantless search of her residence, a highly-intrusive
condition she has not challenged on appeal. As in Trujillo, there is nothing in the record
showing there would be any particular information on defendant’s electronic devices that
require protection from the government because it is more private than items in her
residence. Furthermore, any concerns regarding the potential invasiveness of the
electronics-search condition in this case would be ameliorated by the restriction against
arbitrary, capricious, or harassing probation searches. (See People v. Woods (1999) 21
Cal.4th 668, 682; People v. Cervantes (2002) 103 Cal.App.4th 1404, 1408.)
Based on the above, we find that the electronic search condition is constitutional.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
SLOUGH
J.

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