P. v. Ramirez

Filed 3/28/18 P. v. Ramirez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
MISAEL RAMIREZ,
Defendant and Appellant.
H043973
(Santa Clara County
Super. Ct. No. C1511453)
Defendant Misael Ramirez pleaded no contest to one count of possessing cocaine
for sale (Health & Saf. Code, § 11351) and one count of transporting or selling cocaine
(Health & Saf. Code, § 11352, subd. (a)). Defendant also admitted allegations that he
possessed 57 grams or more of a substance containing at least five grams of cocaine or
cocaine base (Pen. Code, § 1203.073, subd. (b)(1)). The trial court suspended imposition
of sentence and placed defendant on formal probation for three years, with one year in
county jail.
On appeal, defendant challenges a probation condition that provides that “all” of
his electronic devices are subject to search and requires him to provide passcodes to
conduct those searches. Defendant contends the condition is unreasonable under
People v. Lent (1975) 15 Cal.3d 481 (Lent)1 and is unconstitutionally overbroad and
1 Lent was superseded on another ground as stated in People v. Moran (2016)
1 Cal.5th 398, 403, fn. 6 (Moran).

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vague. We reject defendant’s challenge under Lent. We also hold the condition is not
unconstitutionally overbroad or vague. We will therefore affirm the order of probation.
I. FACTS & PROCEDURAL HISTORY2
A. The Offenses
In May 2015, a confidential informant reported that someone named “Sal” (later
identified as defendant) was selling cocaine in Santa Clara County. On May 13, 2015,
the informant arranged to meet with defendant at a location in Mountain View. During
the meeting, defendant offered to sell the informant cocaine, but the informant said he
did not have money to pay for it. During the next week, defendant and the informant
“communicated” and set up another meeting so the informant could purchase nine ounces
of cocaine for $9,400.00.
On May 21, 2015, defendant was the passenger in a vehicle that arrived at the
designated location for the cocaine sale. Defendant used a cell phone to call the
informant and ask why the informant was not there. An officer approached defendant
and codefendant Jose Espinoza, who was in the driver’s seat. Both were arrested and cell
phones were seized from both men. Defendant’s cell phone rang when an agent called
the number associated with “Sal.” Espinoza’s phone contained text messages relating to
drug transactions. A search revealed a canvas pouch containing nine ounces of cocaine
and $1,950 cash on Espinoza.
B. Charges and Plea
Defendant and Espinoza were charged with one count of possessing cocaine for
sale (Health & Saf. Code, § 11351) and one count of transporting or selling cocaine
(Health & Saf. Code, § 11352, subd. (a)). The prosecution alleged that defendant and
2 This case resolved before the preliminary hearing and the parties waived a full
probation report. The parties agreed that the police reports provided a factual basis for
defendant’s pleas, and this court granted defendant’s motion to augment the record with
the police reports. Our summary of the facts is therefore taken from those reports.

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Espinoza possessed 57 grams or more of a substance containing at least five grams of
cocaine or cocaine base (Pen. Code, § 1203.073, subd. (b)(1)).
Defendant pleaded no contest to both counts and admitted the quantity allegations.
C. Sentencing Hearing
At the sentencing hearing held in September 2016, the prosecutor noted that the
probation officer had not recommended any “cell phone search conditions” despite the
fact that the case involved defendant “actually communicating via cell phone.” The
prosecutor asked the trial court to impose an electronics search condition.
The trial court agreed that because defendant had used a phone to arrange the drug
sale, there was “a reasonable nexus” to an electronics search condition. The trial court
then indicated it would order defendant “to consent to any search by any law enforcement
agencies to search and seizure without cause to all electronic devices under your control
to and including cell phones, computer --”
Defense counsel interrupted, saying, “I thought the request was only for the cell
phone, not all [electronic devices].” He noted that if the condition extended to “all
electronic devices,” he objected “on due process, Fifth Amendment, overly broad, and no
nexus to the other things.”
The prosecutor argued that the condition was not “overly broad” because other
electronic devices “can connect.”
The trial court acknowledged “that the evidence we do have is they used a cell
phone.” However, the trial court reaffirmed that it was ordering that defendant consent
to searches of “all electronic devices.” The court explained that “[t]echnology is always
changing” and “you can communicate by a number of means of electronic devices.” The
court reasoned that if defendant knew his cell phone was subject to search, he might use
email or other forms of electronic communication instead.
The trial court also ordered defendant “to provide passwords necessary for the law
enforcement agency to search those electronic devices.”

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II. DISCUSSION
Defendant argues the electronic devices search condition is unreasonable under
Lent because it bears no relationship to his crimes and is not reasonably related to his
future criminality. He contends the condition is unconstitutionally overbroad because
it is not narrowly tailored so as to limit its impact on his rights to privacy, speech, and
association. He contends the condition is unconstitutionally vague because it does not
specify what electronic devices are included and does not specify the content that is
subject to search. To the extent his trial counsel failed to make any of these arguments at
the sentencing hearing, defendant argues he received constitutionally ineffective
assistance of counsel. Defendant urges us to remand to the trial court to narrowly tailor a
condition that allows for only a search of his cell phone and is limited to searches of
telephonic, texting, and email communications. He agrees the trial court may impose a
password condition to facilitate those more limited searches.
A. Forfeiture
The Attorney General concedes that the objection defendant raised at sentencing
“can be reasonably interpreted” as including arguments that the electronic devices search
condition is vague, overbroad, and unreasonable. However, the Attorney General
contends that defendant waived any challenge to the order requiring he provide
passwords to all of his electronic devices.
As noted above, defendant agrees the trial court could reasonably impose a
password condition to facilitate limited searches of his cell phone. We do not understand
him to be making a separate challenge to the password condition. Reasonably construed,
the password condition was part and parcel of the electronics search condition. The
“evident purpose of the password condition[]” was to implement the search condition.
(See People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1175 (Ebertowski).) Without
passwords for defendant’s electronic devices, the probation officer would not be able to
search them under the search condition.

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To the extent that the password condition was separate from the electronics search
condition and is separately challenged on appeal, we believe an objection would have
been futile, since the two conditions were interrelated and the trial court had just
overruled defendant’s objection to the electronics search condition. (See In re Antonio C.
(2000) 83 Cal.App.4th 1029, 1033.) Thus, we find no forfeiture.
B. Standards of Review
We review the reasonableness of probation conditions for an abuse of discretion.
(People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) Whether a probation condition
is unconstitutionally vague or overbroad is a question of law, which we review de novo.
(In re Sheena K. (2007) 40 Cal.4th 875, 888 (Sheena K.).)
C. Reasonableness Under Lent
Under the Lent test, “ ‘[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 . . . .” [Citation.]’ ” (Olguin, supra, 45 Cal.4th
at p. 379.) The Lent test “is conjunctive—all three prongs must be satisfied before a
reviewing court will invalidate a probation term. [Citations.] As such, even if a
condition of probation has no relationship to the crime of which a defendant was
convicted and involves conduct that is not itself criminal, the condition is valid as long
as the condition is reasonably related to preventing future criminality. [Citation.]”
(Olguin, supra, at pp. 379-380.)
Defendant points out that while he “used his cell phone as a telephonic device to
communicate about potential sales of cocaine,” there is no indication that he used any
other electronic devices to engage in criminal activity and no indication he used the
phone’s other functions to engage in drug sales. Thus, he claims, the order that he permit
searches of all of his electronic devices and provide passwords to all functions of those

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devices has no relationship to his offenses. For the same reason, he asserts that the
condition is not reasonably related to future criminality.
In Ebertowski, supra, 228 Cal.App.4th 1170, this court rejected a reasonableness
challenge to two probation conditions. One condition required the defendant to submit
to warrantless searches of “any electronic devices (including cellular phones, computers
or notepads) within his or her custody or control” and to provide the passwords to such
devices. (Id. at p. 1173.) The other condition required the defendant to “provide all
passwords to any social media sites” and “submit said sites” to warrantless searches.
(Ibid.)
The defendant in Ebertowski had threatened and physically resisted a police
officer. He had also identified himself as a gang member and made gang signs. He
subsequently pleaded no contest to making criminal threats and resisting arrest, and
he admitted a gang enhancement allegation. (Ebertowski, supra, 228 Cal.App.4th at
p. 1172.) After the prosecutor informed the trial court that the defendant had used a
social media site to promote his gang, the court placed the defendant on probation with
gang conditions and the electronic devices and social media conditions. (Id. at p. 1173.)
On appeal, the Ebertowski defendant challenged the electronic devices and social
media conditions as both overbroad and unreasonable. This court found the conditions
were reasonably related to the defendant’s crimes as well as his future criminality,
because they facilitated the effective supervision of the defendant’s undisputed probation
conditions, which included gang terms. The disputed conditions “were designed to allow
the probation officer to monitor [the] defendant’s gang associations and activities. . . .
The only way that [the] defendant could be allowed to remain in the community on
probation without posing an extreme risk to public safety was to closely monitor his gang
associations and activities. The password conditions permitted the probation officer to do
so. Consequently, the password conditions were reasonable under the circumstances, and

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the trial court did not abuse its discretion in imposing them.” (Ebertowski, supra, 228
Cal.App.4th at p. 1177.)
Defendant relies on In re Erica R. (2015) 240 Cal.App.4th 907 (Erica R.).
In Erica R., the juvenile court had declared the minor a ward of the court based on her
unlawful possession of the drug Ecstasy (Health & Saf. Code, § 11377, subd. (a)).
(Erica R., supra, at p. 910.) The juvenile court had placed the minor on probation subject
to a search condition that included her “ ‘electronics day or night at the request of a
Probation Officer or peace officer’ ” and that required the minor to give her passwords to
her probation officer. (Ibid.) The Court of Appeal concluded the condition was invalid
under Lent and struck the condition. (Erica R., supra, at p. 915.) As for the first prong of
the Lent test, the court concluded there was “nothing in the original or amended juvenile
petitions or the record that connects Erica’s use of electronic devices or social media to
her possession of any illegal substance” and there was no evidence she used an electronic
device to purchase the drug. (Erica R., supra, at p. 912.) Regarding the second prong,
the court stated: “Obviously, the typical use of electronic devices and of social media is
not itself criminal.” (Id. at p. 913.) As for future criminality, the court stated, “There is
nothing in this record regarding either the current offense or Erica’s social history that
connects her use of electronic devices or social media to illegal drugs. In fact, the record
is wholly silent about Erica’s usage of electronic devices or social media. Accordingly,
‘[b]ecause there is nothing in [Erica’s] past or current offenses or [her] personal history
that demonstrates a predisposition’ to utilize electronic devices or social media in
connection with criminal activity, ‘there is no reason to believe the current restriction will
serve the rehabilitative function of precluding [Erica] from any future criminal acts.’ ”
(Ibid.)3
3 The question whether an electronics search condition is reasonable under Lent
when it has no relationship to the crimes committed but was justified as reasonably
(continued)

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The minor in In re P.O. (2016) 246 Cal.App.4th 288 (P.O.), another case cited by
defendant, admitted committing misdemeanor public intoxication. (Id. at p. 292.) As a
condition of his probation, the minor was required to submit to warrantless searches of
his “ ‘electronics including passwords.’ ” (Ibid.) The primary issue in P.O. was whether
the condition was reasonably related to the minor’s future criminality, since the Attorney
General had “effectively concede[d]” that the condition had no relationship to the minor’s
crime. (Id. at p. 294.) The Court of Appeal concluded that the condition was reasonably
related to the minor’s future criminality. The court explained, “[T]he condition
reasonably relates to enabling the effective supervision of P.O.’s compliance with other
probation conditions. Specifically, the condition enables peace officers to review P.O.’s
electronic activity for indications that P.O. has drugs or is otherwise engaged in activity
in violation of his probation.” (Id. at p. 295.)
“[P]robation conditions authorizing searches ‘aid in deterring further offenses . . .
and in monitoring compliance with the terms of probation. [Citations.] By allowing
close supervision of probationers, probation search conditions serve to promote
rehabilitation and reduce recidivism while helping to protect the community from
potential harm by probationers.’ [Citation.] A condition of probation that enables a
probation officer to supervise his or her charges effectively is, therefore, ‘reasonably
related to future criminality.’ [Citations.]” (Olguin, supra, 45 Cal.4th at pp. 380-381.)
Probation search conditions are intended “ ‘to deter the commission of crimes and to
protect the public, and the effectiveness of the deterrent is enhanced by the potential for
random searches.’ ” (People v. Ramos (2004) 34 Cal.4th 494, 506.)
related to future criminality because it facilitates supervision of the offender is pending
review in the California Supreme Court in In re Ricardo P. (2015) 241 Cal.App.4th 676,
review granted February 17, 2016, S230923. The Supreme Court has also granted review
and deferred briefing or further action pending its decision in In re Ricardo P. in more
than 35 published and unpublished cases.

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In our view, the condition requiring all of defendant’s electronic devices to be
subject to search is reasonably related to his future criminality. Since defendant used a
cell phone to arrange drug transactions, it was reasonable for the trial court to give the
probation officer the ability to ensure that defendant was not violating his probation by
arranging drug sales through any electronic devices—whether a cell phone, laptop
computer, or tablet. Although there is no evidence defendant used any electronic device
other than a cell phone to conduct drug deals, it was permissible for the trial court to
impose a more wide-ranging electronics search condition, “for conditions of probation
aimed at rehabilitating the offender need not be so strictly tied to the offender’s precise
crime.” (Moran, supra, 1 Cal.5th at pp. 404-405.) If the electronic devices search
condition is limited to defendant’s cell phone, he could easily circumvent the condition
by using some other device, like a tablet computer or laptop, to sell narcotics using many
of the same functions and applications that are on his cell phone.
Unlike the minor in Erica R., who admitted simple drug possession, defendant was
convicted of offenses related to selling narcotics. Allowing the probation officer to
access defendant’s electronic devies will facilitate defendant’s supervision and can deter
future criminality by ensuring that defendant does not attempt to resume selling drugs
using his electronic devices. Given his use of a cell phone to commit his current
offenses, we conclude the electronic devices search condition was reasonably related to
future criminality. Thus, the electronic devices search condition is reasonable and valid.
D. Constitutional Overbreadth Challenge
In the context of probation conditions, the California Supreme Court has stated
that a “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
unconstitutionally overbroad.” (Sheena K., supra, 40 Cal.4th at p. 890.)
“The touchstone of the Fourth Amendment is reasonableness, and the
reasonableness of a search is determined ‘by assessing, on the one hand, the degree to

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which it intrudes upon an individual’s privacy and, on the other, the degree to which it
is needed for the promotion of legitimate governmental interests.’ [Citation.]” (United
States v. Knights (2001) 534 U.S. 112, 118-119 (Knights).) A person’s status as a
probationer subject to a search condition informs both sides of that balance because
probationers enjoy a lesser expectation of privacy than the general public. (Id. at p. 119.)
Defendant relies on the United States Supreme Court’s decision in Riley v.
California (2014) 573 U.S. __ [134 S.Ct. 2473] (Riley) and this court’s decision in
People v. Appleton (2016) 245 Cal.App.4th 717 (Appleton). In Riley, the court held that
the warrantless search of a suspect’s cell phone implicated and violated the suspect’s
Fourth Amendment rights. (Riley, supra, at p. __ [134 S.Ct. at pp. 2472-2473].) The
court explained that modern cell phones, which have the capacity to be used as mini-
computers, can potentially contain sensitive information about a number of areas of a
person’s life. (Id. at p. __ [134 S.Ct. at p. 2489].) The court emphasized, however,
that its holding was only that cell phone data is subject to Fourth Amendment protection,
“not that the information on a cell phone is immune from search.” (Riley, supra, at p. __
[134 S.Ct. at p. 2493].)
Riley is inapposite since it arose in a different Fourth Amendment context. Riley
involved the scope of a warrantless search incident to arrest of a person who had not been
found to have committed a crime beyond a reasonable doubt and who was not on
supervised release. (Riley, supra, 573 U.S. at p. ___ [134 S.Ct. at pp. 2480-2481].) The
balancing of the state’s interests and the defendant’s privacy interests is very different in
this case, which involves the probation of a convicted felon. Moreover, Riley did not
consider the constitutionality of conditions of probation. Persons on supervised release
do not enjoy the absolute liberty to which every citizen is entitled and the court may
impose reasonable conditions that deprive an offender of some freedoms enjoyed by law-
abiding citizens. (Knights, supra, 534 U.S. at p. 119; see also In re Q.R. (2017)

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7 Cal.App.5th 1231, 1238, review granted April 12, 2017, S240222 [Riley involved a
person’s “preconviction expectation of privacy”].)
This court rejected an overbreadth argument in Ebertowski where the challenged
probation condition required the defendant to “ ‘provide all passwords to any social
media sites, . . . and to submit those sites to search at any time without a warrant by any
peace officer.’ ” (Ebertowski, supra, 228 Cal.App.4th at p. 1172.) As noted above, the
defendant in Ebertowski, a member of a criminal street gang, had used social media to
promote his gang. This court rejected the defendant’s claim that the condition was “not
narrowly tailored to [its] purpose so as to limit [its] impact on his constitutional rights to
privacy, speech, and association” and concluded that the state’s interest in preventing the
defendant from continuing to associate with gangs and participate in gang activities,
which was served by the condition, outweighed the minimal invasion of his privacy. (Id.
at p. 1175.)
In Appleton, the defendant pleaded no contest to false imprisonment by means of
deceit. (Appleton, supra, 245 Cal.App.4th at p. 720.) The trial court granted probation
and imposed a condition making the defendant’s computers and electronic devices
“ ‘subject to forensic analysis search for material prohibited by law.’ ” (Id. at p. 721.)
The only connection to electronic devices in Appleton was that the defendant met the
minor victim on social media several months before the crime occurred. (Id. at pp. 719-
720.) On appeal, the defendant challenged the search condition as both unreasonable
and overbroad. (Id. at pp. 723-724.) The Appleton panel concluded that although the
challenged condition was reasonable, it was unconstitutionally overbroad, and the panel
remanded the case to the trial court to “consider fashioning an alternative probation
condition.” (Id. at p. 729.) Relying on Riley, the Appleton panel held that the condition
was overbroad because it “would allow for searches of vast amounts of personal
information” (Appleton, supra, at p. 727) that “could potentially expose a large volume
of documents or data, much of which may have nothing to do with illegal activity,”

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including “for example, medical records, financial records, personal diaries, and intimate
correspondence with family and friends” (id. at p. 725). The Appleton panel concluded
that “the state’s interest here—monitoring whether defendant uses social media to contact
minors for unlawful purposes—could be served through narrower means,” such as by
imposing “the narrower condition approved in Ebertowski, whereby defendant must
provide his social media accounts and passwords to his probation officer for monitoring.”
(Id. at p. 727, fn. omitted.)
Here, the search condition regarding defendant’s electronic devices properly
serves the state’s interest in preventing defendant from using electronic devices to engage
in criminal activity such as the sale of narcotics. Indeed, defendant recognizes that some
intrusion on his privacy rights would be justified, since he does not object to applying the
electronic devices search condition to his cell phone. Moreover, electronic information is
easily transferable between devices. By allowing the search of other electronic devices,
the condition ensures that defendant is not engaging in narcotics sales by the use of any
electronic device. As we have said, if the electronic devices search condition is limited to
defendant’s cell phone, he could easily circumvent the condition by using some other
device, like a tablet computer or laptop, to sell narcotics using many of the same
functions and applications that are on his cell phone, and the probation officer would not
be able to effectively monitor defendant’s activity while he is on probation.
For these reasons, we conclude the electronic devices search condition is not
overbroad.
E. Constitutional Vagueness Challenge
“A probation condition ‘must be sufficiently precise for the probationer to know
what is required of him, and for the court to determine whether the condition has been
violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.]”
(Sheena K., supra, 40 Cal.4th at p. 890.)

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“[T]he underpinning of a vagueness challenge is the due process concept of ‘fair
warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of
preventing arbitrary law enforcement and providing adequate notice to potential
offenders’ [citation], protections that are ‘embodied in the due process clauses of the
federal and California Constitutions. [Citations.]’ [Citation.] The vagueness doctrine
bars enforcement of ‘ “a statute which either forbids or requires the doing of an act in
terms so vague that [people] of common intelligence must necessarily guess at its
meaning and differ as to its application.” [Citation.]’ [Citation.] . . . In deciding the
adequacy of any notice afforded those bound by a legal restriction, we are guided by the
principles that ‘abstract legal commands must be applied in a specific context,’ and that,
although not admitting of ‘mathematical certainty,’ the language used must have
‘ “reasonable specificity.” ’ [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.)
In In re Malik J. (2015) 240 Cal.App.4th 896 (Malik J.), the appellate court
considered whether a probation condition requiring the minor to “ ‘provide all passwords
to any electronic devices, including cell phones, computers or [notepads], within [the
minor’s] custody or control’ ” was unconstitutionally vague. (Id. at p. 900.) The minor
argued that the phrase “ ‘any electronic devices’ ” could be interpreted to include
Kindles, Playstations, iPods, the codes to his car, home security system, or even his ATM
card. (Id. at p. 904.) However, the appellate court concluded that the search condition
was in response to the trial court’s concern that the minor would use items such as his
cell phone to coordinate with other offenders. Additionally, the minor had previously
robbed people of their iPhones. (Id. at pp. 904-905.) Therefore, the appellate court
concluded that it was reasonably clear that the condition was meant to encompass
“similar electronic devices within [minor’s] custody and control that might be stolen
property, and not, as [minor] conjectures, to authorize a search of his Kindle to see what
books he is reading or require him to turn over his ATM password.” (Id. at p. 905.)

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Defendant asserts that unlike in Malik J., the context of the electronic devices
condition was not made clear in this case. He also asserts that “there is no way to know”
the scope of the condition and speculates that it could include not just communications
but information such as the content of his bank accounts. We disagree. When imposing
the condition, the trial court noted that because defendant had used a phone to arrange
the drug sale, there was “a reasonable nexus” to an electronics search condition. It is
reasonably clear that the probation condition authorizing warrantless searches of “all
electronic devices” was meant to encompass cell phones and similar devices in
defendant’s possession that might be used to communicate for the purpose of arranging
drug sales, so the probation officer can determine whether defendant is engaged in such
communications. The condition is not reasonably read as authorizing a search of
defendant’s bank accounts or content that could not provide a means of facilitating a drug
sale.
We conclude the electronic devices search condition is not unconstitutionally
vague.
III. DISPOSITION
The order of probation is affirmed.

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___________________________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
MIHARA, J.
People v. Ramirez
H043973

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