P. v. Lynch

Filed 1/11/18 P. v. Lynch 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
PAUL LYNCH,
Defendant and Appellant.
D071882
(Super. Ct. No. SCD265745)
APPEAL from a judgment of the Superior Court of San Diego County, Robert F.
O'Neill, Judge. Affirmed as modified.
Patrick Dudley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland,
Assistant Attorneys General, A. Natacha Cortina and Amanda E. Casillas, Deputy
Attorneys General, for Plaintiff and Respondent.

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Paul Lynch pleaded guilty to one count of assault by means likely to cause great
bodily injury (Pen. Code,1 § 245, subd. (a)(4)). The trial court sentenced him to credit
for time served and placed him on three years of formal probation with multiple
conditions. Lynch challenges four of the probation conditions, contending they are
overbroad, unreasonable, and/or violate his constitutional rights. The People concede
that one of the conditions—barring Lynch's presence at places where alcohol is the main
item for sale—should be stricken. We agree, and modify the probation order to strike
that condition. We otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
In February 2016, Lynch hit his long-time neighbor in the face with a glass bottle
after they argued and the neighbor called him vulgar names. When police arrived, Lynch
was uncooperative and unwilling to leave his residence. The neighbor admitted to
"start[ing] the whole thing" after getting "pissed" and "belligerent," and related that
Lynch wanted to be left alone and did not want problems. Lynch stated he hit the
neighbor in self-defense.
1 Statutory references are to the Penal Code unless otherwise specified.
2 The factual basis for Lynch's guilty plea was that he "did commit an assault by
means likely to cause great bodily injury." We state the background facts of the offense
from the probation report. The probation report identifies Lynch as male, but the
probation officer observed during his interview that he dressed as a woman and preferred
to be called "Star." The victim also referred to Lynch alternatively as male and female.
We refer to Lynch with a masculine pronoun.

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Following Lynch's guilty plea, the probation officer issued a report recounting
Lynch's acceptance of responsibility for the present offense as well as his lengthy
juvenile and adult criminal history. He stated Lynch was presumptively ineligible for
probation given his previous felony convictions. The officer nevertheless pointed out
that the parties had stipulated to a grant of probation, and he recommended Lynch be
placed on three years of formal probation with various conditions, including that Lynch
obtain probation officer approval as to his residence (condition 10g), and submit his
person, vehicle, residence, property, personal effects, computers, and recordable media to
search at any time (condition 6n). The probation officer additionally recommended some
alcohol and marijuana conditions, specifically, that Lynch not knowingly use or possess
alcohol if directed by his probation officer (condition 8b) or be in places other than in the
course of employment where alcohol is the main item for sale (condition 8h), that Lynch
submit to chemical testing for blood alcohol content upon request (condition 8f), and that
he not use marijuana at all, with or without a prescription or recommendation (condition
14a).
The probation officer evaluated Lynch under the COMPAS (Correctional
Offender Management Profiling for Alternative Sanctions) assessment tool. The
assessment found Lynch "would benefit from some guidance and monitoring in the
community via probation supervision and referrals to community resources," and factors
to be addressed were his history of noncompliance and violence, his current violence, and
his "criminal personality."

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At Lynch's sentencing hearing, the court considered Lynch's counsel's arguments
concerning the probation officer's recommended probation conditions. Defense counsel
did not object to the alcohol use restriction or requirement for chemical testing for blood
alcohol content, but did object to conditions 6n and 8h on grounds they had no nexus to
the case, and also to condition 14a, asking the court to permit Lynch to use marijuana if
Lynch was determined to have a medical condition requiring a recommendation for such
use. As for condition 6n's requirement for searches of Lynch's computers and recordable
media, the court stated, "[W]ithout even knowing if your client has a computer or
whatever, that's a standard term and condition of probation to monitor probationers." It
invited Lynch to put the issue on calendar if a specific problem arose, and observed in
response to counsel's further arguments that the issue might become moot depending on
legal developments. The court overruled the remaining objections, and ordered that
Lynch be subject to all of the probation conditions described above. Lynch accepted
probation on all the imposed terms and conditions.
DISCUSSION
I. Legal Principles and Standard of Review
A grant of probation " 'is not a right, but a privilege' " (People v. Moran (2016) 1
Cal.5th 398, 402) and a trial court has broad discretion to choose probation in sentencing
a criminal offender. (Ibid.) Reviewing courts defer to the court's choice absent a
manifest abuse of that discretion. (Ibid.)
"When an offender chooses probation, thereby avoiding incarceration, state law
authorizes the sentencing court to impose conditions on such release that are 'fitting and

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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 . . .
for the reformation and rehabilitation of the probationer.' (§ 1203.1, subd. (j).)
Accordingly, . . . a sentencing court has 'broad discretion to impose conditions to foster
rehabilitation and to protect public safety pursuant to . . . section 1203.1.' [Citation.] But
such discretion is not unlimited: '[A] condition of probation must serve a purpose
specified in the statute,' and conditions regulating noncriminal conduct must be
' "reasonably related to the crime of which the defendant was convicted or to future
criminality." ' " (People v. Moran, supra, 1 Cal.5th at pp. 402-403.) Our state's high
court has stated that a probation condition " '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 (Olguin),
quoting People v. Lent (1975) 15 Cal.3d 481, 486 (Lent); People v. Trujillo (2017) 15
Cal.App.5th 574, 583 (Trujillo), review granted Nov. 29, 2017, No. S244650; In re
J.B. (2015) 242 Cal.App.4th 749, 754.) A reviewing court can invalidate the condition
only if all three prongs—referred to as the Lent factors—are met. (Olguin, at p. 379.)
A reviewing court can also invalidate probation conditions if they are
unconstitutionally overbroad, that is, if they impose limitations on a person's
constitutional rights that are not closely tailored to the purpose of the condition. (See In
re Sheena K. (2007) 40 Cal.4th 875, 890; People v. Stapleton (2017) 9 Cal.App.5th 989,
993.) " 'A restriction is unconstitutionally overbroad . . . if it (1) "impinge[s] on

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constitutional rights," and (2) is not "tailored carefully and reasonably related to the
compelling state interest in reformation and rehabilitation." [Citations.] 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.' " (Stapleton, at p. 993; People v.
Appleton (2016) 245 Cal.App.4th 717, 723.)
Appellate courts generally review probation conditions for abuse of discretion.
(People v. Moran, supra, 1 Cal.5th at p. 403; People v. Appleton, supra, 245 Cal.App.4th
at p. 723.) "That is, a reviewing court will disturb the trial court's decision to impose a
particular condition of probation only if, under all the circumstances, that choice is
arbitrary and capricious and is wholly unreasonable." (Moran, at p. 403.) But
constitutional challenges, such as a claim that a condition is overbroad, are reviewed de
novo. (People v. Stapleton, supra, 9 Cal.App.5th at p. 993; Appleton, at p. 723.)
II. Residence Approval Condition
Lynch contends probation condition 10g, which requires him to obtain probation
officer approval of his residence, is overbroad and impinges on his right to travel and
freedom of association under the First Amendment. Lynch admits he did not object to
the probation officer's recommendation for the condition or its imposition by the trial
court. He nevertheless contends that his constitutional challenge is not forfeited because
it is a pure question of law that can be resolved without regard to his sentencing record.
The People respond that Lynch forfeited the claim by his failure to object; that in order to

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determine whether the condition is overbroad, this court must refer to the record
including his criminal and social history.
We agree with the People. The mere fact that Lynch has advanced a constitutional
challenge does not permit us to review it for the first time on appeal. We acknowledge
that the California Supreme Court has recognized that the general forfeiture rule does not
apply to a facial challenge to the constitutionality of a probation condition. (In re Sheena
K., supra, 40 Cal.4th at pp. 887-889.) However, it cautioned that its conclusion "does not
apply in every case in which a probation condition is challenged on a constitutional
ground. . . . [W]e do not conclude that 'all constitutional defects in conditions of
probation may be raised for the first time on appeal, since there may be circumstances
that do not present "pure questions of law that can be resolved without reference to the
particular sentencing record developed in the trial court." [Citation.] In those
circumstances, "[t]raditional objection and waiver principles encourage development of
the record and a proper exercise of discretion in the trial court." ' " (Id. at p. 889.) The
court emphasized that "generally, given a meaningful opportunity, the probationer should
object to a perceived facial constitutional flaw at the time a probation condition initially
is imposed in order to permit the trial court to consider, and if appropriate in the exercise
of its informed judgment, to effect a correction." (Ibid.)
In arguing the residence approval probation condition here is overbroad and must
be stricken or modified, Lynch asserts that the condition "has nothing to do with the
circumstance of the instance offense," "has nothing to do with any potential future
criminality," and unduly impinges on his right to travel and freedom of association. He

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relies on People v. Bauer (1989) 211 Cal.App.3d 937, in which the appellate court
rejected a residence approval requirement in part because the probation report did not
suggest the defendant's home life contributed to the crime of which he was convicted or
was reasonably related to future criminality. (Id. at p. 944.) Because Lynch's challenge
asks us to review the record of his criminality and the circumstances of his current
offense to assess constitutional overbreadth, the matter does not present a pure question
of law, and the forfeiture doctrine applies. (See In re Sheena K., supra, 40 Cal.4th at pp.
885, 887 [challenge to a probation term on grounds of overbreadth that is capable of
correction without reference to the particular sentencing record developed in the trial
court can be said to present a pure question of law].) Under the circumstances, a timely
objection would have allowed the court to modify or delete an allegedly unreasonable
condition or to explain why it is necessary in the particular case. (People v. Welch (1993)
5 Cal.4th 228, 235.) "A rule foreclosing appellate review of claims not timely raised in
this manner helps discourage the imposition of invalid probation conditions and reduce
the number of costly appeals brought on that basis." (Ibid.)
We cannot construe Lynch's claim as a facial challenge that does not require
scrutiny of the sentencing record. Lynch makes no reasoned argument that the condition
is inappropriate in all circumstances or overbroad in the abstract. To the contrary, a
probation officer's discretion to approve a probationer's residence must be guided by the
goal of reformation and rehabilitation (see People v. Stapleton, supra, 9 Cal.App.5th at
pp. 993), and the officer "cannot use the residence condition to arbitrarily disapprove a
defendant's place of residence." (Id. at p. 996.) Indeed, courts presume a probation

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officer will not withhold approval for irrational or capricious reasons, and have observed
the condition on its face "does not grant a probation officer the power to issue arbitrary or
capricious directives that the court itself could not order." (Ibid.) We need not further
address the matter, since absent a complete record, this court should exercise restraint and
decline to decide the issue on a constitutional basis. (See County of Los Angeles v.
Williamsburg National Insurance Company (2015) 235 Cal.App.4th 944, 954-955
[appellate court will not reach constitutional questions unless absolutely required to do so
to dispose of the matter].)
III. Computers and Recordable Media Search (Condition 6n)
Lynch contends the court erred by imposing probation condition 6n to the extent it
requires him to submit his "computers[] and recordable media . . . to search at any time
with or without a warrant, and with or without probable cause," when required by his
probation officer or a law enforcement officer. Comparing his case to In re Erica R.
(2015) 240 Cal.App.4th 907 and distinguishing People v. Ebertowski (2014) 228
Cal.App.4th 1170, in which the court upheld a similar condition in a case involving
a gang related crime and defendant's admission to a gang allegation (Ebertowski, at
pp. 1172-1173, 1176-1177), he maintains the condition is unreasonable under Lent.
Lynch further argues the condition is so overbroad as to impinge on his Fourth
Amendment right to privacy.
Apparently conceding the condition does not relate to Lynch's crime and targets
conduct that is not itself criminal, the People argue in response that the condition is valid
under Lent because it is reasonably related to reducing future criminality. According to

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them, in view of Lynch's lengthy and violent criminal history as well as his poor
performance on probation, the condition relates to Lynch's supervision and rehabilitation
by helping the probation department ensure he refrains from committing future crimes.
The People further argue the electronics search condition is not overbroad because it
allows the close supervision of probationers to ensure they comply with their probation
terms, and thus is closely tailored to the compelling state interest in reforming and
rehabilitating defendants.
As stated, the probation officer's report reflects Lynch's lengthy criminal history.
It began in early 1992, when as a juvenile Lynch was found to have committed an
attempted robbery after he threatened a man at a trolley stop with a gun, demanded his
money, then hit him in the face. Months later, Lynch violated his juvenile probation after
he threatened to kill staff members at his group home, and he was returned to Juvenile
Hall. At the end of 1992, as an adult, Lynch received probation for committing a
misdemeanor burglary (stealing from a neighbor's car after breaking its window with a
rock), but later had his probation revoked and reinstated. In 1993, he kicked a woman at
a trolley stop, then punched and shot a man who came to the woman's aid, resulting in the
man's death due to complications from the gunshot wound. As a result, Lynch pleaded
guilty to a felony (among other crimes), admitted a gun use allegation, and was sentenced
in 1995 to 16 years in state prison. In 2005, Lynch pleaded nolo contendere to falsely
reporting an emergency and placed on probation after he ran from police while being
taken into custody on a domestic violence related warrant, then threatened to make false
911 calls. In 2006 he was convicted of similar misdemeanor charges and again placed on

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probation. That year and in 2007, Lynch committed parole violations and was returned to
prison. In 2009, he pleaded nolo contendere to obstructing an officer and was placed on
probation, which was revoked and reinstated at least twice that year.3 In 2012, Lynch
was placed on probation after pleading guilty to spousal battery after pushing his wife
against a fence and fighting with her. He received another grant of probation after
pleading guilty to misdemeanor theft in 2014. Lynch's probation was revoked at least
twice in 2014, before he committed the present offense in February 2016. The probation
officer observed that Lynch had previously been granted probation 11 times and was on
two active grants at the time of his 2016 arrest; that given his criminal history, "his prior
performance on juvenile and adult probation and parole was poor."
This court recently addressed a challenge by a defendant subjected to an
electronics search probation condition in Trujillo, supra, 15 Cal.App.5th 574, which we
discuss in detail for its persuasive value. (Cal. Rules of Court, rule 8.1115(e)(1).) The
defendant's crime, like Lynch's here, had no relation to the probation condition, and the
main issue as here was whether the condition was reasonably related to future criminality.
3 In 2012, Lynch's 2005, 2006 and 2009 convictions were set aside and his cases
dismissed under section 1203.4. "Generally, section 1203.4 'allows for probationers to
have their convictions set aside and the accusations against them dismissed, and similarly
provides that, with specified exceptions, such a defendant "shall thereafter be released
from all penalties and disabilities resulting from the offense of which he or she has been
convicted." ' (People v. Mgebrov (2008) 166 Cal.App.4th 579, 584, quoting People v.
Vasquez (2001) 25 Cal.4th 1225, 1228.) " ' "A grant of relief under section 1204.3 is
intended to reward an individual who successfully completes probation by mitigating
some of the consequences of his conviction and, with a few exceptions, to restore him to
his former status in society to the extent the Legislature has power to do so." ' " (People
v. Mgebrov, at p. 584.) But section 1203.4 does not expunge the conviction or render it a
legal nullity. (People v. Seymour (2015) 239 Cal.App.4th 1418, 1429.)

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We explained that "a probation condition 'that enables a probation officer to supervise his
or her charges effectively is . . . "reasonably related to future criminality." ' " [Citations.]
Because the probation officer is responsible for ensuring the probationer refrains from
criminal activity and obeys all laws during the probationary period, the court may
appropriately impose conditions intended to aid the probation officer in supervising
the probationer and promoting his or her rehabilitation. [Citations.] 'This is true "even
if [the] condition . . . has no relationship to the crime of which a defendant was
convicted." ' " (Id. at p. 583.)
In Trujillo, the defendant's crimes were first-time offenses, but his record showed
he had substantial risk factors relevant to reoffending, and we observed the trial court had
imposed the condition aware of these facts and the probation department's conclusion that
he was at risk and would require close supervision of his daily activities to support a
successful probation. (Trujillo, supra, 15 Cal.App.5th at p. 583.) The trial court had
found that in order to supervise the defendant, the probation department needed to be able
to view the contents of his computer and cell phone, and thus we pointed out it "did not
impose this condition as a matter of routine, but considered the specific facts relevant to
Trujillo's case." (Ibid.) Under the circumstances, we held the court did not abuse its
discretion: "If the court permits this young convicted felon to avoid prison through
probation despite his violent offenses, the court has the authority to take steps to help
ensure Trujillo will remain crime free and that public safety objectives are satisfied. As
our high court has observed, the purpose of requiring Fourth Amendment search waivers
as a probation condition is 'to determine not only whether [the probationer] disobeys the

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law, but also whether he obeys the law. Information obtained [from an unexpected and
unprovoked search] afford[s] a valuable measure of the effectiveness of the supervision
given the defendant . . . .' [Citations.] The trial court had a reasonable basis to conclude
the most effective way to confirm Trujillo remains law-abiding is to permit his electronic
devices to be examined, rather than relying on a meeting or a telephone conversation.
This required Fourth Amendment waiver is not open-ended, it applies only during the
probation period. If Trujillo is successful at his probation, the Fourth Amendment waiver
will terminate and his electronic devices will again be completely private. The court
made the factual determination that the electronics-search condition is necessary to
provide appropriate supervision for Trujillo while he is on probation. Under Lent and
Olguin, the court did not err in reaching this conclusion." (Id. at pp. 583-584.)
We further rejected the notion—suggested in cases such as In re Erica R., supra,
240 Cal.App.4th 907, on which Lynch relies4—that the Trujillo defendant's failure to use
an electronic device in committing his crimes or the lack of any connection between such
a device and the crimes rendered the search condition unreasonable as a matter of law.
(Trujillo, supra, 15 Cal.App.5th at p. 584.) As we explained, whether a condition is
reasonably related to reducing future criminality requires a focus on the particular facts
and circumstances, not bright-line rules; that the propriety of a specific probation
4 In Erica R., a juvenile probation case, Division Two of the First District Court of
Appeal struck an electronics search condition where there was no evidence suggesting the
minor, who was convicted of misdemeanor possession of ecstasy, ever used her cell
phone to negotiate the purchase or sale of an illegal substance. (In re Erica R., supra,
240 Cal.App.4th at pp. 912-913.)

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condition "necessarily depends on a myriad of tangible and intangible factors before the
trial court, including the defendant's particular crime, criminal background, and future
prospects. It is for the trial court, with the assistance of the probation officer and other
experts, to determine the probation conditions that will permit effective supervision of the
probationer." (Trujillo, supra, 15 Cal.App.5th at p. 584.) And it was this court's role to
decide whether the lower court had a reasonable factual basis to decide the condition
would assist probation in supervising the defendant. (Id. at pp. 584-585.) In Trujillo, the
facts supported the conclusion that the trial court's decision did have such a basis.
We are persuaded by Trujillo's reasoning and apply it in this case. Though the
trial court here acknowledged that the condition was "standard . . . to monitor
probationers," Trujillo's outcome did not turn on whether the trial court perceived the
condition to be standard or routine, but rather on its finding—knowing the defendant's
history and risk factors—that the condition was necessary to provide appropriate
supervision for the defendant while he was on probation. Here, the court had before it the
probation report recounting Lynch's lengthy criminal history and the probation
department's conclusions as to the factors—Lynch's history of non-compliance on
probation, his past and current violence, and his criminal personality—that had to be
addressed by the probation officers to reduce the chances of his reoffending. As in
Trujillo, here the court had reasonable grounds to conclude that an effective way to
confirm Lynch remains compliant and law-abiding during his period of supervision is to
permit his electronic devices to be examined, rather than merely relying on meetings or
telephone conversations. Because the electronics search condition is reasonably related

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to Lynch's supervision, it is reasonably related "to his rehabilitation and potential future
criminality." (People v. Olguin, supra, 45 Cal.4th at p. 380.) We conclude the court did
not abuse its discretion in ordering the condition under Lent, supra, 15 Cal.3d 481.
Additionally, as we did in Trujillo, we reject Lynch's argument that the electronics
search condition is unconstitutionally overbroad as violating his fundamental privacy
rights under Riley v. California (2014) 573 U.S. ___ [134 S.Ct. 2473]. Lynch suggests
we should follow the decisions invalidating the condition as overbroad in Malik J. (2015)
240 Cal.App.4th 896, People v. Appleton, supra, 245 Cal.App.4th 723, and In re P.O.
(2016) 246 Cal.App.4th 288. He argues the condition is not narrowly tailored to his
individualized situation, pointing to the trial court's statement that it was a "standard term
and condition of probation" and the fact there was no record of a computer or electronic
device involved in his offense. In Trujillo, we distinguished Riley, and followed
authority explaining that the overbreadth analysis is materially different from the warrant
requirement at issue in that case. (Trujillo, supra, 15 Cal.App.5th at p. 587.) We
observed that probationers do not enjoy the absolute liberty to which law-abiding citizens
are entitled, and that courts routinely uphold broad probation conditions permitting
searches of a probationer's residence without a warrant or reasonable cause. (Id. at pp.
587-588.) Like the defendant in Trujillo (id. at pp. 588-589), Lynch does not challenge
the probation condition authorizing officers to conduct random and unlimited searches of
his residence at any time and for no stated reason, and he made no showing that a search
of his electronic devices would be any more invasive than an unannounced, without-
cause, warrantless search of his residence. Here, as in Trujillo, the factual record

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supports a conclusion that the electronics-search condition is necessary to protect public
safety and to ensure Lynch's rehabilitation during his three-year supervision period, and a
routine search of Lynch's electronic data "is strongly relevant to the probation
department's supervisory function." (Id. at p. 588.) We adopt a similar conclusion as
Trujillo: "Absent particularized facts showing the electronics-search condition will
infringe on [Lynch's] heightened privacy interests, there is no reasoned basis to conclude
the condition is constitutionally overbroad or to remand for the court to consider a more
narrowly-drawn condition." (Id. at p. 589.)
IV. Marijuana Abstinence Condition
In imposing probation condition 14a, under which Lynch is not to "use marijuana
at all with or without a prescription or recommendation," the court stated: "If a doctor
were to prescribe it properly, et cetera, and probation does not agree with that, you can
put it on calendar." Lynch contends the condition as imposed is unreasonable because it
does not meet any of the three Lent factors: it has no relationship to his crime, relates to
conduct that is not itself criminal, and is not reasonably related to future criminality.5
5 Lynch presented no evidence that he has ever had a prescription or medical need
for marijuana use, or that he expects to have such a need during the term of his probation.
Presumably because he does not have Compassionate Use Act (CUA; Health & Saf.
Code, § 11362.5) authorization for medicinal use (see People v. Kelly (2010) 47 Cal.4th
1008, 1012-1013), Lynch does not cite or discuss People v. Leal (2012) 210 Cal.App.4th
829 in which the Court of Appeal set forth a three-step inquiry to assess the propriety of a
probation condition forbidding the defendant from all marijuana use including medical
use. (Id. at p. 833.) Under Leal, the court (1) examines the validity of any CUA
authorization; (2) applies the Lent test for interfering with such authorization; and (3)
considers "competing policies governing the exercise of discretion to restrict CUA use."
(Leal, at p. 837.) Lynch applies only the Lent test here.

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The People respond that imposition of the condition was within the court's discretion as it
promotes a probationer's reformation and rehabilitation, and thus serves to deter future
criminality. They additionally argue that the condition was proper as use and possession
of marijuana is illegal under federal law, federal law does not contain a medical necessity
defense, and Lynch was already subject to a condition requiring him to obey all laws.
Concededly, the probation officer noted that Lynch denied that he used drugs or
alcohol and had never been to a treatment program. There is no indication drugs or
marijuana in particular played any role in Lynch's present or prior offenses. However,
Lynch is subject to a condition that he "[o]bey all laws." Possession of marijuana by a
private person, even by a medical user, remains illegal under federal law. (21 U.S.C.
§§ 812, schedule I(c)(10), 844(a); see Ross v. RagingWire Telecommunications, Inc.
(2008) 42 Cal.4th 920, 923; County of San Diego v. San Diego NORML (2008) 165
Cal.App.4th 798, 811-812; People v. Bianco (2001) 93 Cal.App.4th 748, 753.) Thus, in
People v. Bianco, the Third District Court of Appeal held that a probation condition
prohibiting the use or possession of marijuana "was in effect ordering defendant to obey
the law of the United States" and thus "was reasonably directed a defendant's future
criminality." (Id. at p. 753.) We reach the same conclusion here.6
6 In People v. Tilehkooh (2003) 113 Cal.App.4th 1433, the Third District Court of
Appeal disagreed with its prior opinion in People v. Bianco, supra, 93 Cal.App.4th 748 in
a probation revocation context, and held medical necessity under the CUA was a defense
to probation revocation. (Tilehkooh, at p. 1441.) The Tilehkooh court rejected the
argument that the defendant was required to comply with federal drug laws, reasoning
that "the state does not punish a violation of the federal law 'as such,' " and thus could

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Additionally, we have pointed out that Lynch has a lengthy prior criminal history,
demonstrating repeated instances of violent behavior, reoffending and poor performance
on supervision. The probation officer specifically found that Lynch suffered from a
"criminal personality," suggesting a heightened need for meaningful supervision. In view
of his violent offenses and his past criminal behavior and tendencies, Lynch has not
shown the court clearly abused its discretion in ordering him to abstain from marijuana
use, regardless of a prescription, so as to promote his rehabilitation and prevent future
criminality. That is, the trial court could have reasonably concluded Lynch's sobriety and
abstention from marijuana use was critical to his ability to remain law-abiding, his
rehabilitation and successful completion of probation, notwithstanding the lack of any
history of use. As marijuana use may impair Lynch's judgment and in view of his
propensity to make poor and impulsive decisions, the court was within its discretion to
subject all such use, including any future recommendation or prescription for Lynch to
"only reach conduct subject to the federal criminal law by incorporating the conduct into
the state law." (Id. at 1446.) The court observed that the People did not claim they were
enforcing a federal criminal sanction attached to the federal marijuana law, but rather
were seeking to enforce the state sanction of probation revocation, which was solely a
creature of state law. (Ibid.) Accordingly, it held that the prosecution could not revoke
the defendant's probation for conduct it could not punish under the state's criminal laws.
(Ibid.; see People v. Brooks (2010) 182 Cal.App.4th 1348, 1351.) Tilehkooh is dictum to
the extent it sought to reach the propriety of probation conditions under Lent, supra, 15
Cal.3d 481. (See People v. Leal, supra, 210 Cal.App.4th 829, 849; People v. Moret,
supra, 180 Cal.App.4th 839, 856 & fn. 16; see Brooks, at p. 1351 [Tilehkooh "simply
conclude[s] that the use of marijuana under the CUA is lawful in California and that such
use does not violate the probation condition 'obey all laws' "].) And Tilehkooh was
decided before the effective date of section 11362.795 (Stats. 2003, ch. 875, § 2, eff. Jan.
1, 2004), which authorizes a trial court to impose a condition of probation that prohibits a
defendant from the use of medical marijuana. (People v. Hughes (2012) 202 Cal.App.4th
1473, 1480-1481; Moret, at p. 856.)

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use marijuana, to increased scrutiny. We have already pointed out that if a probation
condition serves the statutory purpose of rehabilitation, it necessarily has a reasonable
relationship to future criminality and may not be held invalid. (See People v. Balestra
(1999) 76 Cal.App.4th 57, 65.) Because the marijuana condition relates to reducing
future criminality under Lent, we conclude the court did not abuse its discretion by
imposing it.
V. Condition 8h Barring Presence at Places Where Alcohol is the Main Item for Sale
Lynch challenges probation condition 8h, which states that Lynch must "not be in
places, except in the course of employment, where you know, or a [probation officer] or
other law enforcement officer informs you, that alcohol is the main item for sale." He
maintains it has no relationship to his crime, relates to conduct that is not itself criminal
and is not reasonably related to future criminality. The People concede that condition
should be stricken, and we agree that the condition has no relation to Lynch's present or
prior offenses or future criminality. We will modify the order to strike probation
condition 8h.

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DISPOSITION
The probation order is modified to strike probation condition 8h, preventing Lynch
from being present at places where he knows or is informed that alcohol is the main item
for sale except in the course of his employment. With that modification, the judgment is
affirmed.
O'ROURKE, J.
I CONCUR:
HUFFMAN, Acting P. J.

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AARON, J., Concurring and Dissenting.
Lynch hit his neighbor in the face with a bottle after an argument with the
neighbor escalated into a physical altercation. Lynch pled guilty to assault and the court
sentenced him to probation. One of the conditions of probation requires that Lynch
submit his "computers and recordable media" to search at any time, when required by his
probation officer or by a law enforcement officer (the electronics search condition).
Lynch's counsel objected to this condition on the ground that it bore no relationship to the
case. The majority upholds the condition as reasonable under Lent on the ground that the
condition is reasonably related to future criminality since it will enable Lynch's probation
officer to supervise Lynch effectively. The majority further concludes that the condition
is not unconstitutionally overbroad, asserting that Lynch "made no showing that a search
of his electronic devices would be any more invasive than an unannounced, without-
cause, warrantless search of his residence." (Maj. opn., at pp. 15–16.)
Given Lynch's criminal history and his past poor performance on probation, I
agree that the condition is reasonably related to future criminality under Lent since it will
unquestionably enable Lynch's probation officer to more closely monitor his activities to
ensure compliance with his conditions of probation. However, I would conclude that the
condition is unconstitutionally overbroad as applied to Lynch.
Specifically, I cannot agree with the majority's suggestion that permitting a
probation officer unfettered access to a probationer's electronic devices is no more
invasive than permitting a warrantless search of the probationer's residence, and the
concomitant implication that an unlimited electronics search condition may

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constitutionally be imposed on every probationer, essentially as a standard condition,
without regard to the nature and circumstances of the offense or the unique needs of the
particular probationer with respect to his or her reformation and rehabilitation. The
United States Supreme Court has recognized that the data stored on a cell phone is both
quantitatively and qualitatively different from records typically stored in one's home. In
Riley v. California (2014) ___ U.S. ___ [134 S.Ct. 2473] (Riley), the Court observed that
"a cell phone search would typically expose to the government far more than the most
exhaustive search of a house: A phone not only contains in digital form many sensitive
records previously found in the home; it also contains a broad array of private
information never found in a home in any form—unless the phone is." (Id. at p. 2491.)
The Riley Court explained,
"Although the data stored on a cell phone is distinguished from
physical records by quantity alone, certain types of data are also
qualitatively different. An Internet search and browsing history, for
example, can be found on an Internet-enabled phone and could
reveal an individual's private interests or concerns—perhaps a search
for certain symptoms of disease, coupled with frequent visits to
WebMD. Data on a cell phone can also reveal where a person has
been. Historic location information is a standard feature on many
smart phones and can reconstruct someone's specific movements
down to the minute, not only around town but also within a
particular building. . . . [¶] Mobile application software on a cell
phone, or 'apps,' offer a range of tools for managing detailed
information about all aspects of a person's life. There are apps for
Democratic Party news and Republican Party news; apps for
alcohol, drug, and gambling addictions; apps for sharing prayer
requests; apps for tracking pregnancy symptoms; apps for planning
your budget; apps for every conceivable hobby or pastime; apps for
improving your romantic life. There are popular apps for buying or
selling just about anything, and the records of such transactions may
be accessible on the phone indefinitely. . . . The average smart

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phone user has installed 33 apps, which, together can form a
revealing montage of the user's life." (Id. at p. 2490.)
The Court noted, as an illustration of the breadth of information that can be
gleaned from a person's cell phone and not from a traditional search, that "[a] person
might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not
carry a record of all his communications with Mr. Jones for the past several months, as
would routinely be kept on a cell phone." (Riley, supra, 134 S.Ct. at p. 2489.) In sum,
the Riley Court observed that, a cell phone contains "a digital record of nearly every
aspect of [a person's] li[fe], from the mundane to the intimate. . . ." (Id. at p. 2490.)
The observations of the U.S. Supreme Court in Riley make clear that searches of
electronic devices provide access to a vast amount of information that extends well
beyond the parameters contemplated in a traditional search, and that such searches thus
implicate privacy concerns not implicated by a traditional search. The electronics search
condition imposed in this case would permit not only unlimited searches of Lynch's cell
phone, but presumably, of any computer or electronic media belonging to him or in his
possession, thus permitting potentially even more intrusive searches than contemplated in
Riley. Contrary to the majority's suggestion, one may clearly assume, without requiring a
showing by the defendant, that a probation condition that would permit unlimited
searches of a probationer's electronic devices is significantly "more invasive than an
unannounced, without-cause, warrantless search of his residence" (maj. opn., at pp. 15–
16), and thus infringes on the probationer's Fourth Amendment rights to a greater degree
than would a traditional search of his home.

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In People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted Dec. 14, 2016,
S238210, a panel of this court asserted that "the privacy concerns voiced in Riley are
inapposite in the context of evaluating the reasonableness of a probation condition." (Id.
at p. 1129.) Another panel of the court reiterated this assertion in People v. Trujillo
(2017) 15 Cal.App.5th 574, 587 (Trujillo), review granted Nov. 29, 2017, No. S244650.
Citing Trujillo, the majority in this case asserts that Riley is distinguishable on the basis
that "the overbreadth analysis [applicable to a probation condition] is materially different
from the warrant requirement at issue in that case." (Maj. opn., at p. 15, citing Trujillo,
supra, at p. 587.) The fact that an arrestee has greater privacy interests than a probationer
is clearly true. However, although a probationer admittedly has a diminished expectation
of privacy, that expectation is not nonexistent. (See People v. Valdivia (2017) 16
Cal.App.5th 1130, 1146 (Valdivia) ["[D]efendant did not entirely surrender his rights
under the Fourth Amendment by pleading no contest and accepting probation. The fact
that the overbreadth doctrine applies at all to probationers like defendant illustrates this
point"]; see also In re Jaime P. (2006) 40 Cal.4th 128, 137 ["probationers retain some
expectation of privacy, albeit a reduced one"].)
While the Riley Court's observations were made in the context of discussing the
permissible scope of a warrantless search incident to arrest, its comments concerning the
wide range of very personal information stored on a person's cell phone apply with equal
force, and are clearly relevant to, an analysis of whether a probation condition that
permits perusal of all of a person's computers and recordable media, and thus, clearly

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significantly impinges on the probationer's Fourth Amendment rights, is in fact narrowly
tailored to meet the governmental interest of reformation and rehabilitation.
"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 unconstitutionally overbroad." (In re Sheena K. (2007) 40 Cal.4th 875,
890.) A probation condition is "unconstitutionally overbroad . . . if it (1) 'impinge[s] on
constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the
compelling state interest in reformation and rehabilitation.' " (In re E.O. (2010) 188
Cal.App.4th 1149, 1153, quoting In re Victor L. (2010) 182 Cal.App.4th 902, 910.)
Thus, an electronics search condition should be carefully tailored to the type of electronic
data that is reasonably related to the state's interest in fostering rehabilitation and
protecting public safety.
In Valdivia, supra, 16 Cal.App.5th 1130, the defendant pled no contest to
inflicting corporal injury on his spouse and was sentenced to probation. One of the
conditions of probation permitted warrantless searches of electronic storage devices
under the defendant's control and required him to provide necessary passwords to
facilitate any such search. The Valdivia court concluded that the condition was valid
under Lent since it would permit the probation officer to ensure that the defendant was
obeying all laws. However, the court further concluded that the condition was
unconstitutionally overbroad under the Fourth Amendment. In reaching this conclusion,
the court stated, "[A]t the same time the electronic storage device search condition serves
the state's legitimate interest in monitoring defendant's rehabilitation, it permits

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unprecedented intrusion into his private affairs—and it does so on a record that
demonstrates little likelihood, or even possibility, that evidence of illegal activity will be
found in the devices the condition subjects to a warrantless search." (Valdivia, supra, at
p. 1145.) The Valdivia court noted that, as in the present case, the record did not show
that electronic devices played any role in the underlying criminal conduct in the case
before it, and that there was "nothing in the record to demonstrate that defendant 'use[d]
electronic devices for wrongful purposes in the past.' " (Ibid.) The court concluded that
under such circumstances, there was no substantial reason to believe that evidence of
future criminal activity was likely to be found on electronic storage devices under the
defendant's control.
I agree with the Valdivia court's observation that, "[t]he fact that a person
convicted of a felony has agreed to subject himself to the supervision of probation does
not, by itself, give the government the right to dig through every aspect of that person's
private affairs in search of evidence of criminal activity without any explanation or
justification from the government of why such a search has, at the very least, a reasonable
possibility of actually uncovering such evidence." (Valdivia, supra, 16 Cal.App.5th at p.
1146.) It is clear that the trial court in this case made no attempt to narrowly tailor the
condition to Lynch's individualized situation despite Lynch's objection that the condition
bore no relationship to the circumstances of his case or to his reform and rehabilitation
for the offense for which he was being sentenced. (See ibid. ["A probation condition that
infringes on the constitutional rights a probationer otherwise enjoys still must be closely
tailored to achieve the legitimate purpose or purposes of that condition"].) On the

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contrary, the court indicated that it routinely imposes the condition as "a standard term
and condition of probation to monitor probationers."
The trial court's own words demonstrate that it did not tailor the condition to
Lynch's circumstances. The majority acknowledges this fact, but states that Lynch "made
no showing that a search of his electronic devices would be any more intrusive than an
unannounced, without-cause, warrantless search of his residence." (Maj. opn., at pp. 15–
16.) The majority concludes that " '[a]bsent particularized facts showing the electronics-
search condition will infringe on [Lynch's] heightened privacy interests, there is no
reasoned basis to conclude the condition is constitutionally overbroad or to remand for
the court to consider a more narrowly-drawn condition.' " (Maj. opn., at p. 16, quoting
Trujillo, supra, 15 Cal.App.5th at p. 589.)
The observations of the U.S. Supreme Court in Riley v. California belie this
conclusion. It is clear from the Court's observations in Riley that a probation condition
that would permit unlimited searches of a probationer's electronic devices unquestionably
infringes on the probationer's constitutionally protected privacy interests. Although some
intrusion into a probationer's constitutionally protected privacy interests is permissible,
given the extent of the intrusion into a person's privacy that a probation condition
permitting unlimited searches of a probationer's electronic devices would entail, trial
courts must tailor such a condition to the circumstances of the individual defendant to
pass constitutional muster.
For these reasons, like the court in Valdivia, I would conclude that the electronics
search condition "is unconstitutionally overbroad [as applied to the defendant] because its

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potential impact on defendant's Fourth Amendment rights exceeds what is reasonably
necessary to serve the government's legitimate interest in ensuring that [Lynch] complies
with the terms of his probation." (Valdivia, supra, 16 Cal.App.5th at p. 1147.) I would
vacate the electronics search condition and remand the matter to the trial court to consider
Lynch's personal circumstances and to tailor any such condition to those circumstances. I
concur in the remainder of the majority opinion.
AARON, J.

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