P. v. Antoninetti

Filed 4/26/18 P. v. Antoninetti CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
NICKOLAS ANTONINETTI,
Defendant and Appellant.
D072794
(Super. Ct. No. SCD272901)
APPEAL from a judgment of the Superior Court of San Diego County, Polly H.
Shamoon, Judge. Affirmed.
Appellate Defenders, Inc. and Lynelle K. Hee, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Adrian R.
Contreras, Deputy Attorneys General, for Plaintiff and Respondent.

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Nickolas Antoninetti pleaded guilty to one count of grand theft of property valued
more than $950 (Pen. Code,1 § 487, subd. (a)). The trial court granted Antoninetti
probation on various terms and conditions. One of the conditions of probation imposed
was a so-called Fourth Amendment waiver. The condition, 6n, provides: "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."
Antoninetti appeals challenging only the portion of condition 6n which provides
"computers and recordable media." Antoninetti contends there is no nexus for the search
of electronic devices and in any event the condition is overbroad and violates the
requirements of People v. Lent (1975) 15 Cal.3d 481 (Lent). We will find the trial court
correctly determined the condition was necessary to permit appropriate supervision of
Antoninetti on probation. Accordingly, we will affirm the judgment.
STATEMENT OF FACTS
Since this appeal is from a guilty plea, we will accept the summary of the facts
from the probation officer's report as set forth in respondent's brief.
One day in 2017, San Diego Police Department officers conducted a bait bicycle
operation on the boardwalk in Pacific Beach. Two bait bicycles, equipped with GPS
tracking systems, were locked to a bicycle rack. The locks were coated with a red
transfer paste. One night, officers received notification the bicycles had been moved.
1 All further statutory references are to the Penal Code unless otherwise specified.

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The bicycles were tracked to appellant's location on the boardwalk. Officers found
appellant with both bicycles and the cut lock and red transfer paste on his hands. Each
bicycle was worth more than $950.
In his interview with the probation department before sentencing, appellant said he
was under the influence of methamphetamine during the theft.
DISCUSSION
At sentencing, defense counsel objected to the electronic portion of the search
waiver in condition 6n. The principal objection was that there was no nexus for such
condition in either the crime in this case or the defendant's personal history, thus the
condition violated Lent, supra, 15 Cal.3d 481. The court overruled the objection making
the following comments:
"And 6 will have in the Fourth waiver, search all media, including
cell phones. In this case, the defendant stole more than one bike. It
is logical to think he couldn't use more than one bike at a time; he
was going to do something with the other one. And it is consistent
with these types of cases that the other bikes, or maybe all of them,
are sold. And you can use your cell phone to do that.
"In addition to that, not only was he under the influence in this case
by his own admission, but he was on probation for two other cases
where it dealt with his having either drugs or drug paraphernalia,
indicating that he has a drug issue, and he's getting his drugs from
someone. So given that, and the fact that he admits that his
judgment was impaired by drug use, it is logically related to use of a
cell phone, and it will be imposed."

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The probation officer also requested the court to impose the condition so that the
defendant could be properly supervised. As we will discuss, we agree with the
assessments of the court and the probation officer.2
A. Legal Principles
We begin our discussion with the observation that we are aware our Supreme
Court has granted review in numerous cases pending resolution of In re Ricardo P.
(2015) 241 Cal.App.4th 676, review granted February 17, 2016, S230923. However,
pending further guidance from the Supreme Court we must endeavor to resolve the issues
before us.
A grant of probation is an act of clemency. (People v. Moran (2016) 1 Cal.5th
398, 402.) The purpose of probation is to protect the public and to attempt to rehabilitate
the defendant. (Ibid.) The trial court has broad discretion in determining which
conditions of probation are necessary to accomplish the goals of probation. (People v.
Carbajal (1995) 10 Cal.4th 1114, 1121.)
A condition of probation is unreasonable under Lent, supra, 15 Cal.3d at page 486,
if it does three things: (1) has no relationship to the crime of which the defendant was
convicted, (2) relates to conduct that is not criminal, and (3) requires or forbids conduct
that is not reasonably related to future criminality. All three prongs of Lent must be
2 Respondent urges us to find forfeiture of the issue of whether the condition is
overbroad. We decline to apply forfeiture here given the extent of the defense objections
made at sentencing.

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shown before a reviewing court will invalidate a probation condition. (People v. Olguin
(2008) 45 Cal.4th 375, 379-380.)
Where the condition imposes a burden on the defendant about otherwise lawful
activity, it must be reasonably related to prevention of future criminal activity. (In re
P.O. (2016) 246 Cal.App.4th 288, 295.) The fact that electronic devices were not used in
the crime "is a factor, but not the only factor warranting imposition of" an electronic
search condition. (People v. Acosta (2018) 20 Cal.App.5th 225, 232; italics omitted.)
B. Analysis
It is undisputed there is no evidence that Antoninetti used any electronic devices in
the commission of the theft of two expensive bicycles. The only justification for an
electronic search condition here is the probation officer's view, shared by the court, that
such condition is necessary to properly supervise this defendant on probation. The
justification is based on the nature of the theft of two bicycles, which the court concluded
were probably going to be sold. Thefts such as the ones here would ordinarily require the
thief to contact someone to sell the items. Thus, the court believed the use of electronics,
including social media, are likely mechanisms for use in further theft offenses.
Accordingly, both the court and the probation officer believe searches of such devices are
needed to prevent future crimes of the same type.
Further justification was offered regarding Antoninetti's background of using
illegal drugs. Although there was some misunderstanding of Antoninetti's criminal
history at sentencing, he does not dispute he has had issues with drug use. Indeed, he
claims he was under the influence of methamphetamine when he committed the current

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crime. Antoninetti offered his drug use as an explanation for use of bad judgment in
committing the crime. Again, the court and the probation officer reasoned that if the
defendant continues with use of illegal drugs, he will have to contact someone, and the
use of electronic media is a likely method of such contact. Thus, the questions here are
whether the search condition is reasonably related to legitimate probation supervision and
if it is narrowly tailored to accomplish its purpose without unnecessary interference with
protected interests. We think the condition imposed is reasonable and sufficiently
tailored.
In People v. Trujillo (2017) 15 Cal.App.5th 574 (Trujillo), review granted
November 29, 2017, S244650,3 we addressed the use of the same condition, justified by
the trial court's belief such condition was necessary for proper supervision of the
defendant. In that case we found the condition to be reasonable and appropriately
tailored. In reaching its conclusion the court said:
"After Lent, the California Supreme Court clarified that a probation
condition 'that enables a probation officer to supervise his or her
charges effectively is . . . "reasonably related to future criminality." '
(Olguin, supra, 45 Cal.4th at pp. 380–381, italics added; accord, In
re P.O. (2016) 246 Cal.App.4th 288, 295 (P.O.).) 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. (Olguin, at pp. 380-381; People
v. Balestra (1999) 76 Cal.App.4th 57, 67 (Balestra) ['a warrantless
search condition is intended to ensure that the [probationer] is
obeying the fundamental condition of all grants of probation, that is,
3 We discussed the same issues in People v. Nachbar (2016) 3 Cal.App.5th 1122,
1129, review granted December 14, 2016, S238210.

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the usual requirement . . . that a probationer "obey all laws" '].) 'This
is true "even if [the] condition . . . has no relationship to the crime of
which a defendant was convicted." ' (P.O., at p. 295, quoting
Olguin, at p. 380.)" (Trujillo, supra, 15 Cal.App.5th at p. 583.)
We are aware Courts of Appeal have offered differing views about electronic
search conditions of probation. However, we think our opinion in Trujillo set an
appropriate balance of the probationer's privacy interests and the need for adequate
supervision of probationers such as Antoninetti. Pending further direction from our
Supreme Court we will adhere to the views expressed in Trujillo, supra, 15 Cal.App.5th
574. As in that case we find the trial court properly imposed condition 6n in its grant of
probation.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
IRION, J.

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