P. v. Magana

Filed 5/14/19 P. v. Magana CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
WUENDY M. MAGANA et al.,
Defendants and Appellants.
B280357
(Los Angeles County
Super. Ct. No. PA083962)
APPEALS from judgments of the Superior Court of
Los Angeles County, Daniel B. Feldstern, Judge. Affirmed.
Karyn H. Bucur, under appointment by the Court of
Appeal, for Defendant and Appellant, Wuendy M. Magana.
William L. Heyman, under appointment by the Court of
Appeal, for Defendant and Appellant, Maria Clemencia Estrada.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Zee Rodriguez, Acting Supervising Deputy

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Attorney General, and Steven E. Mercer, Deputy Attorney
General, for Plaintiff and Respondent.
_________________
Wuendy M. Magana and Maria Clemencia Estrada each
pleaded no contest to one count of transporting more than
four kilograms of a controlled substance in violation of Health
and Safety Code sections 11352, subdivision (a), and 11370.4,
subdivision (a)(2), and were sentenced to a split term of
three years in county jail and five years of mandatory
supervision. On appeal Magana and Estrada contend the
condition of mandatory supervision authorizing unlimited
searches of their electronic devices, including smart phones, is
unconstitutionally overbroad. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Los Angeles County Sheriff’s Deputy John Leitelt
conducted a traffic stop of an SUV in the area of Interstate 5
north of Castaic on the afternoon of July 22, 2015. Magana was
in the driver’s seat; Estrada in the front passenger seat. After
receiving permission to search the vehicle, Leitelt opened a black
suitcase in the rear storage area of the SUV and found
five wrapped packages that contained a total of 4.992 kilograms
of cocaine. Leitelt also found four cell phones in the SUV.
Magana and Estrada were charged with the sale or
transport of a controlled substance (Health & Saf. Code, § 11352,
subd. (a)), with a special allegation that the weight of the
controlled substance exceeded four kilograms (Health & Saf.
Code, § 11370.4, subd. (a)(2)). After initially pleading not guilty
and prior to a hearing on a motion to suppress evidence (Pen.
Code, § 1538.5), Magana and Estrada each pleaded no contest to

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the charge of transporting a controlled substance and admitted
the special allegation that the controlled substance exceeded
four kilograms by weight.
At the sentencing hearing on October 4, 2016 the court
denied probation and sentenced both Magana and Estrada to
eight-year terms in county jail (the lower term of three years for
the substantive offense plus five years for the weight
enhancement), but suspended execution of five years on each
sentence, placing them instead on mandatory supervision for
five years pursuant to Penal Code section 1170,
subdivision (h)(5).1 One of the conditions of mandatory
supervision imposed by the court is that Magana and Estrada
“submit their person and property to search and seizure at any
time of the day or night by any probation officer or other peace
officer, with or without a warrant, probable cause, or reasonable
suspicion. And this search and seizure condition involves their
person, residence, vehicles, electronic information, and personal
belongings. And [as to the] property subject to search and
seizure, which includes any electronic devices owned or possessed
by the defendants, they are consenting to provide passwords and
any access to those phones or other electronic devices as a
condition of this search and seizure. And that’s pursuant to
California Electronics Communication Privacy Act.”2
1 Magana and Estrada were each awarded eight days of
presentence custody credit.
2 The search condition as recorded in the court’s minute
orders is slightly different: “[S]ubmit your person and property to
search and seizure at any time of the day or night, by any
probation officer or other peace officer, with or without a warrant,
probable cause or reasonable suspicion. [¶] As part of your

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Neither Magana nor Estrada objected to any of the
conditions imposed by the court for the five-year period of
mandatory supervision.
DISCUSSION
1. Magana and Estrada Have Not Forfeited Their Facial
Overbreadth Challenge to the Electronics Search
Condition
In most cases the failure to object to a condition of
probation or mandatory supervision forfeits the issue for
appellate review. (See People v. Welch (1993) 5 Cal.4th 228, 234-
235 [failure to object to the reasonableness of a probation
condition precludes the defendant from raising the challenge on
appeal]; accord, People v. Moran (2016) 1 Cal.5th 398, 404, fn. 7.)3
supervision, whether probation, mandatory supervision,
community supervision or parole, you will be required to submit
your person, residence, vehicle, electronic information, and
personal belongings to search or seizure, at any time of the day or
night, with or without probable cause by any law enforcement
officer. You will also be waiving all rights under the Electronic
Communications Privacy Act specified in Penal Code section 1546
through 1546.4 for the duration of your supervision period.” The
court’s oral pronouncement of the condition, which included the
requirement that Magana and Estrada provide passwords for
their electronic devices, controls over the clerk’s minute order.
(See People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v.
Mullins (2018) 19 Cal.App.5th 594, 612.)
3 Mandatory supervision following a county jail commitment,
imposed under Penal Code section 1170, subdivision (h), “is akin
to a state prison commitment; it is not a grant of probation or a
conditional sentence.” (People v. Fandinola (2013)
221 Cal.App.4th 1415, 1422; see id. at p. 1423 [“mandatory
supervision is more similar to parole than probation”]; see also

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This forfeiture rule applies to constitutional challenges to
probation conditions if the constitutional question cannot be
resolved without reference to the sentencing record developed by
the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 889
(Sheena K.).) However, in Sheena K. the Supreme Court held a
constitutional challenge to a probation condition based on
vagueness or overbreadth may be reviewed on appeal if it
presents an error that is “a pure question of law, easily
remediable on appeal by modification of the condition.” (Id. at
pp. 888-889.)
As discussed, Magana and Estrada did not object to the
electronics search condition in the trial court. To the extent they
raise a facial challenge to the constitutional validity of that
condition, their claim has not been forfeited. (Sheena K., supra,
40 Cal.4th at pp. 888-889.) However, we address only the
constitutionality of the challenged condition, not whether it is
reasonable as applied to Magana or Estrada. (See generally
People v. Olguin (2008) 45 Cal.4th 375, 380 [“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”]; People v. Lent (1975) 15 Cal.3d
481, 486 [“[a] condition of probation will not be held invalid
unless it ‘(1) has no relationship to the crime of which the
People v. Martinez (2014) 226 Cal.App.4th 759, 763.)
Nonetheless, it is similar to probation in the sense that the terms
and conditions of the defendants’ release are ordered by the court
at the sentencing hearing. Thus, the rationale for the rule of
forfeiture applies equally to the trial court’s order imposing
conditions for mandatory supervision.

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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”]; see also People v.
Moran, supra, 1 Cal.5th at p. 403.)
2. The Electronics Search Condition Is Not
Unconstitutionally Overbroad
“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.” (Sheena K., supra, 40 Cal.4th at
p. 890.) Magana and Estrada acknowledge that cell phones are
frequently used in connection with the transportation and sale of
cocaine4 and concede that requiring a defendant convicted of
violating Health and Safety Code section 11352, subdivision (a),
to permit law enforcement officers to search his or her cell phone
as a condition of mandatory supervision serves a legitimate state
interest. However, emphasizing the nature of today’s
smartphone as a powerful computer containing for many “the
privacies of life,” as recognized by the United States Supreme
Court in Riley v. California (2014) 573 U.S. 373, 393, 403
[134 S.Ct. 2473, 189 L.Ed.2d 430] (Riley),5 Magana and Estrada
4 As discussed, in addition to nearly five kilograms of
cocaine, Deputy Leitelt recovered four cell phones from the SUV
being driven by Magana.
5 Explaining that most cell phones are now “minicomputers
that also happen to have the capacity to be used as a telephone”
that “differ in both a quantitative and a qualitative sense from
other objects that might be kept on an arrestee’s person” (Riley,
supra, 573 U.S. at p. 393), the United States Supreme Court in
Riley held the search-incident-to-arrest exception to the general

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contend by authorizing unlimited searches of their smartphones
and other personal electronic devices, rather than restricting
permissible searches to data that may be reasonably likely to
contain indicia of illegal conduct, the condition imposed by the
trial court is unconstitutionally overbroad, violating their Fourth
Amendment right to be free from unreasonable searches and
seizures and their right to privacy.6
An identical constitutional challenge to a similar
electronics search condition imposed as a condition of probation
following the defendant’s conviction for possessing
methamphetamine for sale was upheld in People v. Maldonado
(2018) 22 Cal.App.5th 138, review granted June 20, 2018,
S248800 (Maldonado). The court explained its holding, “The
California Supreme Court has determined that ‘probation search
conditions serve to promote rehabilitation and reduce recidivism
while helping to protect the community from potential harm by
probationers.’ [Citation.] As a probationer, defendant’s
diminished expectation of privacy is ‘markedly different from the
broader privacy guaranteed under the Fourth Amendment to
individuals who are not serving sentences or on grants of
probation.’ [Citation.] ‘It is that preconviction expectation of
privacy that was at issue in Riley . . . .’ [¶] The purpose of the
challenged conditions is to prevent defendant from using
prohibition of warrantless searches does not apply to cell phones.
(Id. at pp. 401-402.)
6 We review de novo a constitutional challenge to a condition
of mandatory supervision. (See People v. Appleton (2016)
245 Cal.App.4th 717, 723; In re Malik J. (2015) 240 Cal.App.4th
896, 901.)

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electronic devices in the future to facilitate the sale of controlled
substances. . . . [A]ccess to defendant’s electronic devices is
appropriate to ensure that he does not reoffend while on
probation. [¶] . . . Defendant argues that the challenged
conditions would allow a search of his electronic devices for
‘medical records, financial records, personal diaries, and intimate
correspondence with family and friends.’ But we are not
persuaded of the need to narrow the conditions, because
defendant is protected by the principle that warrantless
probation searches must not be conducted in an arbitrary,
capricious, or harassing manner.” (Id. at pp. 144-145; see also
In re Q.R. (2017) 7 Cal.App.5th 1231, 1238, review granted
April 12, 2017, S240222 [electronics search condition as applied
to minor who used an electronic device to commit the crimes he
admitted is not constitutionally overbroad; Riley involved a
person’s “preconviction expectation of privacy”].)
Pending the Supreme Court’s decision in In re Ricardo P.,
S230923, review granted February 17, 2016, which involves a
related issue of the constitutionality of an electronics search
condition imposed as a condition of probation in a delinquency
proceeding,7 we adopt as our own the analysis of the court of
7 The issue before the Supreme Court in In re Ricardo P. is
whether an electronics search condition, imposed in delinquency
proceedings as a condition of probation on a juvenile who had
committed first degree burglary, unduly infringed the juvenile’s
rights to privacy and expression and was unconstitutionally
overbroad because it was not related to the crime he had
committed and was not limited to the types of data that might
indicate his future involvement with illegal drugs.

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appeal in Maldonado, supra, 22 Cal.App.5th 138. Indeed,
because we properly review the validity of terms of supervised
release under standards comparable to those applied to terms of
parole, rather than conditions of probation (see People v.
Martinez (2014) 226 Cal.App.4th 759, 763), and because parolees
have an even more limited expectation of privacy than do
probationers (see Samson v. California (2006) 547 U.S. 843, 850
[126 S.Ct. 2193, 165 L.Ed.2d 250] [“parolees have fewer
expectations of privacy than probationers, because parole is more
akin to imprisonment than probation is to imprisonment”]; People
v. Schmitz (2012) 55 Cal.4th 909, 921 [same]), the balance
favoring the state’s interest in reducing recidivism over Magana’s
and Estrada’s limited privacy interests is even greater here than
it was in Maldonado. (See Schmitz, at p. 923 [“[T]he state’s
Pursuant to California Rules of Court, rule 8.512(d)(2), the
Supreme Court has granted a petition for review and deferred
further action “pending consideration and disposition of a related
issue in In re Ricardo P., S230923 . . . or pending further order of
the court” in more than 70 cases involving the validity of
electronics search conditions similar to the condition imposed in
this case. The courts of appeal have been divided in ruling
whether those search condition are constitutional. (Compare,
e.g., People v. Trujillo (2017) 15 Cal.App.5th 574, review granted
Nov. 29, 2017, S244650 [electronics search condition not
unconstitutionally overbroad] with, e.g., People v. Valdiva (2017)
16 Cal.App.5th 1130, review granted Feb. 14, 2018, S245893
[electronics search condition is unconstitutionally overbroad].)
Briefing in In re Ricardo P. was completed by the parties on
September 28, 2016. Oral argument has now been scheduled for
May 30, 2019.

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interest in supervising parolees is substantial. [Citation.]
Parolees ‘“are more likely to commit future criminal offenses”’
[citation] and pose ‘grave safety concerns that attend recidivism’
[citation]. Additionally, because of their conditional release into
society, parolees have an even greater ‘incentive to conceal their
criminal activities and quickly dispose of incriminating evidence
than the ordinary criminal’”]; compare United States v. Johnson
(9th Cir. 2017) 875 F.3d 1265, 1273 [permitting the warrantless
search of a parolee’s cell phone] with United States v. Lara (9th
Cir. 2016) 815 F.3d 605, 612 [applying Riley to the warrantless
search of a probationer’s cell phone].)
To be sure, the probation condition at issue in Maldonado,
supra, 22 Cal.App.5th 138 allowed a search of electronic devices
only for specific categories of information—“‘text messages,
voicemail messages, call logs, photographs, email accounts, [and]
social media accounts’” (id. at p. 142)—while the condition
imposed on Magana’s and Estrada’s mandatory supervision
contained no such limitation. But Magana and Estrada, like the
defendant in Maldonado, are protected by the principle that a
probation search “will not be conducted in an arbitrary,
capricious, or harassing manner.” (People v. Schmitz, supra,
55 Cal.4th at p. 923; see People v. Woods (1999) 21 Cal.4th 668,
682 [probation search may not be “undertaken in a harassing or
unreasonable manner”].) Moreover, because Magana and
Estrada did not object in the trial court and, as a consequence, we
are considering only a facial challenge to the search condition at
issue in the case, we have no basis to conclude the broader
language of their search condition threatens to intrude into
information on their electronic devices such as past or present
medical records that might invoke stronger privacy protections.

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DISPOSITION
The judgments are affirmed.
PERLUSS, P. J.
We concur:
ZELON, J.
FEUER, J.

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