P. v. Gomez

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Filed 10/23/18 P. v. Gomez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
LINDA ANN GOMEZ,
Defendant and Appellant.
E068755
(Super.Ct.No. FSB17001489)
OPINION
APPEAL from the Superior Court of San Bernardino County. Richard V. Peel
and Gregory S. Tavill, Judges. Affirmed as modified.
Paul Kleven, 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 Joy Utomi,
Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Linda Ann Gomez pled guilty to assault by means likely
to cause great bodily injury. (Pen. Code, § 245, subd. (a)(4).)1 A trial court granted
defendant probation for a period of three years, under specified conditions.
Subsequently, a petition to revoke her probation was filed, alleging that she failed to
report to the probation department after being released from jail. Defendant admitted the
probation violation, and the court reinstated her on probation.
On appeal, defendant challenges a condition of her probation requiring her to
submit to the search and seizure of her electronic devices. She contends that this
condition is unconstitutionally overbroad and requests that it be stricken. We agree that
the condition is unconstitutionally overbroad but conclude that it should be modified. In
all other respects, we affirm the judgment.
PROCEDURAL BACKGROUND
Pursuant to a plea agreement, defendant pled guilty to assault by means likely to
cause great bodily injury. (§ 245, subd. (a)(4).) In exchange, the court dismissed a count
of assault with a deadly weapon. (§ 245, subd. (a)(1).) The parties stipulated to the
police report as a factual basis for the plea. The police report reflects that defendant and
her boyfriend got into an argument, and defendant got into her car and tried to hit him.
The court placed defendant on probation for three years under specified
conditions, including that she submit to the search of seizure of her electronic devices.
1 All further statutory references will be to the Penal Code, unless otherwise
noted.

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ANALYSIS
The Probation Condition Requiring Defendant to Submit to the Search and Seizure of
Her Electronic Devices is Unconstitutionally Overbroad
One of defendant’s probation conditions requires her to “[s]ubmit to search and
seizure . . . by a government entity of any electronic device that [she is] an authorized
possessor of pursuant to PC 1546.1(c)(10).” Defendant argues that this condition
(hereinafter, the electronics search condition) is unconstitutionally overbroad. We agree.
At the outset, we note the People’s argument that defendant did not object to the
electronics search condition below and thus forfeited her claim on appeal. Defendant’s
challenge to her probation condition as facially overbroad “presents an asserted error that
is a pure question of law, easily remediable on appeal by modification of the condition.”
(In re Sheena K. (2007) 40 Cal.4th 875, 888 (Sheena K.).) Thus, her claim was not
forfeited. (Id. at p. 889.)
“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.)
“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.” (In re E.O.
(2010) 188 Cal.App.4th 1149, 1153.) We review constitutional challenges to probation
conditions de novo. (People v. Appleton (2016) 245 Cal.App.4th 717, 723 (Appleton).)

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B. The Electronics Search Condition Must Be Modified
When a probation condition imposes limitations on a person’s constitutional
rights, it “ ‘must closely tailor those limitations to the purpose of the condition’ ”—that
is, the probationer’s reformation and rehabilitation—“ ‘to avoid being invalidated as
unconstitutionally overbroad.’ ” (People v. Olguin (2008) 45 Cal.4th 375, 384.) We
agree the electronics search condition is overbroad in its authorization of searches of
electronic devices because it is not narrowly tailored to its purpose of furthering
defendant’s rehabilitation. (In re P.O. (2016) 246 Cal.App.4th 288, 298.) In fact, the
electronics search condition is not tailored at all. Rather, the condition requires defendant
to “[s]ubmit to search and seizure by a government entity of any electronic device that
[she is] an authorized possessor of pursuant to PC 1546.1(c)(10).” This condition
“permits review of all sorts of private information that is highly unlikely to shed any light
on whether [defendant] is complying with the other conditions of [her] probation.” (Ibid.,
citing Appleton, supra, 245 Cal.App.4th at p. 725 [“[A] search of defendant’s mobile
electronic devices could potentially expose a large volume of documents or data, much of
which may have nothing to do with illegal activity. These could include, for example,
medical records, financial records, personal diaries, and intimate correspondence with
family and friends.”].) Defendant’s privacy interests may be infringed, but only to the
extent the information searched is reasonably likely to yield evidence of criminal activity
and noncompliance with her probation conditions. Thus, the electronics search condition
must be modified accordingly.

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The People argue that defendant “presented no evidence showing that a search of
[her] electronics would be any more invasive than an unannounced, warrantless search of
her residence, a condition to which she does not object.” However, we note that the
probation condition defendant consented to in this regard requires her to “[p]ermit visits
and searches of place of residence by agents of the Probation Department and/or law
enforcement for the purpose of ensuring compliance with the terms and conditions of
probation.” (Italics added.) The electronics search condition sweeps more broadly than
this probation condition, since it contains no limitations.
We conclude the electronics search condition must be modified to limit
authorization of searches of defendant’s electronic devices to communications or
information reasonably likely to reveal whether she is engaging in criminal activity or
otherwise not complying with her probation conditions.
DISPOSITION
The electronics search condition should be modified to read: Submit to search and
seizure by a government entity of any electronic device that you are an authorized
possessor of pursuant to Penal Code section 1546.1, subdivision (c)(10). The searches
are limited to communications or information reasonably likely to reveal whether
defendant is engaging in criminal activity or otherwise not complying with her probation
conditions.

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In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
CODRINGTON
J.
FIELDS
J.

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