This post examines a recent opinion from the Court of Appeal– Fourth District, California: People v.
Nachbar, 2016 WL 5799785 (2016). The opinion begins by explaining that
Steven Nachbar pleaded guilty to one
count of unlawful sexual intercourse with a minor more than three years younger
(California Penal Code § 261.5(c)). The
court placed him on formal probation and required him to register as a sex
offender. Defendant now challenges four of the conditions to his
probation: that he (1) not have photographic equipment; (2) not have toys,
video games, or similar items that attract children; (3) obtain approval of his
residence from his probation officer; and (4) submit to warrantless and
suspicionless searches of his computers and
recordable media.
People v. Nachbar,
supra.
The Court of Appeals began its analysis by noting that
Nachbar “forfeited his challenges to the conditions regarding toys and
residence approval because he did not object to them in the trial court.” People v. Nachbar, supra. In other words, the
court would not consider those issues because Nachbar did not object to them
when the court imposed those conditions as part of his probation. This post
only examines the fourth probation condition, e.g., that Nachbar “submit to
warrantless and suspicionless searches of his computers and recordable media.” People v. Nachbar, supra.
As courts usually do, the Court of Appeal begin its analysis
of the issue by explaining how, and why, Nachbar was placed on probation:
In April 2014, when defendant was 22
years old, he was placed on summary probation for having unlawful sexual
intercourse with a minor, a 17–year–old girl. While on probation for that
offense, defendant met the victim in this case, a 15–year–old girl. They met
through a mutual friend, became friends on Facebook, and exchanged text
messages. Several of defendant's text messages were sexually explicit and
indicated he wanted to have sex with the victim. Some of the victim's responses
were `OMG,’ `LOL,’ and that defendant was too old for her.
The victim's parents are divorced and
live down the street from each other. On September 14, 2014, the victim told
her father she would be staying at her mother's house that night. Her mother
was out of town. The victim and defendant arranged to meet at the mother's
house, but she told him he could not stay too long because it was a school
night. Defendant arrived around 8:00 p.m. and they tried to watch a movie in
the victim's bedroom on her cell phone. When they were unable to do so, the
victim asked defendant to leave. Defendant said he wanted to cuddle, but the
victim asked him to come back another time.
Instead of leaving, defendant grabbed
the victim's breasts; she asked him to stop. Defendant moved his hands toward the
victim's pants; she attempted to push his hands away. Defendant removed the
victim's shirt and fondled her breasts. He reached underneath the victim's
pants and underwear and digitally penetrated her vagina several times; she
continued to tell defendant to stop. Defendant removed the victim's pants and
underwear, got on top of her, and penetrated her vagina with his penis. The
victim asked defendant to stop and was eventually able to push him off of her.
She asked defendant to leave, and he exited her bedroom. The victim believed
defendant had left the house.
The victim put on her clothes and
informed a friend by text message that defendant had just raped her. The friend
notified the victim's father, who notified law enforcement. When the victim
left her bedroom, she saw defendant sleeping on the couch. When sheriff's
deputies arrived, they found the victim crying on the driveway and defendant
asleep on the couch.
People v. Nachbar,
supra.
The opinion then explains that
[d]eputies woke, arrested, and admonished
defendant. He initially denied having any sexual contact with the victim,
stating he knew it would be wrong because she was only 15 years old. However,
during transport, defendant admitted he digitally penetrated the victim's
vagina and had sexual intercourse with her. He denied the victim ever told him
`no.’ Defendant said he was `”coming down”’ from having smoked methamphetamine
before meeting with the victim.
People v. Nachbar,
supra.
Finally, the Court of Appeal outlined the charges that were
subsequently brought against Nachbar, the disposition on those charges and the
sentence imposed on him:
Defendant was charged in a four-count
felony complaint with forcible rape (California Penal Code § 261, subd.
(a)(2)); sexual penetration using force (California Penal Code § 289, subd.
(a)(1)(A)); unlawful sexual intercourse with a minor more than three years
younger (California Penal Code § 261.5(c)) and penetration by a foreign object
(California Penal Code § 289, subd. (i)). Pursuant to a plea agreement,
defendant pleaded guilty to the unlawful sexual intercourse count and the
remaining counts were dismissed.
The probation officer's presentencing
report assessed defendant as having a moderate to high risk of committing
another sexual offense if released on probation, but stated that his chances of
success would likely improve if he were `managed on formal probation with
intensive monitoring and case planning. . . .’
The trial court sentenced defendant to
381 days in custody (which was set off by custody credits) and placed him on
formal probation for three years. As relevant, the conditions of defendant's
probation provide that he (1) not have photographic equipment; (2) not have
toys, video games, or similar items that attract children; (3) obtain approval
of his residence from his probation officer; and (4) submit to warrantless and
suspicionless searches of his computers and
recordable media.
People v. Nachbar,
supra.
Finally, the opinion explains that the trial court judge
also exercised its discretion to
require that defendant register as a sex offender. The court explained that
although it understood the Act required that defendant register for life, and
that the court thought requiring registration for `10 years or something like
that would be appropriate,’ the court nonetheless required that defendant
register because of how quickly he reoffended after his prior offense. Both the
order granting formal probation and the judgment state defendant is to
`[r]egister per . . . [California Penal Code § 290.’
People v. Nachbar,
supra.
The Court of Appeal then took up the fourth probation
condition imposed on Nachbar, e.g., that he Nachbar “submit to warrantless and
suspicionless searches of his computers and
recordable media.” People v. Nachbar, supra. It began by addressing the “applicable legal
principles and standard of review”, as is outlined below. People
v. Nachbar, supra.
`Following a defendant's conviction of
a crime, the sentencing court may choose among a variety of dispositional
options. One option is to release the offender on probation. “Probation is
generally reserved for convicted criminals whose conditional release into
society poses minimal risk to public safety and promotes rehabilitation.” [Citation.]
A grant of probation is “qualitatively different from such traditional forms of
punishment as fines or imprisonment. Probation is neither `punishment’
[citation] nor a criminal `judgment’ [citation]. Instead, courts deem probation
an act of clemency in lieu of punishment [citation], and its primary purpose is
rehabilitative in nature [citation].”’ (People v. Moran (California
Court of Appeal 5th District 2016) 1 Cal.5th 398, 402, 205
Cal.Rptr.3d 491, 376 P.3d 617 (Moran).) Accordingly, `a grant of
probation is an act of grace or clemency, and an offender has no right or
privilege to be granted such release.’ (Ibid.) `Stated differently,
‘[p]robation is not a right, but a privilege.’” (Ibid.)
Consequently, a sentencing court may
impose conditions to further the rehabilitative and protective purposes of
probation. (Moran, supra, 1 Cal.5th at pp. 402–403, 205 Cal.Rptr.3d 491,
376 P.3d 617.) Under People v. Lent (1975) 15 Cal.3d 481, 124
Cal.Rptr. 905, 541 P.2d 545 (Lent), `”[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. . . .”’ (People v. Olguin (2008) 45 Cal.4th
375, 379, 87 Cal.Rptr.3d 199, 198 P.3d 1, quoting Lent at p.
486, 124 Cal.Rptr. 905, 541 P.2d 545.) `This test is conjunctive—all three
prongs must be satisfied before a reviewing court will invalidate a probation
term.’ (Olguin, at p. 379, 87 Cal.Rptr.3d 199, 198 P.3d 1; Moran,
at p. 403, 205 Cal.Rptr.3d 491, 376 P.3d 617.)
People v. Nachbar,
supra.
The opinion went on to explain that 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 constitutionally
overbroad.’ [Citation.] ‘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.’ (People v. Pirali (2013)
217 Cal.App.4th 1341, 1346, 159 Cal.Rptr.3d 335.)
`As a general rule, failure to
challenge a probation condition on constitutional or Lent grounds
in the trial court waives the claim on appeal.” (In re Antonio C. (2000)
83 Cal.App.4th 1029, 1033, 100 Cal.Rptr.2d 218; People v. Welch (1993)
5 Cal.4th 228, 237, 19 Cal.Rptr.2d 520, 851 P.2d 802 (Welch); In re Sheena K. (2007) 40 Cal.4th 875, 889, 55
Cal.Rptr.3d 716, 153 P.3d 282.)
We generally review the imposition of
probation conditions for an abuse of discretion, and constitutional challenges
to probation conditions de novo. (People
v. Appleton (2016) 245 Cal.App.4th 717, 723, 199 Cal.Rptr.3d
637 (Appleton)).
People v. Nachbar,
supra.
The Court of Appeal then began its analysis of Nachbar’s
challenge to the probation condition that required him to submit his computers
and “recordable media” to “suspicionless searches” by law enforcement
personnel. People v. Nachbar, supra. More precisely, it began by noting that
Nachbar argued that the “the probation condition that requires him to submit
his computers and
recordable media to suspicionless searches is unconstitutionally overbroad.” People v. Nachbar, supra.
The opinion goes on to explain that to
support his position, defendant cites
the Sixth District Court of Appeal's recent decision in Appleton, supra,
245 Cal.App.4th 717, 199 Cal.Rptr.3d 637. The defendant in that case pleaded
guilty to false imprisonment by means of deceit as part of a plea bargain after
initially being charged with oral copulation with a minor, whom he had met via
a social media smartphone application. (Id. at pp. 719–720, 199
Cal.Rptr.3d 637.) The defendant was placed on probation, one of the conditions
of which provided that the defendant's electronic devices `shall be subject to
forensic analysis search for material prohibited by law.’ (Id. at
p. 721, 199 Cal.Rptr.3d 637.) The defendant appealed this condition on Lent
and constitutional grounds. (Id. at pp. 721–722, 199 Cal.Rptr.3d
637.)
The Court of Appeal found the electronics-search
condition did `not run afoul of the first Lent factor requiring ‘no
relationship to the crime’ (Appleton, supra, 245 Cal.App.4th at p. 724,
199 Cal.Rptr.3d 637), but concluded the condition was unconstitutionally
overbroad (id. at pp. 725–727, 199 Cal.Rptr.3d 637). The court
reasoned the condition `would allow for searches of vast amounts of personal
information unrelated to defendant's criminal conduct or his potential future
criminality’ (id. at p. 727, 199 Cal.Rptr.3d 637), such as his `medical
records, financial records, personal diaries, and intimate correspondence with
family and friends’ (id. at p. 725, 199 Cal.Rptr.3d 637). In
reaching this conclusion, the Appleton court relied on the Supreme
Court's rationale in Riley v. California (2014) 134 S.Ct. 247 (Riley),
which held that a warrantless search of a suspect's cell phone incident to
arrest implicated and violated his Fourth Amendment rights. (Riley,
at p. 2493.) The Supreme Court emphasized the wealth of information contained
in modern cell phones. (Id. at pp. 2489–2490.) The Appleton court
struck the probation condition and remanded for the trial court to fashion one
more narrowly tailored. (Appleton, at pp. 728–729, 199 Cal.Rptr.3d 637.)
People v. Nachbar,
supra.
The opinion went on to explain that,
[m]ore recently, in In re J.E. (2016) 1 Cal.App.5th 795, 205
Cal.Rptr.3d 28, our colleagues in the Court of Appeal for the First District,
Division Four, concluded the Riley court's privacy concerns in the context of a
search incident to arrest are inapposite in the context of determining the
constitutional reasonableness of probation conditions allowing searches of
electronic devices. (In re J.E., at
pp. 803–804, 205 Cal.Rptr.3d 28.) As the In re J.E. court explained, unlike the
defendant in Riley `who at the time
of the search had not been convicted of a crime and was still protected by the
presumption of innocence,’ a probationer does not enjoy ‘“the absolute liberty to which every citizen
is entitled.’” (In re J.E., at p.
804, 205 Cal.Rptr.3d 28.) That is, “ ‘Just as other punishments for criminal
convictions curtail an offender's freedoms, a court granting probation may
impose reasonable conditions that deprive the offender of some freedoms enjoyed
by law-abiding citizens.’ ” (Ibid.
quoting United States v. Knights (2001) 534 U.S. 112, 119).
The court recognized that although
electronics may be a `”bottomless pit”’ of personal information, `courts have
historically allowed . . . probation officers significant access to other types
of searches, including home searches, where a large amount of personal
information—from medical prescriptions, banking information, and mortgage
documents to love letters, photographs, or even a private note on the
refrigerator—could presumably be found and read.’ (Id. at p. 804, fn. 6, 205 Cal.Rptr.3d 28.) The court noted the
absence of evidence in the record indicating the probationer's electronics
contained any of these types of sensitive information. (Ibid.) The court
further noted that the Supreme Court in Riley
clarified that although cell phone data is subject to Fourth Amendment
protection, it is not `”immune from search.”’ (In re J.E., at p. 804, 205
Cal.Rptr.3d 28, quoting Riley, supra, 134 S.Ct. at p. 2493.) The In re J.E.
court thus concluded that although the probationer's right to privacy was implicated by the electronics search
condition, the right was not violated
under the circumstances. (Id. at p. 805.)
People v. Nachbar,
supra (emphases in the original).
The Court of Appeal therefore found the court’s decision in In re J.E.
persuasive. As a defendant who has
pleaded guilty to a felony and accepted probation in lieu of additional
punishment, defendant has a diminished expectation of privacy as compared to
law-abiding citizens or those subject to searches incident to arrest. Thus, we
conclude the privacy concerns voiced in Riley are inapposite in the context of
evaluating the reasonableness of a probation condition.
We further conclude the probation
condition is suitably tailored in light of the substantial protective and
rehabilitative concerns demonstrated by the record. The condition is related to
defendant's crime because he communicated with his victim via social media,
sent her sexually explicit text messages, and intended to watch a movie with
her on a mobile device on the date of the offense.5 Defendant reoffended with a
younger victim within a matter of mere months, while already on probation. His
psychological evaluation revealed he is sexually attracted to adolescents and
`has some emotional difficulties and anxieties regarding interpersonal
relationships that place him at a higher risk for engaging in sexual acts with
younger persons.’ And the probation officer reported defendant had a moderate
to high risk of reoffending if released on probation, and his chances of
success would likely improve if he were `intensive[ly] monitor[ed].’ Under
these circumstances, we conclude the probation condition allowing searches of
defendant's computers and recordable media is reasonable.
People v. Nachbar,
supra.
The Court of Appeal therefore affirmed the judgment of the
lower court. People v. Nachbar, supra.
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