People v. Martinez CA2/6

Filed 9/18/20 P. v. Martinez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B302104 (Super. Ct. No. 2019024632) Plaintiff and Respondent, (Ventura County)

v.

LISBETH MARTINEZ,

Defendant and Appellant.

Lisbeth Martinez appeals a judgment claiming a probation condition the trial court imposed is invalid. She pled guilty to possession for sale of a controlled substance. (Health & Saf. Code, § 11378.) Her probation condition required her to consent to a search without a warrant for any cell phone she has. We conclude, among other things, that this probation condition as applied to the facts in this case is invalid. We strike this probation condition and otherwise affirm. FACTS On July 28, 2014, police officers responded to a report about people loitering in an alley. Martinez was present. In

response to a question by a police officer, she said she had a methamphetamine pipe on a blanket where she was sitting. In a search of a backpack, police found plastic baggies of methamphetamine. Martinez told police that she sleeps on the streets and is unemployed. She sold some baggies of drugs for $10 each. She did that “in order to afford a motel room.” Police arrested her. There was no evidence that Martinez had ever used a cell phone in connection with any crime or that she had ever possessed a cell phone. The probation department said Martinez is “a 26-year-old female . . . without a significant criminal history.” She “appears to be willing to comply with the terms of probation.” She had been living on the streets because “she did not want to live with her parents and their rules.” Martinez said she will “move back in with her parents so she will not have to stay on the streets.” The probation officer said Martinez’s “ORAS [Ohio Risk Assessment System] screening” score was “18,” “indicating a low/moderate risk to reoffend in the community.” The risk factor of reoffending based on the designated factor of her criminal history was a score of “1,” which is a “low” risk level. In recommending probation, the probation officer said, “Hopefully, [Martinez] will take this opportunity to turn her life around and find more productive activities to better herself.” After pleading guilty to possession for sale of a controlled substance, the court suspended imposition of a sentence and placed her on 36 months of formal probation. Probation condition No. 30 provided, “You hereby consent to search of any cellular telephone under your control, by a probation officer or peace officer, at any time, with or without a search warrant, warrant of arrest, or reasonable cause. You must provide the pass code to