People v. Kersten CA3

Filed 11/13/20 P. v. Kersten CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE, C090437

Plaintiff and Respondent, (Super. Ct. No. 17F1635)

v.

VICTOR SAGE KERSTEN,

Defendant and Appellant.

Defendant Victor Sage Kersten received probation after pleading no contest to several firearm-related offenses. One of the probation terms requires defendant to make his electronic devices that are capable of communication available for warrantless searches in order to enforce a protective order. On appeal, defendant challenges this search condition as unreasonable and constitutionally overbroad. We affirm. FACTS J.Y. saw defendant driving on a highway one night and began tailgating him in order to confront him about a threat defendant had made. M.P., J.Y.’s girlfriend, had told

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J.Y. that defendant had threatened K.F., M.P.’s friend. After defendant and J.Y. pulled over to the side of the highway, J.Y. went to open his passenger-side door and he heard gunshots. J.Y. drove off and defendant began chasing him; J.Y. heard additional gunshots while trying to evade defendant. Defendant was later arrested and admitted to shooting at J.Y.’s car but claimed he was very scared by J.Y.’s aggressive driving and thought he was going to be shot. Sheriff’s deputies recovered bullet fragments from the frame of J.Y.’s vehicle and the passenger-side headrest. Defendant was charged with premeditated attempted murder, assault with a firearm with a personal use of a firearm enhancement, shooting at an occupied motor vehicle, shooting from a motor vehicle, and two counts of resisting an officer. Defendant pleaded no contest to assault with a deadly weapon, modified from assault with a firearm, that he personally used a firearm to commit the assault, and the two counts of resisting an officer. The court suspended imposition of defendant’s sentence for three years and put defendant on probation for three years. The court also imposed a protective order that prohibited defendant from contacting J.Y., M.P., and K.F., including “electronic, telephonic, or written contact.” At the sentencing hearing defendant challenged, for lack of nexus to the offense as well as being overbroad, probation term No. 16, which required he submit to warrantless searches of his property at any time and “provide any password or combination necessary to access any electronic device or service during the warrantless search process.” In response to the objection, the court modified term No. 16 to limit it to only assisting in enforcing no contact orders and for devices capable of communication. The modified term No. 16 stated: “That [defendant] submit his person, property, vehicle and residence to warrantless search at any time, with or without probable cause, by any peace officer or probation officer and that he provide any password or combination necessary to access any electronic device capable of communication or service during the warrantless search process for the purpose of