People v. White CA3

Filed 5/4/21 P. v. White CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C088231

Plaintiff and Respondent, (Super. Ct. No. 18FE012252)

v.

THOMAS WHITE,

Defendant and Appellant.

In exchange for pleading no contest to corporal injury on his girlfriend, defendant Thomas White was granted probation, the terms of which included an electronic search condition. On appeal, defendant contends the electronic search condition is unconstitutionally overbroad. He also contends the trial court erred in imposing certain fines and fees without considering his ability to pay. We agree that on the record before us the electronic search condition is constitutionally overbroad. We remand so the trial court can consider whether the

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condition is valid based on facts not before us, and whether a more narrowly tailored version of the condition can pass constitutional muster. The judgment is otherwise affirmed. FACTUAL AND PROCEDURAL BACKGROUND After punching his girlfriend in the eye during an argument,1 defendant pled no contest to inflicting corporal injury on someone with whom he had a dating relationship. (Pen. Code, § 273.5, subd. (a)).2 In exchange for the plea, defendant would receive probation and serve no more than 364 days in jail. Additionally, a $40 court operations assessment, a $30 conviction assessment, and a $300 restitution fine would be imposed, along with other fees. “[S]tandard terms and conditions” of probation would also apply. A probation report was then prepared, which recommended probation conditions including an electronic search condition authorizing the search of any place or object under defendant’s control, including phones and computers: “[Penal Code section] 1546 searchable — Defendant shall submit his/her person, place, property, automobile, electronic storage devices, and any object under his/her control, including but not limited to cell phones and computers, to search and seizure by any law enforcement officer or probation officer, any time of the day or night, with or without a warrant, with or without his/her presence or further consent. Defendant being advised of his/her constitutional and statutory rights pursuant to Penal Code section 1546 et seq. in this regard, and having accepted probation, is deemed to have waived same and also specifically consented to searches of his/her electronic storage devices.” [¶] “Defendant shall provide access to any electronic storage devices and data contained therein,