Filed 5/9/18
                             CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                        DIVISION FOUR


 THE PEOPLE,
            Plaintiff and Respondent,                 A149740

 v.                                                   (Sonoma County
 BENITO GUZMAN,                                       Super. Ct. No. SCR-648774)
            Defendant and Appellant.


        Benito Guzman appeals from an order modifying the conditions of his supervised
probation to explicitly authorize warrantless searches of his electronic devices. Guzman
contends (1) the trial court lacked jurisdiction to order the modification because no new
circumstances existed and (2) the electronic search probation condition violates
Guzman’s constitutional right to privacy. We affirm the order.
                   I. FACTUAL AND PROCEDURAL BACKGROUND
        A. Guzman’s 2015 Offense and Sentence
        In April 2015, Guzman was charged with two felonies: (count 1) arranging a
meeting with a minor for the purpose of committing a sexual offense (Pen. Code, § 288.4,
subd. (b)1); and (count 2) attempting to commit a lewd act with a minor under the age of
14 (§ 664/288, subd. (a)). The charges were based on evidence gathered by officers
conducting an undercover “sting” operation, which showed that Guzman used his cell
phone and the internet Web site myredbook.com to arrange and negotiate payment for a
sexual encounter with a 19-year-old female named “Sexy Shauna” and her 13-year-old
sister “Jenny.”


        1
            References to a statute are to the Penal Code, unless otherwise stated.

                                                1
       In July 2015, Guzman pleaded guilty to the count 1 felony sex offense pursuant to
a negotiated disposition, which provided that the court would dismiss count 2, suspend
imposition of judgment, and impose a sentence of nine months in jail and three years
felony probation. As part of the negotiated disposition, Guzman acknowledged that he
would be required to register as a sex offender and be subject to “Sex Offender Caseload
Conditions” of probation (also called SAFER probation conditions).
       On September 1, 2015, Guzman was sentenced in accordance with the negotiated
disposition. At his sentencing hearing, Guzman reviewed and separately acknowledged
the SAFER probation conditions, which were incorporated into the terms of his
probation. Among other things, the SAFER probation conditions required participation
in sex offender treatment/programs, restricted interactions with children, and provided
that Guzman may not “view, purchase, possess or have access to any videotapes, films
and/or magazines, CD’s or any medium which depict minor(s) or people representing
themselves as minors(s) in sexual activity.”
       The SAFER probation conditions also impose the following requirements on
Guzman: “Submit to warrantless search and seizure of person, property, personal
business or vehicle any time of the day or night or residence any time of the day or
reasonable hour of the night by any Probation or Law Enforcement Officer”; and
“Provide Probation Officer with keys, combinations or access codes to any and all gates
or security doors which are required for entry onto any property where you reside.”
       B. The California Electronic Communications Privacy Act (ECPA)
       While Guzman was on probation, the ECPA went into effect on January 1, 2016.
(§ 1546, et seq.; Stats. 2015, ch. 651, § 1.) As pertinent here, the ECPA precludes a
government entity from accessing “electronic device information by means of physical
interaction or electronic communication with the electronic device” unless a statutory
exception applies. (§ 1546.1, subds. (a)(3) & (c).) Statutory exceptions include obtaining
a warrant (§ 1546.1, subd. (c)(1)), or obtaining the “the specific consent of the authorized
possessor of the device” (§ 1546.1, subd. (c)(4)).



                                               2
       Another exception, which was added by a September 2016 amendment to the
ECPA, states: “(c) A government entity may access electronic device information by
means of physical interaction or electronic communication with the device only as
follows: [¶] . . . [¶] (10) Except where prohibited by state or federal law, if the device is
seized from an authorized possessor of the device who is subject to an electronic device
search as a clear and unambiguous condition of probation, mandatory supervision, or
pretrial release.” (§ 1546.1, subd. (c)(10).)
       C. The Modification Order
       In September 2016, Guzman’s probation officer filed a petition “for a modification
of probation.” The petition alleged that Guzman’s offense involved the use of an
electronic device to communicate or attempt to communicate with a minor “with the
intent to seduce or arrange to meet the minor and engage in sexual acts or to view,
download or distribute child pornography.” The petition further stated: “In order to
ensure the effective rehabilitation and supervision of the defendant it is recommended
that probation be modified,” and that the court order a “search and seizure term and
conditions pertaining to all electronic devices.”
       A hearing on the petition was held in September and October 2016. Guzman
objected that a modification was improper absent “some new facts or changed
circumstances or a violation.” The People argued that “the change in the law would be
sufficient for this Court to find a change in circumstances to now impose the search and
seizure conditions which would have applied previously.” The trial court stated that there
was a “nexus” between the search condition and Guzman’s offense because Guzman used
a data processing and storage device—his cell phone—to commit the crime. The court
also found that Guzman was previously ordered to submit to search and seizure and it
was “important to both supervision and rehabilitation that his personal data storage
devices be subject to search as well and based on the fact that that’s what he used to
complete the activity which formed the basis for this crime.” Therefore, the court made
the following order:



                                                3
       “I’m going to be ordering that—you are already subject to search and seizure, and
now it’s going to be specific to include your personal electronic devices . . . pursuant to
Penal Code sections 1546, 1546.1, 1546.2 and 1546.4. And you must submit to search of
all computers, hard drives, flash drives, thumb drives, disks, removable media, computer
networks, electronic data storage devices, personal digital assistants, cell phones of any
kind, notebooks or computers of any kind under the custody or control of the defendant to
which he has either sole, shared, partial or limited access, without a search warrant at any
time of the day or night.
       “His residence is subject to search at any time of the day or reasonable hour of the
night. So if these are in his residence, it would only be at a reasonable time. These
search terms are to include a waiver of any password or encryption protection. He must
provide his probation officer with all the passwords, log-ins, access codes or other
information necessary to access any of the data storage devices or any social media that is
accessed through the personal device.
       “The defendant shall not possess or utilize any program or application on any
computer or personal data storage device or through a remote control [that] deletes or
scrubs data from the electronic device. If any device is seized as evidence, the defendant
may not contact his service provider to remove, alter or destroy data from the electronic
device. Failure to provide a password or surrender the device will be considered a
violation of probation.
       “I’m making this order based on the fact that a personal data storage device was
used as an integral part of the crime, that there is an absolute nexus.”
       Following this ruling, Guzman’s counsel objected again that “there is not
sufficient new facts or changed circumstances.” The People disputed this claim,
reiterating that the ECPA went into effect in January 2016, after Guzman entered his plea
and received his original sentence.
       Before concluding the hearing, the court made the following statement: “And the
Court will put on the record that I have reviewed the facts and circumstances of the
offense. There is an absolute nexus with the original search and seizure order that was


                                              4
ordered at his sentencing. It should have included all personal data storage devices,
because that is only appropriate in this case.”
                                     II. DISCUSSION
       A. The Trial Court Had Jurisdiction to Modify the Probation Condition
       Guzman contends that the trial court lacked jurisdiction to order a modification of
Guzman’s probation conditions to include an electronic search condition. According to
Guzman, jurisdiction to modify the terms of a defendant’s probation requires new facts or
changed circumstances, and in this case the trial court erroneously relied on the same
facts “that were in existence at the time of the original order.”
       A sentencing court has broad power to revoke or modify a term of probation at
any time during the probationary period, which includes the power to extend the
probationary term. (People v. Cookson (1991) 54 Cal.3d 1091, 1095 & 1100 (Cookson).)
This power is not limited to cases where a probation violation has been committed. (Id.
at p. 1098.) However, “[a] change in circumstances is required before a court has
jurisdiction to extend or otherwise modify probation . . . . ‘An order modifying the terms
of probation based upon the same facts as the original order granting probation is in
excess of the jurisdiction of the court, for the reason that there is no factual basis to
support it.’ [Citation.]” (Id. at p. 1095, italics omitted, quoting In re Clark (1959)
51 Cal.2d 838, 840.)
       In Cookson, supra, 54 Cal.3d 1091, a condition of the defendant’s probation for a
theft offense was to pay restitution as determined by the probation department. The
department ordered the defendant to pay $12,000 pursuant to a schedule, which the
defendant followed. However, at the end of the three-year probation term, the court
granted the department’s request to extend the defendant’s probation for two additional
years because he had only paid part of the “total amount originally ordered.” (Id. at
pp. 1093–1094.) Rejecting the defendant’s challenge to this modification of his
probation, the Cookson court reasoned that the requisite “change in circumstance could
be found in a fact ‘not available at the time of the original order,’ namely, ‘that setting the
pay schedule consistent with defendant’s ability to pay had resulted in defendant’s


                                               5
inability to pay full restitution as contemplated within the original period of probation.’ ”
(Id. at p. 1095.)
       Applying Cookson here, we conclude that the modification of Guzman’s probation
condition was proper. As discussed in our background summary, when Guzman’s
original sentence was imposed pursuant to a negotiated disposition, he became subject to
a warrantless search condition, which authorized a search of his person, property, vehicle,
and home. When that condition was imposed, it was broad enough to embrace electronic
devices like the phone Guzman used to commit his offense. Then, while Guzman was
still on probation, there was a change of circumstance in that the ECPA established a new
requirement that an electronic search probation condition must be clear and
unambiguous. The fact that the probation search condition did not have the same
meaning or impact that it had when the original sentence was announced demonstrates
that the trial court had jurisdiction to modify the conditions of Guzman’s probation to
include an express electronic search condition.
       People v. Sandee (2017) 15 Cal.App.5th 294 (Sandee) supports our conclusion. In
that case, the defendant was on probation when officers searched her cell phone pursuant
to a “general search condition which allowed authorities to search her ‘property’ and
‘personal effects’ without a warrant.” (Id. at p. 298.) The trial court denied a motion to
suppress the cell phone evidence, which was affirmed on appeal. The Sandee court found
that at the time the search was conducted, a “reasonable, objective person” would have
understood that a search of the phone fell within the scope of the general search
conditions in the defendant’s probation orders. (Ibid.) The court reasoned that the
defendant had agreed to submit her property and personal effects to search at any time,
the probation search condition was broadly worded and contained no limiting language to
exclude a cell phone or other electronic devices, and a “reasonable person would
understand the terms ‘property’ and ‘personal effects’ to include [defendant’s] cell phone
and the data on it.” (Id. at p. 302, fn. omitted.)
       The Sandee court rejected the contention that the cell phone evidence should have
been suppressed under the ECPA, which went into effect after the search but prior to the


                                               6
suppression hearing. (Sandee, supra, 15 Cal.App.5th at pp. 304–306.) The court
reasoned that “[a]s the ECPA was not in effect at the time of the search, a reasonable,
objective person at the time of the search would not have understood the ECPA to restrict
the scope of the search permitted by the probation orders.” (Id. at p. 305.) Thus, the
court concluded that, while it may have been reasonable after the ECPA became effective
“for a law enforcement officer conducting a search to interpret a general probation search
condition authorizing a warrantless search of the probationer’s property as excluding
searches of the probationer’s electronic device information, such as cell phone data, we
see no basis for a reasonable person to have reached that conclusion prior to the ECPA.”
(Ibid, italics omitted.)
       Despite its different context, Sandee supports two conclusions that are material to
our analysis. First, prior to the enactment of the ECPA, a broadly worded general search
condition like the one in this case was reasonably construed as including electronic
searches. Second, after the ECPA went into effect, even an unqualified general search
condition is reasonably construed as precluding searches of electronic devices. These
conclusions demonstrate that the enactment of the ECPA was a change of circumstance,
which gave the court jurisdiction to modify Guzman’s warrantless search probation
condition to explicitly authorize searches of electronic devices.
       Guzman contends that the enactment of the ECPA cannot be used to justify the
modification of his probation order for three reasons. First, he argues that the trial court
expressly stated that the reason he was ordering a modification was because Guzman
used an electronic data device to commit his crime, not because there was a change in the
law. (Citing § 1203.3, subd. (b)(1)(A) [requiring judge to state reasons for modification
of probation condition on the record].) We disagree with this parsing of the trial court’s
ruling. The fact that Guzman used a cell phone and the internet to commit his offense
was relevant to the court’s analysis because it pertained to the scope of the original
warrantless search condition, while the enactment of the ECPA was also relevant because
that change necessitated a modification to clarify that Guzman’s warrantless search
condition includes searches of his electronic storage devices.


                                              7
       Second, Guzman contends a change of circumstance sufficient to “impart”
jurisdiction to modify a probation condition must be a new fact, not a law. However,
Guzman’s only authority for this proposition is People v. Mendoza (2009)
171 Cal.App.4th 1142, 1157 (Mendoza), which did not involve the enactment of a new
law or address whether that change of circumstance can constitute a fact that was not
previously available to the sentencing court.2 Here, it is important to clarify that the
order in this case does not subject Guzman to an additional penal consequence because of
the enactment of a new law. (Compare People v. Douglas M. (2013) 220 Cal.App.4th
1068 [statute requiring a defendant on probation for qualifying sex offense to participate
in treatment program could not be applied retroactively to defendants sentenced to
probation before the statute was enacted].) Rather, the enactment of the ECPA is itself
the fact that gave rise to a changed circumstance because the ECPA requires a degree of
specificity in a probation search condition that was not required when Guzman was
sentenced. Guzman cites no case that is inconsistent with this conclusion.
       Third, Guzman contends that even if a change in the law can constitute a change
of circumstance, the enactment of the ECPA does not qualify as a change of circumstance
because it did not alter Guzman’s situation in a way that would justify the modification.


       2
          In Mendoza, supra, 171 Cal.App.4th 1142, the defendant pleaded guilty to grand
theft and was sentenced to five years’ probation with conditions that included serving
365 days in jail and paying victim restitution. After the defendant completed his jail term
and was transferred to a federal detention facility, the court granted his request to modify
probation to reduce his jail term below 365 days so he could avoid adverse immigration
consequences. By striking the defendant’s custody credits, the court reduced his time
served in jail to 250 days. (Id. at pp. 1146–1149.) The People appealed, arguing the trial
court did not have authority to modify retroactively the defendant’s completed jail term.
(Id. at p. 1149.) The Mendoza court agreed, finding, among other things, that cases like
Cookson, supra, 54 Cal.3d 1091 “provide authority for the superior court to modify a
term of probation upon a showing of a change in circumstances,” but not “to modify a jail
term imposed and already served.” (Id. at pp. 1156–1157.) For the “sake of argument,”
the court also pointed out that the fact the defendant was willing to waive his custody
credits was not a changed circumstance because if he had been offered that option when
he was originally sentenced as a way of avoiding deportation, “he would have ‘jumped’
at that offer.” (Id. at p. 1157.)

                                              8
According to this two-pronged argument, even before the ECPA was enacted, (1) the
state and federal constitutions “precluded warrantless searches and seizures of Mr.
Guzman’s electronic devices”; and (2) the trial court had the same authority to impose
conditions of probation that it has now. Thus, Guzman concludes, if an electronic search
condition was warranted in the first instance, the court should have imposed it when it
announced Guzman’s original sentence.
       The first prong of this argument is misleading. In claiming that the federal and
state constitutions have always precluded warrantless searches of his electronic devices,
Guzman cites authority discussing the privacy rights of individuals who were not on
probation and not subject to a warrantless search condition when their property was
searched. (Mincey v. Arizona (1978) 437 U.S. 385, 393–395 [holding that a “murder
scene exception” to the warrant requirement is unconstitutional]; People v. Blair (1979)
25 Cal.3d 640, 652 [finding that a “credit card holder would reasonably expect that the
information about him disclosed by those charges will be kept confidential unless
disclosure is compelled by legal process”]; People v. Chapman (1984) 36 Cal.3d 98
[police violated defendant’s constitutionally protected privacy right by obtaining
defendant’s unlisted telephone number without a warrant].) This authority is inapposite
because when Guzman’s original sentence was imposed, he had already pleaded guilty to
a felony sex offense involving a minor and consented to the imposition of SAFER
probation conditions that included broad restrictions on his liberty including warrantless
searches of his person, property, vehicle, and home. And, Guzman was on probation and
subject to these conditions when the ECPA went into effect.
       The second prong of Guzman’s argument begs the question regarding the scope
and meaning of the warrantless search condition that was part of Guzman’s original
sentence. As discussed, the nature of Guzman’s crime and the specific way that he
committed it, the broadly worded search condition that was part of the original sentence,
and the fact that the SAFER probation conditions were part of the negotiated disposition
in this case are all circumstances supportive of the conclusion that Guzman’s original
search condition implicitly authorized a search of electronic storage devices.


                                             9
       To put the matter another way, Guzman’s argument appears to be that the
enactment of the ECPA did not change the law in a way that either (1) restricted
Guzman’s privacy rights, or (2) limited the ability of the trial court to impose a
warrantless search probation condition when the circumstances so warrant. These
observations are beside the point. The enactment of the ECPA established a new
procedural requirement for subjecting a probationer in Guzman’s situation to an
electronic search condition. That changed circumstance—which arose while Guzman
was already serving probation pursuant to a warrantless search condition that did not
preclude searches of Guzman’s electronic devices—gave the trial court jurisdiction to
modify the warrantless search condition of Guzman’s probation.
       B. Guzman’s Constitutional Challenge
       Guzman alternatively claims that the electronics search condition is
unconstitutionally overbroad because it violates his rights to privacy and to be free from
unreasonable searches.
       The People contend that Guzman forfeited this claim by failing to raise it in the
trial court. “As a general rule, a defendant must first raise the issue in the trial court to
challenge a probation condition on appeal. [Citation.] However, our Supreme Court has
held that the forfeiture rule does not apply to a defendant’s contention that a probation
condition is unconstitutionally vague and overbroad on its face when the challenge
presents a pure question of law.” (People v. Quiroz (2011) 199 Cal.App.4th 1123, 1127,
citing In re Sheena K. (2007) 40 Cal.4th 875, 887.) Therefore, we will address Guzman’s
claim that this probation condition is facially overbroad.3




       3
         Guzman also contends the electronic search condition is overbroad as applied
specifically to him because there is no evidence “indicat[ing] that such a broad condition
is necessary.” Guzman forfeited this part of his overbreadth claim, which does not
present a pure question of law, but depends instead on factual circumstances that were
not addressed by the trial court because Guzman did not make an overbreadth challenge
to this probation condition in the lower court. (In re Sheena K., supra, 40 Cal.4th at
p. 889; People v. Smith (2017) 8 Cal.App.5th 977, 987.)

                                              10
       “ ‘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.’ [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.’ [Citation.]” (People v. Pirali (2013) 217 Cal.App.4th
1341, 1346; see also, In re Sheena K., supra, 40 Cal.4th at p. 890.) We review
“constitutional challenges to probation conditions de novo.” (People v. Appleton (2016)
245 Cal.App.4th 717, 723 (Appleton).)
       Guzman contends that his electronic search condition is overbroad on its face
because it has a substantially greater impact on his privacy rights than a physical search
of his person. As support for this claim, Guzman relies on Riley v. California (2014)
573 U.S. ___ ,134 S.Ct. 2473 (Riley). Riley held that the warrantless search of a
suspect’s cell phone implicated and violated the suspect’s Fourth Amendment rights.
(134 S.Ct. at p. 2493.) The court rejected the argument that the search of a suspect’s cell
phone was “ ‘materially indistinguishable’ ” from the search of an arrestee or an item
such as an arrestee’s wallet, explaining that modern cell phones potentially contain
sensitive information about many aspects of a person’s life. (Id. at pp. 2488–2489.)
However, the court emphasized the narrowness of its holding, which was only that cell
phone data is subject to Fourth Amendment protection, “not that the information on a cell
phone is immune from search.” (Id. at p. 2493.)
       Riley does not support Guzman’s facial challenge to his electronic search
probation condition. When the Riley defendant’s cell phone was searched, he had not
been convicted of any crime and thus he was still protected by the presumption of
innocence. By contrast, Guzman pleaded guilty to a felony sex offense involving a child
and is currently on probation for that offense. “Inherent in the very nature of probation is
that probationers ‘do not enjoy “the absolute liberty to which every citizen is entitled.” ’
[Citation.] Just as other punishments for criminal convictions curtail an offender’s


                                             11
freedoms, a court granting probation may impose reasonable conditions that deprive the
offender of some freedoms enjoyed by law-abiding citizens.” (United States v. Knights
(2001) 534 U.S. 112, 119.)
       We recognize that Guzman’s probation status does not completely vitiate his
constitutional privacy rights. (Appleton, supra, 245 Cal.App.4th at p. 724.)4 However,
the fact that a search of an electronic device may uncover comparatively more private
information than the search of a person, or a personal item like a wallet, does not
establish that a warrantless electronic search condition of probation is per se
unconstitutional. (People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski).)
       In Ebertowski, supra, 228 Cal.App.4th 1170, the defendant was granted probation
after pleading no contest to criminal threats, resisting and deterring an officer, and a gang
affiliation allegation. On appeal, he challenged conditions of his probation requiring him
to provide officials with passwords to his electronic devices and social media sites and to
submit to warrantless searches of those devices and sites. (Id. at p. 1172.) Rejecting the
contention these conditions were unconstitutionally overbroad, the appellate court
reasoned that the “minimal invasion” into the defendant’s privacy resulting from
enforcement of the electronic search condition was outweighed by the government’s
interest in protecting the public by ensuring that the defendant complied with his anti-
gang probation conditions. (Id. at p. 1176.) With respect to the inclusion of a password
disclosure requirement, the court reasoned, as follows: “The evident purpose of the
password conditions was to permit the probation officer to implement the search,
association, and gang insignia conditions . . . . Access to all of defendant’s devices and

       4
         In his reply brief, Guzman contends that Appleton struck an electronic search
condition that was less invasive than the condition imposed on him. (Appleton, supra,
245 Cal.App.4th 717.) We do not address the merits of this claim because the
comparison is not fruitful. Appleton did not involve a facial challenge to an electronic
search condition; the Appleton court found that the probation condition “as worded” was
unconstitutionally overbroad, and remanded the matter to consider fashioning a condition
that was consistent with the facts of that case. (Id. at p. 727.) Unlike the Appleton
defendant, Guzman forfeited the claim that his electronic search condition is overbroad as
applied to him.

                                             12
social media accounts is the only way to see if defendant is ridding himself of his gang
associations and activities, as required by the terms of his probation . . . .” (Id. at
p. 1175.) This reasoning squarely applies here, where careful supervision of Guzman’s
use of his electronic devices is necessary to ensure compliance with his SAFER probation
conditions and to protect the public, especially vulnerable children, from the dangerous
behavior that gave rise to Guzman’s current sentence.
                                    III. DISPOSITION
       The order modifying Guzman’s probation conditions is affirmed.




                                              13
                                               _________________________
                                               SMITH, J.*



We concur:


_________________________
STREETER, Acting P. J.


_________________________
REARDON, J.




*
 Judge of the Superior Court of California, County of Alameda, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

A149740, People v. Guzman


                                          14
Trial Court:                Sonoma County Superior Court

Trial Judge:                Hon. Jamie E. Thistlethwaite

Counsel for Appellant:      Richard A. Tamor, under appointment by the
                            Court of Appeal under the First District
                            Appellate Project Independent Case System

Counsel for Respondent:     Xavier Becerra
                            Attorney General of California

                            Gerald E. Engler
                            Chief Assistant Attorney General

                            Jeffrey M. Laurence
                            Senior Assistant Attorney General

                            Seth K. Schalit
                            Supervising Deputy Attorney General

                            Laurence K. Sullivan
                            Supervising Deputy Attorney General




A149740, People v. Guzman


                              15
