1

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,

v.

BENITO GUZMAN,

Defendant and Appellant.

 A149740

 (Sonoma County

 Super. Ct. No. SCR-648774)

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.
2

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)). 
3

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:
4

“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 
5

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 
6

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 
7

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. 
8

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.) 
9

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. 
10

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.)
11

“ ‘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 
12

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 antigang 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.
13

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.
14

_________________________

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
15

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