People v. Bryant

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

CLYDELL BRYANT,

Defendant and Appellant.

S259956

Second Appellate District, Division One

B271300

Los Angeles County Superior Court

GA094777

July 29, 2021

Justice Corrigan authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye and Justices Liu, Cuéllar,

Kruger, Groban, and Jenkins concurred.

Chief Justice Cantil-Sakauye filed a concurring opinion.

PEOPLE v. BRYANT

S259956

Opinion of the Court by Corrigan, J.

The 2011 Realignment Act (Stats. 2011, ch. 15, § 1;

Realignment Act or Act) provides for a period of mandatory

supervision following service of a county jail sentence for eligible

defendants. Here we consider how to assess the validity of a

challenged condition of such a release. We conclude that such

discretionary conditions are to be evaluated for reasonableness

on a case-by-case basis under the test set out in People v. Lent

(1975) 15 Cal.3d 481 (Lent). Accordingly, we affirm the

judgment of the Court of Appeal.

I. BACKGROUND

Late on August 24, 2014, police officers responded to a

disturbing the peace call outside a housing complex. The officers

arrived to find a number of people gathered around two cars in

the parking lot. Clydell Bryant and his girlfriend, Lamaine

Jones, were smoking marijuana in the car of Jones’s mother. A

search of the vehicle revealed a loaded, semi-automatic handgun

under the seat Bryant had occupied. The gun was not registered

and bore DNA matching that of Bryant.

Bryant was convicted of carrying a concealed firearm in a

vehicle, along with related findings. (Pen. Code,1 § 25400,

subds. (a)(1) & (c)(6).) The court imposed a split sentence

1

All further undesignated statutory references are to the

Penal Code.

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Opinion of the Court by Corrigan, J.

(§ 1170, subd. (h)(5)), calling for two years in the county jail,

with the last 364 days to be served at large on mandatory

supervision. Over Bryant’s objection, the court imposed the

following condition: “Defendant is to submit to search of any

electronic device either in his possession[,] including cell

phone[,] and/or any device in his place of residence. Any search

by probation is limited to defendant[’]s text messages, emails,

and photos on such devices.” (Capitalization omitted.)

Bryant challenged the search condition as unreasonable

under the Lent test. (Lent, supra, 15 Cal.3d 481.) After the

Court of Appeal agreed and struck the condition (People v.

Bryant (2017) 10 Cal.App.5th 396, 406 (Bryant I)), we granted

the People’s petition for review (Bryant I, S241937; rev. granted

June 28, 2017) and held the case pending our decision in In re

Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). We subsequently

directed the Court of Appeal to vacate its decision and

reconsider the issue in light of Ricardo P. The Court of Appeal

again struck the search condition as unreasonable (People v.

Bryant (2019) 42 Cal.App.5th 839, 848, 850 (Bryant II)), and

again we granted review.

II. DISCUSSION

California employs a multi-level approach to the

classification of crimes and their punishment, denoting offenses

as felonies, misdemeanors, and infractions. (§ 16.) Very

generally, and subject to specific legislative provisions, before

the Realignment Act, felonies were punishable by death or

imprisonment in the state prison. Misdemeanors were subject

to a county jail sentence and infractions could not result in

confinement. (See Tracy v. Municipal Court (1978) 22 Cal.3d

760, 765 [summarizing former law].) Some offenses could be

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Opinion of the Court by Corrigan, J.

punished as either felonies or misdemeanors. (See People v.

Park (2013) 56 Cal.4th 782, 789.)2 Both before and after

Realignment, except as prohibited by statute, a person convicted

of a felony may be placed on probation with imposition or

execution of a state prison sentence suspended, and be made

subject to a variety of conditions, including a county jail

sentence. (See generally §§ 1203.1, subds. (a), (j), 1203.02,

1203.097, 1203.1ab, 1203.1g.) A person sentenced to state

prison may be released on parole, which may also entail

conditions that are required by statute or imposed at the

discretion of the Board of Parole Hearings. (See generally

§§ 3053–3053.8, 3067, subd. (b)(3).)

The Realignment Act significantly revamped California’s

penal system by creating two new categories of postrelease

supervision: mandatory supervision upon release from jail and

postrelease community supervision (PRCS) following service of

a prison term. The Act shifts responsibility for the

incarceration, rehabilitation, and postrelease supervision of

some felons from the state prison system to local jails and

probation departments. (Stats. 2011, ch. 15, § 450; § 1170, subd.

(h)(1), (2), (5)(A) & (B); Wofford v. Superior Court (2014) 230

Cal.App.4th 1023, 1032.) For eligible felony offenders, the trial

court must generally impose a split local sentence with

execution of a portion of the term suspended and the defendant

released from jail under terms of “mandatory supervision.”

(§ 1170, subd. (h)(5)(B); see also id., subd. (h)(5)(A).)

Significantly, the court need not suspend part of the

incarceration term if it finds that, in the interest of justice, such

2

Payment of fines or fees may also be imposed following a

conviction. We do not discuss that aspect of sentencing here.

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Opinion of the Court by Corrigan, J.

suspension is not appropriate. (Id., subd. (h)(5)(A).) While on

mandatory supervision, the offender is supervised by the

probation department “in accordance with the terms, conditions,

and procedures generally applicable to persons placed on

probation . . . .” (Id., subd. (h)(5)(B).) The Postrelease

Community Supervision Act of 2011 (Stats. 2011, ch. 15, § 479)

created PRCS as an alternative to parole for nonserious,

nonviolent felonies. Qualifying offenders serving a felony prison

sentence are to be released to the supervision of a county agency

rather than the state’s Department of Corrections and

Rehabilitation. (§§ 3450–3451; People v. Gutierrez (2016) 245

Cal.App.4th 393, 399.) Both mandatory supervision and PRCS

are new categories of supervision distinct from both probation

and parole. Their distinct status gives rise to the question here.

The Realignment Act does not speak directly to how the

validity of mandatory supervision conditions are to be assessed.

To resolve defendant’s challenge the Court of Appeal looked to

the Lent test, which historically governed conditions of

probation. (Bryant II, supra, 42 Cal.App.5th at pp. 843–844,

849.) Applying Lent and Ricardo P., the latter of which involved

an electronics search condition of juvenile probation, the Court

of Appeal invalidated Bryant’s search condition imposed in the

context of mandatory supervision. (Bryant II, at pp. 843–850.)

We conclude that Lent’s case-by-case analysis for

reasonableness should be employed in this new context. A

review of the statutory provisions governing mandatory

supervision reveals a scheme similar to that governing

probationers with respect to the conditions of release. The

balance of interests between effective supervision and an

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Opinion of the Court by Corrigan, J.

individual’s privacy concerns does not substantially differ

between probation and mandatory supervision settings.3

A. Standards Governing Probation Conditions

Section 1203.1, subdivision (j) authorizes the trial court to

impose conditions of probation to achieve a variety of goals,

including reforming and rehabilitating the probationer and

protecting public safety. In order to effectuate the requirement

that probation conditions be “reasonable” (ibid.), Lent

articulated a now-familiar three part test: “A condition of

probation will not be held invalid unless it ‘(1) has no

relationship to the crime of which the offender was convicted, (2)

relates to conduct which is not in itself criminal, and (3) requires

or forbids conduct which is not reasonably related to future

criminality . . . .’ ” (Lent, supra, 15 Cal.3d at p. 486, quoting

People v. Dominguez (1967) 256 Cal.App.2d 623, 627.) Lent

contemplates a case-by-case assessment taking into account the

relationship between the offender’s crime, the terms of the

challenged condition, and its relation to the probationer’s future

criminality. A condition will not be invalidated as unreasonable

unless all three of Lent’s criteria are satisfied. (People v. Olguin

(2008) 45 Cal.4th 375, 379.)

3

This case does not involve the Legislature’s authority to

statutorily mandate general conditions of supervision, as it has

done for probationers (see, e.g., §§ 1203.02, 1203.097, 1203.1ab,

1203.1g, 1203.1j), parolees (see, e.g. §§ 3053.2–3053.8, 3067,

subd. (b)(3)), and persons on PRCS (see, e.g., § 3453, subds. (b)–

(t)). Those statutory provisions are subject to constitutional

scrutiny. (See In re Taylor (2015) 60 Cal.4th 1019, 1035–1036;

In re E.J. (2010) 47 Cal.4th 1258, 1264–1265, 1282–1283 & fn.

10.) By contrast, the Legislature did not mandate any generally

required provisions for release on mandatory supervision,

leaving those determinations to trial court discretion.

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Opinion of the Court by Corrigan, J.

The trial court has broad discretion to fashion conditions

of probation (People v. Carbajal (1995) 10 Cal.4th 1114, 1120),

and we review an imposed condition for abuse of discretion

(People v. Moran (2016) 1 Cal.5th 398, 403). “[A] reviewing court

will disturb the trial court’s decision to impose a particular

condition of probation only if, under all the circumstances, that

choice is arbitrary and capricious and is wholly unreasonable.”

(Ibid.)

We applied the Lent test to an electronics search provision

imposed as a condition of juvenile probation in Ricardo P.,

supra, 7 Cal.5th 1113. There, the minor had been declared a

ward of the court for committing two residential burglaries. He

challenged a probation condition requiring that he submit to a

warrantless search of his electronic devices and provide

passwords for accounts accessible through them. (Id. at pp.

1116–1117.) It was uncontested that the condition was

unrelated to the burglaries and did not involve otherwise

criminal conduct. (Id. at p. 1119.) Focusing on Lent’s third

prong, we concluded that the condition was not reasonably

related to future criminality because there was “no indication

that Ricardo had used or will use electronic devices in

connection with drugs or any illegal activity.” (Id. at p. 1116.)

Thus, the condition failed under Lent.

Ricardo P. explained that the test of reasonableness

involves a balancing of factors. “Lent’s third prong requires

more than just an abstract or hypothetical relationship between

the probation condition and preventing future criminality.”

(Ricardo P., supra, 7 Cal.5th at p. 1121.) Specifically, a

probation condition cannot be justified solely on the basis that

it enhances the effective supervision of the probationer without

regard for the burden it places on the probationer. (Id. at pp.

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Opinion of the Court by Corrigan, J.

1122, 1125.) Rather, the “requirement that a probation

condition must be ‘ “reasonably related to future criminality” ’

contemplates a degree of proportionality” between the burden

imposed by the condition and the legitimate interests the

condition serves. (Id. at p. 1122.) We concluded that “[s]uch

proportionality [was] lacking” based on the record. (Ibid.)

Ricardo P.’s electronics search condition “impose[d] a very heavy

burden on privacy with a very limited justification.” (Id. at p.

1124.) “[N]othing in the record suggest[ed] that Ricardo ha[d]

ever used an electronic device or social media in connection with

criminal conduct.” (Id. at p. 1122.) Because the burden imposed

on Ricardo’s privacy was “substantially disproportionate to the

countervailing interests of furthering his rehabilitation and

protecting society” (id. at p. 1119), and because the first two Lent

criteria were also satisfied, the condition was held invalid (id. at

p. 1124). We cautioned, however, that “[o]ur holding does not

categorically invalidate electronics search conditions. In certain

cases, the [defendant’s] offense or personal history may provide

the . . . court with a sufficient factual basis from which it can

determine that an electronics search condition is a proportional

means of deterring the [defendant] from future criminality.”

(Id. at pp. 1128–1129.)

B. Standards Governing Conditions of Mandatory

Supervision

In determining how conditions of the new mandatory

supervision status are to be assessed, we begin with the

statutory language. (People v. Sinohui (2002) 28 Cal.4th 205,

211.) The Realignment Act defined “ ‘mandatory supervision,’ ”

as “the portion of a defendant’s sentenced term during which

time he or she is supervised by the county probation officer

pursuant to” section 1170, subdivision (h)(5)(B). (§ 19.9.) A split

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Opinion of the Court by Corrigan, J.

sentence of local jail time followed by a period of mandatory

supervision is a hybrid sentence, distinct from both probation

and parole. An earlier version of the Act provided for a split

sentence comprised of “a period of county jail time and a period

of mandatory probation.” (Stats. 2011, ch. 39, § 27, italics

added.) But the designation of probation was replaced with a

reference to “mandatory” supervision “by the county probation

officer in accordance with the terms, conditions, and procedures

generally applicable to persons placed on probation.” (Stats.

2011, 1st Ex. Sess. 2011–2012, ch. 12, § 12.) A subsequent

amendment clarified that “[t]he portion of a defendant’s

sentenced term during which time he or she is supervised by the

county probation officer pursuant to this subparagraph shall be

known as mandatory supervision” and it specifically defined the

term “ ‘mandatory supervision’ ” in section 19.9. (Stats. 2012,

ch. 43, §§ 14, 27.) This legislative history “suggests that the

Legislature did not intend probation and mandatory supervision

to be interchangeable or otherwise identical in all respects.”

(People v. Ghebretensae (2013) 222 Cal.App.4th 741, 766

(Ghebretensae).)

Nonetheless, the conditions of mandatory supervision

resemble those of probation in that they are ordered by a judge

at the time of sentencing and involve an individualized exercise

of discretion based on the particular case.4 Notably, unlike

4

See section 1170.3, subdivision (a)(6) (directing the

Judicial Council to adopt guidelines for a trial court’s decision

to, among other things, “determine the appropriate period and

conditions of mandatory supervision”); California Rules of

Court, rule 4.415(c) (establishing factors to be considered when

a trial court imposes conditions of mandatory supervision);

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Opinion of the Court by Corrigan, J.

other forms of supervision, the Legislature did not mandate any

generally required provisions for release on mandatory

supervision. Lent’s case-specific evaluation is particularly

appropriate to review of a trial court’s order with regard to a

given defendant on mandatory supervision. Its test supplies a

framework for assessing whether conditions of supervision for

that defendant are “fitting and proper to the end that justice

may be done, that amends may be made to society for the breach

of the law, for any injury done to any person resulting from that

breach, and generally and specifically for the reformation and

rehabilitation of the [defendant].” (§ 1203.1, subd. (j).)

The Realignment Act also provides that “the defendant

shall be supervised by the county probation officer in accordance

with the terms, conditions, and procedures generally applicable

to persons placed on probation, for the remaining unserved

portion of the sentence imposed by the court.” (§ 1170, subd.

(h)(5)(B).) Focusing on the language “shall be supervised”

(ibid.), some appellate courts have interpreted this provision to

apply to “the county probation officer’s supervision, not the trial

court’s authority” (People v. Rahbari (2014) 232 Cal.App.4th

185, 195 (Rahbari); accord, Ghebretensae, supra, 222

Cal.App.4th at p. 764). They reason that the provision “pertains

to the nature and manner of supervision by the probation officer

over the defendant — in other words, the nature and manner of

the supervision itself.” (Ghebretensae, at p. 764; accord,

Couzens & Bigelow, Felony Sentencing After Realignment (May

2017) at page 17 <https://www.courts.ca.gov/partners/

documents/felony_sentencing.pdf>[as of July 29, 2021]. All

Internet citations in this opinion are archived by year, docket

number and case number at <http://www.courts.ca.gov/

38324.htm>.

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Opinion of the Court by Corrigan, J.

Rahbari, at p. 195.) The People advance a similar argument

here. We do not read the statutory language so narrowly. The

manner of supervision necessarily depends on the scope or

substance of the terms and conditions imposed. In that sense it

is the terms and conditions of release that define what is being

supervised and how supervision will be conducted. Accordingly,

this statutory language further supports the conclusion that the

terms and conditions of mandatory supervision, like those of

probation, are subject to the Lent test.5

The Legislature also amended several statutes dealing

with probation to incorporate persons on mandatory

supervision. (See, e.g., §§ 1203.3, as amended by Stats. 2012,

ch. 43, § 31 [modification of terms and conditions], 1203.2, as

amended by Stats. 2012, ch. 43, § 30 [revocation]; see also

Rahbari, supra, 232 Cal.App.4th at p. 193.) These amendments

suggest that, in general, the conditions of probation and

mandatory supervision are now intended to be handled in the

same way.6

Additional support appears in the Legislature’s codified

findings and declarations accompanying the Realignment Act.

5

We disapprove of language in People v. Rahbari, supra,

232 Cal.App.4th at page 195 and People v. Ghebretensae, supra,

222 Cal.App.4th at page 764 to the extent it conflicts with this

opinion.

6

Of course, every general rule is subject to exceptions. For

example, Rahbari, supra, 232 Cal.App.4th at pages 193–194

held that victim restitution orders for persons on mandatory

supervision are limited to losses caused by the criminal conduct

for which the defendant was convicted (§ 1202.4), not the

broader provisions for restitution governing persons on

probation (§ 1203.1). We need not consider these nuances in

resolving the narrow issue here.

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Opinion of the Court by Corrigan, J.

(See Carter v. California Dept. of Veterans Affairs (2006) 38

Cal.4th 914, 925.) These findings and declarations explain that

mandatory supervision was designed to apply to low-level felony

offenders who are specifically permitted to avoid prison and

instead be incarcerated in the county jail. Section 17.5 of the

Penal Code, enacted as part of the Act (Stats. 2011, ch. 15,

§ 229), reflects an intent to reduce recidivism and improve

public safety by creating a tiered system of incarceration and

release (§ 17.5, subd. (a)(1)–(5)). Under the statutory

amendments, “[p]arole applies to high-level offenders, i.e., third

strikers, high-risk sex offenders, and persons imprisoned for

serious or violent felonies or who have a severe mental disorder

and committed specified crimes. (§ 3451, subd. (b).) All other

. . . persons [released from prison] are placed on [PRCS]. (§ 3451,

subd. (a).)” (People v. Armogeda (2015) 233 Cal.App.4th 428,

434.) Those subject to a split term of incarceration in county jail

followed by mandatory supervision are considered lower level

offenders compared with those on parole or PRCS. The

Legislature specifically concluded that these offenders do not

warrant incarceration in state prison. (§§ 17.5, 1170, subd.

(h)(1).) Instead, they more closely resemble probationers for

purposes of assessing the conditions of supervision required for

their successful rehabilitation and societal reintegration.

C. The People’s Counterarguments

The People counter that the status of mandatory

supervision justifies an electronics search clause for all those so

released. Thus, they argue a case-by-case review under Lent is

inappropriate. They urge that these individuals have been

found unsuitable for probation. Like parolees, they are

sentenced to a period of incarceration and are deemed to be

under continued custody during the supervisory period. The

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Opinion of the Court by Corrigan, J.

People’s analogy to parolees in this context is misplaced. It fails

to acknowledge that mandatory supervision is a new status,

reserved for those considered inappropriate for a state prison

commitment before parole release.

It is true that courts have noted the similarities between

mandatory supervision and parole for some purposes. (See, e.g.,

People v. Fandinola (2013) 221 Cal.App.4th 1415, 1422–1423

(Fandinola); People v. Martinez (2014) 226 Cal.App.4th 759,

762–763 (Martinez).) Fandinola, for example, considered

whether a person on mandatory supervision should pay a

probation supervision fee under former section 1203.1b, which

“unambiguously applie[d] to cases ‘in which a defendant is

granted probation or given a conditional sentence.’ ”

(Fandinola, at p. 1422, quoting former § 1203.1b, subd. (a).) The

court declined to extend the probation fee to the new status of

mandatory supervision. It observed that “a county jail

commitment followed by mandatory supervision imposed under

section 1170, subdivision (h), is akin to a state prison

commitment; it is not a grant of probation or a conditional

sentence.” (Fandinola, at p. 1422.)7 The provisions of section

667.5, subd. (d) governing enhancements for prior prison terms

offer another example. That section provides, “[T]he defendant

shall be deemed to remain in prison custody for an offense until

the official discharge from custody, including any period of

mandatory supervision, or until release on parole or postrelease

community supervision . . . .” And the Legislature expressly

7

The Legislature has since amended section 1203.1b,

subdivision (a) to provide that offenders placed on mandatory

supervision may be ordered to pay costs to the probation

department. (Stats. 2014, ch. 468, § 1.)

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Opinion of the Court by Corrigan, J.

amended the statute governing parole revocation fines to

include mandatory supervision revocation fines. (§ 1202.45,

subd. (b), as amended by Stats. 2012, ch. 762, § 1.)

But the fact that mandatory supervision tracks parole for

some purposes does not mean that it does so for all purposes.

Fandinola dealt with the imposition of costs that are now

directly regulated by statute. Statutes regulating fines and

enhancements for prior prison terms do not involve conditions

of release. Nor do they speak to the degree of risk or potential

for recidivism posed by people on mandatory supervision. Those

questions are more squarely addressed by the Legislative

findings and declarations accompanying the Realignment Act

and the express provisions of section 1170, subdivision (h)(1). As

discussed above, those provisions reflect the Legislature’s

determination that defendants eligible for mandatory

supervision are lower-level offenders who do not warrant a state

prison commitment. (§§ 17.5, 1170, subd. (h)(1).)

The Court of Appeal in Martinez, supra, 226 Cal.App.4th

759 reached the opposite conclusion that “the validity of the

terms of supervised release [are to be analyzed] under standards

analogous to the conditions or parallel to those applied to terms

of parole.” (Id. at p. 763.) In doing so, it cited Fandinola for the

proposition that “ ‘the Legislature has decided a county jail

commitment followed by mandatory supervision . . . , is akin to

a state prison commitment; it is not a grant of probation or a

conditional sentence.’ ” (Ibid., quoting Fandinola, supra, 221

Cal.App.4th at p. 1422.) As noted, Fandinola drew parallels

between mandatory supervision and parole in a different

context. Martinez did not discuss the provisions of section 17.5,

which squarely address legislative intent. Even so, Martinez

ultimately applied the Lent test to assess the challenge to a

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Opinion of the Court by Corrigan, J.

mandatory supervision condition under the theory that “[t]he

validity and reasonableness of parole conditions is analyzed

under the same standard as that developed for probation

conditions.” (Martinez, at p. 764.) We likewise employ the Lent

test, but for different reasons. We disapprove of language in

People v. Martinez, supra, 226 Cal.App.4th at page 763 to the

extent it conflicts with this opinion.

The People rely heavily on People v. Burgener (1986) 41

Cal.3d 505 (Burgener), which held that “a warrantless search

condition is a reasonable term in any parole of a convicted felon

from state prison.” (Id. at p. 532, italics added.)8 They argue by

analogy that the reduced privacy expectations of persons on

mandatory supervision, and the state’s overwhelming interest

in supervising them, mean that an electronics search condition

is per se reasonable for those offenders. Burgener does not

sweep as broadly as they urge. Upon his release from parole,

Burgener signed a “ ‘notice and conditions of parole’ ” that

stated: “ ‘You and your residence and any property under your

control may be searched without a warrant by any agent of the

Department of Corrections or any law enforcement officer.’ ”

(Burgener, at p. 528, fn. 10.)9 During a warrantless search of

8

The People urge that conditions of mandatory supervision

are subject to review for reasonableness under the standard

articulated in Burgener, supra, 41 Cal.3d at pages 532–534, and

to review for overbreadth if the condition implicates a

defendant’s constitutional rights (In re Sheena K. (2007) 40

Cal.4th 875, 890).

9

At that time, California Code of Regulations, title 15,

section 2511 provided for such notice to all parolees. (Register

77, No. 44 (Oct. 29, 1977) p. 273.) The Legislature subsequently

enacted section 3067, which provides that all parolees are

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Opinion of the Court by Corrigan, J.

Burgener’s apartment, officers found evidence linking him to a

homicide. On appeal, he challenged the search on Fourth

Amendment grounds and also argued that the parole search

condition was improper. (Burgener, at pp. 528–532.) The

Burgener court recognized that “parole conditions, like

conditions of probation, must be reasonable [because] parolees

retain constitutional protection against arbitrary and

oppressive official action.” (Id., at p. 532; accord In re Taylor,

supra, 60 Cal.4th at p. 1038 & fn. 8.) However, the court

concluded that “[t]he distinction between felony parole and

probation justifies the inclusion of the parole search condition in

all parole agreements.” (Burgener, at p. 532.) Parolees have

been sentenced to prison because of the risk they pose to society,

based on the seriousness of their conduct and offense history.

(Id. at p. 533.) This increased risk, and a greater need to closely

supervise their reintegration into the community, justified a

conclusion that the condition was “per se . . . related to future

criminality” and thus a “reasonable condition of parole.”

(Ibid.)10

As explained, we reject the People’s premise that, in this

context, those on mandatory supervision are similar in status to

those on parole, a premise key to their reliance on Burgener.

Moreover, Burgener’s holding is limited to the conclusion that a

“subject to search or seizure by a probation or parole officer or

other peace officer at any time of the day or night, with or

without a search warrant or with or without cause.” (Id., subd.

(b)(3), former subd. (a), added by Stats. 1996, ch. 868, § 2, p.

4656.)

10

Burgener’s holding that a parole search must be justified

by reasonable suspicion (41 Cal.3d at p. 535) was later overruled

in People v. Reyes (1998) 19 Cal.4th 743, 753 (Reyes).

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Opinion of the Court by Corrigan, J.

warrantless search of a parolee’s property or residence, then

mandated by the California Code of Regulations and now

imposed by statute (see ante, fn. 9), is per se reasonable.

Burgener did not hold that courts have authority to mandate any

other condition for all parolees, or for all individuals in any other

category of supervision. Generally, it is the Legislature’s role to

require, by statutory mandate, uniform conditions for release

from confinement. As noted, the Legislature has done so for

parolees, probationers, and persons on PRCS, but not for those

on mandatory supervision. (See ante, fn. 3.) Finally, Burgener

did not involve an electronics search condition. When it comes

to electronics searches we, and the United States Supreme

Court, have recognized that the degree of intrusion posed by

sweeping access to such devices is great in light of their

“ ‘immense storage capacity’ ” and the highly personal nature of

the information stored on them. (Ricardo P., supra, 7 Cal.5th at

p. 1123, quoting Riley v. California (2014) 573 U.S. 373, 393.)

The fact that the Legislature has never required a general

electronics search condition for any level of postcustodial release

demonstrates that such searches are different from many

others. In short, the People’s interpretation of Burgener is

overbroad. Burgener’s holding related only to the category of

parolees and to the single provision for a warrantless search of

property and residence. The People attempt to apply its holding

to the different status of mandatory supervision and to a

significantly more intrusive electronics search condition. We

decline to embrace such an expansion.

The People further note that, like parole, mandatory

supervision may not be refused when selected by the trial court.

(§ 1170, subd. (h)(5)(B).) This mandatory aspect may bear on

whether conditions can be justified on a consent rationale, a

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Opinion of the Court by Corrigan, J.

question we do not consider here. (See Samson v. California

(2006) 547 U.S. 843, 852, fn. 3; Reyes, supra, 19 Cal.4th at p.

749; People v. Bravo (1987) 43 Cal.3d 600, 608.) But it does not

otherwise speak to the degree of risk posed by those given a split

sentence. The People further argue that imposition of a split

sentence “does not reflect any discretionary determination by a

trial court” that a defendant should not serve the entire jail term

in custody. They overlook the fact that the provision of a default

split sentence reflects the Legislature’s determination that these

low-level felony offenders need not necessarily remain in

custody for their entire sentence. Moreover, the trial court

exercises its statutorily conferred discretion by choosing to

impose a split sentence, rather than departing from the default

approach based on the circumstances of the particular case.

(See § 1170, subd. (h)(5)(A).)

Finally, the People contend that, “[e]ven if a more

individualized inquiry beyond Bryant’s status as an offender on

mandatory supervision were required, the circumstances here

justify the condition, taking into account his lesser expectation

of privacy and the closer monitoring that is warranted in the

mandatory supervision context.” The People’s attempt to recast

their argument fails because it continues to resist evaluation of

the search condition based on Bryant’s offense and history. The

People do point to those particular factors to support a split

sentence. They then return to the premise that an electronics

search condition is categorically reasonable for anyone who

receives such a sentence. Ultimately, this approach is

indistinguishable from an argument that Bryant’s status as an

offender on mandatory supervision is alone sufficient to justify

the condition.

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Opinion of the Court by Corrigan, J.

The argument runs counter to Ricardo P.’s holding that

conditions of supervision may not be imposed based on “an

abstract or hypothetical relationship between the probation

condition and preventing future criminality.” (Ricardo P.,

supra, 7 Cal.5th at p. 1121.) The People fail to persuade that all

defendants on mandatory supervision are inherently more

prone to recidivism, justifying a lesser showing to impose a

condition. Further, the Lent test does take into account the

seriousness of the offense. The first Lent factor considers the

relationship between the supervision condition and the

defendant’s crime, and the third factor forbids conditions that

are not reasonably related to future criminality, balancing the

condition’s burden with the legitimate interest it serves. (See

Ricardo P., at p. 1122; Lent, supra, 15 Cal.3d at p. 486.) These

aspects of the Lent test sufficiently account for the seriousness

of both offense and offender.

III. CONCLUSION

In summary, the Legislature has expressly determined

that low-level felony offenders will benefit from “community-

based corrections programs and evidence-based practices” to

“facilitate their reintegration back into society.” (§ 17.5, subd.

(a)(4)–(5).) Employing the Lent test to assess mandatory

supervision conditions best implements the Legislature’s stated

goals. The trial court retains broad discretion to fashion these

conditions subject to review for abuse of that discretion.

As in the probation context, imposing an electronics

search condition for those on mandatory supervision requires

the court to balance the need for meaningful supervision and

rehabilitation with the burden imposed by the condition. There

may, indeed, be valid reasons for such a condition, but they must

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PEOPLE v. BRYANT

Opinion of the Court by Corrigan, J.

be supported by information in the record relating the condition

to the defendant’s criminal conduct or personal history.

(Ricardo P., supra, 7 Cal.5th at pp. 1120–1123.)

Here, the Court of Appeal struck the electronics search

condition “[b]ecause of the significant burden imposed on

Bryant’s privacy interest and the absence of any information in

the record to connect the condition with the goal of preventing

future criminality . . . .” (Bryant II, supra, 42 Cal.App.5th at p.

847.) The People did not seek review of the case-specific

outcome here. Instead, they framed the issue for review as one

of law involving the test for evaluating all mandatory

supervision conditions. In their briefing they state: “As the

People conceded in the Court of Appeal, Bryant’s electronics

search condition would be invalid if assessed under the rubric of

Ricardo P., meaning it would be invalid if assessed in the same

way as a probation condition.” We accept that concession and

do not review the Court of Appeal’s determination as to the

condition imposed on Bryant. We emphasize, however, as we

did in Ricardo P., that this case-specific outcome should not be

read to “categorically invalidate electronics search conditions.

In certain cases, the [defendant’s] offense or personal history

may provide the . . . court with a sufficient factual basis from

which it can determine that an electronics search condition is a

proportional means of deterring the [defendant] from future

criminality.” (Ricardo P., supra, 7 Cal.5th at pp. 1128–1129.)

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PEOPLE v. BRYANT

Opinion of the Court by Corrigan, J.

IV. DISPOSITION

The judgment of the Court of Appeal is affirmed.

CORRIGAN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

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PEOPLE v. BRYANT

S259956

Concurring Opinion by Chief Justice Cantil-Sakauye

I agree with the majority’s conclusion that discretionary

conditions of mandatory supervision are reviewed under the test

set out in People v. Lent (1975) 15 Cal.3d 481. I agree, too, that

a mandatory supervision condition that allows for a search of an

individual’s electronic devices is not per se reasonable in all

cases. (See maj. opn., ante, at pp. 14–18.) And I agree that we

need not review the particular condition imposed here in light

of the Attorney General’s concession. (Id. at p. 19.) I write

separately to offer three observations regarding what I view as

the narrow scope of the majority opinion in this case.

First, the majority repeatedly states that an analysis

under Lent involves a “case-by-case” review concerning the

reasonableness of a condition of supervision. (Maj. opn., ante, at

pp. 1, 4, 5.) As I noted in In re Ricardo P., we have previously

held that certain probation conditions are reasonable under

Lent “simply by reference to the offense of conviction, without

any additional case-specific balancing of benefits and burdens.”

(In re Ricardo P. (2019) 7 Cal.5th 1114, 1134 (conc. & dis. opn.

of Cantil-Sakauye, C. J.) (Ricardo P.); see, e.g., People v. Olguin

(2008) 45 Cal.4th 375, 380–381, People v. Mason (1971) 5 Cal.3d

759, 764; see also People v. Burgener (1986) 41 Cal.3d 505, 532–

533 [search condition of parolee is per se reasonable].) I agree

that electronics search conditions imposed in the course of

mandatory supervision do not fall into this category of

conditions that are reasonable per se. However, I do not

PEOPLE v. BRYANT

Cantil-Sakauye, C. J., concurring

understand our opinion today to disapprove of the principle

articulated in Olguin and Mason. Nor do I understand our

opinion to foreclose the possibility that certain conditions of

mandatory supervision may be considered per se reasonable.

Second, the majority rejects the People’s assertion that

mandatory supervision conditions should be treated like parole

conditions, noting in part that “[t]he People fail to persuade that

all defendants on mandatory supervision are inherently more

prone to recidivism, justifying a lesser showing to impose a

condition.” (Maj. opn., ante, at p. 18.) I agree that Lent applies

to conditions of mandatory supervision, but I do not perceive the

majority to be stating that probation and mandatory supervision

are so alike that a probation condition that fails under Lent will

necessarily fail in the context of mandatory supervision as well.

As the majority recognizes, mandatory supervision is

“distinct” from probation and parole. (Maj. opn., ante, at p. 4.)

Probation is “an act of grace or clemency” (People v. Moran

(2016) 1 Cal.5th 398, 402, citing People v. Anderson (2010) 50

Cal.4th 19, 32) that is “generally reserved for convicted

criminals whose conditional release into society poses minimal

risk to public safety and promotes rehabilitation” (People v.

Carbajal (1995) 10 Cal.4th 1114, 1120). It is “neither

‘punishment’ (see [Pen. Code,] § 15) nor a criminal ‘judgment’

(see [Pen. Code,] § 1445).” (People v. Howard (1997) 16 Cal.4th

1081, 1092.) Mandatory supervision, on the other hand, is

imposed only when a court has determined that probation is not

appropriate. (See Pen. Code, §§ 1170, subd. (h), 1203; People v.

Fandinola (2013) 221 Cal.App.4th 1415, 1422.)

Thus, although individuals subject to mandatory

supervision “are considered lower level offenders compared with

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PEOPLE v. BRYANT

Cantil-Sakauye, C. J., concurring

those on parole or [postrelease community supervision]” (maj.

opn., ante, at p. 11), they are more serious offenders than those

granted probation. The case before us does not require that we

articulate how these distinctions between probation and

mandatory supervision may impact the propriety of certain

supervision conditions under Lent or from a constitutional

perspective, and I do not understand our opinion as reaching

those issues outside the specific context presented here.

Third, the majority notes “that the degree of intrusion

posed by sweeping access to [electronic] devices is great in light

of their ‘ “immense storage capacity” ’ and the highly personal

nature of the information stored on them.” (Maj. opn., ante, at

p. 16, quoting Ricardo P., supra, 7 Cal.5th at p. 1123, quoting in

turn Riley v. California (2014) 573 U.S. 373, 393.) But not all

electronics search conditions are alike. The degree of intrusion

posed by an electronics search condition necessarily depends on

the precise contours of the condition at issue. A condition

allowing law enforcement unfettered access to all electronic

devices at any time of the day or night as was at issue in Ricardo

P. (Ricardo P., supra, 7 Cal.5th at p. 1123) is quite different from

a condition tailored to specific data on a particular electronic

device. Furthermore, I remain of the view that concerns

regarding the burden imposed by such a condition can

commonly be “adequately addressed by placing appropriate

limits on the ability of [law enforcement] to access [an

individual’s electronic devices], whether through the selective

provision of passwords or other measures.” (Ricardo P., supra,

7 Cal.5th at pp. 1139–1140 (conc. & dis. opn. of Cantil-Sakauye,

C. J.).) When an “electronics search condition [is] susceptible to

such tailoring,” concerns about the scope of such a condition

would be “better addressed through a separate overbreadth

3

PEOPLE v. BRYANT

Cantil-Sakauye, C. J., concurring

analysis.” (Id. at p. 1140 (conc. & dis. opn. of Cantil-Sakauye,

C. J.).)

In short, I agree with the majority’s principal conclusions

even though I remain of the view that the recent expansion of

Lent at the expense of the overbreadth doctrine is misguided and

in some respects counterproductive. (See Ricardo P., supra,

7 Cal.5th at p. 1138 (conc. & dis. opn. of Cantil-Sakauye, C. J.).)

With the foregoing understanding of the majority opinion, I

concur.

CANTIL-SAKAUYE, C. J.

4

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Bryant

__________________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 42 Cal.App.5th 839

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________________

Opinion No. S259956

Date Filed: July 29, 2021

__________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Michael Villalobos

__________________________________________________________________

Counsel:

David Greifinger, under appointment by the Supreme Court, for

Defendant and Appellant.

Kamala D. Harris, Xavier Becerra and Rob Bonta, Attorneys General,

Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys

General, Susan Sullivan Pithey, Assistant Attorney General, Michael

R. Johnsen, Zee Rodriguez and Andrew S. Pruitt, Deputy Attorneys

General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

David Greifinger

Law Offices of David R. Greifinger

15515 W. Sunset Blvd., No. 214

Pacific Palisades, CA 90272

(424) 330-0193

Zee Rodriguez

Deputy Attorney General

300 South Spring St., Suite 1702

Los Angeles, CA 90013

(213) 269-6124