Appellate waiver did not prevent defendant from challenging electronic search condition on appeal without a certificate of probable cause. Defendant pleaded guilty to felony grand theft of personal property (Pen. Code, § 487, subd. (a)) after he and three others stole electronic devices, including three iPhones and two Apple watches, from a store. As part of the plea deal, defendant agreed to “give up my right to appeal . . . any sentence stipulated herein.” The plea form stated, “As conditions of probation I may be given . . . conditions deemed reasonable by the Court.” At sentencing, the court imposed a probation condition requiring defendant to submit “computers, and recordable media including electronic devices to search at any time.” Defendant challenged this condition on appeal. The prosecution argued the Court of Appeal should not reach the merits of defendant’s appeal because he did not obtain a certificate of probable cause (CPC) under Penal Code section 1237.5 after entering his guilty plea. Held: Affirmed. A CPC is not required if an appeal is based on grounds that (1) arose after entry of a guilty or no contest plea and (2) do not affect the plea’s validity. Here, the electronic search probation condition imposed at sentencing “arose after entry of the plea.” Although defendant agreed at the time of the plea that probation conditions would be imposed, this does not mean he agreed “to accept anything the court decided to include, regardless of how unreasonable he thought it was.” In waiving his right to appeal “any sentence stipulated herein,” defendant gave up only his right to challenge the sentence that was included in the plea agreement itself. Thus, because defendant challenged imposition of an allegedly unreasonable probation that he had no knowledge of at the time he entered into the plea agreement, his appeal was not an attack on the plea or the validity of the plea, and no CPC was required. The court distinguished People v. Panizzon (1996) 13 Cal.4th 68 and People v. Espinoza (2018) 22 Cal.App.5th 794.

Defendant’s electronic search condition of probation was not unreasonable under People v. Lent (1975) 15 Cal.3d 481. Under the Lent test, a probation condition is valid 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. Here, the parties agreed the second prong was satisfied because use of an electronic device is not inherently criminal. However, defendant failed to show the first prong was satisfied. Defendant and his companions stole multiple electronic devices from an electronics store. There is a clear relationship between theft of electronic devices and the imposition of an electronic device search condition. Although it did not reach the third prong, the court further observed that in In re Ricardo P. (2019) 7 Cal.5th 1113, the California Supreme Court approved of In re Malik J. (2015) 240 Cal.App.4th 896, which upheld an electronic search condition as to a defendant who had a history of stealing cell phones, finding the condition enabled probation officers to determine whether a cell phone on the defendant’s person was stolen.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/D074344A.PDF