Filed 5/10/17 P. v. Espinosa CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

ZEFERINO ESPINOSA,

Defendant and Appellant.
H042585
(Santa Clara County
Super. Ct. No. C1478699)

Following defendant Zeferino Espinosa’s plea of no contest to making a criminal threat for the benefit of a street gang (Pen. Code, §§ 422, 664, 186.22, subd. (b)(1)(B)), defendant was placed on probation with the condition that he turn over all passwords to his electronic devices, and his passwords for social media accounts. On appeal, defendant argues that the probation conditions violate the overbreadth doctrine.
STATEMENT OF THE FACTS AND CASE
The probation report prepared in this case provides the following summary of the facts that gave rise to defendant’s criminal charges: “On March 11, 2014, at approximately 8:11 p.m., an officer from the San Jose Police Department was dispatched to a weapons call in the area of Bestor Street and Sixth Street in San Jose. The victim called to report a group of gang-affiliated males were tampering with his vehicle. While officers were on their way to the call, Communications advised they could hear the suspects through the victim’s cellular telephone saying, ‘Yes, I’m threatening you,’ and ‘This is our hood.’ The victim added that the suspects were trying to get into his vehicle.
“Upon arrival, an officer was flagged down by the victim, who pointed out two Hispanic males entering another vehicle, and stated, ‘That’s them.’ The officer walked over to contact the two suspects, and the victim said, ‘The guy with the knife is in the other car.’ The victim pointed towards a vehicle that was driving away. A second officer was able to stop that vehicle, which was solely occupied by codefendant Ruby. Ruby was observed to have several gang-related tattoos; among them, a large letter ‘N’ on his right forearm. Found in Ruby’s trunk was a large hunting-type knife.
“The other two individuals were detained and identified as [defendant] Zeferino Espinosa and Joseph Duran.
“Both Ruby and [defendant] were arrested. After being advised of their rights, they both refused to make a statement.
“The victim reported to the police he is very afraid of the suspects. They have been terrorizing his neighborhood for a long time. He sees them tag the initials ‘BGT’ on nearby vehicles and buildings. He has not reported these previous crimes because he fears retaliation.
“ ‘BGT’ is known to stand for Barrio Grande Tierra, a Norteno affiliated gang. When Ruby was interviewed, he was asked what ‘BGT’ stood for, and he answered, ‘I’m not telling you the name of my gang. Look it up.’
“The victim knows the defendants are gang members. The previous week, they had assaulted one of the victim’s friends. It was not reported to police out of fear. On this day, the victim came home and found the same group of gang members standing near his vehicle. He became concerned because he has seen them vandalize nearby property. As he watched them, one of the suspects became verbally aggressive and asked him why he was ‘mean mugging’ them. A verbal confrontation started. The victim was with his younger brother and a friend at the time. The victim and the other two became very afraid and decided to retreat into the victim’s vehicle. While trying to get to the car, Ruby pulled out a large knife, resembling a ‘Rambo’-style knife. The victim thought Ruby was going to try and stab him, so they hurried to get into his car. The defendants followed them to the car and surrounded them. Once in the car, the victim called 9-1-1. The defendants saw him on the telephone and began to make threatening statements. Espinosa looked at the victim and said, ‘You’re not good with us anymore. We know where you live. You better not be calling the cops.’ The victim felt very afraid and threatened by the defendants’ comments. He has seen them be violent in the past. The victim stayed in his vehicle until police arrived.”
Along with codefendant Christopher Ruby, defendant was charged with making a criminal threat for the benefit of a criminal street gang (§§ 422, 186.22, subd. (b)(1)(B); count 1) and exhibiting a deadly weapon other than a firearm for the benefit of a criminal street gang (§§ 417, subd. (a)(1), 186.22, subd. (d)); count 2).
Defendant pleaded no-contest to attempting to make a criminal threat (§§ 422; 664). Defendant admitted that he committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)). On June 19, 2015, the trial court suspended imposition of sentence and placed appellant on probation subject to various terms and conditions, including service of six months in the county jail.
Based on the recommendation of the probation officer, the court imposed the following probation conditions on Espinosa at the time of sentencing: “6. The defendant shall provide all passwords to any electronic devices (including but not limited to cellular telephones, computers or notepads) within his or her custody and shall submit said devices to search at anytime [sic] without a warrant by any peace officer. [¶] 7. The defendant shall provide all passwords to any social media sites (including but not limited to Facebook, Instagram and MocoSpace) and shall submit said sites to search at anytime [sic] without a warrant by any peace officer.”
DISCUSSION
Defendant asserts that the probation conditions that require him to reveal his passwords to his electronic devices and to his social media accounts are overbroad and should be stricken.
“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.” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) “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 . . . .” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) We review de novo the constitutional challenge to the probation conditions. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
This court recognized the privacy concerns posed by warrantless searches of personal electronic devices, including computers and cell phones in People v. Appleton (2016) 245 Cal.App.4th 717, 724 (Appleton). In Appelton, the defendant, who pled no contest to false imprisonment by means of deceit, challenged the probation condition that stated: “ ‘[a]ny computers and all other electronic devices belonging to the defendant, including but not limited to cellular telephones, laptop computers or notepads, shall be subject to forensic analysis search for material prohibited by law.’ ” (Id. at 721.) This court concluded that the electronic search condition was overbroad because it “would allow for searches of vast amounts of personal information unrelated to defendant's criminal conduct or his potential for future criminality.” (Id. at p. 727.)
In Appelton, this court further stated: “a search of defendant’s mobile electronic devices could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity. These could include, for example, medical records, financial records, personal diaries, and intimate correspondence with family and friends.” (Appleton, supra, 245 Cal.App.4th at p. 725.) This court ordered that the electronic search condition be stricken as overbroad, and remanded the matter for the trial court to consider whether it could “impose a valid condition more narrowly tailored to the state’s interests.” (Id. at p. 727.)
Respondent acknowledges this court’s opinion in Appelton, but argues that it is distinguishable from the present case, because Appelton involved illicit sexual contact, not street gang activity as in the present case. Respondent argues that we should instead follow People v. Ebertowski (2015) 228 Cal.App.4th 1170 (Ebertowski), wherein this court found a probation condition allowing the search of electronic devices and social media cites permissible in the context of a criminal gang case. “Defendant’s constitutional privacy rights are not improperly abridged by the password conditions any more than they are by the search condition.” (Id. at p. 1176, fn. omitted.) “Even where there is ‘(1) a legally protected privacy interest; (2) a reasonable expectation of privacy under the circumstances; and (3) conduct constituting a serious invasion of the privacy interest,’ the constitutional right to privacy is not violated if ‘the invasion of the privacy interest is justified because it substantially furthers one or more legitimate competing or countervailing privacy or non-privacy interests.’ ” (Ibid.) Accordingly, in Ebertowski this court held that the state’s interest in preventing the defendant from continuing to associate with gangs and participate in gang activities outweighed the minimal invasion of his privacy. (Ibid.)
While it is true that Ebertowski involved a criminal street gang, the very important distinction between it and the present case is that in Ebertowski, the defendant “used social media cites historically to promote the Seven Trees Norteno criminal street gang,” and that he “is a criminal street gang member who promotes his gang on social media, . . .” (Ebertowski, supra, 228 Cal.App.4th at pp. 1173, 1175.) Here, there was no evidence that defendant used his electronic devices or social media cites to promote his gang membership or activities.
Respondent acknowledges that several cases since Ebertowski have found probation conditions similar to those in this case to be overbroad. In In re Malik J. (2015) 240 Cal.App.4th 896, the court found a probation condition that required the minor to turn over passwords to electronic devices and social media accounts “significantly encroache[d]” on the minor’s and “potentially third parties’ constitutional rights of privacy and free speech.” (Id. at p. 902.) The court modified the electronic search condition to omit the requirement that the minor divulge his social media passwords and to restrict searches only to electronic devices found in the minors custody and control and disabled from any network connection. (Id. at pp. 902, 906.)
Similarly in In re P.O. (2016) 246 Cal.App.4th 288 (P.O.), the court modified the electronic search condition to limit searches of the minor’s “cell phone data and electronic accounts to media of communication reasonably likely to reveal whether he is boasting about drug use or otherwise involved with drugs.” (Id. at p. 298.) The court further restricted the minor’s disclosure of passwords to those accounts “ ‘necessary to access the information specified. Such media of communication include text messages, voicemail messages, photographs, e-mail accounts, and social media accounts.’ ” (Id. at p. 300.)
Here, based on these cases, the parties propose competing modifications to the electronic search conditions. Respondent suggests modifying the condition to limit searches to those “media of communication that are reasonably likely to reveal” any involvement in proscribed activity, including “ ‘text messages, voicemail messages, photographs, e-mail accounts, and social media accounts’ ” (see, e.g., P.O., supra, 246 Cal.App.4th at pp. 298, 300).
Defendant, on the other hand, seeks a more narrow modification. Specifically, he asks that conditions omit reference to “passwords to social media sites,” and authorize warrantless searches of electronic devices “only after the device has been disabled from any internet or cellular connection and without utilizing specialized equipment designed to retrieve deleted information that is not readily accessible to users of the device.” (In re Malik J., supra, 240 Cal.App.4th at pp. 901, 906.) Defendant also requests that the conditions should also “specifically order officials to refrain from searching medical records, financial records, and other data that would infringe on [defendant’s] privacy while failing to advance the State’s interests.”
We find that both proposals would tend to exclude certain categories of information that defendant has identified as potential invasions of his privacy, such as financial information and medical records that could be stored digitally on his devices. Since the electronic search conditions in this case are not limited to mobile electronic devices, however, we find that to require his presence in order to log on to the computer or other electronic device would unreasonably interfere with the ability of any peace officer to conduct a search “at any time without a warrant.” Therefore, defendant’s password information must be disclosed.
Consistent with these findings, we hold that probation conditions Nos. 6 and 7 must be modified to limit authorization of warrantless searches of defendant’s electronic devices, including computers, cell phones, and notepads, to communication reasonably likely to reveal any involvement in proscribed gang-related activity, including text and voicemail messages, photographs, e-mail accounts, and social media accounts. Defendant must disclose to peace officers any passwords necessary to gain access to those accounts reasonably likely to contain information authorized for search. (See, e.g., P.O., supra, 246 Cal.App.4th at p. 300.)
DISPOSITION
Probation condition No. 6 is modified to read: “The defendant shall provide all passwords to any electronic devices, including but not limited to, cellular telephones, computers, or notepads within his custody or control, and submit said devices to search at any time without a warrant by any peace officer. A search pursuant to this condition is limited to communication reasonably likely to reveal involvement in proscribed gang-related activity, including text and voicemail messages, photographs, e-mail accounts, and social media accounts, and excluding any personal communications.”
Probation condition No. 7 is modified to read: “The defendant shall provide all passwords to any social media sites, including but not limited, to Facebook, Instagram, and Mocospace, and shall submit the sites to search at any time without a warrant by any peace officer. A search pursuant to this condition is limited to material posted to or received via social media that is reasonably likely to reveal involvement in proscribed gang-related activity, including messages, photographs, and e-mail, and excluding any personal communications.”
As modified, the judgment is affirmed.
 

______________________________________
RUSHING, P.J.






I CONCUR:






____________________________________
PREMO, J.




















People v. Espinosa
H042585


I respectfully dissent.
I would adhere to our opinion in People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski) in which we rejected an overbreadth argument with respect to essentially the same probation conditions challenged in this case. Defendant pleaded no contest to making an attempted criminal threat (Pen. Code, §§ 422, 664) and exhibiting a deadly weapon other than a firearm (§ 417, subd. (a)(1)), and he admitted those crimes had been committed for the benefit of a criminal street gang (§ 186.22, subds. (b)(1)(B), (d).) According to the probation report, the victim of the offenses had seen defendant and a codefendant tagging the initials “BGT,” known to stand for a Norteño-affiliated gang named Barrio Grande Tierra, prior to the incident. During the incident, the victim had called 911, and the operator heard someone saying, “Yes, I’m threatening you” and “[t]his is our hood.” The codefendant had several gang-related tattoos, including a large letter “N.” The probation conditions imposed on defendant included multiple gang conditions.
In Ebertowski, we stated: “The evident purpose of the password conditions was to permit the probation officer to implement the search, association, and gang insignia conditions that were designed to monitor and suppress defendant’s gang activity. Without passwords for defendant’s devices and social media accounts, the probation officer would not be able to search them under the unchallenged [general warrantless] search condition in order to assess defendant’s compliance with the unchallenged association and gang insignia conditions. Defendant does not suggest how the password conditions could be more closely tailored to this purpose, and we can conceive of no adequate restriction that would still serve this purpose.” (Ebertowski, supra, 228 Cal.App.4th at p. 1175.) We concluded that “[t]he minimal invasion of his privacy that is involved in the probation officer monitoring defendant’s use of his devices and his social media accounts while defendant is on probation is outweighed by the state’s interest in protecting the public from a dangerous criminal who has been granted the privilege of probation.” (Id. at p. 1176.)
“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 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 (Knights).) “[A] State’s interests in reducing recidivism, thereby promoting reintegration and positive citizenship among probationers and parolees[,] warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment. [Citations.]” (Samson v. California (2006) 547 U.S. 843, 853 (Samson). “[T]he Fourth Amendment does not render the States powerless to address these concerns effectively. [Citation.]” (Id. at p. 854.)
Generally speaking, probation searches, such as a search of a probationer’s home, are “necessary to the promotion of legitimate governmental interests” (Samson, supra, 547 U.S. at p. 849). The Supreme Court has “credited the ‘ “assumption” ’ that, by virtue of his status, a probationer ‘ “is more likely than the ordinary citizen to violate the law[]” ’ [citation].” (Ibid.) “[P]robationers have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may be subject to supervision and face revocation of probation . . . .” (Knights, supra, 534 U.S. at p. 120.) Therefore, the state may “justifiably focus on probationers in a way that it does not on the ordinary citizen.” (Id. at p. 121.)
In addition, it is not uncommon for gang members to use electronic devices and social media sites, and warrantless search of defendant’s electronic devices or social media sites pursuant to the challenged conditions as part of probation supervision may disclose continuing gang involvement despite the imposition of gang-related probation conditions. The test for determining whether an electronic devices or social media search condition is unconstitutionally overbroad on its face is not whether or not defendant has in the past “used his electronic devices and social media sites to promote his gang membership or activities.” (Maj. opn. ante, at p. 5.) “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.” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) Here, the legitimate purpose of the challenged conditions is to closely supervise and monitor defendant for purposes of both rehabilitation and deterrence. (See § 1203.1, subd. (j); People v. Olguin (2008) 45 Cal.4th 375, 381 (Olguin).)
On their face, the challenged conditions do not potentially intrude upon vast amounts of defendant’s personal information irrelevant to the purposes of his probation. “[A]n appellate claim—amounting to a ‘facial challenge’—that phrasing or language of a probation condition is unconstitutionally vague [or] overbroad . . . does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court.” (In re Sheena K. (2007) 40 Cal.4th 875, 885, italics added.) A claim that a probation condition is constitutionally defective can be raised for the first time on appeal only if it presents a pure question of law. (Id. at p. 889.)
In considering defendant’s facial constitutional challenge, it must be underscored that Riley v. California (2014) 573 U.S. ___ [134 S. Ct. 2473] (Riley), which defendant cites, did not establish a rule of law applicable to probation searches. In declining to extend the categorical rule allowing warrantless searches incident to arrest to include searches of data on cell phones (id. at p. ___ [134 S. Ct. at p. 2485]), the United States Supreme Court recognized that police searches of cell phones may potentially result in a profound intrusion into privacy because “[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.” (Id. at p. ___ [134 S. Ct. at p. 2489].) But Riley involved an entirely different Fourth Amendment context and is readily distinguishable from cases involving probation conditions. (See In re Q.R. (2017) 7 Cal.App.5th 1231, 1238 (Q.R.), review granted April 12, 2017, S240222.) The balancing of law enforcement and privacy interests is very different in the present situation, which involves the individualized probation supervision of a single person who appears to be a member or an associate of a Norteño gang and was found beyond a reasonable doubt to have committed crimes for the benefit of the gang.
“[P]robation is a privilege and not a right, and . . . adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights—as, for example, when they agree to warrantless search conditions. [Citations.]” (Olguin, supra, 45 Cal.4th at p. 384; see People v. Bravo (1987) 43 Cal.3d 600, 608-609.) “Warrantless searches are justified in the probation context because they aid in deterring further offenses by the probationer and in monitoring compliance with the terms of probation. [Citations.] By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers. [Citation.]” (People v. Robles (2000) 23 Cal.4th 789, 795.)
The majority’s modifications to “tailor” the probation conditions may well allow the probationer to circumvent effective supervision. As modified, the challenged conditions exclude “any personal communications.” (Maj. opn. ante, at p. 8.) Moreover, the conditions as modified impose upon officers an unworkable standard, limiting searches of defendant’s electronic devices and social media sites under the probation conditions to communications and materials “reasonably likely to reveal involvement in proscribed gang-related activity.” (Ibid.) That sounds akin to a probable cause requirement, which fundamentally undermines a warrantless search condition. (Cf. Illinois v. Gates (1983) 462 U.S. 213, 238 [probable cause requires “a fair probability that contraband or evidence of a crime will be found in a particular place” under the totality of circumstances].) It is also important to keep in mind that probation supervision and probation conditions permitting warrantless searches are aimed at all forms of criminality and prohibited behavior potentially leading to future criminality, not just gang-related activity. The majority’s modifications unnecessarily hamstring probation supervision.




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ELIA, J.





























People v. Espinosa
H042585