Filed 4/12/18
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               SIXTH APPELLATE DISTRICT

THE PEOPLE,                                         H044815
                                                   (Santa Clara County
        Plaintiff and Respondent,                   Super. Ct. No. C1761615)

        v.

FRANCISCO JAVIER MALDONADO,

        Defendant and Appellant.

        Defendant Francisco Javier Maldonado challenges probation conditions imposed
following his conviction for possessing methamphetamine for sale (Health & Saf. Code,
§ 11378). The challenged conditions subject electronic devices in defendant’s possession
to warrantless search and require him to provide passwords for those devices whenever
requested by law enforcement. Defendant argues the conditions are unreasonable,
overbroad, and vague. For the reasons stated here, we will affirm the judgment.
                          I.    TRIAL COURT PROCEEDINGS
        This factual summary is based on police reports in the augmented record as
defendant waived preparation of a full probation report. Two officers were on patrol in a
marked car in the early morning. As they drove through an area “known to have a lot of
drug trafficking,” they noticed a car in a parking lot with the driver’s door open.
Defendant was in the driver’s seat, and another man was also in the car. A woman was
standing next to the driver’s door. When an officer approached, the woman walked away
and ignored the officer’s questions about what she was doing there. Defendant disclosed
his name and informed the officers that he owned the car. After a records check revealed
that defendant was on probation with search terms, the officers conducted a probation
search of the car. In the fuse panel on the driver’s side, an officer found a working scale
and a black container with 14 hand-rolled cigarettes inside. The cigarettes contained a
green leafy substance and crystal shards that later tested presumptively positive for
methamphetamine.
       The officers arrested defendant and drove him to the address he had registered
with the probation department. The officers learned that defendant lived in an RV parked
at the address. During a search of the RV, officers discovered another working scale; a
small plastic bag with four individual bags inside containing a crystalline substance that
tested presumptively positive for methamphetamine; another small plastic bag with the
same crystalline substance inside; and a jar containing a green leafy substance that an
arresting officer believed was marijuana. The combined weight of the methamphetamine
discovered during the search was over 38 grams. Defendant denied knowing about the
cigarettes found in the car, but he confirmed that all the controlled substances in the RV
belonged to him and were all for his personal use rather than for sale. In addition to the
controlled substances, defendant’s Android phone was seized incident to his arrest and
booked into evidence.
       Defendant was charged with one count of possessing methamphetamine for sale.
(Health & Saf. Code, § 11378.) As part of a negotiated disposition, defendant pleaded no
contest to the charged count in return for three years’ formal probation, including a
condition that he serve eight months in county jail.
       Among other probation conditions, the court imposed the following related to
electronic devices: “The defendant shall, as a condition of probation ... , give specific
consent to any peace officer [or] any law enforcement agency to seize and search all
electronic devices, including but not limited to cellular telephones, computers or notepads
in your possession or under your control to a search [sic] of any text messages, voicemail
messages, call logs, photographs, email accounts, social media accounts, including but
not limited to Facebook, Instagram, Twitter, Snapchat, or any other site which the
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probation officer informs you of or applications pertaining to these accounts at any time
with or without a warrant”; and “[Defendant] shall further agree and specifically consent
to provide all passwords necessary to access or search such electronic devices, including
but not limited to cellular telephones, computers or notepads and understand that refusal
to provide the password will constitute a violation of the terms of your probation.”
       Defense counsel did not object to defendant’s phones being subject to search, but
argued that the conditions are overbroad and have no nexus to the crime because they
allow computers and notepads to be searched. The trial court overruled the objection,
reasoning that if it limited searches to phones, defendant could then “use your notepad”
or “use your computer” to circumvent the probation conditions. The court concluded that
if “it is a place where you can keep track, then it is going to be looked at without probable
cause by any peace officer.”
                                 II.   DISCUSSION
       Defendant argues the probation conditions related to electronic devices are
unreasonable under the principles articulated in People v. Lent (1975) 15 Cal.3d 481
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(Lent), and are also unconstitutionally overbroad and vague. He alternatively contends
his trial counsel provided ineffective assistance to the extent counsel forfeited any
arguments. Because we find that trial counsel’s objections adequately preserved all
issues raised on appeal, we do not address defendant’s alternative argument.
   A. THE CHALLENGED CONDITIONS DO NOT PROVIDE UNLIMITED ACCESS
       We begin by addressing defendant’s apparent misconception regarding the scope
of searches authorized by the conditions. Defendant repeatedly states that the challenged
conditions authorize “unlimited access” to, and “unlimited searches” of, defendant’s
electronic devices. To the contrary, the conditions allow a search of electronic devices

       1
         The Supreme Court has granted review in several cases to determine the validity
of probation conditions like those imposed here. (E.g., In re Ricardo P. (2015) review
granted February 17, 2016, S230923.)
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only for specific categories of information (i.e., “text messages, voicemail messages, call
logs, photographs, email accounts, [and] social media accounts”), and they require
defendant to provide only the passwords necessary to search for those categories of
information. We acknowledge those categories encompass extensive information on
defendant’s electronic devices. Nevertheless, they do not provide officers carte blanche
to search anything and everything on the devices as defendant’s briefing suggests.
   B. REASONABLENESS
       A probation condition is not invalid unless it has no relationship to the conviction,
relates to conduct which is not in itself criminal, and is not reasonably related to future
criminality. (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) We review the
reasonableness of probation conditions for abuse of discretion. (Ibid.) We focus on
defendant’s arguments related to the first and third prongs because it is undisputed that
using electronic devices is not in itself criminal.
       Regarding their relationship to the present conviction, defendant makes two
arguments: (1) that the probation conditions should be limited to cellular phones because
there is no evidence that defendant used an electronic device other than a cellular phone;
and (2) once limited to cellular phones, the conditions should be further limited to
searches “for direct communication” and not “for record keeping, for taking photographs,
or for communicating with others via social media accounts.” Though a cellular phone
appears to have been the only type of electronic device directly tied to defendant’s
conviction, as the trial court recognized, limiting the probation conditions to cellular
phones would allow them to be easily circumvented by using a different type of
electronic device to communicate about illegal activities. (See People v. Moran (2016)
1 Cal.5th 398, 404–405 [affirming validity of a condition that the defendant stay away
from all Home Depot stores even though he committed his crime at a single Home Depot
location; reasoning “conditions of probation aimed at rehabilitating the offender need not
be so strictly tied to the offender’s precise crime”].) As to whether the conditions should
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be narrowed to allow searches only “for direct communication,” the conditions as written
are already largely confined to methods of direct communication. Direct communication
can be achieved using all categories identified in the conditions (“text messages,
voicemail messages, call logs, photographs, email accounts, [and] social media
accounts”), although the conditions are not and need not be limited to communications.
Even photographs can facilitate drug sales by depicting merchandise offered for sale, or
by allowing mobile access to a photograph of a handwritten pay-owe sheet. Given the
potential use of stored photographs for record keeping and similar activities, it would be
too restrictive to limit the search of photographs to only those posted to social media or
attached to messages sent or received. Defendant has not demonstrated that the condition
has no relationship to the crime he committed.
       Regarding their relationship to future criminality, defendant contends the
conditions allow access to areas of his personal life which are “completely unrelated to
deterring future criminality.” To the contrary, the categories of information referenced in
the conditions are all forms of communication that could facilitate drug sales. As such,
the search conditions are reasonably related to preventing future criminality. (See
Olguin, supra, 45 Cal.4th at pp. 380–381 [“A condition of probation that enables a
probation officer to supervise his or her charges effectively is, therefore, ‘reasonably
related to future criminality.’ ”].)
       Defendant’s reliance on In re Erica R. (2015) 240 Cal.App.4th 907, 909–913, and
In re P.O. (2016) 246 Cal.App.4th 288, 291–293, is misplaced. Those cases involved
drug possession and public intoxication, respectively. Here, defendant was convicted of
possessing methamphetamine for sale, and the record supports a finding that an
electronic device was used in those sales. Allowing a probation officer to access
information on defendant’s electronic devices will facilitate supervision and deter future
criminality by ensuring that defendant does not attempt to sell drugs using any electronic
device. Further, while the court in In re P.O. ultimately found an electronic device
                                              5
search condition unconstitutionally overbroad, it determined that even in the context of a
public intoxication juvenile adjudication “the electronics search condition [was]
reasonably related to future criminality.” (In re P.O., at p. 295.)
   C. OVERBREADTH
       Defendant contends the challenged conditions are unconstitutionally overbroad
because they are not narrowly tailored to limit their impact on his rights to privacy,
speech, and association. While defendant asserts his First Amendment rights to free
speech and association, he does not explain how the conditions curtail those rights. As
the only right defendant discusses in any detail is his Fourth Amendment right to be free
from unreasonable searches and seizures, we focus our analysis there. (See Tichinin v.
City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1084, fn. 16 [failure to support point
with reasoned argument forfeits the argument].)
       “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 (Sheena K.).) We review the constitutionality of probation conditions de novo.
(In re Malik J. (2015) 240 Cal.App.4th 896, 901 (Malik J.).)
       “[P]arolees and probationers retain some expectation of privacy, albeit a reduced
one.” (In re Jaime P. (2006) 40 Cal.4th 128, 137.) The California Supreme Court has
determined that “probation search conditions serve to promote rehabilitation and reduce
recidivism while helping to protect the community from potential harm by probationers.”
(People v. Robles (2000) 23 Cal.4th 789, 795.) As a probationer, defendant’s diminished
expectation of privacy is “markedly different from the broader privacy guaranteed under
the Fourth Amendment to individuals who are not serving sentences or on grants of
probation.” (In re Q.R. (2017) 7 Cal.App.5th 1231, 1238, review granted April 12, 2017,
S240222 (Q.R.) .) “It is that pre-conviction expectation of privacy that was at issue in
Riley v. California (2014) __U.S.__, [134 S.Ct. 2473] (Riley), where the United States
                                              6
Supreme Court announced the general rule that police may not conduct a warrantless
search of a cellular phone seized incident to an arrest. (Riley, __ U.S. __ [134 S.Ct. at
p. 2485].)” (Q.R., at p. 1238.)
       The purpose of the challenged conditions is to prevent defendant from using
electronic devices in the future to facilitate the sale of controlled substances. Defendant’s
possession of an Android phone when he was arrested for possessing methamphetamine
for sale distinguishes this case from those where similar probation conditions have been
rejected as unconstitutionally overbroad. (See In re P.O., supra, 246 Cal.App.4th 288,
291–293, 298 [modifying juvenile electronic device search condition because condition
bore no relationship to public intoxication adjudication]; People v. Appleton (2016)
245 Cal.App.4th 717, 719–720, 728–729.) Defendant’s possession of an electronic
device while committing his crime makes this case more similar to Q.R., where the minor
had used an electronic device in committing his jurisdictional offenses and the reviewing
court found no overbreadth in juvenile probation conditions allowing electronic devices
to be searched. (Q.R., supra, 7 Cal.App.5th at p. 1238, rev. granted.) Here, as in Q.R.,
access to defendant’s electronic devices is appropriate to ensure that he does not reoffend
while on probation.
       Defendant posits that “the state’s interest here – that is, monitoring whether
appellant uses his cell phone, computer, or tablet to procure drugs or offer drugs for sale
– could be served through narrower means.” In reviewing the closeness of the fit
between the legitimate purpose of probation conditions and the burden they impose on a
defendant’s constitutional rights, we are mindful 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.) Defendant argues that the challenged conditions
would allow a search of his electronic devices for “medical records, financial records,
personal diaries, and intimate correspondence with family and friends.” But we are not
persuaded of the need to narrow the conditions, because defendant is protected by the
                                             7
principle that warrantless probation searches must not be conducted in an arbitrary,
capricious, or harassing manner. (People v. Schmitz (2012) 55 Cal.4th 909, 923.)
Defendant contends that the conditions should be narrowed to “avoid infringing on the
privacy interests of third parties.” (Citing Malik J., supra, 240 Cal.App.4th at pp. 903–
904.) But “any speculative impact on third parties is not a reason to strike the condition
since [defendant] lacks standing to assert the constitutional rights of third parties.”
(Q.R., supra, 7 Cal.App.5th at p. 1237, rev. granted.)
   D. VAGUENESS
          Defendant contends the challenged conditions are unconstitutionally vague
because they do not define the phrase “electronic devices,” and also because they do not
adequately define the scope of information subject to search. “[T]he underpinning of a
vagueness challenge is the due process concept of ‘fair warning.’ ” (Sheena K., supra,
40 Cal.4th at p. 890.) Probation conditions must be “ ‘sufficiently precise for the
probationer to know what is required of him [or her], and for the court to determine
whether the condition has been violated.’ ” (Ibid.) In conducting our independent review
of the challenged conditions, we are “guided by the principles that ‘abstract legal
commands must be applied in a specific context,’ and that, although not admitting of
‘mathematical certainty,’ the language used must have ‘ “reasonable specificity.” ’ ”
(Ibid.)
          Defendant challenges as vague the phrase “electronic devices,” arguing that by not
“specif[ying] the nature of the ‘electronic devices’ covered,” the phrase “conceivably
covers any other electronic device, such as an [i]Pod, a smart television, a Kindle-type
book reading device, or digital features of an automobile.” But the conditions provide
reasonable specificity by including three examples of the types of devices that are subject
to search: telephones, computers, and notepads. Given the focus of the conditions on
accessing defendant’s communications, we find the phrase “electronic devices” as used
here to be sufficiently clear to meet constitutional standards.
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       Defendant also contends that the conditions are vague because “there is no way to
know whether the search condition is limited to searches focused on communications
made from the devices – i.e., telephone call logs, text messages, and emails – or whether
it covers the much broader range of information stored or accessible through a cell phone,
computer, or tablet, such as the content of social media accounts, bank accounts, speech
and associational activities.” But the scope of searches is defined by the explicit listing
of the types of information that can be searched: “any text messages, voicemail
messages, call logs, photographs, email accounts, [and] social media accounts.” By
specifying the types of information to which probation officers have access, the
conditions contain the reasonable specificity and “fair warning” necessary to withstand a
vagueness challenge.
                                   III.   DISPOSITION
       The judgment is affirmed.




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                                ____________________________________
                                Grover, J.




WE CONCUR:




____________________________
Elia, Acting P. J.




____________________________
Premo, J.




H044815 - People v. Maldonado
Trial Court:                 Santa Clara County Superior Court,
                             Case No.: C1761615

Trial Judge:                 Hon. Kenneth Paul Barnum
Attorneys for                Xavier Becerra
Plaintiff/Respondent:         Attorney General of California
The People                   Gerald A. Engler
                              Chief Assistant Attorney General
                             Jeffrey M. Laurence
                              Senior Assistant Attorney General
                             Rene A. Chacon
                              Supervising Deputy Attorney General .
                             Bruce Ortega
                              Deputy Attorney General
Attorneys for                Conrad Petermann
Defendant/Appellant:          Law Office of Conrad Petermann
Francisco Javier Maldonado    Under Appointment by the Court of Appeal
