Filed 8/13/14
                           CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT


THE PEOPLE,                                        H039865
                                                  (Santa Clara County
        Plaintiff and Respondent,                  Super. Ct. No. C1349188)

        v.

ROBERT EDWARD EBERTOWSKI,

        Defendant and Appellant.



        Defendant Robert Edward Ebertowski was granted probation after he pleaded no
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contest to criminal threats (Pen. Code, § 422) and resisting or deterring an officer (§ 69)
and admitted a gang allegation (§ 186.22, subd. (b)(1)(B)). He challenges on
reasonableness and overbreadth grounds two of the probation conditions imposed by the
trial court. These probation conditions required him to (1) “provide all passwords to any
electronic devices, including cell phones, computers or notepads, within your custody or
control, and submit such devices to search at any time without a warrant by any peace
officer” and (2) “provide all passwords to any social media sites, including Facebook,
Instagram and Mocospace and to submit those sites to search at any time without a
warrant by any peace officer.” We conclude that these conditions are not
unconstitutionally overbroad or unreasonable and that the trial court did not abuse its
discretion in imposing them.



1
        Statutory references are to the Penal Code unless otherwise noted.
                                      I. Background
       The police made contact with defendant while investigating a brandishing offense.
Defendant was highly intoxicated, provided a false name and birthdate to the officer, and
actively physically resisted the officer. The officer nevertheless determined that a felony
warrant was out for defendant’s arrest and that he was on probation. Defendant
repeatedly threatened the officer and the officer’s family and stated that he would
sexually assault the officer, the officer’s wife, and the officer’s daughter. He repeatedly
identified himself as a member of the “Seven Trees Norteno” gang, and told the officer
that he was “ ‘[f]ucking with the wrong gangster.’ ” During the booking process,
defendant was uncooperative, made gang signs, and urinated on the floor several times.
       After defendant entered his no contest pleas and admission, the probation
department recommended a host of probation conditions including that defendant (1)
“submit his/her property, place of residence, vehicle and any property under his/her
control to search at any time without a warrant by any Peace Officer”; (2) “not possess,
wear or display any clothing or insignia . . . that he/she knows or the Probation Officer
informs him/her is evidence of, affiliation with, or membership in a criminal street gang”;
and (3) “not associate with any person he/she knows to be or the Probation Officer
informs him is a member of a criminal street gang.” Defendant did not challenge the
imposition of these conditions and does not challenge them on appeal.
       The prosecutor asked the court to impose two additional probation conditions: “1.
The defendant shall provide all passwords to any electronic devices (including cellular
phones, computers or notepads) within his or her custody or control and shall submit said
devices to search at anytime [sic] without a warrant by any peace officer. [¶] 2. The
defendant shall provide all passwords to any social media sites (including Facebook,
Instagram and Mocospace) and shall submit said sites to search at anytime [sic] without a
warrant by any peace officer.” The prosecutor explained that these two conditions were



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“a means to effectuate the already existing warrantless search condition. That is, if one
has a cell phone in your pocket and the police are unable to access it . . . .”
       The prosecutor told the court that the two requested conditions “should be
imposed here, your Honor, because, as I mentioned when we were in chambers, the
defendant has used social media sites historically to promote the Seven Trees Norteno
criminal street gang. Those documents were provided in discovery, delivered by
MySpace to the District Attorney’s office pursuant to a subpoena duces tecum.” He
noted that “we’re asking for [these conditions] in this case and all gang cases . . . .”
       Defendant objected to the imposition of the two probation conditions requested by
the prosecutor on many grounds, including that they were unreasonable and overbroad.
Defendant’s trial counsel did not object to the prosecutor’s reliance on the MySpace
documents.
       The court rejected defendant’s objections and imposed the probation conditions
recommended by the probation department and the two requested by the prosecutor. The
court asked defendant “do you understand and accept those terms and conditions of your
probation,” and defendant said “Yes, sir.”


                                       II. Discussion
       Defendant claims that the two conditions requested by the prosecutor and imposed
by the court, which we will refer to as the password conditions, were overbroad and
unreasonable.


                                 A. MySpace Documents
       Defendant contends that the prosecutor’s reliance on the MySpace documents was
improper because “the prosecutor chose not to” have those documents admitted into
evidence or lodged with the trial court in support of his request for the password
conditions.

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       The prosecutor had subpoenaed from MySpace “subscriber information,
photographs, and comments for [defendant’s] personal MySpace page.” A month before
the sentencing hearing, the trial court reviewed the documents produced by MySpace and
released copies to the prosecutor and defendant’s trial counsel subject to a protective
order “that the documents are to be used only for the purpose of this litigation; they are
not to be viewed by anyone except counsel or counsel’s agents for the purpose of this
litigation.” The originals of the MySpace documents were placed in “the court file.” The
MySpace documents were part of an “in chambers” discussion between the court and
counsel before the sentencing hearing, and the prosecutor explicitly relied on the
MySpace documents at the sentencing hearing. Defendant’s trial counsel did not object
to the prosecutor’s reliance on the MySpace documents.
       We see no significance in the absence of any indication that the MySpace
documents were formally introduced into evidence at the sentencing hearing. These
documents were provided to defendant’s trial counsel long before the sentencing hearing.
The trial court explicitly stated on the record a month before the sentencing hearing that it
had reviewed the MySpace documents and placed them in the court file. The MySpace
documents were thereafter discussed in chambers and explicitly cited by the prosecutor in
support of his request for imposition of the password conditions. In all likelihood, the
MySpace documents were not formally placed in evidence due to concerns related to the
protective order. Defendant’s trial counsel had multiple opportunities to object to the
court’s consideration of these documents and never did. In our view, the absence of a
timely objection precludes defendant from contending on appeal that the prosecutor could
not properly rely on the MySpace documents to support his request for the password
conditions. (Evid. Code, § 353.)




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                                     B. Overbreadth
       Defendant claims that the password conditions were unconstitutionally overbroad
because they were not narrowly tailored to their purpose so as to limit their impact on his
constitutional rights to privacy, speech, and association.
       “[A]dult probationers, in preference to incarceration, validly may consent to
limitations upon their constitutional rights . . . .” (People v. Olguin (2008) 45 Cal.4th
375, 384.) “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.) Under this doctrine, “ ‘ “a governmental purpose to control or prevent activities
constitutionally subject to state regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms.” ’ [Citations.]”
(In re Englebrecht (1998) 67 Cal.App.4th 486, 497.) “ ‘A law’s overbreadth represents
the failure of draftsmen to focus narrowly on tangible harms sought to be avoided, with
the result that in some applications the law burdens activity which does not raise a
sufficiently high probability of harm to governmental interests to justify the interference.’
[Citation.]” ( Ibid.)
       Defendant is a criminal street gang member who promotes his gang on social
media, makes violent threats in person to armed police officers, and physically resists
armed police officers. 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 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

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purpose. Access to all of defendant’s devices and social media accounts is the only way
to see if defendant is ridding himself of his gang associations and activities, as required
by the terms of his probation, or is continuing those associations and activities, in
violation of his probation.
       Defendant’s constitutional privacy rights are not improperly abridged by the
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password conditions any more than they are by the search condition. 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.” (In re Christopher M. (2005) 127
Cal.App.4th 684, 695 (Christopher M.), disapproved on a different point by People v.
Gonzales (2013) 56 Cal.4th 353, 373.) Here, the competing interest is the state’s interest
in preventing defendant from continuing his violent gang associations and activities.
Defendant’s involvement with his gang has produced a man willing to threaten and
physically resist armed police officers. Such a person poses an extreme danger to public
safety. The 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.




2
        Defendant’s reliance on Doe v. Shurtleff (10th Cir. 2010) 628 F.3d 1217
(Shurtleff) is misplaced. Shurtleff did not involve a probation condition but a requirement
that all registered sex offenders provide internet identifiers to the government to aid in the
investigation of sex crimes. (Shurtleff, at p. 1224.) Furthermore, the Tenth Circuit Court
of Appeals did not invalidate this requirement but upheld it against Doe’s constitutional
challenges. (Shurtleff, at pp. 1226-1227.)

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                                     C. Reasonableness
       Defendant asserts that the trial court abused its discretion in imposing the
password conditions because these conditions were not reasonable under the
circumstances.
       “Trial courts have broad discretion to impose such reasonable probation conditions
‘as it may determine are fitting and proper to the end that justice may be done . . . and
generally and specifically for the reformation and rehabilitation of the probationer . . . .’ ”
(People v. Chardon (1999) 77 Cal.App.4th 205, 217; § 1203.1, subd. (j).) “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 . . . .’ [Citation.]” (People v. Lent (1975) 15 Cal.3d 481, 486.)
       Defendant’s current offenses were threatening and resisting a police officer for the
benefit of his gang. The password conditions were related to these crimes, which were
plainly gang related, because they were designed to allow the probation officer to monitor
defendant’s gang associations and activities. Defendant’s association with his gang was
also necessarily related to his future criminality. His association with his gang gave him
the bravado to threaten and resist armed police officers. The only way that defendant
could be allowed to remain in the community on probation without posing an extreme
risk to public safety was to closely monitor his gang associations and activities. The
password conditions permitted the probation officer to do so. Consequently, the
password conditions were reasonable under the circumstances, and the trial court did not
abuse its discretion in imposing them.




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                                   III. Disposition
      The order is affirmed.




                                       _______________________________
                                       Mihara, J.



WE CONCUR:




_____________________________
Bamattre-Manoukian, Acting P. J.




_____________________________
Grover, J.




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Trial Court:                                  Santa Clara County Superior Court


Trial Judge:                                  Honorable Gilbert T. Brown


Attorney for Defendant and Appellant:         Stephanie Marie Adraktas
                                              Law Office Stephanie M. Adraktas
                                              Under Appointment by the Sixth District
                                              Appellate Program


Attorneys for Plaintiff and Respondent:       Kamala D. Harris
                                              Attorney General of California

                                              Dane R. Gillette
                                              Chief Assistant Attorney General

                                              Gerald A. Engler
                                              Senior Assistant Attorney General

                                              Seth K. Schalit
                                              Supervising Deputy Attorney General

                                              Laurence K. Sullivan
                                              Supervising Deputy Attorney General




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