Filed 3/7/16 P. v. Vasquez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039956
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS130821A)

         v.

FRANCISCO HERNANDEZ VASQUEZ,

         Defendant and Appellant.



THE COURT:
         Defendant Francisco Hernandez Vasquez was placed on felony probation after he
pleaded no contest to committing a lewd act on a minor. (Pen. Code, § 288, subd. (a).)1
The trial court imposed a number of probation conditions, including one that provided:
“You shall provide all access to social media programs to [the] probation officer
including but not limited to Facebook, Instagram or any social media.”
         On appeal, defendant contends the probation condition requiring him to provide
the probation officer with “all access to social media programs” is unconstitutionally
vague and overbroad. For reasons that we will explain, we will affirm the order of
probation.


         
             Before Bamattre-Manoukian, Acting P.J., Mihara, J., and Grover, J.
         1
             All further statutory references are to the Penal Code unless otherwise indicated.
                                  I.      DISCUSSION
       It is unnecessary to provide significant detail regarding defendant’s offense, since
defendant presents only a facial challenge to the social media probation condition.
Briefly, when defendant was 19 years old, he engaged in a sexual relationship with a 13-
year-old girl he had met at a church function. The probation report reflects that defendant
had communicated with the girl “via social media; Facebook.”
       A.     Standard of Review
       We review the constitutionality of a probation condition de novo. (In re Sheena K.
(2007) 40 Cal.4th 875, 888-889 (Sheena K.).)
       B.     Vagueness
       We first address defendant’s argument that the probation condition requiring
him to give his probation officer “all access” to any “social media programs” is
unconstitutionally vague. Defendant challenges as vague the phrase “all access” as well
as the phrase “social media.”
       “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair
warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of
preventing arbitrary law enforcement and providing adequate notice to potential
offenders’ [citation], protections that are ‘embodied in the due process clauses of the
federal and California Constitutions.’ ” (Sheena K., supra, 40 Cal.4th at p. 890.) Our
examination of the challenged condition is “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.) In sum, the probation condition 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.)
       Defendant acknowledges that the term “social media” has been defined in Labor
Code section 980, subdivision (a), which provides: “As used in this chapter, ‘social

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media’ means an electronic service or account, or electronic content, including, but not
limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text
messages, email, online services or accounts, or Internet Web site profiles or locations.”
The same definition of “social media” is contained in Education Code section 99120,
which similarly limits the definition’s application to a particular chapter of that code. By
their terms, these statutory definitions do not apply to defendant’s probation condition.
Further, these definitions appear to be so broad as to include Internet use and
communications with no social component, such as online banking.
       However, a practical, acceptable, and common-sense definition of the term does
exist, which is what the condition needs in order to pass constitutional muster. According
to the Oxford English Dictionary, “social media” constitutes “websites and applications
which enable users to create and share content or to participate in social networking.”
(Oxford English Dict. Online (2016) < http://www.oed.com> [as of Mar. 4, 2016].) In
turn, “social networking” is defined as “the use or establishment of social networks or
connections; (now esp.) the use of websites which enable users to interact with one
another, find and contact people with common interest, etc.” (Oxford English Dict.
Online (2016) < http://www.oed.com> [as of Mar. 4, 2016].) And, “social network” is
defined as “a system of social interactions and relationships; a group of people who are
socially connected to one another; (now also) a social networking website; the users of
such a website collectively.” (Oxford English Dict. Online (2016)
<http://www.oed.com> [as of Mar. 4, 2016].)
       We are guided by the general principles that the language used in a probation
condition must only have “ ‘ “reasonable specificity,” ’ ” not “ ‘mathematical
certainty.’ ” (Sheena K., supra, 40 Cal.4th at p. 890.) And, a probation condition is
sufficiently specific “ ‘ “if any reasonable and practical construction can be given its
language or if its terms may be made reasonably certain by reference to other definable
sources.” ’ ” (People v. Lopez (1998) 66 Cal.App.4th 615, 630 (Lopez).)

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       Here, the term “social media” has a reasonably certain definition: web sites where
users are able to share and generate content, and find and connect with other users of
common interests. Moreover, the term was made sufficiently specific by the trial court
when it clarified that the probation condition covered social media sites including
Facebook and Instagram.2 Additionally, the condition’s purpose—to deter defendant
from communicating with minors online and to provide the probation officer with the
ability to monitor defendant’s use of the Internet for communication with minors—lends
the needed clarity.
       Other appellate courts have concluded that illustrative examples and the trial
court’s reason for imposing the probation condition can cure a probation condition’s
vagueness problem. This is based on the general concept that “ ‘abstract legal commands
must be applied in a specific context. A contextual application of otherwise unqualified
legal language may supply the clue to a law’s meaning, giving facially standardless
language a constitutionally sufficient concreteness.’ ” (Lopez, supra, 66 Cal.App.4th at
p. 630.)
       For example, in In re Malik J. (2015) 240 Cal.App.4th 896 (Malik J.), the
appellate court considered whether a probation condition requiring the minor to
“ ‘provide all passwords to any electronic devices, including cell phones, computers or
[notepads], within [the probationer’s] custody or control’ ” was unconstitutionally vague
or overbroad. (Id. at p. 900.) The minor argued that the phrase “ ‘any electronic
devices’ ” could be interpreted to include Kindles, Playstations, iPods, the codes to his
car, home security system, or even his ATM card. (Id. at p. 904.) However, the appellate
court concluded that the imposed search condition was in response to the trial court’s
concern that the minor would use items such as his cell phone to coordinate with other

       2
         When imposing the probation condition at the sentencing hearing, the trial court
stated, “You shall provide access to all social media programs to your probation officer,
including but not limited to Facebook, Instagram, but any social media whatsoever.”

                                             4
offenders. Additionally, the minor had previously robbed people of their iPhones. (Id. at
pp. 904-905.) Therefore, the appellate court concluded that it was reasonably clear that
the condition was meant to encompass “similar electronic devices within [minor’s]
custody and control that might be stolen property, and not, as [minor] conjectures, to
authorize a search of his Kindle to see what books he is reading or require him to turn
over his ATM password.” (Id. at p. 905.)
       Like the court in Malik J., the trial court here provided context by listing certain
examples of social media sites covered by the probation condition, i.e., Facebook and
Instagram. Additionally, the condition’s purpose—to deter defendant from
communicating with minors online and to provide the probation officer with the ability
to monitor defendant’s use of the Internet for communication with minors—provides
guidance to the probationer and clarifies what types of “social media” the condition
intends to target.
       Defendant’s reliance on two federal cases is misplaced. Doe v. Jindal (M.D. La.
2012) 853 F.Supp.2d 596 (Jindal) involved a state statute that prohibited registered sex
offenders from “ ‘using or accessing . . . social networking websites, chat rooms, and
peer-to-peer networks.’ ” (Id. at p. 599.) The statute provided that a first violation of the
statute could be punished by a fine of up to $10,000 and imprisonment for up to 10 years.
(Id. at p. 600.) The statute defined a “social networking website” as “an Internet website
that has any of the following capabilities: [¶] (a) Allows users to create web pages or
profiles about themselves that are available to the general public or to any other users.
[¶] (b) Offers a mechanism for communication among users, such as a forum, chat room,
electronic mail, or instant messaging.” (Ibid.) The Jindal court held that the statute was
unconstitutionally vague, because it did not “clarify which websites are prohibited.” (Id.
at p. 606.) The court acknowledged that the statute contained definitions of “selected key
phrases” but found that “such definitions are insufficiently defined, considering the
criminal sanctions imposed in the legislation.” (Ibid.)

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       Not only is Jindal not binding on this court (see People v. Avena (1996) 13 Cal.4th
394, 431), but it involved a criminal statute, not a probation condition. Under
section 1203.1, subdivision (j), when a person is placed on probation, the trial court has
discretion to impose any “reasonable conditions, as it may determine 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 probationer. . . .”
(See People v. Olguin (2008) 45 Cal.4th 375, 379.) Moreover, the statute at issue in
Jindal applied not just to “social networking websites” but also “chat rooms” and “peer-
to-peer networks.” (Jindal, supra, 853 F.Supp.2d at p. 599.) And the defendants in
Jindal had conceded that the statute “could be ‘open’ to an interpretation that would ban
Plaintiffs from access to basic newspaper websites.” (Id. at p. 604.)
       Doe v. Nebraska (D. Neb. 2012) 898 F.Supp.2d 1086 is similarly distinguishable.
That case involved three criminal statutes, one of which prohibited sex offenders from
“knowingly and intentionally us[ing] a social networking web site, instant messaging, or
chat room service that allows a person who is less than eighteen years of age to access or
use its social networking web site, instant messaging, or chat room service . . . .” (Id. at
p. 1094.) The statute defined the term “[s]ocial networking web site” as “a web page or
collection of web sites contained on the Internet (a) that enables users or subscribers to
create, display, and maintain a profile or Internet domain containing biographical data,
personal information, photos, or other types of media, (b) that can be searched, viewed,
or accessed by other users or visitors to the web site, with or without the creator’s
permission, consent, invitation, or authorization, and (c) that may permit some form of
communication, such as direct comment on the profile page, instant messaging, or email,
between the creator of the profile and users who have viewed or accessed the creator’s
profile . . . .” (Id. at p. 1095.) The court held that the statute was “so expansive and so
vague that it chills offenders and their associates . . . from using those portions of the

                                               6
Internet that the defendants claim are open to them,” in violation of the First Amendment
and the Due Process Clause. (Id. at p. 1112.) Although the court found that the term
“collection of web sites” (used in the definition of “social networking web site”) was
vague, it did not specifically find that the term “social networking web site” was vague.
(Id. at p. 1115.) Thus, this case does not support defendant’s vagueness claim.
       For the foregoing reasons, we do not find the term “social media” to be
unconstitutionally vague as used in the challenged probation condition.
       We next turn to defendant’s claim that the challenged probation condition’s phrase
“all access” is unconstitutionally vague. Defendant questions whether he is required to
“merely . . . inform the probation officer which social media programs he uses or whether
[he] is to permit some sort of deeper access to the probation officer by, e.g., ‘friending’
the officer on Facebook.”
       We do not agree that the phrase “all access” is vague as used in the challenged
probation condition. It is reasonably clear that the probation condition intends to require
that defendant provide the probation officer with his usernames and passwords to social
media that he uses so that defendant’s social media activity may be monitored. (See
People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1174, 1175 (Ebertowski)
[interpreting probation condition requiring defendant to “provide all passwords to any
social media sites” as giving probation officer “[a]ccess to” defendant’s social media
accounts].) Read this way, there is no vagueness in the condition’s use of the term
“all access.” (See Lopez, supra, 66 Cal.App.4th at p. 630.)
       C.       Overbreadth
       We next turn to defendant’s argument that the challenged probation condition is
constitutionally overbroad because it impacts his First Amendment rights but is not
narrowly tailored. Defendant contends that because it applies to all “social media,” the
probation condition “draws an extremely wide net around the arenas of speech it purports
to regulate.”

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       This panel rejected a similar overbreadth argument in Ebertowski, supra, 228
Cal.App.4th 1170, where the challenged probation condition required the defendant to
“ ‘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.’ ” (Id. at p. 1172.) The Ebertwoski defendant was a member of a criminal street
gang who had promoted his gang on social media. We rejected the defendant’s claim that
the probation condition was “not narrowly tailored to [its] purpose so as to limit [its]
impact on his constitutional rights to privacy, speech, and association.” (Id. at p. 1175.)
We explained that the state’s interest in preventing the defendant from continuing to
associate with gangs and participate in gang activities, which was served by the probation
condition, outweighed the minimal invasion of his privacy. (Ibid.)
       We continue to adhere to the reasoning set forth in Ebertowski. Here, the
probation condition requiring defendant to provide the probation officer with “all access
to social media programs” serves the state’s interest in preventing defendant from using
social media to engage in inappropriate relationships with minors. This interest
outweighs the minimal intrusion on defendant’s First Amendment rights. We therefore
conclude that the challenged probation condition is not constitutionally overbroad.3




       3
        The California Supreme Court recently granted review in a case presenting the
question of whether a probation condition requiring a minor to submit to warrantless
searches of his “electronics including passwords” was overbroad. (In re Ricardo P.
(2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923; see also In re
Patrick F. (2015) 242 Cal.App.4th 104, review granted Feb. 17, 2016, S231428 [briefing
deferred].) In another recent case, an appellate court indicated that a probation condition
permitting searches of “electronics” would not be overbroad if it was limited to “media of
communication reasonably likely to reveal whether appellant is boasting about drug use
or otherwise involved with drugs, such as text messages, voicemail messages,
photographs, e-mail accounts, and social media accounts.” (In re Alejandro R. (2015)
243 Cal.App.4th 556, 560, 568, petn. review pending, petn. filed Feb. 3, 2016, S232240.)

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                         II.       DISPOSITION
The order of probation affirmed.




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_____________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.




______________________________________
MIHARA, J.




______________________________________
GROVER, J.
