Filed 7/24/14 P. v. Fernandez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          H039640
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1242453)

         v.

MELISA LIZETTE FERNANDEZ,

         Defendant and Appellant.



         Defendant Melisa Lizette Fernandez was placed on probation after pleading no
contest to felony sale of a person for immoral purposes (Pen. Code, § 266f)1 in exchange
for the People’s dismissal of five felony counts of human trafficking (§ 236.1, subd. (a)).
The charges were based on allegations that defendant and her boyfriend (her codefendant
in the trial court) forced defendant’s cousin into prostitution. Defendant contends that the
trial court erred in imposing a probation supervision fee without first determining her
ability to pay and that certain probation conditions are unconstitutionally vague and
overbroad. For the reasons stated here, we will modify the challenged conditions and
remand for the trial court to determine defendant’s ability to pay the probation
supervision fee.




         1
              Unspecified statutory references are to the Penal Code.
                         I.   TRIAL COURT PROCEEDINGS
       The following factual summary is based on testimony by San Jose Police Officers
Jonathon Levos and David Gonzales at defendant’s preliminary hearing based on
statements to them from the victim. Defendant and her boyfriend picked up the victim
from Stockton under the pretense of taking her to a party. Once the victim got into the
car, however, defendant informed her that the victim’s father had allegedly paid
defendant and her boyfriend $4,000 to have the victim raped “in retaliation for [the
victim’s] sister being raped.” Defendant and her boyfriend eventually drove the victim to
a motel in Concord, where defendant took photographs of the victim while the victim was
“scantily clad” and posted them online to a website for the purpose of soliciting
prostitution. The victim told the officers she was forced to have sex with several men in
return for money in Concord as well as in motels in San Mateo, Vacaville, and San Jose.
After each encounter, the victim turned the money over to defendant or her boyfriend.
The victim managed to escape and call the police, who arrested defendant and her
boyfriend.
       Defendant and her boyfriend were held to answer and defendant was charged by
information with five counts of human trafficking (§ 236.1, subd. (a)) and one count of
procuring the victim for the purpose of prostitution (§ 266i, subd. (a)). The section 266i
count was later amended as part of a plea agreement to one count of sale of the victim for
immoral purposes (§ 266f) because the section 266i count prohibited probation.
Defendant pleaded no contest to the section 266f count. The trial court dismissed
defendant’s five human trafficking counts, suspended imposition of sentence for three
years, and placed defendant on formal probation with conditions, including one year in
county jail, deemed satisfied by presentence custody credits.
       Defendant challenges three other probation conditions in this appeal: (1)
defendant “shall have no contact with the victim or victims in this case”; (2) defendant
“shall not access the Internet or any other online service through use of a computer or
                                             2
other electronic device at any location including place of employment without prior
approval of the probation officer”; and (3) defendant “shall not clean or delete Internet
browsing activity and must keep a minimum of four weeks [of] history unless approved
by the probation officer.”2 Defendant’s trial counsel objected to the probation conditions
related to the Internet, arguing they “violat[e] Miss Fernandez’s constitutional rights
under both [the] California and Federal constitutions.” The court overruled the objection
and found a factual basis for the conditions.
       The trial court also imposed a probation supervision fee “not to exceed 110 dollars
per month,” citing section 1203.1b. Defense counsel objected that the court had not
determined defendant’s ability to pay any fines or fees. The court ordered defendant to
file a statement of assets “before we finish up today” and indicated it would review the
statement. Shortly thereafter, the court overruled the objection, restated its “order that we
have a statement of assets before we conclude today,” and indicated “we’ll take care of
that when [we] recall the matter.” The minute order from that hearing includes a
probation supervision fee of $110 per month but the record on appeal does not contain a
statement of assets or other documentation suggesting further discussion of the issue.
                                    II.   DISCUSSION
   A. FELONY PROBATION CONDITIONS
       Defendant claims that three of the felony probation conditions imposed by the trial
court are unconstitutionally vague because they lack explicit knowledge requirements.
Defendant also contends the condition restricting access to the Internet is overbroad and
must be stricken in its entirety.
       When imposing felony probation conditions, a trial court has broad discretion to
impose “reasonable conditions … [that] it may determine are fitting and proper to the end
that justice may be done … .” (§ 1203.1, subd. (j).) Absent a timely objection in the trial

       2
         These orally-pronounced conditions do not materially differ from those attached
to the minute order from the May 2013 hearing.
                                                3
court, on appeal a defendant may not challenge the reasonableness of a probation
condition. (In re Sheena K. (2007) 40 Cal.4th 875, 881-882 (Sheena K.).) However,
claims that a probation condition is unconstitutionally vague or overbroad can be raised
for the first time on appeal so long as the claim presents a pure question of law that can
be resolved without reference to the sentencing record. (Id. at pp. 887-889.)
       Unconstitutional overbreadth occurs when a probation condition “substantially
limits a person’s rights and those limitations are not closely tailored to the purpose of the
condition.” (People v. Harrisson (2005) 134 Cal.App.4th 637, 641.) Thus, “[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.” (Sheena K., supra, 40 Cal.4th at p. 890.)
       Vagueness challenges are based on “the due process concept of ‘fair warning.’
[Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.) A condition is unconstitutionally
vague if it “either forbids or requires the doing of an act in terms so vague that [a person]
of common intelligence must necessarily guess at its meaning and differ as to its
application … .” (Connally v. General Const. Co. (1926) 269 U.S. 385, 391.)
Defendant’s opening brief appears to suggest the Sheena K. court held that “[f]ederal due
process considerations require that probation conditions contain ‘an express requirement
of knowledge’ or else, as a result of a condition that lacks reasonable specificity, the
probationer may unwittingly violate a condition.” (Quoting Sheena K., supra, at p. 891.)
However, while the Supreme Court found the addition of an express knowledge
requirement necessary for the specific condition at issue in that case, the court did not
make the sweeping mandate attributed to it by defendant. Instead, the Sheena K. court
explained: “A probation condition ‘must be sufficiently precise for the probationer to
know what is required of him, and for the court to determine whether the condition has
been violated’ if it is to withstand a challenge on the ground of vagueness. [Citation.]”
(Sheena K., supra, at p. 890.)
                                              4
       When analyzing claims that probation conditions are unconstitutional, we are
mindful that probation violations must be willful to justify revocation of probation.
(People v. Rodriguez (2013) 222 Cal.App.4th 578, 594 (Rodriguez); People v. Cervantes
(2009) 175 Cal.App.4th 291, 295; People v. Galvan (2007) 155 Cal.App.4th 978, 982; §
1203.2, subd. (a).) Further, “[a] probation condition should be given ‘the meaning that
would appear to a reasonable, objective reader.’ [Citation.]” (People v. Olguin (2008) 45
Cal.4th 375, 382.) If modification of a probation condition will cure a constitutional
defect, we may modify the condition on appeal. (Sheena K., supra, 40 Cal.4th at p. 892.)
          1. No Contact Condition
       Defendant challenges the condition prohibiting contact with the victim as
unconstitutionally vague absent an express knowledge requirement because she could
unintentionally violate the condition “if she picks up a phone call from the victim when
she does not recognize the number or if she accidentally runs into the victim.”
       We find it unlikely that a probation officer or a court would deem the passive
conduct described by defendant a willful violation of the no contact condition.
(Rodriguez, supra, 222 Cal.App.4th at p. 594.) However, in the interest of specificity and
in light of the People’s concession that “adding a knowledge requirement would prevent
the situation where appellant unwittingly came into contact with the victim,” we will
modify this condition to read: “Defendant shall not knowingly have contact with the
victim in this case.” Given that there was only one victim in this case and defendant
knows who that victim is, we decline defendant’s request that we further modify the
condition to specify the victim’s name. Our decision to omit the victim’s name is also
informed by the interest in preventing publication of the names of victims of sex crimes.
(California Style Manual (4th ed., 2000) § 5.9, pp. 179-180.)
          2. Condition Restricting Internet Access
       Defendant challenges the condition that she “shall not access the Internet or any
other online service through use of a computer or other electronic device at any location
                                             5
including place of employment without prior approval of the probation officer.”
Defendant first argues that we should strike the condition in its entirety because “only a
more narrow probation condition would be practical or reasonable.” The fundamental
flaw in defendant’s argument is that, because she did not challenge the reasonableness of
the condition below, she may not challenge it as unreasonable on appeal. (Sheena K.,
supra, 40 Cal.4th at pp. 881-882.) In the trial court, defendant’s only ground for
objection was that the Internet conditions violated her constitutional rights. Thus, we will
only address whether the condition is unconstitutionally overbroad or vague.
       “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.” (Sheena K., supra, 40 Cal.4th at p. 890.) In
her brief, defendant does not identify any constitutional right that is limited by the
probation condition’s restriction on Internet usage. Instead, defendant discusses a series
of everyday activities that involve the Internet to show the ubiquity of that resource.
Because defendant does not identify a constitutional right that is limited by the condition,
her overbreadth challenge is unpersuasive.
       Even if defendant had identified a constitutional right and showed that the
probation condition “substantially limit[ed]” that right, (Harrisson, supra, 134
Cal.App.4th at p. 641), we find that any limitation is closely tailored to the purpose of the
condition. Defendant committed the offense for which she pleaded no contest by posting
pictures of the victim on the Internet for the purpose of soliciting prostitution. By
limiting defendant’s access to the Internet, the condition serves the purpose of keeping
defendant “away from situations likely to lead to criminal conduct.” (Rodriguez, supra,
222 Cal.App.4th at p. 590.) Further, like the condition another panel of this court
approved in People v. Pirali (2013) 217 Cal.App.4th 1341 (Pirali), the condition at issue
is not a “blanket prohibition” on Internet access because it “grants defendant the ability to


                                              6
access the Internet on [her] computer and other electronic devices so long as [s]he obtains
prior permission from [her probation] officer.” (Id. at pp. 1349-1350.)
       As for whether the condition is vague, defendant contends that without an express
knowledge requirement she “could violate the condition by unwittingly accessing the
Internet in her day-to-day life” and notes that the court in Pirali modified an almost
identical condition to address this concern. (Citing Pirali, supra, 217 Cal.App.4th at pp.
1350-1351.) Although we again express doubt that a probation officer or a court would
find a willful violation and revoke defendant’s probation if she accessed the Internet
unwittingly, given the pervasiveness of the Internet in daily life as well as the People’s
concession that “adding a knowledge requirement would prevent the situation where
appellant … unknowingly accessed the Internet,” we will modify the condition as
follows: “Defendant shall not knowingly access the Internet or any other online service
through use of a computer or other electronic device at any location including place of
employment without prior approval of the probation officer.”
          3. Condition Requiring Retention of Internet Browsing History
       The final challenged condition states that defendant “shall not clean or delete
Internet browsing activity and must keep a minimum of four weeks [of] history unless
approved by the probation officer.” Like the other conditions, defendant claims that the
condition needs an express knowledge requirement because, as currently drafted, she
could violate probation by “accidentally delet[ing] her Internet browsing history through
the wrong click of a button.”
       Because this condition is related to a feature of Internet browsing about which
average users might be unfamiliar, the addition of an explicit knowledge element will
protect defendant from truly inadvertent acts while still serving the purpose of ensuring
that her probation officer can track defendant’s Internet activity as necessary. Thus, we
will modify the condition to read: “Defendant shall not knowingly clean or delete Internet


                                              7
browsing activity and must keep a minimum of four weeks of history unless approved by
the probation officer.”
   B. PROBATION SUPERVISION FEE AND DEFENDANT’S ABILITY TO PAY
       Defendant argues, and the People concede, that the trial court imposed a $110
probation supervision fee without first determining defendant’s ability to pay.
       Section 1203.1b governs the imposition of probation supervision fees and provides
that unless a defendant gives up the right to a determination “by a knowing and
intelligent waiver,” the trial court must hold a hearing following the procedures set forth
in that section to determine whether defendant has the ability to pay the cost of probation
supervision. (§ 1203.1b, subds. (a), (b).) Failure by the trial court to make this
determination requires reversal and remand for a hearing on a defendant’s ability to pay.
(People v. Pacheco (2010) 187 Cal.App.4th 1392, 1400-1401, disapproved on another
ground by People v. McCullough (2013) 56 Cal.4th 589, 598-599.)
       Here, upon defense counsel’s objection that the trial court had not determined
defendant’s ability to pay, the trial court ordered defendant to provide a statement of
assets and indicated the court would review the statement and make a determination
“when [we] recall the matter.” Although the minute order indicates the court imposed a
$110 probation supervision fee, there is no evidence in the record to support a finding
that the court considered a statement of assets or actually determined defendant’s ability
to pay. For this reason, we must remand so that the court can follow the procedure set
forth in section 1203.1b and determine whether defendant has the ability to pay a
probation supervision fee.
                                  III.    DISPOSITION
       The order is reversed. The probation supervision fee of $110 is stricken pending
determination by the trial court, in accordance with section 1203.1b, of defendant’s
ability to pay. The trial court is further instructed to modify the three probation
conditions discussed in this opinion so that they read: (1) “Defendant shall not
                                              8
knowingly have contact with the victim in this case;” (2) “Defendant shall not knowingly
access the Internet or any other online service through use of a computer or other
electronic device at any location including place of employment without prior approval of
the probation officer;” and (3) “Defendant shall not knowingly clean or delete Internet
browsing activity and must keep a minimum of four weeks of history unless approved by
the probation officer.”




                                          ___________________________________
                                          Grover, J.




WE CONCUR:




____________________________
Bamattre-Manoukian, Acting P.J.




____________________________
Mihara, J.




                                            9
