Filed 3/15/16
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT


THE PEOPLE,                                        H041332
                                                  (Santa Clara County
        Plaintiff and Respondent,                  Super. Ct. No. B1368362)

        v.

PAUL JASON APPLETON,

        Defendant and Appellant.



        Defendant Paul Jason Appleton met John Doe through Grindr, a social media
application for smartphones. After a consensual relationship lasting several months to a
year, Doe told police that defendant and two other men had forced Doe to orally copulate
them.
        Defendant pleaded no contest to false imprisonment by means of deceit. (Pen.
Code, §§ 236, 237, subd. (a).) The trial court suspended imposition of sentence and
granted a three-year term of probation. Among other conditions, the court imposed two
conditions at issue in this appeal: (1) Defendant’s computers and electronic devices shall
be subject to search for material prohibited by law; and (2) defendant shall not clean or
delete his Internet browsing activity, and he shall maintain his history for a minimum of
four weeks. Defendant challenges both conditions as overbroad, vague, and unrelated to
his offense or future criminality.
        We hold the probation condition allowing for searches of defendant’s computers
and electronic devices is unconstitutionally overbroad as worded. We will strike the
condition and remand to the trial court to fashion a more narrowly tailored version of that
condition. As to the second probation condition requiring defendant not to delete his
browser activity, we conclude the condition by itself is valid, provided it supports a
narrower, valid alternative to the first challenged condition.
                       I. FACTUAL AND PROCEDURAL BACKGROUND
   A. Facts of the Offense1
       At the time of the offense, defendant was a 43-year-old computer technology
worker in Mountain View. In July 2013, John Doe contacted the police and made the
following statement. In early 2013, he met defendant through Grindr.2 Doe was 16 years
old at the time. For several months, defendant and Doe maintained a consensual
relationship that involved kissing, handholding, and sleeping together, but no further
sexual conduct. In July 2013, Doe stayed at defendant’s residence for several days.
Around midnight on July 12, defendant and Doe were sleeping in defendant’s bed when
two male friends of defendant entered the bedroom. The three men forced Doe to orally
copulate them over a period of about 15 to 20 minutes. Doe left the residence at around
1:00 a.m. and called the police later that night. He told another witness one of the men
had forcibly sodomized him.
       Doe declined a SART exam. After he expressed suicidal thoughts, he was taken
into custody under Welfare and Institutions Code section 5150.
       Police interviewed Doe several days later. He made the following statement,
which differed in some respects from his initial statement. He had met defendant on
Grindr one year earlier, but they did not start dating until February 2013. At that time,
defendant bought Doe an iPhone and performed oral sex on him. Defendant performed
oral sex on Doe three other times, and the two slept together for a period of several days,
but they engaged in no other sexual conduct. Doe reiterated that defendant and two of


       1
        The facts are taken from the probation report.
       2
        Grindr is a social media smartphone application through which its users can
arrange to meet other users.
                                              2
defendant’s friends forced him to orally copulate them in July 2013 when Doe was
sleeping in defendant’s bed. Doe declined to make a pretext call.
   B. Procedural Background
       The prosecution charged defendant by felony complaint with oral copulation with
a minor. (Pen. Code, § 288a, subd. (b)(1).) The parties entered a plea agreement
whereby defendant pleaded no contest to false imprisonment by means of deceit (Pen.
Code, §§ 236, 237, subd. (a)) in exchange for formal probation, credit for time served,
and dismissal of the oral copulation count. In accord with the plea agreement, the trial
court suspended imposition of sentence and granted a three-year term of probation to
include a jail sentence of 236 days.
       The probation report recommended a probation condition requiring that
“defendant’s computer and all other electronic devices (including but not limited to
cellular telephones, laptop computers or notepads) shall be subject to Forensic Analysis
search.” The report also recommended a condition requiring defendant not to delete his
Internet browsing activity and to keep a minimum of four weeks of history.
       The trial court modified the first condition somewhat. First, the court stated, “I
know that there has been a significant discussion with respect to some of the suggested
conditions so I want to make some modifications to the language.” The court also stated
that if either party encountered difficulty with the conditions, “you have the right to come
back, put it on calendar, and I can hear your point of view and Probation’s.” The court
then imposed the following two conditions, among others: “Any 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. You shall not clean or delete internet browsing activity on
any electronic device that you own and you must keep a minimum of four weeks of
history.” The court explained that “the reason I’m imposing this condition is because
social media was involved in this offense, and either social media or some kind of

                                             3
computer software, and so I think this is an appropriate condition given the nature of the
charges and the conduct admitted to in this case.” The court subsequently asked
defendant, “do you accept probation on those terms and conditions?” Defendant
responded, “I do.”
       The next day, defendant requested a calendar setting. The requested stated,
“Defendant would like his objections to some of the probation conditions made clear on
the record.” Five days later, the parties appeared in court for that purpose, whereupon
defendant objected to the two probation conditions noted above. He cited his
constitutional rights to freedom of speech and association under the First Amendment, his
privilege against self-incrimination under the Fifth Amendment, and his rights to privacy
and freedom from unreasonable search and seizure under the Fourth and Fourteenth
Amendments. He further objected on the grounds that the conditions were vague,
overbroad, and unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent).
       The trial court responded: “The defense brought these to the Court’s attention at
sentencing in response to the defense’s concerns. I did modify the conditions so that
Condition 11, the forensic search condition would be limited to devices belonging to Mr.
Appleton, and I limited the scope of the search to materials prohibited by law. And I
indicated that I believe the search conditions are appropriate. The case involves a
conviction assessment now for sexual assault on a minor and that that contact was
initiated through social media, and for those reasons, I believe that the probation
condition is appropriate and a proper scope. The defense’s objections are noted for the
record.”
                                       II. DISCUSSION
       Defendant contends both probation conditions are unreasonable under Lent, supra,
because they bear no relation to his offense or future criminality. He also challenges both
conditions as unconstitutionally overbroad in violation of the First and Fourth
Amendments. As to the condition requiring him to make his computers and all other

                                             4
electronic devices subject to search “for material prohibited by law,” he contends that
phrase is unconstitutionally vague. As to the condition requiring him not to delete his
browsing activity, he contends the condition is vague and overbroad in the absence of a
knowledge element.
       The Attorney General argues that defendant’s claims are procedurally barred
under the doctrines of waiver, forfeiture, and estoppel. The Attorney General contends
defendant accepted the conditions as part of his plea agreement, under which he agreed to
accept all “standard” terms and conditions of probation. She argues that once the trial
court pronounced sentence, the court lacked the power to modify the terms of probation
because they were part of the negotiated plea arrangement. She also contends the
challenged conditions are reasonably related to the offense and narrowly tailored for
constitutional purposes.
   A. Defendant’s Claims Were Not Forfeited
       As an initial matter, we consider the Attorney General’s argument that defendant
has waived or forfeited his claims on appeal. We conclude the record does not support
the Attorney General’s claim that the challenged conditions were part of the plea
agreement.
       The prosecutor explicitly set forth the terms of the agreement on the record. The
terms included imposition of formal probation, but the prosecutor made no mention of the
challenged conditions. Rather, the prosecutor stated, among other things, that “[t]he
standard fines and fees will apply as well as other standard[] terms and conditions.”
Based on this statement by the prosecutor, the Attorney General argues that defendant
agreed to the challenged conditions because they were included in the “standard”
conditions made part of the plea agreement.
       None of the authorities cited by the Attorney General supports this contention.
First, she cites two cases concerning restrictions on computer usage—not computer
search conditions. (See In re Victor L. (2010) 182 Cal.App.4th 902, 925; In re Hudson

                                              5
(2006) 143 Cal.App.4th 1, 11.) Second, neither opinion held that the probation
conditions at issue in those cases constituted standard terms or conditions. The Attorney
General cites another case stating only that the condition requiring defendants to “obey
all laws” is a standard condition. (People v. Lopez (1998) 66 Cal.App.4th 615, 636-637.)
       The Attorney General concedes the record shows defendant raised his objections
below, and she concedes the objections he lodged were identical to the claims raised here.
Nonetheless, she argues that he waived his claims by responding affirmatively when,
toward the end of the hearing, the court asked whether he accepted the grant of probation.
But having made his objections known, defendant was not required to reject probation to
preserve his claims for appeal. (People v. Woods (1999) 21 Cal.4th 668, 678, fn. 5 [a
criminal defendant need not reject probation and accept incarceration in order to seek
review of an allegedly unreasonable or invalid search condition, but a proper objection
must be raised at the time of the sentencing hearing].)
       As the record makes clear, defendant unambiguously set forth his objections on
the record. The court acknowledged his objections and modified one of the conditions in
response, albeit not to defendant’s satisfaction. Accordingly, we will consider the merits
of defendant’s claims.
   B. Legal Principles
       “Generally, ‘[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.]’ [Citation.] This test is conjunctive—all
three prongs must be satisfied before a reviewing court will invalidate a probation term.”
(People v. Olguin (2008) 45 Cal.4th 375, 379, quoting Lent, supra, 15 Cal.3d at p. 486.)
Furthermore, “[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)

                                              6
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—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.)
       With respect to the standard of review, while we generally review the imposition
of probation conditions for abuse of discretion, we review constitutional challenges to
probation conditions de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)

   C. The Condition Allowing Searches of Defendant’s Computers and Electronic
      Devices
       Citing the factors set forth at Lent, supra, 15 Cal.3d at p. 486, defendant
challenges the condition making all his computers and electronic devices subject to a
warrantless search for material that is prohibited by law. He first contends the condition
bears no relationship to the offense of which he was convicted. Defendant acknowledges
that he met the victim by using a mobile smartphone application, but he characterizes this
factor as “tangential” and “incidental” to the offense. He notes that his initial contact
with the victim took place months before he committed the offense, and the commission
of the offense itself did not involve the use of any computer or electronic device. Nor is
there any evidence defendant has digitally stored or downloaded child pornography or
any other unlawful materials.
       We agree with defendant that the nexus between the offense and the probation
condition is somewhat attenuated. But under the deferential standard of review required
in the Lent analysis, we find no abuse of discretion in the trial court’s finding that “either
social media or some kind of computer software” was involved in the offense.
Accordingly, the probation condition does not run afoul of the first Lent factor requiring
“no relationship to the crime.” Because the probation condition must trigger all three
Lent factors to be invalid, we conclude the condition is valid under Lent.


                                              7
       Defendant also argues the condition is overbroad in violation of the Fourth
Amendment and his rights of privacy.3 We agree with defendant that the condition
implicates his constitutional rights. It is well established that individuals retain a
constitutionally protected expectation of privacy in the contents of their own computers.
(People v. Michael E. (2014) 230 Cal.App.4th 261, 276; United States v. Heckenkamp
(9th Cir. 2007) 482 F.3d 1142, 1146; United States v. Lifshitz (2d Cir. 2004) 369 F.3d
173, 190.) The United States Supreme Court has recently extended Fourth Amendment
protections to searches of cell phones. (Riley v. California (2014) 134 S.Ct. 2473, 2489
(Riley)). Much of the reasoning in Riley—which recognized how the immense storage
capacity of modern cell phones allows users to carry large volumes of data—would apply
to other modern electronic devices covered by the probation condition at issue here.
       The Attorney General responds that courts have historically allowed for
warrantless searches of probationers’ persons, homes, and vehicles. (See People v. Bravo
(1987) 43 Cal.3d 600, 604 [upholding suspicionless search of probationer’s home based
on probation search condition]; People v. Medina (2007) 158 Cal.App.4th 1571 [same].)
But those cases concern the validity of searches conducted after probationers have
waived their Fourth Amendment rights by consenting to probation search conditions.
Thus, those courts did not consider the reasonableness of the search conditions under
Lent or Sheena K. because the defendants in those cases did not challenge the conditions
before they were imposed. (People v. Bravo, supra, 43 Cal.3d at p. 604 [defendant never
claimed search condition was unreasonable under Lent]; People v. Medina, supra,
158 Cal.App.4th at p. 1576 [defendant’s consent to search condition constituted a waiver
of his Fourth Amendment rights].) As explained in Section II.A. above, defendant did
not forfeit his claims challenging the computer search condition. Indeed, he placed his
objections on the record at a hearing scheduled to consider his claims.

       3
         Defendant also contends the condition impinges on his freedom of expression
under the First Amendment. Because we hold the condition invalid on other grounds, we
do not reach this argument.
                                               8
       Furthermore, the computer search condition at issue here arguably sweeps more
broadly than the standard three-way search condition allowing for searches of
probationers’ persons, vehicles, and homes. First, by allowing warrantless searches of all
of defendant’s computers and electronic devices, the condition allows for searches of
items outside his home or vehicle, or devices not in his custody—e.g., computers or
devices he may leave at work or with a friend or relative. Second, the scope of a digital
search is extremely wide. As the United States Supreme Court noted in Riley, “The
current top-selling smart phone has a standard capacity of 16 gigabytes (and is available
with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text,
thousands of pictures, or hundreds of videos. [Citations.] Cell phones couple that
capacity with the ability to store many different types of information: Even the most
basic phones that sell for less than $20 might hold photographs, picture messages, text
messages, Internet browsing history, a calendar, a thousand-entry phone book, and so
on.” (Riley, supra, 134 S.Ct. at p. 2489.) Thus, 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.
       At the sentencing hearing in May 2014, the trial court lacked the benefit of the
Supreme Court’s opinion in Riley. Nonetheless, recognizing the potentially invasive
nature of the search condition as recommended by the probation report, the court
attempted to limit the scope of the search to “material prohibited by law.” But nothing in
the record reveals further instructions or directions on how to implement such a limited
search. Defendant contends this language constitutes no limitation at all, thereby making
all information on his computers and electronic devices subject to search. We agree.
Nothing in the record evidences any technology that would allow a forensic technician to
determine whether a computer file or document contains unlawful material without first

                                             9
examining its contents. For example, a technician would first have to look at a
photograph to determine whether it constitutes child pornography. Once the photograph
is viewed, defendant’s privacy interests are compromised.4
       The Attorney General also cites cases approving probations conditions that restrict
defendants’ use of computers or access to the Internet. (See People v. Pirali (2013)
217 Cal.App.4th 1341, 1343 [rejecting overbreadth challenge to condition requiring
probationer to obtain prior approval of probation officer before accessing the Internet]; In
re Victor L., supra, 182 Cal.App.4th 902 [upholding condition prohibiting minor from
possessing a computer having or attached to a modem]; In re Hudson (2006)
143 Cal.App.4th 1 [upholding condition prohibiting parolee from having access to
computers, the Internet, or camera equipment absent prior approval from parole officer];
People v. Harrisson (2005) 134 Cal.App.4th 637, 647 [upholding probation condition
prohibiting defendant from accessing the Internet].) But these cases solely concern the
use of and access to computers or the Internet; they do not address the Fourth
Amendment concerns raised by defendant here.
       In People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski), this court
considered probation conditions requiring a defendant to provide his probation officer
with passwords to his electronic devices, along with all passwords to social media
websites, for search at any time. The defendant had admitted a gang allegation, and the
prosecution produced documents showing he had used social media websites to promote

       4
        Technology exists that could assist a forensic technician to compare the “digital
fingerprint” of a digitized photograph or video to those of known, preexisting digital
files—e.g., files previously known to contain child pornography—without actually
viewing the photograph or video. (See, e.g., United States v. Chiaradio (1st Cir. 2012)
684 F.3d 265, 271[the “hash values” of digital files—essentially a digital fingerprint—
allowed FBI agent to identify confirmed videos and images of child pornography]);
United States v. Cartier (8th Cir. 2008) 543 F.3d 442, 444 [FBI’s reliance on digital
“hash values” to identify files containing child pornography supported probable cause for
issuance of a warrant].) But nothing in the record or the language of the condition
challenged here indicates that a search of defendant’s computers or electronic devices
would be limited by the use of such technology.
                                            10
his street gang. This court upheld the probation conditions against an overbreadth
challenge on the ground the conditions would allow the probation officer “to implement
the search, association, and gang insignia conditions that were designed to monitor and
suppress defendant’s gang activity.” (Id. at p. 1175.) And the court held the intrusion on
defendant’s privacy was outweighed by the state’s interest in preventing defendant from
continuing his violent gang associations and activities. (Id. at p. 1176.)
       Several divisions of the First District Court of Appeal have also recently
considered a probation condition requiring minors to submit to warrantless searches of
their electronic devices. (In re Mark C. (2016) 244 Cal.App.4th 520 (Mark C.); In re J.B.
(2015) 242 Cal.App.4th 749, 758 (J.B.); In re Erica R. (2015) 240 Cal.App.4th 907
(Erica R.); In re Malik J. (2015) 240 Cal.App.4th 896 (Malik J.).)5
       In Mark C., the court held the probation condition was invalid under Lent because
it had no connection to the underlying offense and was not reasonably related to future
criminality. (Mark C., supra, 244 Cal.App.4th at p. 535.) In J.B., the court found the
condition invalid under Lent, struck the condition, and declined to remand for the trial
court to fashion a narrower condition. (J.B., supra, 242 Cal.App.4th at p. 758.) In Erica
R., the court invalidated the condition as unrelated to the defendant’s crime. (Erica R.,
supra, 240 Cal.App.4th at p. 912.) In Malik J., the court found the probation condition
overbroad but approved a modified version that allowed for searches of electronic
devices found in the minor’s custody and control. (Malik J., supra, 240 Cal.App.4th at p.
902.) We observe that most of the cases decided by our colleagues in the First District
have found computer search conditions to be overbroad in some fashion.
       Although the aforementioned cases concerned juveniles, we generally agree with
their reasoning relating to computer search conditions. Like the conditions at issue in
those cases, the probation condition here would allow for searches of vast amounts of


       5
       The validity of this probation condition is currently pending before the California
Supreme Court. (In re Ricardo P., review granted February 17, 2016, S230923).
                                             11
personal information unrelated to defendant’s criminal conduct or his potential for future
criminality. Furthermore, the state’s interest here—monitoring whether defendant uses
social media to contact minors for unlawful purposes—could be served through narrower
means. For example, the trial court could impose the narrower condition approved in
Ebertowski, supra, whereby defendant must provide his social media accounts and
passwords to his probation officer for monitoring.6 Alternately, the court could impose a
condition restricting defendant’s use of or access to social media websites and
applications without prior approval of his probation officer. (See, e.g., People v. Pirali,
supra, 217 Cal.App.4th 1341.)
       Accordingly, we conclude the probation condition as worded is unconstitutionally
overbroad and we will strike the condition. However, because the trial court may be able
to impose a valid condition more narrowly tailored to the states’ interests, we will remand
to the trial court for it to consider fashioning a probation condition consistent with this
opinion. (See, e.g., United States v. Lifshitz, supra, 369 F.3d at p. 193 [finding computer
search condition overbroad and remanding for imposition of a narrower condition].)
   D. The Condition Requiring Defendant Not to Delete His Browsing History
       As to the second probation condition requiring defendant not to delete his browser
history, he challenges this condition on the same grounds as the first condition. He
further contends the condition is vague in the absence of a scienter requirement.
       For the reasons set forth above, we conclude the trial court did not abuse its
discretion in finding the condition reasonably related to the offense under Lent, supra.
Furthermore, in the event the trial court fashions a narrower condition allowing the
probation officer to monitor or restrict defendant’s use of social media, the requirement
that defendant maintain his browser history would be necessary to enforce that condition.
And assuming the probation officer can validly search defendant’s computer or restrict


       6
        To avoid a vagueness challenge, the court may wish to define “social media”
with specificity—e.g., by providing a list of websites or applications.
                                              12
his use of social media in some fashion, requiring him not to delete his browser history
imparts a minimal degree of additional intrusion. We conclude that doing so serves a
valid state interest in a sufficiently narrow fashion to satisfy constitutional concerns.
       Defendant argues that the condition is invalid in the absence of a scienter
requirement because he could unwittingly violate the condition by accidentally deleting
his browser history or using software that does so automatically. Defendant
acknowledges that some courts have found scienter requirements to be implied in
probation conditions. (See People v. Patel (2011) 196 Cal.App.4th 956 [construing
probation condition proscribing conduct to require the action be undertaken knowingly].)
However, he urges us to follow those courts that have expressly modified probation
conditions to include a scienter requirement. (See Pirali, supra, 217 Cal.App.4th 1341.)
       It is not necessary to require an express scienter element where the concern is that
the probationer might unwittingly violate an unambiguously worded condition. (People
v. Contreras (2015) 237 Cal.App.4th 868, 887.) We think the best approach is for courts
to incorporate an express knowledge requirement only when necessary to address an
inherently vague category of conduct. (Ibid.) Since there is nothing inherently vague or
ambiguous about requiring defendant not to delete his browser history, we perceive no
need for an express scienter requirement. Accordingly, we need not modify this
probation condition at this time.
                                      III.   DISPOSITION
       The judgment is reversed, and the matter is remanded to the trial court with the
following instructions. The trial court shall strike the probation condition requiring that
“[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.” The court shall consider
fashioning an alternative probation condition consistent with this opinion.



                                              13
                                 _______________________________
                                 Márquez, J.




WE CONCUR:




_____________________________________
 Rushing, P. J.




______________________________________
 Grover, J.




People v. Appleton
No. H041332
Trial Court:                             Santa Clara County
                                         Superior Court No: B1368362

Trial Judge:                             The Honorable Allison M. Danner



Attorney for Defendant and Appellant     Julia Freis
Paul Jason Appleton:                     under appointment by the Court of
                                         Appeal for Appellant




Attorneys for Plaintiff and Respondent   Kamala D. Harris,
The People:                              Attorney General

                                         Gerald A. Engler,
                                         Chief Assistant Attorney General

                                         Jeffrey M. Laurence,
                                         Acting Senior Assistant Attorney
                                         General

                                         Seth K. Schalit,
                                         Supervising Deputy Attorney General

                                         John H. Deist,
                                         Deputy Attorney General




People v. Appleton
H041332
