P. v. Sandoval

Filed 1/9/17 P. v. Sandoval 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,
Plaintiff and Respondent,
v.
BRAULIO CORTEZ SANDOVAL,
Defendant and Appellant.
H041939
(Santa Clara County
Super. Ct. No. C1481874)
Defendant Braulio Cortez Sandoval was placed on probation after he pleaded no
contest to active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)),1
receiving a stolen vehicle (§ 496d), and two counts of driving or taking a vehicle (Veh.
Code, § 10851, subd. (a)) and admitted two gang enhancement allegations (§ 186.22,
subd. (b)). On appeal, he challenges five of the standard “GANG” probation conditions
imposed by the trial court. First, he claims that the electronics search and passwords
conditions are unreasonable and unconstitutionally overbroad. Second, he contends that
the gang clothing and gang area conditions are unconstitutionally vague and overbroad.
Finally, he claims that the court proceedings condition is unreasonable and violates his
First Amendment rights. We reject his challenges and affirm the probation order.
1
Subsequent statutory references are to the Penal Code unless otherwise specified.

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I. Background
Defendant and two of his fellow VST gang members were arrested when they
were found inside a vehicle that had been stolen from near defendant’s home less than a
day earlier.2
This stolen vehicle was accompanied by another vehicle containing more
fellow VST gang members. That vehicle too had been stolen less than a day earlier. The
two stolen vehicles had been “tagged” with VST gang insignia. Defendant identified
himself to the police as “an ‘Intruders’ Sureno street gang member,” and he was wearing
blue clothing and had multiple gang tattoos. “Intruders” is a subset of the VST criminal
street gang.
Defendant was charged with two counts of active participation in a criminal street
gang, two counts of receiving a stolen vehicle, and two counts of driving or taking a
vehicle with gang enhancement allegations as to the receiving and driving or taking
counts and an on-bail enhancement (§ 12022.1) allegation. He entered into a plea
agreement under which he agreed to plead no contest to one of the gang counts, one of
the receiving counts, and both driving or taking counts, and to admit two of the gang
allegations. In exchange for his pleas and admissions, the remaining counts and
allegations would be dismissed, and he would be placed on probation conditioned on a
year in jail. Defendant entered his pleas and admissions. The court suspended
imposition of sentence, placed defendant on probation for three years with numerous
conditions, and dismissed the remaining counts and allegations.
The probation conditions included a standard search condition and a group of 10
standard “GANG” conditions.3
The search condition provided: “[Y]ou shall submit your
2
The facts of the offenses come from the police reports, which the parties stipulated
formed the factual basis for the pleas and admissions.
3
The standard gang conditions were on a preprinted form listing 16 gang conditions
with a checkbox next to each one. Ten of the boxes were checked.

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person, your place of residence, your vehicle and any property under your control to
search at any time by any peace officer without a warrant without reasonable suspicion.”
The gang conditions required that defendant “not knowingly” (1) “possess, wear or
display” any gang clothing or insignia, (2) “associate with” gang members, (3) “visit or
remain in any specific location which you know to be or which the probation officer
informs you is an area of criminal-street-gang-related activity,” or (4) “be present at any
court proceedings where you know or that [sic] the probation officer informs you that a
member of a criminal street gang is present or that the proceeding concerns a member of
a criminal street gang unless you are a party, a defendant in a criminal action, subpoenaed
as a witness or a member of your immediate family is a victim of the activity charged in
the case unless a parties’ [sic] attorney has asked you to testify or speak in court or unless
you have the prior permission of the probation officer.”
The standard gang conditions also included the following two conditions, which
we will refer to as the electronics search and passwords conditions. “You shall provide
all passwords to any electronic devices including but not limited to cellular telephones,
computers or notepads within your custody or control and you shall submit said devices
to search at anytime without a warrant by any peace officer.” “You shall provide all
passwords to any social media sites, including but not limited to Facebook, Instagram and
Mocospace, and you shall submit these sites to search at any time by a peace officer
without a warrant without reasonable suspicion.”4
Defendant timely filed a notice of
appeal.
4
Defendant’s trial counsel objected to the gang conditions “based on the freedom of
speech [and] association protect[ion] . . . [and] the right to privacy” and on the ground
that they were “unreasonable under People V. Lent . . . [and] vague and overbroad . . . .”
He asserted that “the area of criminal-street-gang activity has been defined within the
County of Santa Clara by the law-enforcement community [so as to] encompass[] most of
San Jose, including most of South San Jose where [defendant’s] mother lives” thereby
making it overbroad. He asked the court to narrow that condition to encompass only “an

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II. Discussion
Defendant challenges five of the gang probation conditions on reasonableness,
vagueness, and overbreadth grounds.
“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 (Lent).)
“[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.) “In
deciding the adequacy of any notice afforded those bound by a legal restriction, 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.) “A probation condition ‘must be
sufficiently precise for the probationer to know what is required of him, and for the court
area in which the probation officer has in fact specifically told him that’s an area of gang
activity.” Defendant’s trial counsel asserted the electronics search and passwords
conditions abridged defendant’s “right to privacy.” The trial court overruled these
objections. Only facial constitutional challenges may be raised on appeal without an
objection below. (In re Sheena K. (2007) 40 Cal.4th 875, 881-882, 886-887 (Sheena
K.).) Since defendant’s trial counsel challenged all of the gang conditions on
reasonableness, privacy, First Amendment, vagueness, and overbreadth grounds, all of
the contentions that defendant raises on appeal were preserved.

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to determine whether the condition has been violated,’ if it is to withstand a challenge on
the ground of vagueness. [Citation.]” (Ibid.)
The overbreadth doctrine focuses on other, though related, concerns. “[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.” (Sheena K., supra, 40 Cal.4th at p. 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.)
“[T]he right to privacy is not absolute, but may yield in the furtherance of
compelling state interests.” (People v. Stritzinger (1983) 34 Cal.3d 505, 511.) 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, disapproved on a different point in People v. Gonzales
(2013) 56 Cal.4th 353, 373.)

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A. Electronics Search and Passwords Conditions
Defendant challenges these two conditions as unreasonable under Lent and as
unconstitutionally overbroad.
He first claims that these conditions are unreasonable because they are not related
to his crimes or his future criminality. This court rejected that contention in People v.
Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski). In Ebertowski, the defendant, a
criminal street gang member, pleaded no contest to two counts and admitted a gang
enhancement allegation. There was evidence that the defendant had used social media to
promote his gang, but his offenses did not involve electronic devices or social media.
The trial court granted probation and imposed the same electronics search and passwords
conditions that defendant challenges in this case. On appeal, the defendant challenged
those conditions on reasonableness and overbreadth grounds. This court held that the
conditions were reasonable under Lent. Since these conditions “were designed to allow
the probation officer to monitor defendant’s gang associations and activities,” they were
related to his gang crimes. And because the defendant’s “association with his gang” was
likely to lead him to commit more crimes, these conditions were also related to his future
criminality. (Ebertowski, at pp. 1176-1177.)
Defendant tries to distinguish Ebertowski and instead relies on two decisions by
the First District Court of Appeal. In In re Erica R. (2015) 240 Cal.App.4th 907 (Erica
R.), the minor had been found to have committed misdemeanor possession of Ecstasy.
(Erica R., at p. 912.) There was no indication that she was involved in gangs or sales of
drugs or that she had ever used an electronic device. The First District distinguished
Ebertowski and held that the electronics search and passwords conditions were
unreasonable as applied to the minor because they were unrelated to her offense or her
future criminality. (Erica R., at pp. 913-915.) In In re J.B. (2015) 242 Cal.App.4th 749
(J.B.), the minor was found to have committed petty theft. (J.B., at p. 752.) There was
no evidence that the minor was involved in gangs or drug sales. Distinguishing

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Ebertowski and relying on Erica R., the First District held that the electronics search and
passwords conditions were unreasonable because they had no relationship to the minor’s
offense or his future criminality.5
(J.B., at pp. 754-755.)
We continue to adhere to our holding in Ebertowski. Unlike the minors in Erica
R. and J.B., defendant in this case, like the defendant in Ebertowski, is a gang member
convicted of gang crimes. When a probationer is a gang member who has committed
gang crimes, his or her future criminality is necessarily linked to his or her ability to shed
those gang ties. As a result, the probation officer must have the ability to closely monitor
the probationer’s communications to ensure that those gang ties are not being reanimated.
Without access to the probationer’s electronic devices and social media accounts, the
probation officer would not be able to ensure that the probationer was not associating
with gang members or promoting the gang and thereby posing a danger to the community
while on probation. We reject defendant’s Lent challenge to the electronics search and
passwords conditions.
Defendant also challenges these conditions as unconstitutionally overbroad
because they infringe upon his Fourth Amendment and privacy rights. In Ebertowski,
this court upheld these conditions against such a challenge because the conditions were
justified by the need to minimize the risk that the defendant posed to the community.6
“The evident purpose of the [electronics search and] password[s] conditions was to
5
The California Supreme Court recently granted review of a First District case
addressing this issue. (In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted
Feb. 17, 2016, S230923.)
6
In People v. Appleton (2016) 245 Cal.App.4th 717 (Appleton), a different panel of
this court distinguished Ebertowski and found unconstitutionally overbroad a condition
requiring the defendant’s devices to be “ ‘subject to forensic analysis search . . . .’ ”
(Appleton, at p. 721.) That panel held that “the state’s interest here . . . could be served
through narrower means. For example, the trial court could impose the narrower
condition approved in Ebertowski, whereby defendant must provide his social media
accounts and passwords to his probation officer for monitoring.” (Appleton, at p. 727.)

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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. . . . 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.” (Ebertowski, supra, 228 Cal.App.4th at p. 1175.) The
defendant’s “constitutional privacy rights are not improperly abridged by the [electronics
search and] password[s] conditions any more than they are by the search condition. . . .
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.” (Ebertowski, at p. 1176.)
Defendant again seeks to distinguish Ebertowski and rely on a First District case.
In In re Malik J. (2015) 240 Cal.App.4th 896 (Malik J.), the minor had violated his
probation by committing three robberies and possessing eight baggies of marijuana.
(Malik J., at pp. 899-900.) The juvenile court continued him on probation but added
electronics search and passwords conditions. (Malik J., at p. 900.) The First District
found these conditions to be unconstitutionally overbroad and narrowed them to exclude
passwords for social media and to restrict the searches to exclude remote storage and
forensic searches. (Malik J., at p. 906.)
We find Malik J. distinguishable. Unlike in Ebertowski and here, there was no
indication that the minor in Malik J. was involved in gangs. As this court pointed out in
Ebertowski, the need to closely monitor gang members who are placed on probation
provides a strong justification for imposing these conditions and outweighs the intrusion

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on those probationers’ constitutional rights. These conditions were not unconstitutionally
overbroad.
B. Gang Clothing and Gang Area Conditions
Defendant challenges as unconstitutionally vague and overbroad the conditions
requiring that he “not knowingly” (1) “possess, wear or display any clothing or
insignia . . . that you know or the probation officer informs you is evidence of, affiliation
with, or membership in a criminal street gang” or (2) “visit or remain in any specific
location which you know to be or which the probation officer informs you is an area of
criminal-street-gang-related activity.”
Defendant claims that the gang area condition is unconstitutionally vague
“[b]ecause of the large spectrum and constant shifting of . . . gang territory.” He asserts
that the gang area condition is unconstitutionally overbroad because “an overwhelmingly
large portion of the country could be defined as ‘gang area.’ ” The gang area condition
applies only where defendant actually knows or has been informed by the probation
officer that the “specific location” is prohibited. This court upheld this gang area
condition against a vagueness and overbreadth challenge in People v. Barajas (2011) 198
Cal.App.4th 748 (Barajas). (Barajas, at pp. 754-760.) In Barajas, this court relied in
part on In re Michael D. (1989) 214 Cal.App.3d 1610 (Michael D.). In Michael D., the
Fourth District Court of Appeal rejected a minor’s claim that a gang area condition was
unconstitutionally overbroad as to him because “he lives in the Middleside gang area.”
(Id. at p. 1617.) Defendant does not mention Barajas or Michael D. As we agree with
their reasoning for rejecting vagueness and overbreadth challenges to a gang area
condition, we reject defendant’s challenge to the gang area condition.
Defendant claims that the gang clothing condition is unconstitutionally vague and
overbroad because “virtually any color or any symbol” may be associated with a gang,
and “ ‘gang clothes’ ” is a “constantly changing and shifting” category. Like the gang area

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condition, the gang clothing condition applies only when defendant actually knows or has
been informed by the probation officer that the clothing is prohibited. Hence, the
condition is not vague. Defendant premises his challenge to this condition on cases that
did not involve probation conditions. (See Gatto v. County of Sonoma (2002) 98
Cal.App.4th 744 [challenge to a county’s enforcement of a dress code at the county fair];
Vasquez v. Rackauckas (9th Cir. 2013) 734 F.3d 1025 [challenge to a civil injunction].)
We decline to infer that the probation officer will inform defendant that all colors of
clothing and all symbols of any kind are associated with gangs. The condition’s
limitation to clothing defendant is aware is associated with gangs suffices to limit its
breadth. We reject defendant’s challenges to this condition.
C. Court Proceedings Condition
Defendant claims that the court proceedings condition is unreasonable because it
is not related to his offense or his future criminality. “Schools and courthouses are
‘known gang gathering areas[,]’ and the restriction on court attendance is aimed at
preventing the gathering of gang members to intimidate witnesses at court proceedings.”
(People v. Martinez (2014) 226 Cal.App.4th 759, 766.) Although defendant’s offenses
did not involve court proceedings, he is a gang member. Gang members are known to
gather at court proceedings for the purpose of intimidating witnesses. By prohibiting
defendant from doing so, the court proceedings condition enhances his ability to refrain
from engaging in witness intimidation, which is plainly related to his future criminality.
The condition satisfies Lent.
Defendant also asserts that the court proceedings condition violates his First
Amendment right to attend court proceedings. In People v. Leon (2010) 181 Cal.App.4th
943 (Leon), this court modified a broader court proceedings condition to narrow its scope
in order to address First Amendment concerns. (Leon, at p. 954.) The condition imposed
on defendant is similar to the modified condition approved of by this court in Leon.

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Defendant contends that Leon is not on point because this court was not addressing in
Leon one aspect of his contention. This aspect is defendant’s contention that the court
proceedings condition permits another gang member, by attending a court proceeding, to
“take away” defendant’s First Amendment right to attend that court proceeding. A
probation condition may permissibly infringe on a probationer’s constitutional right so
long as it is narrowly tailored. (Sheena K., supra, 40 Cal.4th at p. 890.) The court
proceedings condition is narrowly tailored in this respect. The state has a compelling
interest in preventing witnesses from being intimidated at court proceedings. The
condition permits defendant to be present at proceedings in which he or a family member
is involved. He may also obtain the probation officer’s permission to attend court
proceedings from which he would otherwise be barred. We are satisfied that the
condition is as narrowly drawn as it could be to accomplish its purpose.
III. Disposition
The order is affirmed.

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_______________________________
Mihara, J.
WE CONCUR:
_____________________________
Elia, Acting P. J.
_____________________________
Bamattre-Manoukian, J.
People v. Sandoval
H041939

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