P. v. Roldan

Filed 10/3/17 P. v. Roldan 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,
Plaintiff and Respondent,
v.
NOHELY STEPHANY ROLDAN,
Defendant and Appellant.
H043767
(Monterey County
Super. Ct. No. SS141673)
Defendant Nohely Stephany Roldan was granted probation after she pleaded no
contest to second degree burglary (Pen. Code, § 459). She contends that three probation
conditions relating to her use of electronic devices are invalid under People v. Lent
(1975) 15 Cal.3d 481 (Lent), unconstitutionally overbroad, and unconstitutionally vague.
We conclude that the probation conditions are unconstitutionally vague and reverse the
order for further proceedings.
I. Statement of Facts
On March 24, April 8, and June 10, 2014, defendant used a fraudulent credit card
to book rooms at the Best Western Plus Monterey Inn for the purpose of engaging in
prostitution. Troy McDonald, her companion, was arrested as her pimp. Defendant
admitted that she used myredbook.com, which is an escort Web site known for promoting

-- 1 of 15 --

2
prostitution. A search of her cell phone revealed text messages with McDonald that
corroborated her statement that she was engaged in prostitution.
II. Discussion
A. Background
The probation officer recommended, among other things, that the trial court
impose probation conditions regarding social media and cell phones “in order to restrict
the defendant from continuing any learned behaviors from the instant offense and
allowing probation to monitor possible illegal activity on sites such as ‘myredbook.com’
or ‘backpage.com.’ ” More specifically, the probation officer recommended that the
following probation conditions be imposed: “11. You are prohibited from using any
social media accounts and applications without the prior permission of your probation
officer. [¶] 12. You must provide any probation officer or other peace officer access to
any cell phone device or other electronic device for the purpose of searching social media
accounts and applications, photographs, video recordings, email messages, text messages
and voice messages. Such access includes providing all passwords to any social media
accounts and applications upon request, and you shall submit such accounts and
applications to search at any time without a warrant by any probation officer or any other
peace officer.”
At the sentencing hearing, defense counsel objected to the recommended
conditions. She stated: “Item No. 11 and Item No. 12, I’m going to ask the Court to
strike in its entirety. A mere speculation by probation should not be sufficient in order to
state that these particular items must be provided by Ms. Roldan. [¶] There may have
been an undertone of that’s what she was doing here in Monterey County. However,
there has been no priors and nothing since then, since 2014 when these allegations

-- 2 of 15 --

3
occurred, that Ms. Roldan has been in any other illicit-type activity. I believe that that is
overbroad, overreaching to this particular case.”
The trial court stated: “As to Item 11, I am going to impose that condition. I have
thought about it. And when I was first thinking about it, I was thinking that it said that
you are not to have any or use any social media accounts. But that isn’t what it says. [¶]
It says you are not to use social media accounts without the prior permission of your
probation officer. [¶] The intention of the Court in this is that social media accounts that
would be used to make connections with people who are inappropriate conduct or ones
that the probation should be notifying you you should not use. [¶] Social media accounts
that you are using to communicate with friends and family members would be ones that
the Court would allow you to use. And the probation department would have latitude to
determine those. Any social media accounts that you do want to use, you’ll need to
check with probation. Okay.” After imposing Item No. 12, the trial court stated: “I’m
going to add another condition that you not erase any of your history from your social
media accounts for a period of four months. You need to keep four months worth of
history available for probation to search. [¶] You are to provide any passwords to
probation so that they can search them also remotely, so that they can get into your social
media accounts from -- without actually getting onto your phone.” There was no
objection to the history retention condition.1
1 The probation terms in the minute order are the same as those in the probation
report. However, the minute order, which was signed by the trial court, does not include
the orally imposed term that defendant not erase the history from social media accounts
for four months. “ ‘It may be said . . . as a general rule that when, as in this case, the
record is in conflict it will be harmonized if possible; but where this is not possible that
part of the record will prevail, which, because of its origin and nature or otherwise, is
entitled to greater credence [citation]. Therefore whether the recitals in the clerk’s
minutes should prevail as against contrary statements in the reporter’s transcript, must
depend upon the circumstances of each particular case.’ [Citations.]” (People v. Smith
(1983) 33 Cal.3d 596, 599.) Here, there is no indication that the trial court intended that
the condition in the minute order would modify its prior oral imposition of the condition.

-- 3 of 15 --

4
B. Analysis
1. Reasonableness
Defendant objects to the probation conditions regarding the social media
permissions, the provision of passwords, and the history retention on reasonableness
grounds.
“ ‘[The] failure to timely challenge a probation condition on “Bushman/Lent”
[(reasonableness)] grounds in the trial court waives the claim on appeal.’ [Citation.] ‘A
timely objection allows the court to modify or delete an allegedly unreasonable condition
or to explain why it is necessary in the particular case.’ [Citation.]” (People v. Smith
(2017) 8 Cal.App.5th 977, 985 (Smith).)
Here, defendant objected to the probation conditions regarding the social media
permissions and the provision of passwords on reasonableness grounds. Since this
objection did not preserve her challenge to the history retention condition, it has been
forfeited.
“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; Pen. Code, § 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.]” (Lent, supra, 15 Cal.3d at p. 486.) “This test is
conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a
The parties also assume on appeal that the condition adopted by the trial court at the
sentencing hearing is controlling. Accordingly, we will review this condition as stated in
the reporter’s transcript to the extent that any challenge to its constitutionality has not
been forfeited.

-- 4 of 15 --

5
. . . term.” (People v. Olguin (2008) 45 Cal.4th 375, 379.) We review the probation
conditions under the abuse of discretion standard. (Ibid.)
Here, defendant used a fraudulent credit card to book hotel rooms where she
engaged in prostitution. She also admitted that she used the Internet to promote her
services and she sent prostitution-related text messages. Thus, the conditions restricting
defendant’s use of social media accounts and applications without the probation officer’s
permission and allowing the search of these accounts and applications has some
relationship to the conduct of which she was convicted.
Relying on People v. Nassetta (2016) 3 Cal.App.5th 699 (Nassetta), defendant
contends that the challenged conditions cannot be considered reasonable.
In Nassetta, the defendant was arrested at 2:15 a.m. for driving under the influence
and possessing cocaine for sale. (Nassetta, supra, 3 Cal.App.5th at p. 701.) The trial
court imposed a probation condition requiring defendant to observe a 10:00 p.m. to
6:00 a.m. curfew. (Id. at p. 702.) The defendant challenged the probation condition on
reasonableness grounds. (Ibid.) The reviewing court concluded that “the curfew
condition bears no relationship to the offenses [the defendant] was convicted of. Neither
possession of cocaine for sale nor driving under the influence requires the offense be
committed at night. The mere fact that [the defendant] was pulled over at night does not
demonstrate a relationship between the curfew condition and the offenses he committed,
and the Attorney General does not argue otherwise.” (Id. at p. 703.) After finding that
the other prongs of the Lent test were satisfied, the Nassetta court held the probation
condition was invalid. (Nassetta, at p. 707.) Nassetta is distinguishable from the present
case, because defendant’s probation conditions have some relationship to defendant’s
crime.

-- 5 of 15 --

6
Defendant also relies on People v. Brandao (2012) 210 Cal.App.4th 568
(Brandao) and In re Mark C. (2016) 244 Cal.App.4th 520 (Mark C.)2 and claims the
challenged conditions bear merely a tangential connection to future criminal conduct.
We disagree.
In Brandao, the defendant pleaded no contest to possession of a controlled
substance. (Brandao, supra, 210 Cal.App.4th at p. 570.) Though the defendant had
never been involved with a gang, none of his family had gang ties, and none of his
offenses was gang-related, the trial court imposed a no-gang-contact probation condition.
(Id. at pp. 570-571.) This court held that the challenged probation condition was not
reasonably related to future criminality under Lent. (Brandao, at p. 576.) In Mark C.,
there was no relationship between the minor’s offense of possession of a weapon on
school grounds and the electronic search condition. (Mark C., supra, 244 Cal.App.4th at
p. 531.) Defendant’s reliance on Brandao and Mark C., is misplaced. Here, defendant
admitted that she used a Web site that promoted prostitution, sent text messages related to
prostitution, and committed a burglary to enable her to engage in prostitution. Thus, her
future criminality is necessarily linked to her ability to refrain from promoting her
services as a prostitute on the Internet or communicating with those who would purchase
these services.
2 The California Supreme Court has granted review in Mark C., supra, 244
Cal.App.4th 520 on April 13, 2016 (S232849) pending consideration and disposition of a
related issue in In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted February
17, 2016, S230923. This case involves the issue of whether a probation condition
requiring a minor to submit to warrantless searches of his “ ‘electronics including
passwords’ ” is overbroad. (Mark C., at p. 524.) Review has been granted in several
other cases which present similar issues and deferred briefing. (See e.g., In re Q.R.
(2017) 7 Cal.App.5th 1231, review granted April 12, 2017, S240222; People v. Nachbar
(2016) 3 Cal.App.5th 1122, review granted December 14, 2016, S238210; In re J.E.
(2016) 1 Cal.App.5th 795, review granted October 12, 2016, S236628.

-- 6 of 15 --

7
In sum, since the probation conditions are related to defendant’s crime and
reasonably related to preventing future criminality, the probation conditions are valid
under Lent.
2. Overbreadth
Defendant also contends the probation conditions are unconstitutionally
overbroad.
“ ‘[A]dult probationers, in preference to incarceration, validly may consent to
limitations upon their constitutional rights . . . .’ [Citation.] ‘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.’ [Citation.] 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.]’ [Citation.] ‘ “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.]’ ”
(People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1175 (Ebertowski).)
“ ‘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.’
[Citation.]” (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346 (Pirali).) A
defendant’s claim that a probation condition is unconstitutionally 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. (In re Sheena K. (2007) 40

-- 7 of 15 --

8
Cal.4th 875, 880-889 (Sheena K.).) We review the constitutionality of a probation
condition de novo. (Id. at p. 889.)
Defendant argues that the requirement that she obtain prior permission from her
probation officer for the use of any social media accounts is overbroad, because it curtails
her free speech rights much more than is necessary to achieve the government’s purpose.
Pirali, supra, 217 Cal.App.4th 1341 is instructive. In Pirali, the defendant was
convicted of possession of child pornography after child pornography was found on his
computer. (Id. at p. 1343.) The defendant challenged the probation condition that he not
“ ‘have access to the Internet or any other on-line service through use of [his] computer or
other electronic device at any location without prior approval of the probation officer’ ” as
unconstitutionally overbroad. (Id. at pp. 1345-1346, italics omitted.)
In Pirali, this court discussed three cases: In re Stevens (2004) 119 Cal.App.4th
1228 (Stevens), In re Hudson (2006) 143 Cal.App.4th 1 (Hudson), and People v.
Harrisson (2005) 134 Cal.App.4th 637 (Harrisson). (Pirali, supra, 217 Cal.App.4th at
pp. 1348-1350.) In Stevens, the defendant was convicted of lewd conduct with a child
under 14 and the trial court imposed a parole condition which prohibited all use of the
computer and the Internet. (Pirali, at p. 1348.) The Stevens court held the condition was
unreasonable. (Pirali, at p. 1349.) In Hudson, the reviewing court upheld a parole
condition which prohibited the defendant from possessing or having access to computers
or the Internet without permission from his parole officer. (Pirali, at p. 1349.) In
Harrisson, the defendant was convicted of possession of child pornography. (Pirali, at
p. 1349.) The reviewing court held that a probation condition which prohibited the
defendant from accessing the Internet was not constitutionally overbroad, because the
defendant used the Internet to send pornographic images and solicit sex with minors,
discussed a plan to murder the prosecutor, and violated the ban on Internet access. (Ibid.)

-- 8 of 15 --

9
After considering these cases, the Pirali court rejected the defendant’s claim that
the condition was unconstitutionally overbroad. (Pirali, supra, 217 Cal.App.4th at
p. 1350.) This court reasoned that “like the parole condition contemplated in Hudson,
defendant is not faced with a blanket prohibition. The probation condition clearly grants
defendant the ability to access the Internet on his computer and other electronic devices
so long as he obtains prior permission from his [probation] officer. This makes the
probation condition distinguishable from the parole condition discussed in Stevens, and
less restrictive than the probation condition discussed in Harrisson that was deemed
valid. Defendant may still use the Internet and a computer while at home, or at his place
of employment. Defendant may also still continue to access and use the Internet for
e-mail, and other methods of online communication, subject to prior approval by his
probation officer.” (Ibid.)
Here, the probation condition prohibiting defendant from “using any social media
accounts and applications without the prior permission of [her] probation officer” is less
restrictive than the condition found constitutional in Pirali. In contrast to the defendant
in Pirali, here, defendant may freely use the Internet but may only use social media
accounts and applications with her probation officer’s permission. In our view, the
state’s purpose in preventing defendant’s future involvement in prostitution and other
illegal activity by restricting her use of social media accounts and applications outweighs
the minimal burden on defendant’s First Amendment rights.
Defendant also contends that the requirement that she obtain prior permission
from her probation officer for the use of any “applications” is overbroad. She argues that
the term “applications” includes “word processing, spreadsheet, tax preparation, music
storage and listening programs.” In interpreting the language of the probation condition,
we read “social media” to modify both “accounts” and “applications,” and thus the
probation condition restricts defendant’s use of “social media” applications. As

-- 9 of 15 --

10
previously discussed, the restriction on defendant’s use of “social media accounts and
applications” is not unconstitutionally overbroad.
Defendant next contends that the electronic devices search condition is overbroad
because it violates the Fourth Amendment and her right to privacy. The Attorney
General responds that defendant has forfeited the issue. Assuming that the issue has not
been forfeited, we reject defendant’s contention.
To support her position, defendant relies on the reasoning of Riley v. California
(2014) ___ U.S. ___ [134 S.Ct. 2473] (Riley), in which the United States Supreme Court
held that the warrantless search of a suspect’s cell phone implicated and violated the
suspect’s Fourth Amendment rights. (Id. at p. ___ [134 S.Ct. at p. 2493].) In reaching its
holding, the Riley court observed that many modern cell phones have the capacity to be
used as minicomputers and can potentially contain vast amounts of information about an
individual’s life. (Id. at pp. ___ [134 S.Ct. at pp. 2488-2489].) The court also cautioned
that its holding was that cell phone data is subject to Fourth Amendment protection, “not
that the information on a cell phone is immune from search.” (Id. at p. ___ [134 S.Ct. at
p. 2493].)
Defendant’s reliance on Riley is misplaced. Here, defendant is a probationer.
Thus, she is unlike the defendant in Riley, who was searched before he had been
convicted of a crime and was still protected by the presumption of innocence. “Inherent
in the very nature of probation is that probationers ‘do not enjoy “the absolute liberty to
which every citizen is entitled.” ’ [Citations.] Just as other punishments for criminal
convictions curtail an offender’s freedoms, a court granting probation may impose
reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding
citizens.” (United States v. Knights (2001) 534 U.S. 112, 119.) Given defendant’s status
as a probationer, we find no Fourth Amendment violation.

-- 10 of 15 --

11
In Ebertowski, supra, 228 Cal.App.4th 1170, this court rejected an overbreadth
contention. In Ebertowski, the defendant was a gang member, who promoted his gang on
social media. (Id. at p. 1173.) The challenged probation conditions required him to:
“ ‘provide all passwords to any electronic devices . . . within his custody and control
and . . . submit said devices to search at anytime [sic] without a warrant by any peace
officer’ ” and to “ ‘provide all passwords to any social media sites (including Facebook,
Instagram and Mocospace) and . . . submit said sites to search at anytime [sic] without a
warrant by any peace officer.’ ” (Ibid.) This court rejected the defendant’s claim that the
probation conditions “were not narrowly tailored to their purpose so as to limit their
impact on his constitutional rights to privacy, speech, and association.” (Id. at p. 1175.)
This court concluded 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.)
Defendant relies on People v. Appleton (2016) 245 Cal.App.4th 717 (Appleton) in
which a different panel of this court distinguished Ebertowski and held that a probation
condition allowing the search of the defendant’s electronic devices was unconstitutionally
overbroad. (Appleton, at p. 727.) The defendant in Appleton was convicted of false
imprisonment based on an incident which occurred about a year after he met the minor
victim through a social media application. (Id. at p. 719.) The probation condition at
issue provided that the defendant’s computers and electronic devices were subject to
“ ‘forensic analysis search for material prohibited by law.’ ” (Id. at p. 721.) The Appleton
court reasoned that this probation condition “would allow for searches of vast amounts of
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

-- 11 of 15 --

12
Ebertowski, whereby defendant must provide his social media accounts and passwords to
his probation officer for monitoring. Alternately, the court could impose a condition
restricting defendant’s use of or access to social media Web sites and applications
without prior approval of his probation officer. [Citation.]” (Appleton, at p. 727, fn.
omitted.)
Here, the search conditions properly serve the state’s interest in preventing
defendant from using her electronic devices to engage in criminal activity, such as
prostitution. Unlike in Appleton, the search conditions are restricted to defendant’s social
media accounts and applications. By also allowing the search of “photographs and video
recordings, email messages, text messages and voice messages,” the condition ensures
that defendant is not circumventing the requirement that she receive prior approval of her
use of social media accounts and applications. Accordingly, we conclude that the search
conditions are not unconstitutionally overbroad.3
3. Vagueness
Defendant contends that the probation conditions are unconstitutionally vague,
because they, on their face, fail to notify her of what she is forbidden to do and how the
probation officer is to monitor her behavior. The Attorney General claims that “[t]he
probation officer can reasonably infer that what he [or she] is to monitor is based on the
other conditions of probation, i.e., that [defendant] obey all laws, and that she must avoid
contact with certain categories of people.”
“ ‘[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
3 Defendant contends that the requirement that she not erase her history from her
social media accounts for four months is overbroad. Defendant did not object to this
condition at the sentencing hearing. Here, since this contention does not present a pure
question of law, the issue has been forfeited. (Sheena K., supra, 40 Cal.4th at 880-890.)

-- 12 of 15 --

13
offenders” [citation], protections that are “embodied in the due process clauses of the
federal and California Constitutions.” ’ [Citation.] ‘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.’ ” ’ [Citation.] ‘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.]’ [Citation.]” (Smith, supra, 8 Cal.App.5th at p. 986.) Defendant’s objection
to the probation conditions as unconstitutionally vague may be raised for the first time on
appeal because it presents a pure question of law. (Sheena K., supra, 40 Cal.4th at
pp. 880-889.)
Here, the probation conditions state: “You are prohibited from using any social
media accounts and applications without the prior permission your probation officer;”
and “[y]ou must provide any probation officer or other peace officer access to any cell
phone device or other electronic device for the purpose of searching social media
accounts and applications, photographs, video recordings, email messages, text messages
and voice messages. Such access includes providing all passwords to any social media
accounts and applications upon request, and you shall submit such accounts and
applications to search at any time without warrant by a probation officer or any other
peace officer.” Thus, the probation conditions inform defendant that she must obtain the
probation officer’s permission to use social media accounts and applications and make
her electronic devices available to the probation officer to search social media accounts
and applications, photographs, recordings, and messages. But the probation conditions
do not provide notice of what content in defendant’s social media accounts and
applications is prohibited. Nor are the probation conditions specific enough to inform a

-- 13 of 15 --

14
probation officer of what to search for. Accordingly, we will remand the matter to the
trial court to modify these conditions to include such language.
Defendant also contends that the history retention condition must be modified to
include a knowledge requirement. She argues that she “could unwittingly violate the
condition by accidentally deleting her browser history or using software that does so
automatically.” In Appleton, this court rejected an identical contention: “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.” (Appleton,
supra, 245 Cal.App.4th at p. 728.) Accordingly, no modification of this probation
condition is required.
III. Disposition
The order is reversed. The matter is remanded to the trial court to modify the
probation conditions to specify the type of content in defendant’s social media accounts
and applications which is prohibited.

-- 14 of 15 --

15
_______________________________
Mihara, J.
WE CONCUR:
______________________________
Elia, Acting P. J.
______________________________
Bamattre-Manoukian, J.

-- 15 of 15 --