P. v. Smith

Filed 10/31/18 P. v. Smith 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
KEVAN ACTON SMITH,
Defendant and Appellant.
H044392
(Monterey County
Super. Ct. No. SS161119A)
A jury found defendant Kevan Acton Smith guilty of two counts of stalking in
violation of Penal Code section 646.91 (counts 1 & 2) and making annoying phone calls
in violation of section 653m, subdivision (b) (count 3).2 Count 1 involved a violation of
section 646.9, subdivision (a), while count 2 involved a violation of section 646.9,
subdivision (b). Both offenses involved a woman whom defendant first met in
August 2014 when he went to her home to purchase a vehicle that she had listed for sale
on Craig’s List. Defendant chose to represent himself at trial.
1 All further statutory references are to the Penal Code unless otherwise specified.
2 Under section 646.9, “[a]ny person who willfully, maliciously, and repeatedly
follows or willfully and maliciously harasses another person and who makes a credible
threat with the intent to place that person in reasonable fear for his or her safety, or the
safety of his or her immediate family is guilty of the crime of stalking . . . .” (§ 646.9,
subd. (a).) Section 653m, subdivision (b), provides: “Every person who, with intent to
annoy or harass, makes repeated telephone calls or makes repeated contact by means of
an electronic communication device, or makes any combination of calls or contact, to
another person is, whether or not conversation ensues from making the telephone call or
contact by means of an electronic communication device, guilty of a misdemeanor.”

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Defendant appeals from an order granting probation. (§ 1237, subd. (a).)
On appeal, defendant is represented by counsel, and he raises the following contentions:
(1) the trial court’s comment regarding library privileges during its Faretta advisement
(see Faretta v. California (1975) 422 U.S. 806, 807, 835) violated his right to a fair trial
under the Sixth and Fourteenth Amendments to the United States Constitution and
article I, section 15 of the California Constitution3; (2) his stalking conviction in count 1
must be reversed because count 1 is a lesser included offense of his stalking conviction in
count 2; (3) the court should have awarded him additional custody credit and applied
excess custody credit against any criminal justice administration fee (see Gov. Code,
§ 29550 et seq.); and (4) the two probation conditions concerning electronic devices,
social media accounts, and applications were unconstitutional on their face.
We conclude that defendant’s stalking conviction in count 1 cannot stand because
it is a lesser included offense of his stalking conviction in count 2. Therefore, the
stalking conviction in count 1 must be stricken and the assessments imposed by the trial
court based on the number of criminal convictions must be corrected. Otherwise, we find
no reversible error.
3 The Sixth Amendment to the United States Constitution provides: “In all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury . . . to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his defence.” Under the
Fourteenth Amendment to the United States Constitution, a state may not “deprive any
person of life, liberty, or property, without due process of law.” Article I, section 15 of
the California Constitution provides in part that “[t]he defendant in a criminal cause has
the right to a speedy public trial, to compel attendance of witnesses in the defendant’s
behalf, to have the assistance of counsel for the defendant’s defense, to be personally
present with counsel, and to be confronted with the witnesses against the defendant” and
that “[p]ersons may not . . . be deprived of life, liberty, or property without due process of
law.”

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I
Procedural History
An information in case No. SS161119A charged defendant with two counts of
stalking (§ 646.9). Count 1 of the information charged defendant with felony stalking in
violation of section 646.9, subdivision (a), on or about May 28, 2016 in the County of
Monterey. It was alleged that on that date, defendant “did willfully, maliciously, and
repeatedly follow, and did willfully and maliciously harass JANE DOE, and made a
credible threat with the intent that she be placed in reasonable fear for her safety and the
safety of her immediate family.”
Count 2 of the information charged defendant with felony stalking in violation of
section 646.9, subdivision (b), on or about May 28, 2016 in the County of Monterey. It
stated the same factual allegation and further alleged that “the defendant was subject to a
temporary restraining order, injunction and other court order prohibiting the above
described behavior against JANE DOE.”
On November 1, 2016, the trial court granted defendant’s request to represent
himself.
On November 3, 2016, the trial court granted the prosecution’s motion to
consolidate case No. SS161119A and case No. MS343419A, which apparently charged
defendant with violating section 653m, subdivision (b), on or about August 9, 2016.
On November 7, 2016, after the parties failed to reach a plea agreement, the court
ruled on the People’s motions in limine. The information in case No. SS161119A was
orally amended to add a count charging defendant with the misdemeanor violation of
section 653m, subdivision (b). Defendant indicated that he had no motions, except for a
motion under section 17, subdivision (b), which the court denied. Jurors were selected
and sworn.
After a jury trial in which defendant represented himself, the jury found defendant
guilty of stalking in violation of section 646.9, subdivision (a) (count 1), stalking in

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violation of section 646.9, subdivision (b) (count 2), and making annoying phone calls in
violation of section 653m, subdivision (b) (count 3). After the jury’s verdicts, the trial
court found that defendant had violated probation in case Nos. MS331504A and
MS332961A. It scheduled sentencing for December 13, 2016.
At the time set for sentencing, the trial court granted probation in this case and
addressed defendant’s violation of probation in the two misdemeanor cases. In case
No. MS331504A, the trial court revoked probation, impliedly reinstated probation and
expressly ordered defendant to serve a probationary jail term of 180 days with 180 days
of credit for time served (consisting of 90 actual days and 90 days of conduct credit), and
terminated probation. In case No. MS332961A, the court revoked probation, impliedly
reinstated probation and ordered defendant to serve a consecutive probationary jail term
of 120 days with 53 days of credit for time served (consisting of 27 actual days and
26 days of conduct credit), and terminated probation, effective upon completion of that
probationary jail term.
In this case, the trial court placed defendant on formal probation for four years
under certain terms and conditions. The court ordered defendant to serve 65 days in
county jail as a condition of probation, with no credit for time served (zero days of credit)
consecutive to the terms imposed in criminal case Nos. MS331504A and MS332961A.
II
Discussion
A. Faretta Advisement as to Library Privileges
Defendant argues that he reasonably understood the trial court’s oral Faretta
advisement, which included a comment about library privileges, as imposing a total
denial of his library privileges and, consequently, the court’s comment violated his right
to a fair trial under the Sixth and Fourteenth Amendments to the United States
Constitution and under the California Constitution, article I, section 15. (See ante, fn. 3.)
He further contends that he was thereby deprived of all means of presenting a defense,

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which violated his constitutional right of self-representation, citing People v. Blair (2005)
36 Cal.4th 686, 732 (Blair), abrogated on another ground in People v. Black (2014) 58
Cal.4th 912, 919-920. The People argue that the forfeiture rule applies to those claims
because defendant did not raise them below and that, in any event, defendant has shown
neither error nor prejudice.
1. Background
On November 1, 2016, the trial court discussed with defendant his request to
represent himself and the Faretta advisement form defendant had completed. The court
confirmed that the signature and initials on the form, also dated November 1, 2016, were
his. Defendant affirmed that he had understood the questions that he had answered on the
form.
The form cautioned that there were “many dangers and disadvantages in
representing yourself” and provided some examples. On the form, defendant indicated
that he understood those risks. He specified on the form that he had completed high
school and had gone to college for “2 years or less.” The form asked, among other
things, whether defendant understood the following: “If you are in custody, your library
privileges may be restricted. You will receive no extra time for preparation. You will
have no staff of investigators at your beck and call.” Defendant circled the answer “yes”
and initialed his answer.
At the hearing, the court orally warned defendant that, by representing himself, he
would be putting himself at “a real disadvantage” and “a complete disadvantage”
compared to an experienced attorney who knew the court rules governing trial, the rules
of evidence, and the procedures for jury selection. The court told defendant that, if he
represented himself, he would “be in a real hole” and it could be “like swimming in a
tank full of sharks.” The court advised defendant that, if he represented himself, he
would lose any right to complain about inadequate representation and he could “do more
harm than good” for himself. The court emphasized that he would not be given special

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treatment and he would be required “to follow all the rules just like an attorney does.”
The court also told defendant: “Your library privileges and investigators will not be there
to help you because you’re in custody, and so no investigators at your beck and call. And
so, that means you’ll have further restrictions in your ability to adequately represent
yourself if you choose to do this.”
Defendant indicated that he understood the court’s warnings. Defendant
confirmed that he still wanted to represent himself. The court concluded that defendant
had “voluntarily, intelligently, and with full understanding as to the dangers and
disadvantages of self-representation, chosen to represent [himself]” and given up his right
to counsel. The court relieved defendant’s counsel.
On November 7, 2016, defendant appeared in propria persona. The court
addressed the People’s motions in limine. When the court first queried whether
defendant had any pretrial motions, defendant reminded the court that he was in jail.
He said, “So I haven’t been able to have any witnesses. I haven’t been able to look at the
case law because you, yourself, told me I can’t use it at the jail.” The court responded,
“I did not say that.” Defendant immediately replied in part, “At any rate, I feel
handcuffed. I feel like I’m being railroaded into these motions . . . . I can’t say anything
in return. It’s granted whether I like it or not. . . .” When defendant began complaining
about his former counsel’s failure to call the alleged victim, the trial court asked
defendant whether he was making a motion to continue the trial. Defendant informed the
court that he was not making such a motion. He confirmed that, aside from a motion
pursuant to section 17, subdivision (b), he was bringing no other motions at that time.
Defendant made no motion concerning library privileges or his access to a law library or
case law.
On November 9, 2016, outside the jury’s presence after the prosecutor had
completed direct examination of the alleged victim and before the lunch break, the trial
court informed defendant that he was required to provide his written request for any jury

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instructions to the court that afternoon. The court indicated that a list of CALCRIM
instruction numbers would be sufficient. When defendant indicated that he did not
understand, the court explained that the instructions for criminal charges were available
in “published books” and “online too.” Defendant replied, “You do realize that I don’t
have access to any of that?” The court responded, “[O]kay. I realize a lot. But this is
one of the things I warned you about of [sic] representing yourself. You need to know
about all these things and you’re going to be at a disadvantage so do the best you can.
All right.”
Also on November 9, 2016, at the end of the day during a discussion about the
jury instructions, the defendant indicated that he had a question. He said, “I know I’m
not getting any help from the library and anything but I do have a right to phone calls at
the jail. . . . Nobody will let me make any phone calls. And I can’t do my job if I can’t
get ahold of anybody. Could I get something in writing from somebody?” After the
court solicited offers of proof as to four potential rebuttal witnesses, it ordered the jail to
allow defendant to make phone calls to those individuals.
2. Analysis
As indicated, the court’s library privileges comment was part of its warning of the
perils of self-representation. It is noteworthy that defendant is not claiming on appeal
that he did not validly waive his right to counsel because the court’s Faretta colloquy
included its library privileges comment.4 (See Faretta, supra, 422 U.S. at p. 835;
cf. Blair, supra, 36 Cal.4th at pp. 708-710.) Rather, defendant’s contention focuses on
4 Neither is defendant asserting that he was deprived of the constitutional right of
meaningful access to the courts and suffered actual injury within the meaning of Bounds
v. Smith (1977) 430 U.S. 817 (Bounds), disapproved in part in Lewis v. Casey (1996) 518
U.S. 343, 354 (Lewis), and its progeny. (See Lewis, supra, at pp. 349-351; see also
Christopher v. Harbury (2002) 536 U.S. 403, 415, fn. 12 [constitutional underpinnings].)
Bounds held that the constitutional right of meaningful access to the courts was assured
for prisoners by access to adequate law libraries or alternative means that achieved that
goal. (Bounds, supra, at pp. 830-832.)

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the alleged impairment of his constitutional rights to represent himself and present a
defense which allegedly resulted from the court’s comment regarding library privileges.
Defendant complains that he “reasonably understood” the court’s library
privileges comment “to mean that he was totally barred from access to any law library
resources” and that the court did not clarify what it meant when it had the opportunity.
Defendant claims that the court’s comment “prohibited [him] from access to the law that
governed his case” and prevented him from filing any motions in limine.
In Faretta, supra, 422 U.S. at p. 807, relying upon the Sixth and Fourteenth
Amendments, the United States Supreme Court held that “a defendant in a state criminal
trial has a constitutional right to proceed without counsel when he voluntarily and
intelligently elects to do so.”5 The court stated that “[a]lthough a defendant need not
himself have the skill and experience of a lawyer in order competently and intelligently to
choose self-representation, he should be made aware of the dangers and disadvantages of
self-representation, so that the record will establish that ‘he knows what he is doing and
his choice is made with eyes open.’ [Citation.]” (Faretta, supra, at p. 835.)
“ ‘No particular form of words is required in admonishing a defendant who seeks to
5 In Faretta, the United States Supreme Court concluded: “The Sixth Amendment
does not provide merely that a defense shall be made for the accused; it grants to the
accused personally the right to make his defense. It is the accused, not counsel, who
must be ‘informed of the nature and cause of the accusation,’ who must be ‘confronted
with the witnesses against him,’ and who must be accorded ‘compulsory process for
obtaining witnesses in his favor.’ Although not stated in the Amendment in so many
words, the right to self-representation—to make one’s own defense personally—is thus
necessarily implied by the structure of the Amendment.” (Faretta, supra, 422 U.S. at
p. 819, fn. omitted.) The United States Supreme Court has expressly held Sixth
Amendment rights applicable to the states under the due process clause of the Fourteenth
Amendment. (See Duncan v. Louisiana (1968) 391 U.S. 145, 149 [right to jury trial];
Washington v. Texas (1967) 388 U.S. 14, 19 [right to compulsory process]; Klopfer v.
State of North Carolina (1967) 386 U.S. 213, 222-223 [right to a speedy trial]; Pointer v.
Texas (1965) 380 U.S. 400, 406 [right to confrontation], Gideon v. Wainwright (1963)
372 U.S. 335, 341-342 [right to counsel]; see also In re Oliver (1948) 333 U.S. 257, 273
[right to public criminal trial].)

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waive counsel and elect self-representation.’ (People v. Koontz (2002) 27 Cal.4th 1041,
1070.)” (Blair, supra, 36 Cal.4th at p. 708.)
In Milton v. Morris (9th Cir. 1985) 767 F.2d 1443 (Milton), abrogated in part by
Kane v. Garcia Espitia (2005) 546 U.S. 9, 10 (Kane), the Court of Appeals, Ninth
Circuit, concluded that, under Faretta, “[a]n incarcerated defendant may not
meaningfully exercise his right to represent himself without access to law books,
witnesses, or other tools to prepare a defense.” (Id. at p. 1446.) The Ninth Circuit held
that “Milton’s due process rights were violated when he was tried without having had any
meaningful opportunity to prepare his defense” since “[d]espite timely and reasonable
requests, Milton was isolated from any means to prepare.” (Id. at p. 1445.)
Citing Milton, supra, 767 F.2d at pp. 1445-1446, the California Supreme Court
stated in People v. Jenkins (2000) 22 Cal.4th 900, 1040, that “[i]t is certainly true that a
defendant who is representing himself or herself may not be placed in the position of
presenting a defense without access to a telephone, law library, runner, investigator,
advisory counsel, or any other means of developing a defense.” But the California
Supreme also cautioned that “this general proposition does not dictate the resources that
must be available to defendants” and that “[i]nstitutional and security concerns of pretrial
detention facilities may be considered in determining what means will be accorded to the
defendant to prepare his or her defense. [Citations.]” (Ibid.)
Subsequently, in Blair, the California Supreme Court stated “we have recognized
that depriving a self-represented defendant of ‘all means of presenting a defense’ violates
the right of self-representation. (People v. Jenkins, supra, 22 Cal.4th at p. 1040, citing
Milton v. Morris (9th Cir.1985) 767 F.2d 1443, 1445-1446.)” (Blair, supra, 36 Cal.4th at
p. 733.) The court clarified that “[i]n the final analysis, the Sixth Amendment requires
only that a self-represented defendant’s access to the resources necessary to present a
defense be reasonable under all the circumstances. [Citation.]” (Ibid.) Further, it

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concluded a defendant must demonstrate prejudice to establish a constitutional violation.
(See id. at p. 736.)
In Kane, supra, 546 U.S. 9 (per curiam), the criminal defendant who chose to
represent himself “had received no law library access while in jail before trial—despite
his repeated requests and court orders to the contrary—and only about four hours of
access during trial, just before closing arguments.” (Ibid.) The United States Supreme
Court recognized that “[t]he federal appellate courts have split on whether Faretta, which
establishes a Sixth Amendment right to self-representation, implies a right of the pro se
defendant to have access to a law library. Compare [Milton, supra, 767 F.2d at p. 1446]
with United States v. Smith, 907 F.2d 42, 45 (C.A.6 1990) (‘[B]y knowingly and
intelligently waiving his right to counsel, the appellant also relinquished his access to a
law library’); United States ex rel. George v. Lane, 718 F.2d 226, 231 (C.A.7 1983)
(similar).” (Id. at p. 10.) The court determined the United States Court of Appeals for
the Ninth Circuit had “erred in holding, based on Faretta, that a violation of a law library
access right is a basis for federal habeas relief.” (Ibid.) It explained: “[I]t is clear that
Faretta does not . . . ‘clearly establis[h]’ the law library access right. In fact, Faretta says
nothing about any specific legal aid that the State owes a pro se criminal defendant.”
(Ibid.)
In People v. Moore (2011) 51 Cal.4th 1104 (Moore), the trial court denied the
defendant’s motion to reinstate his library privileges that had been revoked in a jail
disciplinary proceeding. (Id. at p. 1124.) The defendant contended on appeal that the
trial court’s ruling “denied him a ‘meaningful opportunity to represent himself,’ in
violation of the Fifth, Sixth and Fourteenth Amendments to the federal Constitution.”
(Ibid.) The California Supreme Court found no constitutional violation because the
defendant’s privileges had been properly restricted for “his possession of a sharpened
prisoner-made weapon [that] constituted a threat to jail security” (id. at p. 1126) and the
defendant had been “provided with other reasonable resources to present his defense,

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namely, his court-appointed advisory counsel, investigator and legal runner, who had the
ability to provide him with legal materials and to make telephone calls on his behalf.”
(Ibid.)
In determining that the defendant’s constitutional rights had not been violated in
Moore, the California Supreme Court noted that the United States Supreme Court had
recognized in Kane “that the extent to which the government must provide publicly
funded defense services to a self-represented criminal defendant is an open issue in that
court’s jurisprudence. [Citation.]” (Moore, supra, 51 Cal.4th at p. 1125, fn. 11.) The
California Supreme Court stated: “Even to the extent that we might be inclined to revisit
our reliance on Milton, or to consider whether . . . our state Constitution affords indigent
self-represented defendants some higher level of protection than the federal Constitution,
we do not do so here because . . . defendant has not shown that he was denied reasonable
resources necessary to present his defense. [Citation.]”6 (Ibid.)
Since defendant raised his difficulties with accessing certain legal resources more
than once, we do not find that he forfeited his claims arising from the trial court’s library
privileges comment. But we conclude that even if the court’s spoken words concerning
library privileges were somewhat unclear, they were clarified by the Faretta form, which
6 In Moore, the California Supreme Court recognized that “other courts have
reached conclusions seemingly at odds with Milton concerning the government’s duty to
provide resources for a defendant who has exercised his or her Faretta right.
(See, e.g., United States v. Cooper (10th Cir. 2004) 375 F.3d 1041, 1052 [‘When a
prisoner voluntarily, knowingly and intelligently waives his right to counsel in a criminal
proceeding, he is not entitled to access to a law library or other legal materials.’]; Degrate
v. Godwin (5th Cir.1996) 84 F.3d 768, 769; United States v. Smith (6th Cir. 1990) 907
F.2d 42, 44; United States v. Pina (1st Cir.1988) 844 F.2d 1, 5, fn. 1; United States ex rel.
George v. Lane (7th Cir. 1983) 718 F.2d 226, 231 [‘the offer of court-appointed counsel
to represent a defendant satisfies the constitutional obligation of a state to provide a
defendant with legal assistance under the Sixth and Fourteenth Amendments’]; see also
United States v. Robinson (9th Cir.1990) 913 F.2d 712, 717 [‘there is nothing
constitutionally offensive about requiring a defendant to choose between appointed
counsel and access to legal materials; the Sixth Amendment is satisfied by the offer of
professional representation alone’].)” (Moore, supra, 51 Cal.4th at p. 1125, fn. 11.)

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specifically stated that “[i]f you are in custody, your library privileges may be restricted.”
(Italics added.) At the time of its Faretta advisement, the trial court made no order
compelling the jail to deny or restrict any library privileges. Further, before jury
selection and less than a week after defendant began representing himself, the trial court
made clear that it had not said that defendant could not look at case law at the jail.
Defendant ignored that statement, and he did not ask the court what it meant. Under the
circumstances, it was unreasonable for defendant to conclude from the trial court’s oral
Faretta advisement that it was banning him from any exercise of library privileges.
Further, defendant has not demonstrated by reference to the appellate record that
the jail authorities in fact denied or restricted any library privileges. Defendant’s remark
on November 9, 2016 (“I know I’m not getting any help from the library . . .”) did not
necessarily convey that he was actually being denied access to a library. His remark also
could be reasonably understood as indicating that he had access to a library but was not
receiving assistance in using its materials or that the resources in the library were not
helpful to him.
Since this is a direct appeal, our review is limited to the appellate record.
(See People v. Barnett (1998) 17 Cal.4th 1044, 1183.) The appellate record in this case
does not disclose what legal resources were available to defendant, and consequently we
are unable to assess their sufficiency. Defendant has not demonstrated by citation to the
record that he was deprived “of ‘all means of presenting a defense.’ ” (Blair, supra, 36
Cal.4th at p. 733.) As indicated, defendant obtained a court order compelling the jail to
allow him to make telephone calls to four prospective rebuttal witnesses. Even if
defendant lacked access to some legal materials, such as, his asserted inability to access
CALCRIM instructions, he has not shown resulting prejudice.
In sum, assuming arguendo that a criminal defendant who is representing himself
is constitutionally entitled to legal resources reasonably necessary to his defense, under
the United States constitution or the California Constitution, defendant has not

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established based on the record before us that he was in fact deprived of any legal
resources reasonably necessary for his defense (Blair, supra, 36 Cal.4th at pp. 734, 736)
and suffered “resulting prejudice.” (Id. at p. 736; see People v. James (2011) 202
Cal.App.4th 323, 335; see also People v. Carter (2010) 182 Cal.App.4th 522, 531, fn. 6
[“It is, of course, appellant’s burden on appeal to present an adequate record for review
and affirmatively to demonstrate error. [Citation.]”]; cf. Lewis, supra, 518 U.S. at p. 349
[“an inmate alleging a violation of Bounds [for denial of the constitutional right of access
to courts] must show actual injury”], 351 [“Although Bounds itself made no mention of
an actual-injury requirement, it can hardly be thought to have eliminated that
constitutional prerequisite”].) On appeal, we presume the judgment is correct, “ ‘ “[a]ll
intendments and presumptions are indulged to support it on matters as to which the
record is silent, and error must be affirmatively shown.” ’ [Citation.]” (People v.
Giordano (2007) 42 Cal.4th 644, 666.)
Defendant has not shown that any constitutional right was violated by the trial
court’s library privileges comment, and therefore harmless-error review under Chapman
is not warranted. (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman)
[“[B]efore a federal constitutional error can be held harmless, the court must be able to
declare a belief that it was harmless beyond a reasonable doubt”].) Consequently,
contrary to defendant’s assertion, reversal is not required under Chapman.
B. Count 1 was a Lesser Included Offense of Count 2
Defendant asserts that the conviction for count 1 must be reversed and the
punishment imposed on that conviction must be stricken because count 1 was a lesser
included offense of count 2. “A judicially created exception to the general rule
permitting multiple conviction ‘prohibits multiple convictions based on necessarily
included offenses.’ [Citation.] ‘[I]f a crime cannot be committed without also
necessarily committing a lesser offense, the latter is a lesser included offense within the
former.’ [Citation.]” (People v. Reed (2006) 38 Cal.4th 1224, 1227 (Reed).)

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The appropriate remedy for conviction of both the greater offense and the lesser included
offense is to strike the conviction of the lesser included offense. (See People v. Medina
(2007) 41 Cal.4th 685, 703.)
In deciding whether multiple conviction is proper, “a court should consider only
the statutory elements.” (Reed, supra, 38 Cal.4th at p.1229; id. at p. 1231.) “Under the
elements test, if the statutory elements of the greater offense include all of the statutory
elements of the lesser offense, the latter is necessarily included in the former.” (Id. at
p. 1227.) “In other words, ‘ “[i]f a crime cannot be committed without also necessarily
committing a lesser offense, the latter is a lesser included offense within the former.” ’
[Citations.]” (People v. Delgado (2017) 2 Cal.5th 544, 570.)
As indicated, section 646.9, subdivision (a), provides that “[a]ny person who
willfully, maliciously, and repeatedly follows or willfully and maliciously harasses
another person and who makes a credible threat with the intent to place that person in
reasonable fear for his or her safety, or the safety of his or her immediate family is guilty
of the crime of stalking . . . .” (§ 646.9, subd. (a).) For purposes of section 646.9,
“ ‘harasses’ means engages in a knowing and willful course of conduct directed at a
specific person that seriously alarms, annoys, torments, or terrorizes the person, and that
serves no legitimate purpose” (§ 646.9, subd. (e)) and “ ‘course of conduct’ means two or
more acts occurring over a period of time, however short, evidencing a continuity of
purpose” (§ 646.9, subd. (f)).7
Subdivision (a) of section 646.9 makes stalking “punishable by imprisonment in a
county jail for not more than one year, or by a fine of not more than one thousand dollars
($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison.”
Subdivision (b) of section 646.9 makes stalking punishable “by imprisonment in the state
prison for two, three, or four years” when the violation occurs “when there is a temporary
7 “Constitutionally protected activity is not included within the meaning of ‘course
of conduct.’ ” (§ 646.9, subd. (f).)

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restraining order, injunction, or any other court order in effect prohibiting the behavior
described in subdivision (a) against the same party.” Thus, the only distinction between a
stalking offense punishable under subdivision (a) and one punishable under
subdivision (b) is the existence of an order or injunction prohibiting a defendant’s
stalking behavior against the victim of the offense.
Here, both stalking charges were alleged to have occurred on or about the same
date. In closing argument, the prosecutor did not distinguish between the offenses but
rather told the jury that they were “exactly the same” except for the allegation of a court
order in count 2.
Defendant contends that the conviction for violating section 646.9, subdivision (a),
cannot stand because the offense is necessarily included within a violation of
section 646.9, subdivision (b). He asserts that, consequently, the court operations
assessment must be reduced by $40 and the court facilities assessment must be reduced
by $30.8 (See § 1465.8, subd. (a)(1) [$40 court operations assessment imposed on every
criminal conviction]; Gov. Code, § 70373, subd. (a) [$30 court facilities assessment
imposed for each misdemeanor or felony].) The People agree that the count 1 conviction
must be vacated and further concede that those assessments must be reduced accordingly.
That is legally correct.
C. Custody Credits
The probation report’s primary recommendation in case No. SS161119A was that
the trial court deny probation and sentence defendant. It alternatively recommended that
the court suspend imposition of the sentence and place defendant on formal probation
under certain terms and conditions.
8 The trial court ordered defendant to pay “a Court Operations Assessment of
$40.00 times the number of convictions for a total of $120.00” and “a $30.00 Court
Facilities Assessment times the number of convictions for a total assessment of $90.00.”

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The probation report stated that defendant had been in the Monterey County jail
from August 19, 2016 (date of arrest) through December 13, 2016 (the date of
sentencing), a total of 117 actual days. By the probation officer’s calculations, if
concurrent sentences were imposed, defendant was entitled to 233 days of custody credit,
consisting of 117 actual days and 116 days of conduct credit, in case Nos. SS161119A,
MS331504A, and MS332961A.
But the probation report provided for a different allocation of custody credits if
consecutive sentences were imposed. In that scenario, that report indicated that
defendant should be awarded 180 days of custody credit (90 actual days plus 90 days
conduct credit) in case No. MS331504A, 53 days of custody credit (27 actual days plus
26 days conduct credit) in case No. MS332961A, and zero days custody credit in this
case (case No. SS161119A). At the time of sentencing, the trial court granted probation,
imposed consecutive probationary jail terms in each of the three cases, and applied all of
defendant’s available presentence custody credits (117 actual days plus conduct credit)
against the consecutive probationary jail terms imposed in case Nos. MS331504A and
MS332961A.
Defendant asserts that “the trial court erred when it failed to award [him] credit for
time served from the date of arrest through the date of sentencing despite the consecutive
sentence imposed” because “the instant case was the but for cause of the probation
violations.” He impliedly invokes People v. Bruner (1995) 9 Cal.4th 1178, (Bruner)
which construed the first sentence in section 2900.5, subdivision (b) (“credit shall be
given only where the custody to be credited is attributable to proceedings related to the
same conduct for which the defendant has been convicted”) and held that “where a period
of presentence custody stems from multiple, unrelated incidents of misconduct, such
custody may not be credited against a subsequent formal term of incarceration if the
prisoner has not shown that the conduct which underlies the term to be credited was also
a ‘but for’ cause of the earlier restraint.” (Bruner, supra, at pp. 1193-1194.)

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The People have agreed that “there is nothing in the record that suggests
[defendant’s] presentence custody in his probation cases stemmed from anything other
than his commission of the offenses here.” Thus, they do not dispute that defendant’s
new offenses of which he was convicted in this case were the “but for cause” of the
presentence custody at issue.
Defendant then contends that his 117 actual days of custody should have been
applied against his consecutive 65-day probationary jail term imposed in this case. He
maintains that this case is distinguishable from People v. Santa Ana (2016) 247
Cal.App.4th 1123 (Santa Ana). Without any citation to the record, defendant informs this
court that he remained in custody for 33 days after he completed the term imposed in case
No. MS332961A, impliedly because the trial court did not apply any custody credit
award against the consecutive probationary term imposed in this case. He asks this court
to modify the judgment pursuant to section 2900.5, subdivision (a), to “deem the criminal
justice administration fee . . . to have been satisfied in full by his excess days spent in
custody.”9
The People maintain that the trial court properly awarded custody credit and that
the Santa Ana decision is dispositive of defendant’s arguments. In Santa Ana, supra, 247
Cal.App.4th at p. 1135, this court considered the second sentence of subdivision (b) of
section 2900.5, which states: “Credit shall be given only once for a single period of
custody attributable to multiple offenses for which a consecutive sentence is imposed.”
(Italics added.) This court determined that “where a defendant was under dual custodial
restraints resulting from the defendant’s arrest for one new offense and a probation hold
or revocation based on only the new offense, [a single period of custody] is legally
‘attributable to’ both the new offense and the offense of conviction underlying the grant
9 Probation condition No. 24 stated: “Defendant shall pay, in accordance with
his/her ability to pay, the criminal justice administration fee incurred in defendant’s arrest
and booking in accordance with [Government Code] section 29550.1/29550.2.”

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of probation” within the meaning of section 2900.5, subdivision (b). (Santa Ana, supra,
at p. 1137.) We concluded that “the trial court, having credited appellant for the period
of custody at issue against the probationary jail term imposed in the earlier case, properly
did not also credit that period of custody against the consecutive jail term imposed as a
condition of probation in this case.” (Id. at p. 1145.)
Here, the trial court’s award of custody credit against the consecutive probationary
terms imposed in the misdemeanor cases left no presentence custody to be credited
against the consecutive probationary jail term imposed in this case. Defendant
nevertheless argues that the Santa Ana’s construction of the second sentence of
subdivision (b) of section 2900.5 was inapplicable in this case because evidence of the
offenses underlying his misdemeanor convictions in case Nos. MS331504A and
MS332961A were used by the prosecution in proving the harassment element of the
stalking charges.10 He suggests that since the “new case and the probation violations
were related,” his presentence custody was not attributable to multiple offenses within the
meaning of section 2900.5, subdivision (b). He cites no authority in support of this
claim.
Defendant engaged in a long course of conduct culminating in the behavior
underlying his new convictions for stalking and making annoying telephone calls to the
victim. The 2015 conduct underlying his misdemeanor convictions was the lead-up to his
stalking behavior, which was alleged to have occurred on or about May 28, 2016.
(See ante, fn. 10.) As stated, the “course of conduct” necessary to establish harassment
within the meaning of the stalking statute is merely “two or more acts occurring over a
10 The probation report prepared for sentencing indicated that case
No. MS331504A involved a violation of section 653m, subdivision (b) (annoying phone
calls), case No. MS332961A involved a violation of section 273.6, subdivision (a)
(violation of a court order), those misdemeanor offenses were committed in April and
July of 2015, respectively, and the court granted probation in both cases on December 4,
2015.

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period of time, however short, evidencing a continuity of purpose” (§ 646.9,
subds. (e), (f)), and the harassing course of conduct must be malicious and “knowing and
willful” (§ 646.9, subds. (a), (e)). The fact that evidence of his 2015 offenses was
relevant and admissible in the trial of his current offenses (see Evid. Code, §§ 210, 351,
1101, subd. (b)) is not a principled reason to deviate from our analysis in Santa Ana.
The record indicates that the single period of presentence custody at issue was
legally “attributable to multiple offenses for which a consecutive sentence [was]
imposed.” (§ 2900.5, subd. (b); see Santa Ana, supra, 247 Cal.App.4th at p. 1137.)
We remain cognizant that section 2900.5’s “purpose is not to bestow a windfall of
duplicative credits. [Citation.]” (Santa Ana, supra, at p. 1144.) Defendant would
receive just such a windfall under his point of view. The trial court did not err in
applying custody credit.
D. Electronic Search Conditions
1. Background and Contentions
After granting probation, the trial court explained to defendant that the court was
“going to impose the electronic device terms because of the harassment and stalking
nature of your conduct.” The court indicated that it was imposing probation conditions
Nos. 12 and 13 as recommended.
Probation condition No. 12 states: “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.” Probation condition No. 13
provides: “You shall not clean or delete your [I]nternet browsing activity or your social

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media application history on any electronic device that you own and you must keep a
minimum of four weeks of activity history.”
The People assert that defendant forfeited his challenges to those probation
conditions because he failed to object to them in the trial court.
2. Governing Law
“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.]’ ([People v. Lent (1975) 15 Cal.3d 481,]
486 [superseded by statute as stated in People v. Moran (2016) 1 Cal.5th 398, 403,
fn. 6].) This test is conjunctive—all three prongs must be satisfied before a reviewing
court will invalidate a probation term. [Citations.] As such, even if a condition of
probation has no relationship to the crime of which a defendant was convicted and
involves conduct that is not itself criminal, the condition is valid as long as the condition
is reasonably related to preventing future criminality. [Citation.]” (People v. Olguin
(2008) 45 Cal.4th 375, 379-380 (Olguin).) “[T]he relevant test [under Lent] is
reasonableness [citation].” (Id. at p. 383.)
A trial court violates the Lent “standard when its determination is arbitrary or
capricious or ‘ “exceeds the bounds of reason, all of the circumstances being
considered.” ’ [Citation.]” (People v. Welch (1993) 5 Cal.4th 228, 234 (Welch).) When
a defendant claims that a probation condition is unreasonable, an appellate court will
review it for abuse of discretion. (Olguin, supra, 45 Cal.4th at p. 379.) But the forfeiture
rule applies to such a claim if no timely objection was interposed in the trial court.
(Welch, supra, at p. 237 [“failure to timely challenge a probation condition on [Lent]
grounds in the trial court waives the claim on appeal”].)
In addition, “[a] probation condition that imposes limitations on a person’s
constitutional rights must closely tailor those limitations to the purpose of the condition

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to avoid being invalidated as unconstitutionally overbroad. [Citation.]” (In re Sheena K.
(2007) 40 Cal.4th 875, 890 (Sheena K.) “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.)
Also, “[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, 40 Cal.4th at p. 890.) “[A] a probation condition should not be
invalidated as unconstitutionally vague ‘ “ ‘if any reasonable and practical construction
can be given to its language.’ ” ’ [Citation.]” (People v. Hall (2017) 2 Cal.5th 494, 501
(Hall).)
“[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. (U.S. Const., Amends. V, XIV; Cal. Const., art. I,
§ 7).’ [Citation.] The vagueness doctrine bars enforcement of ‘ “a statute which either
forbids or requires the doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application.” [Citation.]’
[Citation.] A vague law ‘not only fails to provide adequate notice to those who must
observe its strictures, but also “impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the
attendant dangers of arbitrary and discriminatory application.” [Citation.]’ [Citation.]”
(Sheena K., supra, 40 Cal.4th at p. 890.)

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In Sheena K., the California Supreme Court considered whether the forfeiture rule
applied to a constitutional challenge to a probation condition on its face that was raised
for the first time on appeal. (Sheena K., supra, 40 Cal.4th at p. 878.) The court noted
that “[a]n obvious legal error at sentencing that is ‘correctable without referring to factual
findings in the record or remanding for further findings’ is not subject to forfeiture.
[Citations.]” (Id. at p. 887.) The court created an exception to the forfeiture rule for a
first-time appellate claim that a probation condition was unconstitutionally vague or
overbroad on its face. (Id. at pp. 887-889.) The court reasoned that such a challenge
presents a pure question of law that poses “an important question of law” (id. at p. 888)
and is “easily remediable on appeal by modification of the condition.” (Ibid.)
In reaching its conclusion, the Supreme Court observed that “review of abstract and
generalized legal concepts” is a “task that is well suited to the role of an appellate court”
(id. at 885) and a reviewing court’s consideration of a facial constitutional challenge and
possible modification of a probation condition determined to be unconstitutional on its
face “may save the time and government resources that otherwise would be expended in
attempting to enforce a condition that is invalid as a matter of law.” (Ibid.)
In Sheena K., the Supreme Court cautioned, however, that its “conclusion does not
apply in every case in which a probation condition is challenged on a constitutional
ground.” (Sheena K., supra, 40 Cal.4th at p. 889.) The court recognized that some
probation conditions “may not be patently unconstitutional but may suffer nonetheless
from vagueness or overbreadth” and that some constitutional defects “may be correctable
only by examining factual findings in the record or remanding to the trial court for further
findings.” (Id. at p. 887.) The court clarified: “[W]e do not conclude that ‘all
constitutional defects in conditions of probation may be raised for the first time on
appeal, since there may be circumstances that do not present “pure questions of law that
can be resolved without reference to the particular sentencing record developed in the
trial court.” [Citation.] In those circumstances, “[t]raditional objection and [forfeiture]

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principles encourage development of the record and a proper exercise of discretion in the
trial court.” [Citation.]’ [Citation.]” (Id. at p. 889; see id. at p. 881, fn. 1.)
On appeal, a reviewing court exercises its independent judgment on a pure
question of law—i.e., it engages in a nondeferential de novo review—such as, on the
question whether a probation condition is unconstitutionally vague or overbroad on its
face. (See In re Edward B. (2017) 10 Cal.App.5th 1228, 1236-1237; People v. Cromer
(2001) 24 Cal.4th 889, 894.)
3. Analysis
Defendant now contends that the electronic search probation conditions are
overbroad and vague in violation of the First, Fourth, and Fourteenth Amendments to the
United States Constitution.11 He concedes that he used an electronic device in the
charged crimes for making phone calls and sending emails.
Defendant nevertheless asserts that the conditions were overbroad because “there
was no evidence [that he] ever used social media or video recordings for any criminal
purpose,”, “[t]he [I]nternet and social media played no part in the case,” and his use of an
electronic device was “limited to phone calls and emails.” He states that “[t]he only
mention of social media involved a picture of a tree taken at [his] nephew’s house . . . and
pictures of a music festival” and that “no direct relationship exists between the use of an
electronic device and the [challenged] search conditions.” Defendant also contends that
probation conditions are constitutionally overbroad—i.e., not narrowly tailored, in
11 The following issue is pending before the Supreme Court in In Re Ricardo P.,
review granted Feb. 17, 2016, S230923: “Did the trial court err by imposing an
‘electronics search condition’ on the juvenile as a condition of his probation when that
condition had no relationship to the crimes he committed but was justified on appeal as
reasonably related to future criminality under People v. Olguin (2008) 45 Cal.4th 375
because it would facilitate the juvenile’s supervision?”
(<http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id
=2126967&doc_no=S230923&request_token=NiIwLSIkXkw4W1BRSCJdWEpJUDw0
UDxTICJeIzhTQCAgCg%3D%3D> [as of Oct. 30, 2018], archived at:
<https://perma.cc/TBN5-ZN68.)

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violation of his First Amendment rights of free speech and privacy and Fourth
Amendment rights because they do not limit the types of data that may be searched
without a warrant and the conditions are “not reasonably necessary for his rehabilitation
or protection of the public.” He further argues that challenged probation conditions are
unconstitutionally vague and overbroad because they do not define the term “electronic
device” and because “they apply to ‘any’ cell phone or other electronic device.”
Insofar as defendant is arguing that, under the particular facts of his case, the
challenged probation conditions were unreasonable or overbroad, his contentions were
forfeited by failing to object on those specific grounds below. (See Welch, supra, 5
Cal.4th at p. 237; Sheena K., supra, 40 Cal.4th at pp. 887-889; cf. Tobe v. City of Santa
Ana (1995) 9 Cal.4th 1069, 1084 [“A facial challenge to the constitutional validity of a
statute or ordinance considers only the text of the measure itself, not its application to the
particular circumstances of an individual”].) His fact-based contentions do not present
pure questions of law, despite his assertions to the contrary.
Defendant alternatively urges this court to exercise its discretion to resolve his
claims on their merits even if they do not present pure questions of law. He cites
In re P.O. (2016) 246 Cal.App.4th 288 (P.O.), in which the appellate court reached a
constitutional challenge to an electronics search probation condition even though the
defendant had not objected below.12 (Id. at pp. 297-298.)
“[A]s a general rule, ‘the failure to object to errors committed at trial relieves the
reviewing court of the obligation to consider those errors on appeal.’ [Citations.] This
applies to claims based on statutory violations, as well as claims based on violations of
12 In P.O., the appellate court determined that the electronics search condition at
issue in that case was reasonably related to the defendant’s future criminality because it
enabled probation officers to supervise him effectively (P.O., supra, 246 Cal.App.4th at
p. 295), but it concluded that the condition was unconstitutionally “overbroad in its
authorization of searches of cell phones and electronic accounts accessible through such
devices because it [was] not narrowly tailored to its purpose of furthering his
rehabilitation.” (Id. at p. 298.)

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fundamental constitutional rights. [Citations.]” (In re Seaton (2004) 34 Cal.4th 193,
198.) “As the United States Supreme Court recognized in United States v. Olano
[(1993)] 507 U.S. [725,] 731, ‘ “[n]o procedural principle is more familiar to this Court
than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal
as well as civil cases by the failure to make timely assertion of the right before a tribunal
having jurisdiction to determine it.” ’ [Citations.]” (Sheena K., supra, 40 Cal.4th at
pp. 880-881.)
“ ‘The purpose of [the forfeiture] rule is to encourage parties to bring errors to the
attention of the trial court, so that they may be corrected. [Citation.]’ [Citations.]”
(Sheena K., supra, 40 Cal.4th at p. 881.) “ ‘[I]t is both unfair and inefficient to permit a
claim of error on appeal that, if timely brought to the attention of the trial court, could
have been easily corrected or avoided.’ [Citations.] ‘[T]he forfeiture rule ensures that
the opposing party is given an opportunity to address the objection, and it prevents a
party from engaging in gamesmanship by choosing not to object, awaiting the outcome,
and then claiming error.’ [Citation.]” (People v. French (2008) 43 Cal.4th 36, 46.)
We adhere to the forfeiture rule. Our review is limited to defendant’s facial
constitutional challenges to probation conditions Nos. 12 and 13.
We agree that the challenged probation conditions do not limit the types of
searchable data, but this circumstance does not necessarily render them facially
unconstitutional. “Defendant, as a probationer, has a diminished expectation of liberty
and privacy as compared to an ordinary citizen. [Citation.]” (People v. Garcia (2017)
2 Cal.5th 792, 810.) “Inherent in the very nature of probation is that probationers ‘do not
enjoy “the absolute liberty to which every citizen is entitled.” ’ [Citation.] 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.)

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With respect to the Fourth Amendment challenge to the search conditions, “[t]he
touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a
search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon
an individual’s privacy and, on the other, the degree to which it is needed for the
promotion of legitimate governmental interests.’ [Citation.]” (Knights, supra, 534 U.S.
at pp. 118-119.) Defendant’s “status as a probationer subject to a search condition
informs both sides of that balance.” (Id. at p. 119.)
Defendant has not demonstrated, without any consideration of his individual
circumstances, that the challenged probation conditions necessarily impose impermissible
burdens on his constitutional rights. An assessment whether the challenged conditions
were narrowly drawn to achieve the legitimate state interest of probationary supervision
of defendant for his particular crimes would go beyond a review of each condition on its
face.
Defendant’s vagueness claim is the only facial constitutional challenge. We are
mindful that “abstract legal commands must be applied in a specific context. A
contextual application of otherwise unqualified legal language may supply the clue to . . .
meaning, giving facially standardless language a constitutionally sufficient concreteness.”
(People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116.) “[N]o more than a
reasonable degree of certainty can be demanded.” (Boyce Motor Lines v. United States
(1952) 342 U.S. 337, 340; see Grayned v. City of Rockford (1972) 408 U.S. 104, 110,
fn. omitted [“Condemned to the use of words, we can never expect mathematical
certainty from our language”].) “A probation condition should be given ‘the meaning
that would appear to a reasonable, objective reader.’ [Citation.]” (Olguin, supra, 45
Cal.4th at p. 382.) As indicated, if any reasonable and practical construction can be given
to a probation condition, the condition should not be invalidated as unconstitutionally
vague. (Hall, supra, 2 Cal.5th at p. 501.)

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In our view, the language “any cell phone device or other electronic device” may
be given a reasonable and practical construction. Since it is used in a probation condition
applicable to a specific probationer, the phrase impliedly refers to a cell phone or
electronic device with a nexus to defendant—i.e., a device used by him, belonging to
him, or in his possession. As to the term “electronic device,” we first consider the
ordinary meaning of its individual words and we then consider the term in context. The
word “device” may be reasonably understood as “a piece of equipment or a mechanism
designed to serve a special purpose or perform a special function <an electronic~>.”
(Merriam-Webster’s Collegiate Dict. (2009 11th ed.) p. 342.) The word “electronic” may
be reasonably understood as “implemented on or by means of a computer” or “of,
relating to, or being a medium . . . by which information is transmitted electronically.”
(Id., at p. 401.) The express purposes of the probationary search conditions are to search
“social media accounts and applications, photographs, video recordings, email messages,
text messages and voice messages” and to search the “activity history” on social media
applications and an electronic device’s Internet browsers. Thus, the phrase “or other
electronic device” in context impliedly refers to any “electronic device” that, like a cell
phone, may be used for communicating with or contacting others (for example, through
an email, text messaging, social media, or device applications), accessing the Internet, or
storing or accessing verbal and nonverbal communications or information, including, for
example, a desktop computer, a laptop computer, or a tablet computer. The challenged
language is sufficiently concrete to survive defendant’s vagueness challenge.
In sum, we find defendant’s challenges to probation conditions Nos. 12 and 13
were forfeited or are meritless.
DISPOSITION
The conviction for violating section 646.9, subdivision (a) (count 1) is stricken,
the court operations assessment is reduced to $80 and the court facilities assessment is
reduced to $60. As modified, the order granting probation is affirmed.

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_________________________________
ELIA, J.
WE CONCUR:
_______________________________
GREENWOOD, P. J.
_______________________________
MIHARA, J.
People v. Smith
H044392

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