Filed 7/26/17 P. v. Rodriguez CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE


THE PEOPLE,
Plaintiff and Respondent,
v.
SANTINO DINO RODRIGUEZ,
Defendant and Appellant.

A149313

(San Mateo County
Super. Ct. No. SF399404B)


Defendant Santino Rodriguez pleaded no contest to possessing a large-capacity magazine, a felony, and the trial court placed him on probation for three years. On appeal, he contends that four of his probation conditions that involve his use of electronic devices are unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent), unconstitutionally overbroad, and, in one instance, unconstitutionally vague. He also contends that the order granting probation must be modified to reflect the trial court’s promise that he could seek to reduce his offense to a misdemeanor under Penal Code section 17, subdivision (b)(3) (section 17(b)(3)) after successfully completing two years of probation.
Rodriguez did not object below to imposition of the four challenged probation conditions. We conclude that he therefore forfeited his Lent and overbreadth claims because the record is insufficient for us to consider them in the first instance. And although we consider his vagueness claim despite his failure to object, it fails on the merits. Finally, we conclude there is no need to modify the order granting probation to indicate that Rodriguez may seek to reduce his offense to a misdemeanor after successfully completing two years of probation. As a result, we affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
In May 2015, a San Mateo County Sheriff’s detective discovered that Rodriguez and another man had been smoking marijuana in a car parked outside “a known Norteño gang hangout” in unincorporated Redwood City. After Rodriguez exited the car, the deputy discovered in the backseat “a fully loaded, semi-automatic Glock pistol with extended magazine” covered by a jacket. The men indicated that the gun did not belong to them, but Rodriguez admitted the jacket was his.
An information charged Rodriguez with felony counts of possessing a large-capacity magazine and unlawfully carrying a loaded firearm. He pleaded no contest to the first charge, and the second charge was dismissed. The judge who took the plea indicated that, consistent with what was stated on the plea form, Rodriguez could “apply for a reduction” of his offense to a misdemeanor “after two years of successful completion” of probation.
The sentencing judge suspended imposition of the sentence and placed Rodriguez on probation for three years subject to various terms and conditions, including that he serve seven months in county jail. On appeal, Rodriguez challenges the following four conditions of his probation:
1. “You shall not be in possession of a paging device or any portable communication equipment, including, but not limited to, scanners, at the discretion of the probation office[r] or department.”

2. “Any electronic data or communication device under your control and/or [to] which the Defendant has shared, partial, or limited access is subject to a full and complete search by any probation or peace officer, in any manner required to guarantee full disclosure [to] any peace or probation officer, during the day or night, with or without your consent, with or without a search warrant and without regard to probable and reasonable cause.”

3. “You must provide encryption keys or passwords to your probation or peace officer for any computer or electronic data storage device in your possession, custody, or control, to which you have sole, shared, or partial, or limited access.”

4. “You shall have no access [to] or participate in any social networking site, [including] but not limited to Myspace[.]com, as directed by any probation officer. And all Internet use is subject to monitoring by the probation department.”
Rodriguez did not object to any of these conditions before they were imposed.
After pronouncement of the probation terms and conditions, Rodriguez’s trial counsel noted that at a previous hearing “the Court did indicate that it would reduce the felony to a misdemeanor. And I don’t remember if that was halfway through probation or at the end of probation.” The sentencing judge responded, “The notes reflect that if [Rodriguez] successfully completes probation, the Court will consider a [section 17, subdivision (b)] motion. [¶] . . . I’m hopeful that he’ll be able to successfully complete probation and I’ll be seeing him in three years so he can reduce this to a misdemeanor.” The order granting probation does not reflect this statement.
II.
DISCUSSION
A. Rodriguez Forfeited His Lent and Overbreadth Claims, but We Will Consider His Vagueness Claim on the Merits.
Rodriguez contends that the four challenged probation conditions are unreasonable under Lent, unconstitutionally overbroad, and, in one instance, unconstitutionally vague. We agree with the Attorney General that Rodriguez forfeited his Lent and overbreadth claims by failing to object to the conditions in the trial court, but we conclude that he did not forfeit his vagueness claim.
A probation condition is invalid under Lent if 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.’ ” (Lent, supra, 15 Cal.3d at p. 486.) A condition is unconstitutionally overbroad if it “imposes limitations on a person’s constitutional rights” but does not “closely tailor those limitations to the purpose of the condition.” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) And a condition is unconstitutionally vague if it is not “sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition.” (People v. Hall (2017) 2 Cal.5th 494, 500.)
It is well-settled that a Lent challenge is forfeited by a defendant’s failure to object on that ground in the trial court. (People v. Welch (1993) 5 Cal.4th 228, 237.) In contrast, challenges based on overbreadth or vagueness may be raised for the first time on appeal, but only if they “ ‘present “pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court.” ’ ” (In re Sheena K., supra, 40 Cal.4th at p. 889.)
Rodriguez argues that even though he failed to object specifically to the four challenged conditions below, he sufficiently raised the issues of reasonableness under Lent and overbreadth because his sentencing memorandum “challenge[d] the probation report and its conclusion that [he] required intensive supervision and that he was dangerous.” In making that challenge, however, the memorandum focused exclusively on whether gang-related conditions were warranted, stating, “We ask the court to take issue with the probation officer’s conclusions that [Rodriguez] is a dangerous individual who needs intensive supervision and gang conditions. There is no evidence in the record that he is or ever was a validated gang member, and there were no gang enhancements alleged in this case. Imposing the gang conditions on [him] will expose him to the same kind of negative self-esteem problems he had when he was growing up.” This argument was insufficient to give the trial court notice that Rodriguez objected to the challenged conditions, none of which are obviously gang-related.
Because Rodriguez failed to object to the challenged conditions, he forfeited his Lent claims, and we decline his invitation to exercise our discretion to consider them. (See People v. Welch, supra, 5 Cal.4th at p. 237.) Similarly, we conclude that his overbreadth claims are forfeited. Rodriguez argues that he is making “a facial challenge” to the challenged conditions’ overbreadth, but we are not persuaded. He appears to recognize that the record is not developed regarding the purposes of the conditions and that remand would be appropriate if we were to conclude that the conditions are overbroad. “An alleged constitutional defect that is ‘correctable only by examining factual findings in the record or remanding to the trial court for further findings’ is not a facial constitutional challenge, and traditional forfeiture rules apply.” (In re I.V. (2017) 11 Cal.App.5th 249, 260-261 (I.V.) [concluding that purported facial overbreadth challenge was forfeited].) We therefore decline to consider Rodriguez’s overbreadth claims for the first time on appeal.
Although Rodriguez forfeited his Lent and overbreadth claims, he did not forfeit his vagueness claim, which is limited to the fourth challenged condition. This condition prohibits him from participating in or accessing “any social networking site” and makes “all Internet use” subject to monitoring. The determination whether the condition’s language is sufficiently clear may be made without development of a factual record. (See I.V., supra, 11 Cal.App.5th at p. 261.) Thus, we turn to consider the claim on the merits.
B. The Probation Condition Prohibiting Use of “Any Social Networking Site”
and Permitting Monitoring of “All Internet Use” Is Sufficiently Clear.
“[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.’ ” (In re Sheena K., supra, 40 Cal.4th at p. 890.) “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.” (Ibid.) In determining whether a condition is unconstitutionally vague, “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., italics omitted.) Whether a probation condition is unconstitutionally vague is a question of law reviewed de novo. (I.V., supra, 11 Cal.App.5th at p. 261.)
Rodriguez first claims that the restriction on his participating in or accessing “any social networking site” is vague because “reasonable people would not know if the prohibition includes all networking platforms, which include networking for purposes of file, photo, [and] music sharing as well as work and school networking.” In construing probation conditions, we apply “ ‘the meaning that would appear to a reasonable, objective reader.’ ” (People v. Olguin (2008) 45 Cal.4th 375, 382.) A condition is sufficiently specific “ ‘ “if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources.” ’ ” (People v. Lopez (1998) 66 Cal.App.4th 615, 630, quoting People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117; see also People v. Hall, supra, 2 Cal.5th at pp. 500-501.)
“Social networking” is defined as “the use or establishment of social networks or connections; (now esp.) the use of websites which enable users to interact with one another, find and contact people with common interests, etc.” (Oxford English Dict. Online (June 2017) <http://www.oed.com> [as of July 26, 2017].) The challenged condition also provides an example of a social networking site, Myspace.com, further clarifying the types of websites Rodriguez is prohibited from using. Because reference to readily available sources elucidates the definition of the term “social networking site,” we conclude that it is sufficiently clear. A condition is not impermissibly vague just because “ ‘ “ ‘there may be difficulty in determining whether some marginal or hypothetical act is covered by [the condition’s] language.’ ” ’ ” (I.V., supra, 11 Cal.App.5th at p. 261.)
Rodriguez also claims that the portion of the condition that allows for monitoring of “all Internet use” is vague because “it fails to specify the prohibited conduct” and “fails to alert [him] to the actions he must avoid.” The restrictions on his Internet use are spelled out in other probation conditions, however, and this portion of the challenged condition does not prohibit him from doing anything. Rather, it serves as a warning that his Internet use is subject to monitoring. The challenged condition is not vague merely because it does not specify what the probation department might be looking for when monitoring him.
C. The Order Granting Probation Needs No Modification to Reflect When
Rodriguez Can Seek Reduction of His Offense to a Misdemeanor.
Rodriguez argues that the order granting probation should be modified to recognize that he is entitled to seek a reduction of his offense to a misdemeanor under section 17(b)(3) after successfully completing two years of probation. The Attorney General responds that it would be inappropriate to modify the written order but suggests that “this court can[] recognize in its opinion that [Rodriguez] may apply for a reduction of the felony if he succeeds on probation after two years.” In his reply brief, Rodriguez states that the Attorney General’s proposal “is an acceptable remedy to [him], so long as the opinion notes that the plea was entered with the promise that he could seek reduction of the felony to a misdemeanor after [a] successful two . . . years of the probationary term.” We conclude that there is no need to modify the order since an application under section 17(b)(3) may be brought at any time.
Under section 17, a crime that is punishable as either a felony or misdemeanor (“wobbler”) “is a misdemeanor for all purposes . . . [¶] . . . [¶] [w]hen the court grants probation to a defendant without imposition of sentence and . . . on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.” (§ 17(b)(3); People v. Park (2013) 56 Cal.4th 782, 789-790.) A trial court has broad discretion over whether to grant an application under section 17(b)(3). (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)
We are somewhat puzzled by Rodriguez’s claim, because section 17(b)(3) does not limit when a defendant may seek to reduce an offense to a misdemeanor. “An application by a defendant to have the trial court declare a ‘wobbler’ a misdemeanor may be made at any time, even after probation is terminated.” (People v. Wood (1998) 62 Cal.App.4th 1262, 1267, fn. 3, italics added.) Thus, the original judge’s statement that Rodriguez could apply to reduce the offense to a misdemeanor in two years did not alter what he was already entitled to do. Nor does he cite any authority for the proposition that an order granting probation must reflect such a statement. To the extent the original judge implied that Rodriguez’s application would be looked upon favorably after two years of successful probation, there was no promise the application would be granted. In any event, Rodriguez does not contend that such a promise was made but focuses exclusively on his right to apply for reduction of his offense. We agree with the Attorney General that there is no need to modify the order granting probation.
III.
DISPOSITION
The order granting probation is affirmed.

_________________________
Humes, P.J.


We concur:


_________________________
Margulies, J.


_________________________
Banke, J.













People v. Rodriguez A149313