Filed 12/27/17 P. v. Butler CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE


THE PEOPLE,
Plaintiff and Respondent,
v.
SEL CHARVBET BUTLER,
Defendant and Appellant.

A150183

(Marin County
Super. Ct. No. SC195252A)


Sel Charvbet Butler appeals from a judgment of conviction and sentence imposed after he entered a plea of guilty to multiple sexual offenses. He contends that a condition of his probation, which requires him to submit to warrantless searches and seizures of specified types of information on his electronic devices, is unconstitutionally overbroad. We will affirm.
I. FACTS AND PROCEDURAL HISTORY
A second amended felony complaint alleged that appellant committed the following offenses: oral copulation of a person under 18 years of age (Pen. Code, § 288a, subd. (b)(1)); misdemeanor resisting, delaying, or obstructing a peace officer (§ 148, subd. (a)(1)); misdemeanor battery (§ 242); misdemeanor dissuading a witness (§ 136.1, subd. (b)(3)); three counts of unlawful sexual intercourse with a person under 18 years of age and more than three years younger than appellant (§ 261.5, subd. (c)); and misdemeanor vandalism (§ 594, subd. (b)(2)(A)).
A. Allegations
According to the second amended felony complaint, appellant began a sexual relationship with Jane Doe #1 when he was 20 years old and she was 15 years old. During their approximately one-and-a-half-year relationship, they had sexual intercourse approximately 10 times. Appellant used text messaging to arrange where they would meet to have sex.
The second amended felony complaint further alleged that appellant began his sexual relationship with Jane Doe #2 when he was 21 years old and she was 16 years old. Jane Doe #2 stated that she and appellant had unprotected sexual intercourse on three occasions.
After appellant was taken into custody, he contacted Jane Doe #1 using the jail telephone, in violation of a protective order, and confronted her about photographs she purportedly sent to other inmates at the jail. During the recorded call, appellant told her, “I’m going to fucking kill you. I’m gonna to beat the shit out of you. I don’t give a fuck hoe.”
B. Conviction and Sentence
In August 2016, while represented by counsel and pursuant to a written plea form, appellant entered a plea of guilty to oral copulation of a person under 18 years of age (§ 288a, subd. (b)(1)) and sexual intercourse with a person under 18 years of age and more than three years his younger (§ 261.5, subd. (c)). The other charges were dismissed.
In October 2016, the court suspended the imposition of a custodial sentence and placed appellant on probation for three years. The court also issued a 10-year criminal protective order prohibiting him from contacting, calling, or otherwise communicating with his victims.
Among the conditions of probation was the following electronic search and seizure condition: “[Appellant] shall submit to search and seizure of all call logs, text and voicemail messages, photographs, emails, and social media account contents contained on any device or internet connected storage owned, operated, or controlled by [him], including cell phones, computers, gaming consoles, mobile devices, and mobile or electronic storage devices. [Appellant] shall also disclose and provide any security information required to gain access to any of the aforementioned devices or social media accounts.”
Defense counsel objected that the electronic search condition was not related to his crimes of unlawful sexual relations with minor victims. The prosecutor countered that the condition should be imposed “in light of the fact that the defendant did contact both Jane Does through text messages, through e-mails, through social media in order to effectuate these sexual offenses.”
The court concluded: “I think that [the condition] is appropriate because there were some significant connections and communication between the defendant with at least one, if not both, of the young ladies by electronic devices. I think that is appropriate. I think it is one more way to monitor the defendant and make sure that he does what he is supposed to do and doesn’t do what he is not supposed to do.”
This appeal followed.
II. DISCUSSION
Appellant contends only that the electronic search condition is unconstitutionally overbroad. We review constitutional challenges to probation conditions de novo. (In re Sheena K. (2007) 40 Cal.4th 875, 880–889; In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
“[P]robation is a privilege and not a right, and . . . adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights—as, for example, when they agree to warrantless search conditions.” (People v. Olguin (2008) 45 Cal.4th 375, 384.) “ ‘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.’ ” (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.)
Instructive in this context is People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski). There, a probation condition required the adult probationer to provide all passwords to electronic devices (cell phones, etc.) within his custody or control, and all passwords to social media sites, and submit those devices and sites to warrantless search by any peace officer. (Id. at p. 1173.) The appellate court held that the condition was not unconstitutionally overbroad, since “[a]ccess to all of defendant’s devices and social media accounts is the only way to see if defendant is ridding himself of his gang associations and activities, as required by the terms of his probation, or is continuing those associations and activities, in violation of his probation.” (Id. at p. 1175.) The court observed, “[t]he minimal invasion of his privacy that is involved in the probation officer monitoring defendant’s use of his devices and his social media accounts while defendant is on probation is outweighed by the state’s interest in protecting the public from a dangerous criminal who has been granted the privilege of probation.” (Id. at p. 1176.)
Other courts have ruled similarly to Ebertowski. (E.g., People v. Trujillo (2017) 15 Cal.App.5th 574, 578, 589, review granted Nov. 29, 2017, S244650 [probation condition requiring defendant to submit his computers and recordable media, including cell phones, to warrantless searches was not unconstitutionally overbroad where there were no facts showing the defendant’s electronic devices contained the type of sensitive medical, financial, or personal information meriting heightened protection]; Nachbar, supra, 3 Cal.App.5th 1122, 1129–1130, review granted [probation condition authorizing warrantless searches of computers and recordable media of the defendant, who was convicted of unlawful sexual intercourse with a minor more than three years his younger, was not unconstitutionally broad where, among other things, he communicated with his victim via social media, sent her sexually explicit text messages, and intended to watch a movie with her on a mobile device on the date of the offense]; J.E., supra, 1 Cal.App.5th at pp. 798, 804–805, review granted [probation condition permitting warrantless search of defendant’s “ ‘electronics, including passwords, at the request of a Probation Officer or peace officer” was not overbroad].)
Here, limiting the search condition to appellant’s “call logs, text and voicemail messages, photographs, emails, and social media account contents contained on any device or internet connected storage owned, operated, or controlled by [him]” is a reasonably tailored means of detecting if appellant is using his electronic devices to continue to feed his predatory sexual interest in underage high school girls, and as such furthers his rehabilitation and public safety. It is undisputed that appellant used text messages and cell phone calls to facilitate his pursuit of his victims, and he offers no suggestion as to how the probation condition might be further narrowed and still allow for adequate supervision. The condition does not permit unfettered forensic searches or apply to electronic devices outside his control. It is limited to “call logs, text and voicemail messages, photographs, emails, and social media account contents,” as opposed to broader conditions that might allow access to banking information, online games, musical libraries, medical records, and electronic books and newspapers. There is no evidence that appellant’s electronics contains sensitive medical, financial or personal information. (See Trujillo, supra, 15 Cal.App.5th at p. 589, review granted.) In short, there is a sufficiently close fit between the legitimate purpose of the restriction and the burden it imposes on appellant’s constitutional rights.
Appellant argues that the search condition is “overbroad in its authorization of unlimited, blanket searches of all property, all electronic devices, cell phones, computers, and all electronic storage devices,” and is not narrowly tailored to furthering appellant’s rehabilitation or promoting public safety because it does not limit the types of data that may be searched. Appellant is incorrect. The probation condition in this case does reasonably limit the types of data that may be searched, as explained ante and demonstrated by the very cases on which appellant relies.
In People v. Appleton (2016) 245 Cal.App.4th 717 (Appleton), the probation condition read: “ ‘Any computers and all other electronic devices belonging to the defendant, including but not limited to cellular telephones, laptop computers or notepads, shall be subject to forensic analysis search for material prohibited by law. [The defendant] shall not clean or delete internet browsing activity on any electronic device that [he] own[s] and [the defendant] must keep a minimum of four weeks of history.’ ” (Id. at p. 721. Italics added.) The court of appeal observed that the probation condition authorized “search[es] of [the] defendant’s mobile electronic devices [that] could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity,” including “medical records, financial records, personal diaries, and intimate correspondence.” (Id. at pp. 725–727.) The court concluded that the condition was overbroad, since it would allow the search of “vast amounts of personal information unrelated to defendant’s criminal conduct or his potential for future criminality,” and the state’s interest in “monitoring whether defendant uses social media to contact minors for unlawful purposes” could be served through narrower means, such as by requiring the defendant to submit his social media accounts and passwords for monitoring or obtaining his probation officer’s approval before using them. (Id. at p. 727.) The court struck the condition and remanded for the trial court to fashion a more narrowly tailored one. (Ibid.)
Appleton actually confirms the reasonableness of the probation condition at issue here. Unlike the condition that Appleton found overbroad, the condition here does not allow “forensic analysis search for material prohibited by law.”(Appleton, supra, 245 Cal.App.4th at p. 721.) It is limited to specified types of information, and there is no evidence that appellant’s electronic devices contain the other kinds of information with which Appleton was concerned.
In In re Malik J. (2015) 240 Cal.App.4th 896 (Malik), the probation condition provided: “[The defendant and his family are] to provide all passwords to any electronic devices including cell phones, computers and notepads within [their] custody and control, and submit to search of devices at any time to any peace officer. And also provide any passwords to any social media sites, including [F]acebook, Instagram, and submit those [s]ites to any peace officer with or without a warrant.” (Id. at pp. 900, 902–904. Italics added.) The appellate court found the condition overbroad but affirmed a modified condition that authorized “warrantless searches of electronic devices in [the defendant’s] custody and control only after the device has been disabled from any internet or cellular connection and without utilizing specialized equipment designed to retrieve deleted information that is not readily accessible to users of the device.” (Id. at pp. 902–904, 906.)
Malik is unhelpful to appellant. It is distinguishable from the matter before us, since the probation condition here is limited to devices owned, operated or controlled by him, the probation condition does not apply to appellant’s family members, and the probation condition limits the scope of searchable information to call logs, text and voicemail messages, photographs, emails, and social media account contents. Although Malik authorized a search of a device only after it had been disabled from an internet or cellular connection, appellant has not demonstrated that such a limitation is necessary here in light of the limited scope of the search condition.
III. DISPOSITION
The judgment is affirmed.
 

NEEDHAM, J.



We concur.




JONES, P.J.




SIMONS, J.









A150183