Filed 12/28/17 P. v. Brewster 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

MARY KAY BREWSTER,

Defendant and Appellant.
H043269, H043581
(Monterey County
Super. Ct. No. SS142474)
Defendant Mary Kay Brewster, a physician at a Monterey hospital, was married to another physician at the same hospital. The couple separated after Brewster discovered her husband was engaged in extramarital affairs with nurses at the hospital. Brewster began harassing her husband and one of the nurses through phone calls, messages, personal confrontations, and infliction of property damage. The trial court found her guilty of stalking, vandalism, and unauthorized entry of a dwelling house. The court granted a three-year term of probation.
Brewster raises four claims on appeal. First, she contends her convictions for stalking violated her First Amendment right to expressive conduct because her actions did not constitute “true threats” of an intent to commit unlawful violence. Second, she contends the trial court abused its discretion by denying her motion to reduce two felony convictions to misdemeanors under Penal Code section 17, subdivision (b). (Unspecified statutory references are to the Penal Code.) Third, she contends certain probation conditions allowing warrantless searches of her electronic devices are unconstitutionally overbroad in violation of her Fourth Amendment rights. Finally, she challenges certain language in the probation conditions as unconstitutionally vague and overbroad.
We conclude Brewster’s conduct constituted true threats of an intent to commit unlawful violence, such that her stalking convictions did not violate the First Amendment. Second, we conclude the denial of her section 17(b) motion was not an abuse of discretion. As to the probation conditions, we conclude the language meets constitutional requirements. We reject all other claims, and we will affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts of the Offenses
Brewster and John Doe married in 1992. At the time of the offenses, both were physicians at the same hospital in Monterey. Around 2009, Brewster discovered Doe was engaged in extramarital affairs with nurses at the hospital. In August 2013, Doe moved into a separate residence. Brewster conducted a campaign of harassment against Doe and one of the nurses he had dated.
1. Harassment of John Doe
After the couple separated, Brewster began harassing Doe with angry messages through repeated texts and telephone calls. Doe testified that Brewster called his phone and left “horrible messages” for him, “frequently in the middle of the night.” On one night, Brewster called Doe 60 times in one hour. The calls would wake Doe late at night. As an on-call physician, he could not turn off his phone. Brewster also sent numerous text messages described by Doe as “[h]ateful, angry, mean, [and] spiteful.” The prosecution introduced the contents of many such text messages into evidence.
Doe rented a separate residence with a vegetable garden in the back yard. When he returned from a vacation in June 2014, the plants began to die off. Eventually, all the plants and vegetables in the garden died.
Doe received mail forwarded to him from the couple’s former residence. Many pieces of mail had angry messages written on them in black or red marker ink. The messages referenced “your whore” and called Doe “the antichrist,” among other things.
On one occasion in 2014, Brewster took Doe’s cell phone and refused to return it for six hours. On one Saturday morning, Brewster entered Doe’s locked office without his consent after duplicating his office key. Upon entering the office and confronting Doe, Brewster knocked a stack of patients’ charts off his desk and broke a wooden box.
Doe described several other personal encounters with Brewster in which she acted out angrily towards him. In one such encounter, Brewster stabbed and shredded one of Doe’s dress shirts with a kitchen knife. On another occasion, she tore a windshield wiper off Doe’s car.
On June 11, 2014, Doe was away on vacation in the Trinity Alps—a trip he took annually at the same time each year. L.G., a nurse Doe was dating at the time, was looking after his house. When L.G. entered the house that day, she found a partially opened bag of animal food pellets in the master bedroom. She also noticed that a set of window shutters had been opened. She then saw two rats looking at her from underneath a pillow on Doe’s bed. She became afraid that another person was in the house, and she ran outside to call 911.
The responding police officer arrived to find L.G. “extremely distraught.” She was shaking and her skin was pale. The officer entered the master bedroom and found a “pretty good size” rat about three to four inches long. Upon lifting up a pillow, he found another rat under it. A subsequent search revealed a third rat under the bed. The officer also found a white plastic bag of food pellets in the bedroom.
After conducting a perimeter search of the residence, the officer heard L.G. screaming about a snake inside the house. L.G. was “terrified.” The officer entered the master bedroom and saw a snake emerging from the curtains above one of the windows. The officer corralled the snake with a stick and put it in a pillow case. The snake was later measured at three to four feet long.
The parties stipulated that Brewster bought the snake and three rats at a local pet store. The pet store manager testified that the snake was a ball python, which kills its prey through constriction. The manager opined that the snake could pose a danger to a human if it felt threatened, but he added that the snake was a tame pet store animal. The snake could bite a person, but it was not large enough to kill someone.
Doe testified that he had a fear of snakes bordering on a phobia. Brewster was aware of this fear. Doe could not sleep in his house for a week after the snake incident. He purchased a new bed and bedding because they had been ruined by rat urine and feces. He testified he no longer gets into bed without checking under the sheets and pillows to ensure there is nothing like a snake or a rat. The incident made Doe fearful that Brewster might attempt to hurt him. He obtained a restraining order against her, but he testified that it was “no guarantee” nothing else would happen.
2. Harassment of Jane Doe
Jane Doe worked as a nurse at the same hospital where John Doe and Brewster worked. Jane dated Doe from 2009 until May 2012, when Doe informed her Brewster had discovered their extramarital affair. The relationship ended when Doe called Jane to tell her Brewster was waiting on Jane’s front porch. Instead of going home, Jane drove around until Brewster left. Jane testified that there were three or four such instances in May 2012 when she saw Brewster waiting for her outside her home. Brewster then called Jane on the phone, causing Jane to block Brewster’s number. On another occasion, when Jane was walking her dog at the beach, Brewster approached her, called her ugly, and yelled “whore” at her.
Brewster also confronted Jane at the hospital. On one occasion, Brewster entered a room where Jane and a physician were treating a patient and handed Jane a copy of an email Jane had previously sent to Doe. Brewster, smiling, told Jane, “I have more for you to see.” On another occasion, when Jane was working with Brewster on a surgery, Brewster remarked about “what skanks operating nurses were” in the presence of the patient and the patient’s husband. In 2013, Jane found a note in her locker composed with letters that had been cut out and glued to the paper. The note stated, “We all hate you.” Jane testified that she felt “[s]ick to [her] stomach” when she discovered the note, and she reported it to her boss.
Brewster also vandalized various objects at Jane’s home. Around the end of 2012, Jane noticed all the plants in her front yard were dying. In June 2013, Jane returned from vacation to find her mailbox vandalized. The incidents caused Jane to install a surveillance camera on her property. The camera recorded multiple nighttime visits from Brewster. The prosecution introduced videos of Brewster approaching Jane’s property, taking Jane’s plants, and meddling with the gas cap and tire valve stems on Jane’s truck.
On June 22, 2013, Brewster drove to Jane’s house and confronted her in person. The surveillance camera recorded the incident. Brewster threatened Jane, telling her, “Slut, you’re going to die.” Jane became scared, locked her front door, and called the police.
Brewster’s harassment caused Jane to suffer severe anxiety, panic attacks, depression, loss of sleep, loss of appetite, and loss of work time. She feared for her safety and obtained a restraining order against Brewster. In addition to the security camera, Jane installed a locked mailbox, motion detectors, and an alarm system. She also purchased a firearm and obtained a permit to carry it concealed.
B. Procedural Background
The prosecution charged Brewster by information with nine counts: Counts 1 and 3—Felony stalking of John Doe and Jane Doe respectively (§ 646.9, subd. (a)); Count 2—Extortion from John Doe (§ 523); Count 4—Vandalism of property at $400 or more (§ 594, subd. (b)(1)); Counts 5 and 6—Unauthorized entry of a dwelling house (§ 602.5, subd. (a)); Count 7—Breaking or removing part of a vehicle (Veh. Code, § 10852); Count 8—Failure to care for an animal (§ 597.1); and Count 9—Vandalism of property at less than $400 (§ 595, subd. (b)(2)(A)). The parties agreed to waive their rights to a jury trial on the condition that the prosecution dismiss Counts 8 and 9. The trial court granted the motion to dismiss Counts 8 and 9, and the parties proceeded to a bench trial.
At the close of evidence, the trial court granted the prosecution’s motion to dismiss Count 6. The court found Brewster guilty on Counts 1, 3, 4, and 5, and the court found her not guilty on Counts 2 and 7.
At sentencing, the trial court suspended imposition of sentence and granted a three-year term of probation with conditions including 150 days in custody.
II. DISCUSSION
A. Whether Brewster’s Conduct Constituted True Threats or Protected Expression
Brewster challenges her stalking convictions on First Amendment grounds. She contends the trial court improperly based her convictions on expressive conduct not constituting “true threats.” The Attorney General contends sufficient evidence supports Brewster’s stalking convictions based on credible threats against both victims.
“Any 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).) The elements of stalking are (1) repeatedly following or harassing another person, and (2) making a credible threat (3) with the intent to place that person in reasonable fear of death or great bodily injury. (People v. Ewing (1999) 76 Cal.App.4th 199, 210.) A “credible threat” means conduct or communications “made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family.” (§ 646.9, subd. (g).) The statute expressly excludes constitutionally protected activity. (Id., subd. (f).)
“The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech.” (Virginia v. Black (2003) 538 U.S. 343, 358.) “The protections afforded by the First Amendment, however, are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution.” (Ibid.) As relevant here, the First Amendment permits a State to ban a “true threat.” (Id. at p. 359.) “ ‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” (Ibid.) “[A] prohibition on true threats ‘protect[s] individuals from the fear of violence’ and ‘from the disruption that fear engenders,’ in addition to protecting people ‘from the possibility that the threatened violence will occur.’ [Citation.] Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” (Id. at p. 360.)
“Claims challenging the sufficiency of the evidence to uphold a judgment are generally reviewed under the substantial evidence standard. Under that standard, ‘ “an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find [the elements of the crime] beyond a reasonable doubt.” ’ [Citations.]” (In re George T. (2004) 33 Cal.4th 620, 630–631.) In a prosecution for threats, however, a reviewing court should independently examine the record when a defendant raises a plausible First Amendment claim to ensure a speaker’s free speech rights have not been infringed. (Id. at p. 632.) “Independent review is particularly important in the threats context because it is a type of speech that is subject to categorical exclusion from First Amendment protection, similar to obscenity, fighting words, and incitement of imminent lawless action. ‘What is a threat must be distinguished from what is constitutionally protected speech.’ ” (Id. at p. 634, quoting Watts v. U.S. (1969) 394 U.S. 705.) In this context, independent review is not equivalent to de novo review. (Ibid.) We defer to the trial court as to credibility determinations and factual findings not germane to the First Amendment issue, but we independently examine the whole record to determine whether the conduct constituted a criminal threat not entitled to First Amendment protection. (Ibid.)
Brewster concedes her conduct satisfied the stalking element of repeated harassment, but she contends the evidence is insufficient to prove she made a true threat unprotected by the First Amendment. She acknowledges she said “unkind” things to Doe; shredded his shirt; damaged his windshield wiper; and placed a python and rats into his bedroom while he was away. But she argues that this “expressive conduct” did not objectively communicate a serious expression of an intent to commit an act of unlawful violence against Doe. She contends she “exercised her First Amendment right to let her husband know that she was upset” by his infidelity and mistreatment of her. She points out she never communicated any express threat of violence. The Attorney General contends Brewster’s conduct was sufficient to imply a threat of violence, notwithstanding the lack of any explicit verbal or written threats.
The Attorney General is correct that a pattern of conduct may constitute a true threat even without an explicit threat of violence. In People v. Lopez (2015) 240 Cal.App.4th 436 (Lopez), the defendant sent emails to the victim that were “angry in tone” and “ ‘had some sort of accusatory statements along with manifesto like writings . . .’ ” (Id. at p. 439.) Six years later, after they had drifted apart, the defendant sent the victim a Facebook message with a picture of a labyrinth he had created out of small rocks at a locale near the victim. The labyrinth resembled the victim’s face and included cryptic messages referring to her. The victim went to the location of the labyrinth and found a letter to her from the defendant explaining he had taken eight hours to create the labyrinth. The victim also received other Facebook messages from the defendant, including a link to a blog post with an archive of letters he had written to her, audio files with songs referencing her physical characteristics, and pictures commemorating the anniversary of their meeting. The defendant then sent a package to the victim at her mother’s home with another long letter, several music CDs, and more photos. The victim asked the defendant to stop contacting her, but he continued to send her letters and packages with obsessive and cryptic messages until police arrested him.
On appeal from his conviction for stalking, the defendant argued his actions constituted expressive conduct protected under the First Amendment because the conduct did not communicate an intent to commit an unlawful violent act. The court of appeal rejected this argument, holding, “The absence of overt threats in appellant’s communications notwithstanding, the course of conduct in which he engaged constituted a credible threat.” (Lopez, supra, 240 Cal.App.4th at p. 453.) The court stated the question was “not whether each individual expression communicated the requisite threat but whether the combination of all appellant’s communications, expressions and conduct did so.” (Id. at p. 449.) The court noted that the defendant’s repeated contacts “reveal an obsession that a reasonable person would understand as threatening.” (Id. at p. 453.)
Like the defendant in Lopez, Brewster’s conduct objectively revealed an obsession that a reasonable person would understand as threatening. In addition to repeated “unkind” communications to John Doe, Brewster shredded one of his dress shirts in front of him with a kitchen knife. Then, with the knowledge that Doe suffered from a fear of snakes, she surreptitiously entered his home and placed a three-to-four-foot python in his bedroom. Brewster argues that the python was harmless, but this misses the point. The message sent by breaking into a person’s home and depositing a snake communicates an intent to instill fear and implies the intruder is willing to engage in violent acts. Brewster argues that the possibility of violent action was speculative, but the analysis for First Amendment purposes focuses on whether the conduct objectively communicates a serious expression of an intent to act violently—not on whether such action actually occurred. We conclude Brewster’s conduct communicated such an intent beyond a reasonable doubt.
Brewster also challenges her conviction for stalking Jane Doe on First Amendment grounds. She concedes her conduct constituted repeated harassment under the statute, but she argues her actions did not constitute a true threat. Unlike her communications with John Doe, however, Brewster made an explicit threat of violence against Jane. In the course of personally confronting Jane at her home, Brewster told her, “Slut, you’re going to die.” Brewster argues that the statement was merely “an emotional response fueled by Dr. Brewster’s emotional pain” resulting from Doe’s affair with Jane. Regardless of the impetus for the statement, a reasonable person would objectively view that as a serious expression of an intent to act violently, particularly in the context of the repeated harassment Brewster had inflicted on Jane. (See People v. Halgren (1996) 52 Cal.App.4th 1223, 1232 [in the context of a series of harassing phone calls, First Amendment did not protect defendant’s threats to victim that “she would be sorry she had been rude to him,” “she would pay for being rude to him,” and he was going to “fix her” or “fix this.”].) We conclude the evidence established beyond a reasonable doubt that Brewster’s statement to Jane Doe constituted a true threat unprotected by the First Amendment.
B. Denial of the Motion to Reduce Convictions to Misdemeanors
At sentencing, Brewster moved under section 17(b) to reduce her felony convictions on Count 1 (stalking as to John Doe), Count 3 (stalking as to Jane Doe) and Count 4 (felony vandalism) to misdemeanors. The trial court granted the motion as to Count 1, but denied the motion as to Counts 3 and 4. Brewster contends the trial court abused its discretion by denying her motion as to Counts 3 and 4.
Stalking under subdivision (a) of section 646.9 and vandalism under subdivision (b)(1) of section 549 are “wobbler” offenses punishable as either felonies or misdemeanors. Section 17(b) grants a trial court the discretion to reduce such a felony conviction to a misdemeanor. Factors relevant to the determination include “ ‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’ [Citations.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.) When appropriate, courts should also consider the general objectives of sentencing set forth in California Rules of Court, rule 4.410. (Ibid.) Those objectives include protecting society, punishing the defendant, deterrence, encouraging the defendant to lead a law-abiding life, and preventing the defendant from committing new crimes. (Cal. Rules of Court, rule 4.410(a).) “A court [has] broad discretion under [section 17(b)] in deciding whether to reduce a wobbler offense to a misdemeanor. [Citation.] We will not disturb the court’s decision on appeal unless the party attacking the decision clearly shows the decision was irrational or arbitrary. [Citation.] Absent such a showing, we presume the court acted to achieve legitimate sentencing objectives. [Citations.]” (People v. Sy (2014) 223 Cal.App.4th 44, 66.)
In denying Brewster’s motion as to Counts 3 and 4, the trial court cited the totality of the circumstances in the case, the degree of impact on the victim, and the fact that the vandalism occurred repeatedly over the course of a year or more. Brewster contends the court failed to base its decision on the statutorily relevant factors, including the nature and circumstances of the offense, her appreciation and attitude toward the offense, her character traits and criminal past, and the general objectives of sentencing. This claim is without merit. First, the court’s consideration of the “totality of the circumstances” necessarily included the nature and circumstances of the offense. The fact that Brewster committed repeated acts of vandalism over the course of a year or more was also part of the circumstances of the offense.
Second, as to the factors the trial court did not mention, our review does not look to whether the court explained the significance of every sentencing factor on the record. “ ‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.]” (People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 977–978.) “[R]emand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1229.) Brewster points to nothing in the record showing the trial court misunderstood its sentencing discretion.
Brewster further contends the factors cited by the court are not supported by the record. The record belies her assertion. For example, the prosecution introduced evidence of multiple acts of vandalism by Brewster against Jane Doe over an extended period. The record also includes abundant testimony by Jane Doe concerning the severity of the psychological impact she suffered. The record amply supports the court’s reliance on these factors and nothing in the court’s rulings demonstrates any abuse of discretion.
C. Brewster Forfeited a Challenge to the Electronic Search Probation Condition
Brewster challenges three probation conditions subjecting her computers and other electronic devices to warrantless searches. She contends the conditions are unconstitutionally overbroad in violation of her Fourth Amendment rights. The Attorney General contends Brewster forfeited this claim by failing to object, but even assuming the claim is not forfeited, he argues the conditions are not overbroad.
At sentencing, the trial court imposed the following probation conditions, among others: “Any computer or electronic data storage device in your custody, possession or control shall be subject to a forensic computer search. [¶] You shall provide encryption keys or passwords to the probation department for any computers or electronic data storage devices to which you have shared, partial, or limited access. [¶] Provide internet accounts and internet identifiers to the probation officer, as directed, including e-mail addresses and designations used for the purposes of chatting, instant messaging, social networking, or other similar internet communication.” Brewster did not object to these conditions.
“It is well established that individuals retain a constitutionally protected expectation of privacy in the contents of their own computers.” (People v. Appleton (2016) 245 Cal.App.4th 717, 724 (Appleton).) A probation condition allowing for searches of a probationer’s electronic devices implicates the Fourth Amendment and must therefore be closely tailored to the purpose of the condition. (Id. at p. 723, citing In re Sheena K. (2007) 40 Cal.4th 875, 890.) This principle, however, does not empower a reviewing court to examine all such conditions absent any objection in the trial court. “Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal. [Citations.]” (In re Sheena K., supra, at p. 880.) In the context of challenges to probation conditions, the California Supreme Court has distinguished between claims that involve “a pure question of law” and those that require case-specific determinations based on the sentencing record. The former may be raised for the first time on appeal, but the latter are discouraged unless an objection was made. “[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 waiver principles encourage development of the record and a proper exercise of discretion in the trial court.” [Citation.]’ ” (Id. at p. 889.)
Claims concerning the overbreadth of electronic search probation conditions are often case-specific such that a timely objection must be made. In Appleton, the defendant objected in the trial court to the electronic search condition and we considered the nature of the defendant’s offense and the purposes to be served by the condition. Finding the challenged condition overbroad, we remanded to the trial court to narrow the condition to fit the state’s interests based on the probationer’s specific circumstances. (Appleton, supra, 245 Cal.App.4th at p. 727.)
Brewster’s claim on appeal involves similar case-specific considerations. As it must, her opening brief on this point refers to the facts of her offenses and her personal circumstances. The alternative language she proposes as an example of a more narrowly tailored condition relates to the specific facts of her offenses. The scope and details of such conditions are best fashioned by trial courts based on each defendant’s individual circumstances. A timely objection encourages such an analysis and obviates the need to litigate the matter on appeal. For these reasons, we conclude Brewster forfeited this claim by failing to object.
D. Probation Conditions Restricting the Use of Electronic Devices
Brewster challenges two probation conditions restricting her ability to make certain electronic communications, conduct Internet searches, and visit social networking sites. She contends the conditions are unconstitutionally vague or overbroad because the conditions lack a scienter requirement and because certain language in the conditions is insufficiently precise. The Attorney General contends the challenged conditions are neither vague nor overbroad.
The trial court imposed the following probation conditions, among others: “You’re not to post, note or comment in any electronic communication or any social media related to John Doe or Jane Doe. You’re not to conduct any Internet searches on or about Jane Doe. You’re not to visit any social network sites related to John Doe or Jane Doe or comment on any post, articles or website related to or belonging to John Doe or Jane Doe, except in compliance with any family law court orders.” Brewster did not object.
“[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ ” (In re Sheena K., supra, 40 Cal.4th at p. 890.) “The vagueness doctrine bars enforcement of ‘ “a statute which either forbids or requires the doing of an act in terms so vague that [people] of common intelligence must necessarily guess at its meaning and differ as to its application.” ’ [Citations.]” (Ibid.) “A probation condition ‘must be sufficiently precise for the probationer to know what is required of him [or her], 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.)
“The mere fact that a statute must be interpreted to determine the applicable mental state does not render a criminal statute—or a probation condition—unconstitutionally vague.” (People v. Hall (2017) 2 Cal.5th 494, 501 (Hall).) “Just as most criminal statutes—in all their variety—are generally presumed to include some form of mens rea despite their failure to articulate it expressly, so too are probation conditions generally presumed to require some form of willfulness, unless excluded ‘ “ ‘expressly or by necessary implication.’ ” ’ ” (Id. at p. 502, quoting In re Jorge M. (2000) 23 Cal.4th 866, 872.) Generally, where a probation condition lacks an express scienter requirement, none must be added, as doing so would make no change to the substance of the condition. (Id. at p. 503.)
First, Brewster challenges the above probation conditions on the ground they lack scienter requirements. She contends that, in the absence of such a requirement, she could violate the conditions unwittingly. After Brewster filed her opening brief, however, the California Supreme Court ruled that a scienter requirement may be implicit in a probation condition. (Hall, supra, 2 Cal.5th at p. 502.) In her reply brief, Brewster concedes the point as to the conditions challenged here.
Brewster nonetheless contends the probation conditions are vague based on imprecise language. Specifically, she contends the phrases “social media” and “social networking sites” are unconstitutionally vague without a specific list of proscribed websites. Given the ubiquity of Internet access and usage, we are satisfied that a person of common intelligence can determine which websites constitute social media or social networking sites. And as the Attorney General points out, with the “ever-changing nature of the social media landscape,” any list we provided would soon be outdated, perhaps even before the end of Brewster’s term of probation.
Finally, Brewster contends the phrase “related to John Doe or Jane Doe” is unconstitutionally vague or overbroad because it could be interpreted so broadly as to prohibit her from visiting any social networking sites used by either victim. We do not think the condition is subject to such a broad interpretation. The language is reasonably fashioned to prohibit Brewster from visiting or posting comments where websites mention the victims by name or other identifying reference. We conclude the condition as reasonably construed is neither unconstitutionally vague nor overbroad.
III. DISPOSITION
The judgment is affirmed.

____________________________________
Grover, J.




WE CONCUR:




____________________________
Premo, Acting P. J.




____________________________
Bamattre-Manoukian, J.






H043581 – People v Brewster
H043269 – People v Brewster