P. v. Gonzalez

Filed 7/11/18 P. v. Gonzalez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
VICTOR JAVIER GONZALEZ,
Defendant and Appellant.
H045178
(Monterey County
Super. Ct. No. 17CR000057)
I. INTRODUCTION
Defendant Victor Javier Gonzalez pleaded no contest to possession for sale of
cocaine (Health & Saf. Code, § 11351) and admitted that he had served three prison prior
terms (Pen. Code, § 667.5, subd. (b))1. The trial court sentenced defendant to six years in
county jail, suspending three years of his sentence and ordering a three-year period of
mandatory supervision upon his release. (See § 1170, subd. (h)(5)(B).)
On appeal, defendant challenges, as overbroad, two conditions of mandatory
supervision that require him to submit his electronic devices for search by the probation
officer or a peace officer.2 Defendant also challenges, as overbroad, a condition
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Defendant describes the two electronic search conditions as one condition, but
the record indicates that two separate conditions were imposed.

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prohibiting him from obtaining any new tattoos. For reasons we shall explain, we will
affirm the judgment.
II. BACKGROUND
A. Statement of Facts3
At approximately 10:20 p.m. on June 16, 2017, officers contacted defendant at a
nightclub, informed defendant that he was on probation with a search and seizure clause,
and requested defendant exit the nightclub so he could be searched. Defendant refused,
so officers physically removed him. Once outside, defendant took a plastic baggie
containing cocaine from his pocket and threw it on the ground, dragging his foot over it
and causing the baggie to tear. Defendant struggled with the officers, and he kicked one
officer in the chest while being placed in the patrol vehicle. Officers searched defendant
and his vehicle, recovering a total of 13.2 grams of cocaine and $1,102.00 in cash.
According to jail records, defendant admitted to being a Norteño gang member
and was housed in an active Norteño gang unit.4 While in Monterey County Jail,
defendant received a Disciplinary Action Report (DAR) for “[p]ossession of tattoo
equipment, tattooing self or others.”
B. Procedural History
On August 3, 2017, defendant was charged with possession for sale of cocaine
(Health & Saf. Code, § 11351; count 1), destroying evidence (§ 135; count 2), battery
on a peace officer (§ 243, subd. (b); count 3), and resisting a peace officer (§ 148,
subd. (a)(1); count 4). The information also alleged a prior felony drug sale conviction as
to count 1 (Health & Saf. Code, § 11370.2, subd. (a)) and that defendant had served three
prior prison terms (§ 667.5, subd. (b)).
3 As defendant was convicted by plea, the summary of his offenses is taken from
the probation report.
4 At the sentencing hearing, defendant denied that he had admitted to being a
Norteño gang member.

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On August 23, 2017, defendant pleaded no contest to possession for sale of
cocaine (count 1). He also admitted the prior prison term allegations. The probation
officer recommended that the trial court impose a number of conditions of mandatory
supervision, including the three conditions defendant challenges on appeal.
The first challenged condition provides: “Submit all electronic devices under your
control to a search by the Probation Officer or a peace officer, of any text messages,
voicemail messages, call logs, photographs, email accounts and social media accounts,
with or without reasonable or probable cause or the benefit of a search warrant, at any
time of the day or night and provide the probation or peace officer with any passwords
necessary to access the information specified, and you will not change or add any email
address or passwords without prior permission of your Probation officer.”
The second challenged condition provides: “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.”5
5 The California Supreme Court is currently considering a challenge to an
electronic devices search condition in In re Ricardo P. (2015) 241 Cal.App.4th 676,
review granted February 17, 2016, S230923 (Ricardo P.). As reflected on the docket in
Ricardo P., the issue presented is as follows: “Did the trial court err by imposing an
‘electronic 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=NiIwLSIkXkw4WzApSCNNTEJIQFQ0U
DxTICJeIzhTQCAgCg%3D%3D> [as of July 10, 2018].)

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The third challenged condition provides: “Do not obtain any new tattooing upon
your person while on [mandatory] supervision. You shall permit photographing of any
tattoos on your person by law enforcement.”
On October 6, 2017, the trial court imposed the conditions as recommended and
sentenced defendant to six years in county jail pursuant to section 1170, subdivision (h),
suspending three years and imposing a three-year period of mandatory supervision upon
his release.
III. DISCUSSION
Defendant contends that the conditions of mandatory supervision requiring him to
submit his electronic devices for search and prohibiting him from obtaining any new
tattoos are unconstitutionally overbroad.
A. General Principles Regarding Mandatory Supervision
Although the parties refer to the electronic devices search conditions and the tattoo
prohibition condition as “probation conditions,” the challenged conditions relate to his
three-year period of mandatory supervision. (See § 1170, subd. (h)(5)(B).) We begin by
reviewing general principles regarding mandatory supervision.
When a defendant is on mandatory supervision, he or she “shall be supervised by
the county probation officer in accordance with the terms, conditions, and procedures
generally applicable to persons placed on probation.” (§ 1170, subd. (h)(5)(B).)
Although mandatory supervision has been characterized as “akin to probation” (People v.
Griffis (2013) 212 Cal.App.4th 956, 963, fn. 2), courts have also observed that mandatory
supervision is in some respects “more similar to parole than probation” (People v.
Fandinola (2013) 221 Cal.App.4th 1415, 1423; accord, People v. Martinez (2014) 226
Cal.App.4th 759, 763 (Martinez)). Mandatory supervision conditions have therefore
been analyzed “under standards analogous to the conditions or parallel to those applied
to terms of parole.” (Martinez, supra, at p. 763.)

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“The fundamental goals of parole are ‘ “to help individuals reintegrate into
society as constructive individuals” [citation], “ ‘to end criminal careers through the
rehabilitation of those convicted of crime’ ” [citation] and to [help them] become self-
supporting.’ [Citation.] In furtherance of these goals, ‘[t]he state may impose any
condition reasonably related to parole supervision.’ [Citation.] These conditions ‘must
be reasonably related to the compelling state interest of fostering a law-abiding lifestyle
in the parolee.’ [Citation.]” (Martinez, supra, 226 Cal.App.4th at p. 763.)
B. Standard of Review
We review constitutional challenges to conditions of mandatory supervision de
novo. (Martinez, supra, 226 Cal.App.4th at pp. 765-766; In re Sheena K. (2007) 40
Cal.4th 875, 888 (Sheena K.) [whether a probation condition is unconstitutionally vague
or overbroad is a question of law, which we review de novo].)
C. Electronic Search Conditions
Defendant contends the electronic devices search conditions are overbroad
because the conditions “unnecessarily implicate[] his individual privacy rights” since
there is no evidence he used electronics to commit criminal activity.6 Defendant requests
those conditions be stricken or modified. The Attorney General argues that neither
condition is overbroad because the conditions are limited to electronic devices under
defendant’s control.
In the context of probation conditions, the California Supreme Court has stated
that a “condition that imposes limitations on a person’s constitutional rights must closely
tailor those limitations to the purpose of the condition to avoid being invalidated as
unconstitutionally overbroad.” (Sheena K., supra, 40 Cal.4th at p. 890.)
6 Defendant objected to the electronic devices search conditions as overbroad at
the sentencing hearing.

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“The 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.]” (United
States v. Knights (2001) 534 U.S. 112, 118-119 (Knights).) A person’s status as a
probationer subject to a search condition informs both sides of that balance because
probationers enjoy a lesser expectation of privacy than the general public. (Id. at p. 119.)
In People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski), this court
rejected an overbreadth argument where the challenged probation conditions required the
defendant to “(1) ‘provide all passwords to any electronic devices, including cellular
phones, computers or notepads, within [his] custody or control, and submit such devices
to search at any time without a warrant by any peace officer’ and (2) ‘provide all
passwords to any social media sites, . . . and to submit those sites to search at any time
without a warrant by any peace officer.’ ” (Id. at p. 1172.) The defendant in Ebertowski,
a member of a criminal street gang, had used social media to promote his gang. The
defendant had also physically resisted and threatened an officer. This court rejected the
defendant’s claim that the challenged probation condition was “not narrowly tailored to
[its] purpose so as to limit [its] impact on his constitutional rights to privacy, speech, and
association” and concluded that the state’s interest in preventing the defendant from
continuing to associate with gangs and participate in gang activities, which was served by
the condition, outweighed the minimal invasion of his privacy. (Id. at p. 1175.) This
court noted that the defendant’s “involvement with his gang has produced a man willing
to threaten and physically resist armed police officers” and concluded that “[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.)

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In asserting that the electronic devices search conditions significantly impact his
privacy rights, defendant relies on the United States Supreme Court’s decision in Riley v.
California (2014) 573 U.S. ___ [134 S.Ct. 2473] (Riley). In Riley, the court held that the
warrantless search of a suspect’s cell phone implicated and violated the suspect’s Fourth
Amendment rights. (Riley, supra, at p. ___ [134 S.Ct. at pp. 2493-2494].) The court
explained that modern cell phones, which have the capacity to be used as mini-
computers, can potentially contain sensitive information about a number of areas of a
person’s life. (Id. at p. ___ [134 S.Ct. at p. 2489].) The court emphasized, however, that
its holding was only that cell phone data is subject to Fourth Amendment protection, “not
that the information on a cell phone is immune from search.” (Id. at p. ___ [134 S.Ct. at
p. 2493].)
Riley is inapposite since it arose in a different Fourth Amendment context. Riley
involved the scope of a warrantless search incident to arrest of a person who had not been
found to have committed a crime beyond a reasonable doubt and who was not on
supervised release. (Riley, supra, 573 U.S. at p. ____ [134 S.Ct. at pp. 2480-2481].) The
balancing of the state’s interests and the defendant’s privacy interests is very different in
this case, which involves the mandatory supervision of a convicted felon with a prior
conviction for selling narcotics. Moreover, Riley did not consider the constitutionality of
conditions of probation, parole, or mandatory supervision. Persons on supervised release
do not enjoy the absolute liberty to which every citizen is entitled and the court may
impose reasonable conditions that deprive an offender of some freedoms enjoyed by law-
abiding citizens. (Knights, supra, 534 U.S. at p. 119 [probationers]; see also In re Q.R.
(2017) 7 Cal.App.5th 1231, 1238, review granted April 12, 2017, S240222 [Riley
involved a person’s “preconviction expectation of privacy”].)
Defendant also relies on this court’s decision in People v. Appleton (2016) 245
Cal.App.4th 717 (Appleton). In Appleton, the defendant pleaded no contest to false
imprisonment by means of deceit. (Id. at p. 720.) The trial court granted probation and

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imposed a condition making the defendant’s computers and electronic devices “ ‘subject
to forensic analysis search for material prohibited by law.’ ” (Id. at p. 721.) The only
connection between the offense and electronic devices in Appleton was that the defendant
met the minor victim on social media several months before the crime occurred. (Id. at
pp. 719-720.) On appeal, the defendant challenged the search condition as both
unreasonable and overbroad. (Id. at pp. 723-724.) The Appleton panel concluded that
although the challenged condition was reasonable, it was unconstitutionally overbroad,
and the panel remanded the matter to the trial court to “consider fashioning an alternative
probation condition.” (Id. at p. 729.) Relying on Riley, the Appleton panel held that the
condition was overbroad because it “would allow for searches of vast amounts of
personal information” (Appleton, supra, at p. 727) that “could potentially expose a large
volume of documents or data, much of which may have nothing to do with illegal
activity,” including “for example, medical records, financial records, personal diaries,
and intimate correspondence with family and friends” (id. at p. 725). The Appleton panel
concluded that “the state’s interest here—monitoring whether defendant uses social
media to contact minors for unlawful purposes—could be served through narrower
means,” such as by imposing “the narrower condition approved in Ebertowski, whereby
defendant must provide his social media accounts and passwords to his probation officer
for monitoring.” (Id. at p. 727, fn. omitted.)
Defendant urges us to strike the challenged conditions or follow Appleton and
remand to the trial court to fashion more narrowly tailored conditions of mandatory
supervision related to his electronic devices. Echoing concerns expressed in Riley,
defendant argues that a cell phone may contain data dating far back in time and can
implicate data that is not stored on the device itself that may be accessed via cloud
computing. (See e.g., Riley, supra, 573 U.S. at p. ___ [134 S.Ct. at p. 2491].)
Here, as the Attorney General notes, the electronic devices search conditions
properly serve the state’s interest in preventing defendant from using electronic devices

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to engage in criminal activity such as the sale of narcotics or gang activity. Given
defendant’s physical resistance to the probation search and his use of violence towards
police officers, “[t]he minimal invasion of his privacy” associated with monitoring his
electronic devices and social media accounts while he is on mandatory supervision “is
outweighed by the state’s interest in protecting the public from a dangerous criminal who
has been granted the privilege of [mandatory supervision].” (See Ebertowski, supra, 228
Cal.App.4th at p. 1176.) Moreover, we note that the challenged conditions do restrict the
permitted searches of defendant’s electronic devices, by specifying the type of
applications that may be searched and the purposes for which searches may be conducted.
Although defendant generally argues the conditions are overbroad, he does not explain
how they should be further circumscribed in a way that would still serve the state interest
identified above. We conclude the electronic devices search condition is not overbroad.
D. Tattoo Prohibition Condition
Defendant contends that the condition preventing him from obtaining “any new
tattooing” is unconstitutionally overbroad in violation of his First Amendment right to
freedom of expression. Defendant requests the condition be modified to prohibit him
from obtaining any new “gang-related” tattoos.7 The Attorney General argues that the
condition is a valid content-neutral restriction.
Defendant acknowledges that conditions prohibiting tattoos for gang members
have been upheld in juvenile cases. (E.g., In re Antonio C. (2000) 83 Cal.App.4th 1029
(Antonio C.); In re Victor L. (2010) 182 Cal.App.4th 902 (Victor L.).) He argues that
because he is an adult, the rationale used by those courts does not apply to him. The
Attorney General contends that that because defendant is on mandatory supervision, a
“unique form of post-incarceration supervision akin to the heightened supervision
7 At the sentencing hearing, defendant objected to the tattoo condition by asking
the trial court to add “the term ‘gang’ ” so as “to not offend his First Amendment rights.”

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permitted for juvenile probationers and parolees,” the analysis in Antonio C. and Victor L.
supports the tattoo prohibition in this case.
In Antonio C., the appellate court rejected a First Amendment challenge to a
condition prohibiting the minor from acquiring any new tattoos: “Assuming, without
deciding, that tattoos and related skin markings constitute speech under the First
Amendment [citation], the probation condition does not unduly burden [the minor’s] free
speech rights. The United States Supreme Court has long held that while nonverbal
expressive activity cannot be banned because of the ideas it expresses, it can be banned
because of the action it entails. . . . Here, the probation condition, which is content
neutral, temporarily prohibits [the minor] from self-expression through permanent skin
disfigurement. Its focus is the manner in which the message is conveyed, not the
message itself. As such, it constitutes a reasonable manner restriction on [the minor’s]
free speech rights. [Citation.]” (Antonio C., supra, 83 Cal.App.4th at p. 1035.)
The defendant in Victor L. was over the age of 18 when he was placed on
probation, and the appellate court implicitly rejected the distinction between minors
and adults. (Victor L., supra, 182 Cal.App.4th at p. 928.) The court agreed with the
constitutional analysis of Antonio C. and concluded that “the prohibition on acquiring
tattoos while on juvenile probation is a proper condition for gang members or those at
risk of becoming gang members, regardless of their age, so long as they remain under
the juvenile court’s jurisdiction.” (Victor L., supra, at p. 928.) “Just because it is lawful
for an 18 year old to get a tattoo does not mean it is wise.” (Id. at p. 929.) The court
noted that “gang tattoos may employ obscure symbols not readily recognized or
catalogued as gang tattoos” and explained that “a complete ban on new tattoos enhances
the enforceability of the condition.” (Id. at p. 930.)
Although defendant is not a minor, based on the rationale of Antonio C. and
Victor L., we conclude that the prohibition on acquiring tattoos while on mandatory

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supervision is a proper condition in light of the evidence of defendant’s gang
membership.
IV. DISPOSITION
The judgment is affirmed.

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___________________________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
MIHARA, J.
People v. Gonzalez
H045178

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