People v. Ebertowski

Filed 8/13/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039865 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1349188)

v.

ROBERT EDWARD EBERTOWSKI,

Defendant and Appellant.

Defendant Robert Edward Ebertowski was granted probation after he pleaded no 1 contest to criminal threats (Pen. Code, § 422) and resisting or deterring an officer (§ 69) and admitted a gang allegation (§ 186.22, subd. (b)(1)(B)). He challenges on reasonableness and overbreadth grounds two of the probation conditions imposed by the trial court. These probation conditions required him to (1) “provide all passwords to any electronic devices, including cell phones, computers or notepads, within your 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, including Facebook, Instagram and Mocospace and to submit those sites to search at any time without a warrant by any peace officer.” We conclude that these conditions are not unconstitutionally overbroad or unreasonable and that the trial court did not abuse its discretion in imposing them.

1 Statutory references are to the Penal Code unless otherwise noted.

I. Background The police made contact with defendant while investigating a brandishing offense. Defendant was highly intoxicated, provided a false name and birthdate to the officer, and actively physically resisted the officer. The officer nevertheless determined that a felony warrant was out for defendant’s arrest and that he was on probation. Defendant repeatedly threatened the officer and the officer’s family and stated that he would sexually assault the officer, the officer’s wife, and the officer’s daughter. He repeatedly identified himself as a member of the “Seven Trees Norteno” gang, and told the officer that he was “ ‘[f]ucking with the wrong gangster.’ ” During the booking process, defendant was uncooperative, made gang signs, and urinated on the floor several times. After defendant entered his no contest pleas and admission, the probation department recommended a host of probation conditions including that defendant (1) “submit his/her property, place of residence, vehicle and any property under his/her control to search at any time without a warrant by any Peace Officer”; (2) “not possess, wear or display any clothing or insignia . . . that he/she knows or the Probation Officer informs him/her is evidence of, affiliation with, or membership in a criminal street gang”; and (3) “not associate with any person he/she knows to be or the Probation Officer informs him is a member of a criminal street gang.” Defendant did not challenge the imposition of these conditions and does not challenge them on appeal. The prosecutor asked the court to impose two additional probation conditions: “1. The defendant shall provide all passwords to any electronic devices (including cellular phones, computers or notepads) within his or her custody or control and shall submit said devices to search at anytime [sic] without a warrant by any peace officer. [¶] 2. The defendant shall provide all passwords to any social media sites (including Facebook, Instagram and Mocospace) and shall submit said sites to search at anytime [sic] without a warrant by any peace officer.” The prosecutor explained that these two conditions were