Defendant Robert Edward Ebertowski was granted probation after he pleaded no contest to criminal threats (Pen. Code, § 422)
The police made contact with defendant while investigating a brandishing offense. Defendant was highly intoxicated, provided a false name and birth date 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
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 "a means to effectuate the already existing warrantless search condition. That is, if one has a cell phone in your pocket and the police are unable to access it...."
The prosecutor told the court that the two requested conditions "should be imposed here, your Honor, because, as I mentioned when we were in chambers, the defendant has used social media sites historically to promote the Seven Trees Norteno criminal street gang. Those documents were provided in discovery, delivered by MySpace to the District Attorney's office pursuant to a subpoena duces tecum." He noted that "we're asking for [these conditions] in this case and all gang cases ...."
Defendant objected to the imposition of the two probation conditions requested by the prosecutor on many grounds, including that they were unreasonable and overbroad. Defendant's trial counsel did not object to the prosecutor's reliance on the MySpace documents.
Defendant claims that the two conditions requested by the prosecutor and imposed by the court, which we will refer to as the password conditions, were overbroad and unreasonable.
Defendant contends that the prosecutor's reliance on the MySpace documents was improper because "the prosecutor chose not to" have those documents admitted into evidence or lodged with the trial court in support of his request for the password conditions.
The prosecutor had subpoenaed from MySpace "subscriber information, photographs, and comments for [defendant's] personal MySpace page." A month before the sentencing hearing, the trial court reviewed the documents produced by MySpace and released copies to the prosecutor and defendant's trial counsel subject to a protective order "that the documents are to be used only for the purpose of this litigation; they are not to be viewed by anyone except counsel or counsel's agents for the purpose of this litigation." The originals of the MySpace documents were placed in "the court file." The MySpace documents were part of an "in chambers" discussion between the court and counsel before the sentencing hearing, and the prosecutor explicitly relied on the MySpace documents at the sentencing hearing. Defendant's trial counsel did not object to the prosecutor's reliance on the MySpace documents.
We see no significance in the absence of any indication that the MySpace documents were formally introduced into evidence at the sentencing hearing. These documents were provided to defendant's trial counsel long before the sentencing hearing. The trial court explicitly stated on the record a month before the sentencing hearing that it had reviewed the MySpace documents and placed them in the court file. The MySpace documents were thereafter discussed in chambers and explicitly cited by the prosecutor in support of his request for imposition of the password conditions. In all likelihood, the MySpace documents were not formally placed in evidence due to concerns related to the protective order. Defendant's trial counsel had multiple opportunities to object to the court's consideration of these documents and never did. In our view, the absence of a timely objection precludes defendant from
Defendant claims that the password conditions were unconstitutionally overbroad because they were not narrowly tailored to their purpose so as to limit their impact on his constitutional rights to privacy, speech, and association.
Defendant is a criminal street gang member who promotes his gang on social media, makes violent threats in person to armed police officers, and physically resists armed police officers. The evident purpose of the password conditions was to permit the probation officer to implement the search, association, and gang insignia conditions that were designed to monitor and suppress defendant's gang activity. Without passwords for defendant's devices and social media accounts, the probation officer would not be able to search them under the unchallenged search condition in order to assess defendant's compliance with the unchallenged association and gang insignia conditions. Defendant does not suggest how the password conditions could be more closely tailored to this purpose, and we can conceive of no adequate restriction that would still serve this purpose. Access 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.
Defendant asserts that the trial court abused its discretion in imposing the password conditions because these conditions were not reasonable under the circumstances.
The order is affirmed.
Bamattre-Manoukian, Acting P. J., and Grover, J., concurred.