People v. Mosqueda-Castillo CA6 ( 2023 )

Filed 7/13/23 P. v. Mosqueda-Castillo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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, H050363
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C2107480)
v.
AGUSTIN MOSQUEDA-CASTILLO,
Defendant and Appellant.
I. INTRODUCTION
Defendant Agustin Mosqueda-Castillo pleaded no contest pursuant to a plea
agreement to one count of felony false imprisonment effected by menace (Pen. Code, §
236)1 and one misdemeanor count of annoying a child under 18 years of age (§ 647.6, subd.
(a)(1)). Four counts of lewd or lascivious acts upon a child were dismissed (§ 288, subd.
(b)(1)). In accordance with the plea agreement, defendant agreed to be placed on formal
probation for three years. The trial court, pursuant to the plea agreement, placed defendant
on formal probation for three years and ordered him to serve 357 days in county jail as a
condition of probation, with credit for 357 days of time served (179 days of actual credit and
178 days of conduct credit). The trial court also imposed various additional conditions on
1
All further statutory references are to the Penal Code unless otherwise indicated.
defendant’s probation, including certain specialized search conditions related to defendant’s
use of electronic devices.
Defendant raises four issues on appeal. First, he contends that this court should
reduce his probation term to two years because section 1203.1 sets the maximum term for
his felony conviction at two years, and no exception to this two-year limit applies. Second,
he asserts that this court should strike as unreasonable two of the specialized search
conditions the trial court imposed regarding his use of social media and the Internet, citing
People v. Lent (1975) 15 Cal.3d 481 (Lent). Third, he argues that this court should strike
these same two specialized search conditions as unconstitutionally overbroad under the First
Amendment to the United States Constitution. Finally, he asserts that this court should
order the trial court to correct a clerical error in the criminal protective order the trial court
issued.
We conclude that the portion of a specialized search condition regarding defendant’s
accessing of the Internet is unconstitutionally overbroad, and that defendant’s criminal
protective order should be corrected. We will therefore reverse the judgment and remand
the matter to the trial court.
II. BACKGROUND
Because defendant pleaded no contest on July 29, 2022, waiving his right to a
preliminary hearing, the record does not contain extensive information about defendant’s
actions. The amended complaint filed on the date of defendant’s plea states that it attached
and incorporated law enforcement reports to establish probable cause for the charged
offenses, but no law enforcement report concerning defendant’s crimes is included within
the appellate record. The prosecution’s opposition to defendant’s motion for bail or pretrial
release indicates that defendant touched his 11-year-old daughter in a sexual manner within
the family’s home and that he restrained her from leaving when he did so. The
prosecution’s opposition also attached a sheriff’s report concerning sexually explicit
messages defendant sent through Facebook Messenger to another daughter (the victim’s
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half-sister) who was 13 years old and lived in another state. The victim disclosed
defendant’s actions to her half-sister. The victim’s half-sister in return informed the victim
about these messages, after which the victim reported defendant’s actions to authorities.
Defendant’s actions toward the victim’s half-sister were discussed at defendant’s sentencing
hearing, and defense counsel acknowledged at the hearing that defendant “sent some
inappropriate texts.”
Defendant was initially charged with four counts of lewd or lascivious acts upon a
child (§ 288, subd. (b)(1); counts 1–4). Defendant agreed to plead no contest to later-added
charges of felony false imprisonment effected by menace (§ 236; count 5) and misdemeanor
annoying a child under 18 years of age (§ 647.6, subd. (a)(1); count 6). In return, the
prosecution dismissed the four counts of lewd or lascivious acts upon a child. Defendant
agreed to be placed on three years of formal probation, to be sentenced to 357 days in
county jail (with 179 days of actual credit for time served plus 178 days of conduct credit),
to complete an approved sex offender management program under section 1203.067, to
complete a “Parenting Without Violence” class, to register as a sex offender, to be subject to
a criminal protective order regarding the victim for ten years with an exception for possible
supervised visitation, and to complete substance abuse treatment. Defendant acknowledged
with regard to probation that the court would impose “additional conditions that are
reasonably related to the charges for which I am convicted or to future criminality.”
At defendant’s plea hearing, the prosecutor stated that pursuant to the plea
agreement, defendant “will stipulate to being placed on three years of formal probation.”
The trial court then asked, “Is this a DV case?” and the prosecutor replied, “It is -- well, it
is.” The trial court asked defense counsel if she agreed, and defense counsel replied, “It’s a
family violence case.” The trial court again asked defense counsel whether defendant’s case
represented a “[f]amily violence” case, and defense counsel agreed that it did. After
defendant acknowledged that he understood and agreed to the terms of the plea agreement,
he pleaded no contest to counts 5 and 6.
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A waived referral memorandum by the probation officer documented that
defendant’s score on the Static-99R assessment placed his risk for sexual offense recidivism
at average. The memorandum recommended that formal probation be granted for three
years, in accordance with the plea agreement, and it recommended that defendant’s
probation be subject to certain conditions, including that defendant complete an approved
sex offender management program, refrain from socializing with or forming a romantic
relationship with a person who has physical custody of a minor, and consent to searches of
his electronic devices. In addition, the memorandum recommended two probation
conditions restricting defendant’s knowing use of social media and the Internet without prior
approval of the probation officer.
At defendant’s sentencing hearing on September 2, 2022, the trial court granted
formal probation for three years, subject to the waived referral memorandum’s
recommended conditions. Regarding defendant’s use of social media while on probation,
the trial court ordered: “The defendant shall not knowingly enter any social networking
sites (including but not limited to Facebook, Instagram, Twitter, Snapchat or any other site
which the Probation Officer informs him/her of), and/or applications (‘apps’) pertaining to
said accounts nor post any ads, either electronic or written, unless approved by the Probation
Officer.” Regarding defendant’s Internet use while on probation, the trial court ordered:
“The defendant shall not knowingly access the Internet or any other on-line service through
use of a computer, or other electronic device at any location (including place of
employment) without prior approval of the Probation Officer. The defendant shall not
knowingly possess or use any data encryption technique program.”
Defense counsel objected to several probation conditions, including those regarding
searches of defendant’s property and electronic devices, and the conditions regarding
defendant’s use of social media and the Internet, as overbroad and not reasonably related to
defendant’s crimes or to any anticipated future criminality by defendant. The trial court
denied defense counsel’s request to strike or modify these conditions, observing as follows:
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“Even though [defendant] might have used one type of electronic communication, there’s
many, many different types. And I think that properly supervised, the probation department
has to have the ability to monitor all electronic communication devi[c]es that he could
possibly use.”
Defense counsel also requested that the criminal protective order be modified to
allow supervised visitation with the victim, based on indications that she was interested in
such visitation. The prosecutor agreed, noting that a family court judge stated that checking
boxes 14, 14(a), and 14(b) on the criminal protective order form would enable the family
court to facilitate supervised visitation. Box 14 of the criminal protective order form states
that the defendant “may have peaceful contact with the protected persons named above, as
an exception to the ‘no-contact’ or ‘stay-away’ provision in item 11, 12, or 13 of this order,
only for the safe exchange of children and court-ordered visitation as stated in” boxes 14(a)
and 14(b). Boxes 14(a) and 14(b) refer to family, juvenile, or probate court orders. The
trial court voiced no opposition to marking these boxes on the criminal protective order.
However, the criminal protective order signed by the trial court marked boxes 14(a) and
14(b) without marking the predicate box 14.
This appeal timely followed.
III. DISCUSSION
A. Probation Term
Defendant alleges that the trial court was not authorized to impose a three-year
probation term based on section 1203.1, subdivision (a), which he asserts limits the
maximum probation term for his offenses to two years. As a result, he requests that this
court reduce his probation term to two years. The Attorney General responds that the
two-year probation limit does not apply because defendant’s offenses involved a domestic
violence victim under section 1203.097. If the two-year probation limit does apply, the
Attorney General argues that the appropriate remedy is to remand the matter for the
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prosecution to determine whether to withdraw from the plea agreement and for the trial
court to determine if the revised sentence is appropriate.
“We review de novo questions of statutory construction. [Citation.] In doing so,
‘ “our fundamental task is to ‘ascertain the intent of the lawmakers so as to effectuate the
purpose of the statute.’ ” ’ [Citation.] We begin with the text, ‘giv[ing] the words their
usual and ordinary meaning [citation], while construing them in light of the statute as a
whole and the statute’s purpose [citation.]’ [Citation.] ‘If no ambiguity appears in the
statutory language, we presume that the Legislature meant what it said, and the plain
meaning of the statute controls.’ [Citation.]” (People v. Blackburn (2015) 61 Cal.4th 1113,
1123.)
Assembly Bill No. 1950 (2019–2020 Reg. Sess.) (Assembly Bill 1950) amended
section 1203.1 effective January 1, 2021 to restrict the length of felony probation terms to
two years except as specified. As amended, section 1203.1 provides: “The court, or judge
thereof, in the order granting probation, may suspend the imposing or the execution of the
sentence and may direct that the suspension may continue for a period of time not exceeding
two years, and upon those terms and conditions as it shall determine.” (§ 1203.1, subd. (a),
as amended by Stats. 2020, ch. 328, § 2.) Section 1203.1 further provides: “The two-year
probation limit in subdivision (a) shall not apply to . . . [a]n offense listed in subdivision (c)
of Section 667.5 and an offense that includes specific probation lengths within its
provisions.” (§ 1203.1, subd. (l)(1).)
Section 1203.097 states: “If a person is granted probation for a crime in which the
victim is a person defined in Section 6211 of the Family Code, the terms of probation shall
include all of the following: (1) A minimum period of probation of 36 months, which may
include a period of summary probation as appropriate. . . .” (§ 1203.097, subd. (a)(1).)
Family Code section 6211 states that “domestic violence” constitutes abuse perpetrated
against any of several listed persons, including a child of a party. (Fam. Code, § 6211, subd.
(e).) “Abuse is not limited to the actual infliction of physical injury or assault.” (Fam.
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Code, § 6203, subd. (b).) Instead, “abuse” in this context includes “any of the following:
[¶] (1) To intentionally or recklessly cause or attempt to cause bodily injury. [¶] (2) Sexual
assault. [¶] (3) To place a person in reasonable apprehension of imminent serious bodily
injury to that person or to another. [¶] (4) To engage in any behavior that has been or could
be enjoined pursuant to [Family Code] Section 6320.” (Id., subd. (a).) “Section 1203.097
does not only apply when a probationer commits the substantive offense of domestic
violence. Instead, it ‘applies to any person placed on probation for a crime if the underlying
facts of the case involve domestic violence, even if the statute defining the crime does not
specifically refer to domestic violence.’ [Citations.]” (People v. Forester (2022) 78
Cal.App.5th 447, 453 (Forester).) Section 1203.097 is not limited to those crimes that
expressly target domestic violence victims; instead, it applies to an offense “so long as the
facts underlying the assault involve a victim defined in Family Code section 6211.” (People
v. Cates (2009) 170 Cal.App.4th 545, 550.)
In Forester, the court recognized that an offense against domestic violence victims
pursuant to section 1203.097 constitutes an exception to the two-year probation limit of
section 1203.1 because “the Legislature most likely incorporated the relevant exception into
Assembly Bill No. 1950 to ensure that the bill did not limit the application of section
1203.097 (and other code provisions like it).” (Forester, supra, 78 Cal.App.5th at p. 457.)
Thus, “a defendant who is placed on probation for committing a crime against a victim of
domestic violence, as defined by section 1203.097, has committed ‘an offense that includes
specific probation lengths within its provisions.’ (§ 1203.1, subd. (l)(1).) In such
circumstances, and in the absence of a contrary legislative indication, the two-year felony
probation limitation codified in section 1203.1, subdivision (a) does not apply.” (Forester,
supra, at pp. 457–458.) Other courts have reached similar conclusions. (See People v.
Rodriguez (2022) 79 Cal.App.5th 637, 644 [holding that a “domestic violence offense under
section 1203.097 . . . constitutes an exception under section 1203.1 as it is ‘an offense that
includes specific probation lengths within its provisions.’ [Citations]”]; People v.
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Qualkinbush (2022) 79 Cal.App.5th 879, 895 [“the two-year probation limit in section
1203.1, subdivision (a), does not apply” to a defendant because her offense fell within
section 1203.097].)
Defendant’s reply brief does not take issue with the Attorney General’s position that
an offense involving a domestic violence victim pursuant to section 1203.097 constitutes
“an offense that includes specific probation lengths within its provisions” under section
1203.1, subdivision (l)(1), and thus in this situation an exception to section 1203.1’s general
two-year limit on probation terms applies. Instead, defendant argues: “[T]here has been no
admission by [defendant] or factual finding by the trial court that [defendant’s] false
imprisonment offense constitutes a crime of domestic violence. Without such an admission
or finding, respondent’s assertion that [defendant’s] false imprisonment offense constitutes a
crime of domestic violence carries no weight.” Defendant further argues that because
felony false imprisonment can be effectuated in four ways (violence, menace, fraud, and
deceit), “one may be convicted of felony false imprisonment without using violence on the
victim.” In addition, defendant argues that when the trial court placed him on probation, it
“never made any sort of factual finding that [defendant] committed false imprisonment by
means of violence.” We reject defendant’s arguments because the trial court, based on the
position of the prosecution and defense counsel, impliedly found that defendant’s actions
fell within section 1203.097, and thus the three-year probation term was authorized.
Defendant’s plea hearing took place on July 29, 2022, well after the January 1, 2021
effective date of the two-year probation limit in section 1203.1. The trial court was
apparently aware of the two-year probation limit, because when the prosecution noted that
defendant agreed to a three-year probation term, the trial court asked, “Is this a DV case?”
The prosecutor agreed that defendant’s case constituted a case of domestic violence, and
defense counsel likewise twice concurred that defendant’s case represented a “family
violence” case. Only after the parties agreed that defendant committed an act of domestic or
family violence did the trial court approve the plea agreement for a three-year probation
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term. Thus, the trial court made an implied finding that defendant’s actions fell under
section 1203.097.
The parties’ position that defendant engaged in an act of domestic or family violence
was supported by the record. Defendant pleaded no contest to felony false imprisonment of
his daughter, which is defined as “the unlawful violation of the personal liberty of another.”
(§ 236.) While defendant’s reply brief asserts that the record does not indicate the means by
which defendant effected the felony false imprisonment, the first amended complaint
specifically charged defendant with false imprisonment “being effected by menace,” and
defendant likewise acknowledged in an advisement of rights form that he agreed to plead
guilty to false imprisonment “by menace.” “False imprisonment is a misdemeanor unless it
is ‘effected by violence, menace, fraud, or deceit,’ in which case it is a felony. [Citation.]”
(People v. Wardell (2008) 162 Cal.App.4th 1484, 1490.) In the context of felony false
imprisonment, “ ‘[m]enace is a threat of harm express or implied by words or act.
[Citations.]’ [Citation.] ‘An express threat or use of a deadly weapon is not
necessary.’ [Citation.]” (People v. Islas (2012) 210 Cal.App.4th 116, 123.)
Under these circumstances, the trial court did not err in imposing a three-year
probation term based on its implied finding that defendant’s crimes were governed by the
three-year minimum probation requirement of section 1203.097, not the two-year probation
limit of section 1203.1. Defendant pleaded no contest to felony false imprisonment effected
by menace, meaning he admitted to threatening harm against his daughter. Defendant’s
victim was his child, and thus section 1203.097’s requirement that the act of domestic
violence be committed against a family member as defined in Family Code section 6211
was satisfied. Defendant, represented by counsel, agreed to a three-year probation term
more than 18 months after the two-year general probation limit enacted by Assembly Bill
1950 went into effect. When the trial court asked regarding the term of probation whether
defendant’s case involved domestic violence, both the prosecution and defense counsel, in
defendant’s presence, agreed that it did. Defendant also acknowledged that he heard the
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discussion in the plea hearing, that he agreed to the resolution outlined in his plea
agreement, and that he had enough time to review the plea agreement with his attorney.
Therefore, we find that the two-year probation limit of section 1203.1 does not apply to
defendant because he admitted that he committed a crime of domestic or family violence
under section 1203.097, which requires a minimum probation period of 36 months.
(Forester, supra, 78 Cal.App.5th at p. 457.) Because we will remand this matter for the trial
court to address the conditions of defendant’s probation, we will order the trial court upon
remand to include any of the conditions required by section 1203.097 in its order of
probation.
B. Specialized Search Conditions
1. Legal Principles and Standard of Review
“ ‘The sentencing court has broad discretion to determine whether an eligible
defendant is suitable for probation and, if so, under what conditions.’ ” (People v. Olguin
(2008) 45 Cal.4th 375, 379 (Olguin).) “Accordingly, the Legislature has empowered the
court, in making a probation determination, to impose any ‘reasonable conditions, as it may
determine are fitting and proper to the end that justice may be done, that amends may be
made to society for the breach of the law, for any injury done to any person resulting from
that breach, and generally and specifically for the reformation and rehabilitation of the
probationer . . . .’ (Pen. Code, § 1203.1, subd. (j).)” (Ibid.) “On appeal, ‘[w]e review
conditions of probation for abuse of discretion.’ [Citation.] That is, a reviewing court will
disturb the trial court’s decision to impose a particular condition of probation only if, under
all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable.
[Citation.]” (People v. Moran (2016) 1 Cal.5th 398, 403 (Moran).) “Although the trial
court’s discretion is broad in this regard, we have held that a condition of probation must
serve a purpose specified in Penal Code section 1203.1. [Citations.]” (Olguin, supra, at p.
379.)
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“The Legislature has placed in trial judges a broad discretion in the sentencing
process, including the determination as to whether probation is appropriate and, if so, the
conditions thereof. [Citation.] A condition of probation will not be held invalid unless it
‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to
conduct which is not in itself criminal, and (3) requires or forbids conduct which is not
reasonably related to future criminality . . . .’ [Citation.] Conversely, a condition of
probation which requires or forbids conduct which is not itself criminal is valid if that
conduct is reasonably related to the crime of which the defendant was convicted or to future
criminality.” (Lent, supra, 15 Cal.3d at p. 486, fn. omitted.) “This test is conjunctive—all
three prongs must be satisfied before a reviewing court will invalidate a probation term.
[Citations.]” (Olguin, supra, 45 Cal.4th at p. 379.) The last Lent requirement – that a
probation condition be reasonably related to future criminality – “contemplates a degree of
proportionality between the burden imposed by a probation condition and the legitimate
interests served by the condition. [Citations.]” (In re Ricardo P. (2019) 7 Cal.5th 1113,
1122 (Ricardo P.).) Courts “may properly base probation conditions upon information in a
probation report that raises concerns about future criminality unrelated to a prior offense.”
(Ibid.)
“When significant privacy interests are implicated by a probation condition (such as
sweeping electronics searches without a warrant), the burden imposed on a defendant is a
heavy one. Such a condition is unreasonable unless it is ‘proportional to achieving some
legitimate end of probation.’ [Citation.] Reasonableness necessitates ‘more than just an
abstract or hypothetical relationship between the probation condition and preventing future
criminality.’ [Citation.] In other words, to justify a burdensome condition, there must be a
specific relationship—grounded in the facts of the case—between the condition and
preventing future criminality.” (People v. Cota (2020) 45 Cal.App.5th 786, 790 (Cota).)
In addition to the Lent requirements, probation conditions may not be overbroad
under the First Amendment to the United States Constitution. “With respect to the standard
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of review, while we generally review the imposition of probation conditions for abuse of
discretion, we review constitutional challenges to probation conditions de novo. [Citation.]”
(People v. Appleton (2016) 245 Cal.App.4th 717, 723 (Appleton).) “A probation 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.” (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) “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.” (In re E.O. (2010) 188 Cal.App.4th
1149, 1153.)
Defendant challenges both the social media restriction and the Internet restriction,
alleging both that the trial court abused its discretion by imposing unreasonable conditions
under the Lent test and that the conditions represent unconstitutionally overbroad
restrictions on his First Amendment rights. This court has previously reviewed such
restrictions in at least two published decisions.
In People v. Pirali (2013) 217 Cal.App.4th 1341 (Pirali), the defendant pleaded no
contest to a charge of felony possession of child pornography after investigators found child
pornography on the defendant’s computer. (Id. at pp. 1343–1344.) The trial court placed
defendant on three years’ formal probation and imposed conditions of probation, including
that defendant may not “ ‘enter any social networking sites’ ” or “ ‘have access to the
Internet or any other on-line service through use of [his] computer or other electronic device
at any location’ ” without the prior approval of the probation officer. (Id. at p. 1344.)
Defendant did not object to these conditions. (Id. at p. 1345.) On appeal of the Internet
access restriction,2 this court held that the defendant forfeited his argument that this
2
The defendant in Pirali did not challenge the social networking restriction. (Pirali,
supra, 217 Cal.App.4th at p. 1343.)
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condition was unreasonable under Lent, but that the defendant could still raise his argument
that the condition was overbroad under the First Amendment. (Id. at p. 1347.) This court
recognized that “ ‘[c]omputers and Internet access have become virtually indispensable in
the modern world of communications and information gathering.’ [Citation.]” (Id. at
p. 1348.) Therefore, “certain restrictions on ‘access to the Internet necessarily curtail First
Amendment rights.’ [Citation.] It therefore follows that probation conditions restricting or
prohibiting the use of a computer, or restricting or prohibiting access to the Internet, ‘must
closely tailor those limitations to the purpose of the condition to avoid being invalidated as
unconstitutionally overbroad.’ [Citations.]” (Ibid.) Nonetheless, this court upheld the
Internet restriction because the defendant was “not faced with a blanket prohibition” in that
he could access the Internet with prior permission from his probation officer. (Id. at
p. 1350.)
In People v. Salvador (2022) 83 Cal.App.5th 57 (Salvador), the defendant pleaded no
contest to felony false imprisonment and misdemeanor sexual battery, and the trial court
imposed a three-year term of probation that included social media and Internet restrictions,
over defendant’s objections that the conditions were unreasonable under Lent and violated
his First Amendment rights. (Id. at pp. 59–61.) The defendant’s actions occurred against
women who lived in a space he rented and against a 15-year-old friend of the women. (Id.
at pp. 61–62.) This court upheld the social media condition against the reasonableness and
overbreadth challenges. With regard to the Lent test, this court observed that the defendant
used a cell phone to exchange messages with the victims on social media, and it noted that
“the connection between the defendant’s use of social media and potential future sex
offenses is more than just an abstract or hypothetical relationship; predators online
commonly use social media to contact and groom minors.” (Salvador, supra, at pp. 63–64,
fn. omitted.) This court likewise rejected the defendant’s overbreadth argument concerning
the social media restriction, citing Pirali in concluding: “Any burden on Salvador’s use of
social media is reasonably tempered by his ability to obtain prior approval from the
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probation officer. And the use of social media is not so necessary to the activities of daily
living that this requirement would unduly burden Salvador’s rights.” (Id. at p. 66.)
With respect to the Internet restriction, however, this court found that Pirali was
distinguishable and the condition was unconstitutionally overbroad, concluding: “Here, the
factual nexus was Salvador’s use of social media to contact the victims, not his access to
materials on any other part of the Internet. The general restriction against Internet access
thereby sweeps far more broadly than necessary to serve the purposes of the condition—
preventing or deterring contact with minors for sexual purposes.” (Salvador, supra, 83
Cal.App.5th at p. 67.) In addition, this court recognized that in the time following its
decision in Pirali, “the Internet has become even more central and commonplace in the lives
of ordinary people; it is now practically unavoidable in daily life. Many more people today
use the Internet to work from home, follow the news, or conduct business and commercial
transactions such as banking and paying bills. No valid purpose is served by preventing
Salvador from engaging in the kinds of Internet access that have become common and
ubiquitous—e.g., performing work-related tasks, accessing or commenting on news sites, or
conducting commercial or business transactions in ways that require engaging in protected
speech. We conclude the limitation we relied on in Pirali—that the probationer could still
use the Internet by obtaining prior approval from his probation officer—is not adequate
here. Access to some part of the Internet is so necessary and frequent as a part of daily life
that it may become unduly burdensome to obtain a probation officer’s approval for every
use of it. With respect to some offenses—e.g., possession or distribution of child
pornography, as in Pirali—such a burdensome condition might be justified or necessary.
But in this case, it is not.” (Ibid.) Thus, this court found the Internet restriction
unconstitutionally overbroad, meaning it did not need to address the validity of the condition
under Lent, and it struck the condition. (Ibid.)
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2. Analysis
Defendant asserts that both the social media and the Internet restrictions are
unreasonable under Lent and unconstitutionally overbroad under the First Amendment.
With regard to the reasonableness of the conditions, he argues: “The record contains no
evidence that [defendant] used social media or the Internet to commit the crimes for which
he was convicted – or that social media helped facilitate these crimes in any way.” He
recognizes that he “ ‘sent some inappropriate’ cell phone text messages to the victim’s half-
sister, who is [defendant’s] biological daughter,” but he argues this is not relevant because
he was not charged with or convicted of any crimes involving the victim’s half-sister. With
regard to the constitutionality of the conditions, he relies on Salvador to argue that the
Internet restriction is overbroad, and he argues that the logic of Salvador regarding the
Internet restriction also requires this court to strike the social media restriction because “[i]n
our current times, social media sites are just as much ‘central and commonplace in the lives
of ordinary people’ as the Internet itself, and social media sites are ‘now practically
unavoidable in daily life’ just as the Internet itself is.”
The Attorney General argues that both conditions are reasonable under Lent.
However, the Attorney General concedes that the Internet restriction is unconstitutionally
overbroad, citing Salvador. Thus, the Attorney General requests that this court remand the
case to the trial court so the trial court can modify the Internet restriction.
We accept the Attorney General’s concession that, based on this court’s holding in
Salvador, the Internet restriction as worded is unconstitutionally overbroad, and as a result,
we need not determine whether it is reasonable under Lent. While screenshots of explicit
Facebook Messenger communications defendant sent to the victim’s half-sister were
attached to a prosecution response to a defense motion and were discussed in the sentencing
hearing, there is no indication in the record that defendant used the Internet more broadly to
facilitate his crimes or related actions. Thus, as in Salvador, “the factual nexus was
[defendant’s] use of social media to contact [the victim’s half-sister], not his access to
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materials on any other part of the Internet.” (Salvador, supra, 83 Cal.App.5th at p. 67.) In
such a situation, pursuant to this court’s holding in Salvador, a “general restriction against
Internet access thereby sweeps far more broadly than necessary to serve the purposes of the
condition—preventing or deterring contact with minors for sexual purposes.” (Ibid.) Thus,
the general Internet access restriction here is unconstitutionally overbroad. We therefore
strike the portion of this probation condition that reads as follows: “The defendant shall not
knowingly access the Internet or any other on-line service through use of a computer, or
other electronic device at any location (including place of employment) without prior
approval of the Probation Officer.”3 We remand the matter to the trial court to consider
whether to fashion a more tailored restriction concerning defendant’s accessing of the
Internet.
Salvador also supports that the social media restriction here is neither unreasonable
under Lent nor unconstitutionally overbroad. As in Salvador, the trial court here was
presented with evidence that defendant used social media to commit improper sexually
motivated acts. Thus, as in Salvador, “the connection between the defendant’s use of social
media and potential future sex offenses is more than just an abstract or hypothetical
relationship . . . .” (Salvador, supra, 83 Cal.App.5th at p. 64.) Defendant argues that his
messages to the victim’s half-sister are not relevant to the Lent analysis, because he was not
charged with any crime against the victim’s half-sister. However, to demonstrate that a
probation condition is unreasonable under Lent, a defendant must show that all three of the
Lent factors are established, not just the first factor that the condition “ ‘has no relationship
to the crime of which the offender was convicted.’ ” (Lent, supra, 15 Cal.3d at p. 486.)
Defendant has not established that the third Lent factor – that the condition requires or
forbids conduct which is not reasonably related to future criminality – is met here. (Ibid.)
Defendant was not charged with any crime regarding his sexually explicit messages to the
3
Defendant does not challenge or address the last portion of the condition regarding
his use of encryption; thus, we leave that portion of the condition intact.
16
victim’s 13-year-old half-sister, but the trial court was nonetheless presented with
information that defendant sent the messages. Courts may properly base probation
conditions upon information presented to them, even if that information is “unrelated to a
prior offense.” (Ricardo P., supra, 7 Cal.5th at p. 1122.) Where defendant was convicted
of sexually charged actions toward one of his minor daughters and sent sexually explicit
messages to his other minor daughter through social media, a social media restriction is
reasonably related to his future criminality. The screenshots of the messages indicate that
defendant used Facebook Messenger (a social media site or application) to send the
messages. Thus, the social media restriction involves “ ‘more than just an abstract or
hypothetical relationship between the probation condition and preventing future
criminality,’ ” and the facts of this case demonstrate a specific relationship between the
condition and preventing future criminality. (Cota, supra, 45 Cal.App.5th at p. 790.)
Thus, as in Salvador, the restriction regarding defendant’s use of social media is
neither unreasonable nor unconstitutionally overbroad, as any burden on his use of social
media is “reasonably tempered by his ability to obtain prior approval from the probation
officer,” and “the use of social media is not so necessary to the activities of daily living that
this requirement would unduly burden [defendant’s] rights.” (Salvador, supra, 83
Cal.App.5th at p. 66.) Defendant’s assertion that Salvador was wrongly decided in this
regard is not persuasive. While defendant asserts that “much of the general activity that
occurs on the Internet has been redirected to social media sites,” the sources he cites for this
proposition merely state that many people use social media for purposes such as reading
news accounts, searching for employment, and addressing customer service issues with
businesses. Defendant does not show that these functions are unavailable on the broader
Internet or that social media is the most effective or efficient way to carry out these
activities. Defendant used a social media site and/or application to send sexually explicit
messages to his 13-year-old daughter in addition to unlawfully touching his 11-year-old
daughter. Therefore, the trial court properly concluded that the social media restriction was
17
an appropriate probation condition. The trial court’s determination was not an abuse of
discretion with regard to the reasonableness of the condition, and pursuant to Salvador, we
conclude upon de novo review that the social media condition is not unconstitutionally
overbroad. There is no evidence that the use of social media is so necessary to defendant
that this condition would unduly burden his rights, particularly where he can obtain prior
approval from his probation officer to engage in any social media activities. We therefore
find no error in the trial court’s decision to impose the social media restriction condition on
defendant’s probation. (Moran, supra, 1 Cal.5th at p. 403; Sheena, supra, 245 Cal.App.4th
at p. 723.)
C. Criminal Protective Order
Finally, defendant requests that this court order box 14 of the criminal protective
order to be checked to carry out the trial court’s intent that defendant be permitted to engage
in supervised visitation with the victim if permitted by the family court. The Attorney
General agrees. “It is true that, apart from statute, courts have inherent authority to correct
clerical errors in a sentence at any time. ‘It is not open to question that a court has the
inherent power to correct clerical errors in its records so as to make these records reflect the
true facts. [Citations.] The power exists independently of statute and may be exercised in
criminal as well as in civil cases. [Citation.] The power is unaffected by the pendency of an
appeal or a habeas corpus proceeding. [Citation.] The court may correct such errors on its
own motion or upon the application of the parties.’ [Citation.]” (People v. Kim (2012) 212
Cal.4th 117, 123–124.) Based on the trial court’s comments and its marking of boxes 14(a)
and 14(b), which are not applicable without box 14 marked, it appears the trial court
intended that box 14 of the criminal protective order should be marked. Accordingly, we
will order the trial court to address box 14 upon remand.
IV. DISPOSITION
The order of probation dated September 2, 2022, is reversed, and the matter is
remanded to the trial court with the following instructions. The trial court shall strike the
18
portion of the Internet restriction condition (Specialized Search Condition No. 7) that reads
as follows: “The defendant shall not knowingly access the Internet or any other on-line
service through use of a computer, or other electronic device at any location (including
place of employment) without prior approval of the Probation Officer.” The trial court may
consider whether to fashion a more tailored restriction regarding defendant’s accessing of
the Internet. The trial court shall also ensure that the order of probation contains the
conditions outlined in Penal Code section 1203.097. In addition, the trial court shall prepare
a corrected criminal protective order that addresses box 14.
19
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
WILSON, J.
BROMBERG, J.
People v. Mosqueda-Castillo
H050363