People v. Hostetler, F075386 (Cal. Ct. App. Mar.
14, 2018)
F075386
COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
People v. Hostetler
F075386 (Cal. Ct. App. Mar. 14, 2018)
Decided March 14th, 2018
NOT TO BE PUBLISHED IN THE
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 This opinion has not been
certified for publication or ordered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.
(Super. Ct. No. F16906163)
OPINION
*
THE COURT APPEAL from a judgment of the Su-
perior Court of Fresno County. Don Penner, Judge.
Allan E. Junker, under appointment by the Court of
Appeal, for Defendant and Appellant. Xavier Becerra,
Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attor-
ney General, Louis M. Vasquez and Jennifer Oleksa,
Deputy Attorneys General, for Plaintiff and Respon-
dent.
*. Before Levy, Acting P.J., Franson, J. and Peña,
J.
-ooOoo-
*2 Defendant Kimberly Marie Hostetler
contends (1) the electronics search
condition of her probation is unreasonable,
overbroad, and violative of her Fifth
Amendment rights, and (2) the protective
order was issued pursuant to the wrong
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statute. We strike the probation condition
and remand for the trial court to tailor the
condition more narrowly.
FACTUAL AND PROCEDURAL
BACKGROUND
On September 24, 2016, a police officer conducted a
traffic stop on a vehicle for speeding. The 14-year-old
victim was driving and 25-year-old defendant was in
the passenger seat. When the officer asked defendant
her relationship to the victim, she answered he was
her boyfriend. Both defendant and the victim admit-
ted to the officer that they were engaged in a sexual re-
lationship and had been having sex for a few months.
On October 24, 2016, the trial court issued a criminal
protective order pursuant to Penal Code section
1
136.2, prohibiting defendant from having any con-
tact, including electronic contact, with the victim. No
expiration date was noted, which meant, according to
the order, that it would expire in three years.
1. All statutory references are to the Penal Code
unless otherwise noted.
On January 30, 2017, defendant pled no contest to en-
gaging in unlawful sexual intercourse with a minor
under the age of 16 when defendant was 21 years of
age or older (§ 261.5, subd. (d)).
2
2. Section 261.5, subdivision (d) provides: "Any
person 21 years of age or older who engages in an
act of unlawful sexual intercourse with a minor
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 People v. Hostetler, F075386 (Cal. Ct. App. Mar. 14, 2018)
who is under 16 years of age is guilty of either a
misdemeanor or a felony, and shall be punished
by imprisonment in a county jail not exceeding
one year, or by imprisonment pursuant to subdi-
vision (h) of Section 1170 for two, three, or four
years."
At sentencing on March 22, 2017, the trial court sus-
pended imposition of sentence and granted defendant
three years' probation with various terms and condi-
tions, including an electronic search condition. The
probation officer's report recommended the *3 elec-
tronic search condition and the court orally pro-
nounced the condition to conform to the recommen-
dation:
"You're to submit your person and property,
including financial records, vehicles,
computers, hand held electronics and cellular
devices and any place of abode or known
residence to search and seizure at any time of
the day or night by any peace officer or
probation officer with or without a warrant.
By virtue of your open search and seizure
provisions, you are deemed to have given
specific consent to any law enforcement officer,
including a probation officer[,] under the
California [E]lectronic [C]ommunication
[P]rivacy [A]ct to search your electronic
devices for electronic device information."
The court also stated:
"Further conditions of probation[: ] you're
ordered not to contact the victim or the
victim's family members without the consent
of probation or the court. You're to comply
with any and all issued criminal or civil
protective orders."
On March 30, 2017, defendant filed a notice of appeal.
On May 22, 2017, defendant filed an amended notice
of appeal and a request for certificate of probable
cause, which the trial court granted.
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DISCUSSION
I. Reasonableness of Electronic
Search Condition
Defendant contends the electronic search condition is
invalid under People v. Lent (1975) 15 Cal.3d 481, 486
(Lent), superseded on other grounds as stated in People
v. Wheeler (1992) 4 Cal.4th 284, 290. We disagree.
3
3. The People raise the issue of forfeiture, but
because defendant argues defense counsel was in-
effective for failing to object to the probation con-
dition, we address the issue on the merits.
A trial court has broad discretion to impose reason-
able conditions of probation in order to promote the
rehabilitation of the probationer. (§ 1203.1, subd. (j);
also People v. Olguin (2008) 45 Cal.4th 375, 379 (Ol-
guin).) A trial court does not abuse its discretion *4 un-
less its determination is arbitrary or capricious or " '
"exceeds the bounds of reason, all of the circumstances
being considered." ' " (People v. Welch (1993) 5 Cal.4th
228, 234.) Under Lent, a probation condition is invalid
if 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 con-
duct which is not reasonably related to future crimi-
nality ....' " (Lent, supra, 15 Cal.3d at p. 486, fn. omit-
ted.) All three prongs must be met to invalidate a pro-
bation condition. (Olguin, supra, 45 Cal.4th at p. 379;
see Lent, at p. 486, fn. 1.) "As such, even if a condition
of probation has no relationship to the crime of which
a defendant was convicted and involves conduct that
is not itself criminal, the condition is valid as long as
the condition is reasonably related to preventing fu-
ture criminality." (Olguin, at pp. 379-380.)
Nothing in the record suggests any electronic device
played a role in defendant's current offense, and com-
municating electronically is not in itself criminal. But
the electronic search condition is reasonably related
to preventing future criminality. Defendant is subject
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 People v. Hostetler, F075386 (Cal. Ct. App. Mar. 14, 2018)
to a criminal protective order and a probation con-
dition prohibiting her from contacting the victim in
any way, including electronically. The sexual nature
of their relationship suggested they might attempt to
contact each other to maintain their relationship.
Even if there was no evidence that defendant had used
an electronic device to contact the victim, it was not
unreasonable to believe she might attempt to do so
in the future. The electronic search condition enables
the probation officer to monitor defendant's compli-
ance with the protective order and her probation con-
ditions. Accordingly, the electronic search condition
was reasonable under the circumstances, and the trial
court did not abuse its discretion in imposing it. (See
People v. Ebertowski (2014) 228 Cal.App.4th 1170,
1176-1177 [finding a similar electronic search condi-
tion *5 reasonably related to future criminality because
it enabled probation officer to monitor the defendant's
gang associations and activities].)
4
4. The California Supreme Court recently
granted review in a case presenting the question
of whether a probation condition requiring a mi-
nor to submit to warrantless searches of his "elec-
tronics including passwords" was overbroad. (In
re Ricardo P. (2015) 241 Cal.App.4th 676, review
granted Feb. 17, 2016, S230923; see also In re
Patrick F. (2015) 242 Cal.App.4th 104, review
granted Feb. 17, 2016, S231428 [briefing de-
ferred].)
II. Breadth of Electronic Search
Condition
A person has a constitutional right to privacy in the
contents of his or her electronic devices, which are
protected from search by the Fourth Amendment. (Ri-
ley v. California (2014) 573 U.S. ___ [189 L.Ed.2d 430,
134 S.Ct. 2473] (Riley) [law enforcement officers gen-
erally must secure a warrant before searching the digi-
tal content of a cell phone incident to an arrest]; People
v. Appleton (2016) 245 Cal.App.4th 717, 724 (Appleton)
["It is well established that individuals retain a consti-
tutionally protected expectation of privacy in the con-
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tents of their own computers"; "[m]uch of the rea-
soning in Riley—which recognized how the immense
storage capacity of modern cell phones allows users
to carry large volumes of data—would apply to other
modern electronic devices"].)
"[A]dult probationers, in preference to incarceration,
validly may consent to limitations upon their consti-
tutional rights." (Olguin, supra, 45 Cal.4th at p. 384.)
However, "[a] probation condition that imposes limi-
tations on a person's constitutional rights must close-
ly tailor those limitations to the purpose of the con-
dition to avoid being invalidated as unconstitutionally
overbroad." (In re Sheena K. (2007) 40 Cal.4th 875,
890.) Specifically, the issue is "whether the condition
is closely tailored to achieve its legitimate purpose."
(Olguin, at p. 384.) "It is not enough to show the gov-
ernment's ends are compelling; the means must be
carefully tailored to achieve those ends." (People v. Har-
risson (2005) 134 Cal.App.4th 637, 641.) "The essential
question in an *6 overbreadth challenge is the close-
ness of the fit between the legitimate purpose of the
restriction and the burden it imposes on the defen-
dant's constitutional rights—bearing in mind, of
course, that perfection in such matters is impossible,
and that practical necessity will justify some infringe-
ment." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
"[W]hile we generally review the imposition of pro-
bation conditions for abuse of discretion, we review
constitutional challenges to probation conditions de
novo." (Appleton, supra, 245 Cal.App.4th at p. 723.)
Here, we have concluded that monitoring defendant's
electronic communications is reasonably related to
her future criminality because it allows officers to de-
termine whether she is complying with her probation
conditions, such as avoiding contact with the victim.
But we do not believe this justifies monitoring all of
defendant's electronic data.
In Appleton, supra, 245 Cal.App.4th 717, the court con-
cluded that the electronic search condition was over-
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 People v. Hostetler, F075386 (Cal. Ct. App. Mar. 14, 2018)
broad because it "would allow for searches of vast
amounts of personal information unrelated to defen-
dant's criminal conduct or his potential for future
criminality." (Id. at p. 727.) "[A] search of defendant's
mobile electronic devices could potentially expose a
large volume of documents or data, much of which
may have nothing to do with illegal activity. These
could include, for example, medical records, financial
records, personal diaries, and intimate correspon-
dence with family and friends." (Id. at p. 725.) The
court ordered that the electronic search condition be
stricken as overbroad, and it remanded the matter to
the trial court to consider whether it could "impose a
valid condition more narrowly tailored to the state's
interests." (Id. at p. 727.)
We agree that defendant's electronic search condition
is overbroad, and we will strike the condition and re-
mand to the trial court to fashion a more tailored con-
dition related to preventing defendant's future crimi-
nality.
*7 III. Self-Incrimination by
Electronic Search Condition
Defendant also argues that the electronic search con-
dition violates her Fifth Amendment right against
self-incrimination because it requires her to provide
access to electronic devices containing stored infor-
mation that may be incriminating or may lead to in-
criminating evidence. We disagree that the condition
violates her Fifth Amendment right against self-in-
crimination.
We review defendant's Fifth Amendment challenge
to her probation conditions de novo. (Appleton, supra,
245 Cal.App.4th at p. 723.)
"The Fifth Amendment to the United States Consti-
tution states that '[n]o person ... shall be compelled in
any criminal case to be a witness against himself ....'
The high court has made clear that the meaning of this
language cannot be divorced from the historical prac-
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tices at which it was aimed, namely, the brutal inquisi-
torial methods of ' "putting the accused upon his oath
and compelling him to answer questions designed to
uncover uncharged offenses, without evidence from
another source." ' [Citations.] ... [T]he amendment
prohibits the direct or derivative criminal use against
an individual of 'testimonial' communications of an
incriminatory nature, obtained from the person under
official compulsion." (People v. Low (2010) 49 Cal.4th
372, 389-390.)
It is, however, a "settled proposition that a person
may be required to produce specific documents even
though they contain incriminating assertions of fact
or belief because the creation of those documents was
not 'compelled' within the meaning of the privilege
[against self-incrimination]." (United States v. Hubbell
(2000) 530 U.S. 27, 35-36.)
Moreover, even if the required information amounts
to "compelled testimonial communications" (Fisher v.
United States (1976) 425 U.S. 391, 409), the condition
in and of itself does not violate defendant's Fifth
Amendment right against self-incrimination because
it does not authorize the use of any compelled state-
ments in a criminal proceeding. In Maldonado v. Su-
perior Court (2012) 53 Cal.4th 1112, the *8 California
Supreme Court explained: "[T]he Fifth Amendment
does not provide a privilege against the compelled
'disclosure' of self-incriminating materials or informa-
tion, but only precludes the use of such evidence in a
criminal prosecution against the person from whom it
was compelled." (Id. at p. 1134.)
Finally, a probationer has no right to be free of self-in-
crimination in a probation revocation proceeding and
any compelled statements would be admissible in that
instance. (Minnesota v. Murphy (1984) 465 U.S. 420,
435, fn. 7 ["Although a revocation proceeding must
comport with the requirements of due process, it is
not a criminal proceeding. [Citations.] Just as there is
no right to a jury trial before probation may be re-
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 People v. Hostetler, F075386 (Cal. Ct. App. Mar. 14, 2018)
voked, neither is the privilege against compelled self-
incrimination available to a probationer."].)
Because the probation condition does not purport to
authorize the use of any compelled testimonial com-
munications against defendant in a criminal proceed-
ing, it does not violate the Fifth Amendment.
IV. Statutory Authority of
Protective Order
Defendant contends the protective order issued by the
court under section 136.2 should have been issued un-
der section 136.2, subdivision (i)(1). We agree but
conclude the order is valid.
Section 136.2 generally provides for protective orders
to protect a victim or witness. "The courts have con-
strued section 136.2, subdivision (a) to authorize im-
position of protective orders only during the penden-
cy of the criminal action. [Citations.] Thus, once the
defendant is found guilty and sentenced, the court's
authority to issue a protective order under section
136.2, subdivision (a) generally ceases." (People v. Beck-
emeyer (2015) 238 Cal.App.4th 461, 465 (Beckemeyer).)
In 2011, however, "the Legislature responded to this
restrictive judicial construction by creating an excep-
tion to the preconviction limitation of a section 136.2
restraining order" in cases of domestic violence and
sexual crime. (Stats. 2011, ch. 155, *9 § 1.) (Beckemeyer,
supra, 238 Cal.App.4th at p. 465.) "Effective January 1,
2012, the Legislature added section 136.2, subdivision
(i) to the statutory scheme so that a 10-year postcon-
viction protective order would be permissible" when
a defendant was convicted of these particular offenses.
(Ibid.) In 2016, subdivision (i)(1) of section 136.2 (sub-
division (i)(1)), which authorizes a postconviction re-
straining order in particular cases (Beckemeyer, at p.
466), provided:
"In all cases in which a criminal defendant has
been convicted of a crime involving domestic
violence as defined in Section 13700 or in
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Section 6211 of the Family Code, a violation
of Section 261, 261.5, or 262, or any crime that
requires the defendant to register pursuant to
subdivision (c) of Section 290, the court, at the
time of sentencing, shall consider issuing an order
restraining the defendant from any contact with
the victim. The order may be valid for up to 10
years, as determined by the court. This protective
order may be issued by the court regardless of
whether the defendant is sentenced to the state
prison or a county jail or subject to mandatory
supervision, or whether imposition of sentence
is suspended and the defendant is placed on
probation. It is the intent of the Legislature in
enacting this subdivision that the duration of
any restraining order issued by the court be
based upon the seriousness of the facts before
the court, the probability of future violations,
and the safety of the victim and his or her
5
immediate family." (Italics added.)
5. The current version of subdivision (i)(1) is not
different from the 2016 version in any way that
would affect this issue. --------
Here, the protective order form used by the trial court
provided three statutory authorities for the order: "§§
136.2, 136.2(i)(1), and 646.9(k)." The court checked
the box for "§ 136.2." The trial court issued the order
preconviction and appropriately issued it under sec-
tion 136.2. But at sentencing, the court continued the
order as a postconviction order. At that point, the or-
der was authorized by subdivision (i)(1), even though
it was originally issued under section 136.2 generally.
Regardless of the notation on the form, the protective
order remains valid. The validity of a protective order
should not be a matter of checking a particular box on
a *10 form; the substance of the order controls over
its form. (Snapp v. State Farm Fire & Cas. Co. (1964)
60 Cal.2d 816, 821; Feinberg v. One Doe Co. (1939) 14
Cal.2d 24, 28 ["this court will not be bound by the
form of the order but will look to its substance to de-
termine its real nature"]; Brown v. Wells Fargo Bank,
NA (2012) 204 Cal.App.4th 1353, 1356 ["[o]n appeal,
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 People v. Hostetler, F075386 (Cal. Ct. App. Mar. 14, 2018)

the substance and effect of the order controls, not its

label"].) The court expressly continued the protective
order at sentencing and that act was authorized by
subdivision (i)(1). We need not trouble the trial court
to amend the order.

DISPOSITION

The portion of the probation condition requiring de-

fendant to submit her "computers, hand held electron-
ics and cellular devices" to search and seizure is strick-
en. The matter is remanded to the trial court with di-
rections to tailor the electronic search condition more
narrowly. In all other respects, the judgment is af-
firmed.

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