Opinion
A145167
02-08-2018
THE PEOPLE, Plaintiff and Respondent, v. KENNETH ROHRBACH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR654118)
Defendant Kenneth Rohrbach (Rohrbach) pled guilty to attempted extortion by threat, electronically delivering a harassing image, and secretly photographing a person under the clothing in connection with two incidents in which he sent anonymous emails to two female co-workers, attaching pictures of them using a unisex restroom at their place of employment and threatening to distribute the images unless the women provided him with provocative pictures of themselves. The trial court sentenced Rohrbach to 12 months in county jail and three years' probation. On appeal, Rohrbach argues that the affidavit in support of the search warrant executed on his residence lacked probable cause and that various aspects of his conditions of probation are unconstitutionally vague and overbroad. We will modify certain conditions of probation, and otherwise affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In early 2014, Rohrbach and Jane Doe 1 were co-workers at Redwood Toxicology Laboratory (Redwood Toxicology) in Santa Rosa, California. From November 2013 to February 2014, Rohrbach and Jane Doe 1 were friends and would chat on their breaks and over an online gaming service known as Steam. Jane Doe 1 occasionally would give Rohrbach a ride home from work. In mid-December, Rohrbach began pressuring Jane Doe 1 to have sex with him. In February of 2014, Rohrbach and Jane Doe 1, while chatting via the Steam service, got into an argument about this pressure, and their friendship ended. Rohrbach left his job at Redwood Toxicology in March of 2014.
On April 2, 2014, Jane Doe 1 received an anonymous email. The email contained a link to a collage of images of Jane Doe 1 using a unisex restroom at Redwood Toxicology. The anonymous sender threatened to distribute the photos to Jane Doe 1's Facebook friends and to post the photos in her workplace break room if she did not provide the anonymous sender with a picture of herself wearing a bikini. Jane Doe 1 did not respond to the email and contacted the police.
On April 4, 2014, Jane Doe 1 was informed by co-workers that two fake Facebook accounts had been created in her name. The fake accounts were sending friend requests to Jane Doe 1's co-workers. When one co-worker accepted a friend request from the fake profile, he was sent the compromising image of Jane Doe 1 in the restroom. Ultimately four fake Facebook accounts were set up in Jane Doe 1's name, and were eventually shut down by Facebook.
On July 19, 2014, Jane Doe 2, another employee of Redwood Toxicology, received a similar email attaching pictures of her using the unisex restroom and threatening to make those pictures public unless she provided provocative pictures of herself. Jane Doe 2 also received a friend request from a fake Facebook account set up in her name. Another co-worker received from this account a friend request and the images of Jane Doe 2, along with a message that she "would be next."
Sonoma County Sheriff's Office Detective Mechelle Buchignani began an investigation. She spoke with Jane Doe 1 and Jane Doe 2, as well as several other employees of Redwood Toxicology, who described Rohrbach as "unusual" or "strange." Two of Rohrbach's co-workers separately observed him positioning his phone in a container at his work station so that it was standing up and pointing toward his co-workers, as if he were recording them. Three of Rohrbach's co-workers observed that he appeared to be videoing his co-workers in the break room because he followed people with his phone's camera lens. Several co-workers noticed Rohrbach going back and forth to the unisex restrooms and spending time in the break room across the hall from which those restrooms were visible, always while wearing a backpack. About a month before Rohrbach left the job, Jane Doe 2 found Rohrbach's phone in the unisex restroom, propped up and facing the toilet. After checking to ensure that no phone or camera applications were running, Jane Doe 2 returned the phone to Rohrbach. A week before Rohrbach left the job, a phone with a dead battery was found in one of the unisex restrooms. After staff were able to charge the phone, they discovered it belonged to Rohrbach and returned it to him.
Detective Buchignani also learned that Rohrbach was a student at Santa Rosa Junior College, and had recently become the subject of an investigation after a female student reported that he was directing the camera of his phone toward the crotch areas of several female students and appeared to be filming them.
Based on the foregoing, Detective Buchignani sought and obtained a search warrant for Rohrbach's residence in Santa Rosa. The warrant was executed on July 29, 2014. An HTC phone found in Rohrbach's house contained images of 11 different women using the unisex restroom at Redwood Toxicology. At the time of the preliminary examination, Buchignani had been able to confirm the identity of four of the women; all four said they had not agreed to be photographed. By the time of sentencing, a total of seven women had been identified.
While the search warrant was being executed, Detective Buchignani interviewed Rohrbach. He admitted that Buchignani's search would reveal pictures of more than two victims, but denied he had extorted anyone other than Jane Does 1 and 2. He said he stored the images on his computer in a file labeled "porn." Rohrbach admitted sending the photos to Jane Doe 1 and creating the fake Facebook accounts in her name, saying he did so because he was angry with her. Rohrbach said he extorted Jane Doe 2 because he wanted Jane Doe 1 to know that he was "still out there" and to remain afraid of him. Rohrbach admitted taking the pictures by placing his phone on the ledge under the sinks in the two unisex bathrooms during his breaks. He then downloaded the images to his computer, and admitted masturbating to some of them, but not to the images of Jane Doe 1.
On December 29, 2014, Rohrbach was charged with two counts of attempted extortion by threat (Pen. Code, § 524); two counts of extortion by writing (Pen. Code, § 523), two counts of electronically delivering a harassing image (Pen. Code, § 653.2, subd. (a)), and two counts of secretly photographing a person under the clothing (Pen. Code § 647, subd. (j)(2)). Rohrbach moved unsuccessfully in Sonoma County Superior Court to quash the search warrant and suppress the evidence seized from his home.
On March 5, 2015, Rohrbach pled no contest to all counts except for the two counts of extortion by writing, which were dismissed. The trial court sentenced Rohrbach to 12 months in county jail and three years' probation subject to certain conditions, including that he register as a sex offender under Penal Code section 290, not use the internet except for school or employment, submit to and pay for polygraph testing as directed by the probation officer, have no contact with his victims, and not use any electronic encryption systems. This appeal followed.
Because Rohrbach did not seek or obtain a certificate of probable cause before the trial court, we can consider his appeal only as it relates to "[g]rounds that arose after entry of the plea and do not affect the plea's validity" and the "denial of [his] motion to suppress evidence under Penal Code section 1538.5." (Cal. Rules of Court, rule 8.304(b)(4); see Pen. Code, §§ 1237.5, 1538.5.)
II. DISCUSSION
On appeal, Rohrbach argues that: (1) his motion to quash should have been granted because the search warrant affidavit does not support a finding of probable cause; (2) the trial court abused its discretion in requiring him to register as a sex offender; (3) the probation condition prohibiting internet use is vague and overbroad; (4) the probation condition requiring polygraph testing is vague and overbroad, and it was error to order him to pay for such examinations; (5) the probation condition prohibiting contact with the victims or their families is vague and overbroad; and (6) the probation condition forbidding use of any encryption system should be modified to include a knowledge requirement. We consider each argument in turn. I. The Trial Court Did Not Err in Denying Rohrbach's Motion to Quash
A. Rohrbach's Argument That the Affidavit Fails to Identify the Address to be Searched as His Residence Is Forfeited
Rohrbach's first argument is that the affidavit did not supply probable cause for the search of his home because it did not expressly state that the address to be searched was his residence. The People respond that this argument was not adequately raised before the trial court and thus has been forfeited on appeal. We agree.
Under Penal Code section 1538.5, a motion to suppress evidence must "set forth the factual basis and the legal authorities that demonstrate why the motion should be granted." (Pen. Code § 1538.5, subd. (a)(2).) "[D]efendants who challenge some specific aspect of a search or seizure other than the lack of the warrant must specify the nature of that challenge at the outset. . . . The determinative inquiry in all cases is whether the party opposing the motion had fair notice of the moving party's argument and fair opportunity to present responsive evidence." (People v. Williams (1999) 20 Cal.4th 119, 135, original italics.)
Rohrbach's motion to quash before the trial court contains a section arguing that the affidavit failed to establish the required nexus between "the Criminal Activity Being Investigated and Mr. Rohrbach's Home," but that section argued exclusively that an officer's training and experience are insufficient to establish that nexus. Rohrbach's only glancing mention of the affidavit's failure to connect him to the address to be searched was the following paragraph:
"To establish the required nexus between the crime and the place to be searched, officers must be very specific in explaining why evidence or inference warrants a belief as to the whereabouts of the evidence. Again, although an officer's training and experience are important, the courts are more interested in facts that logically lead to this conclusion. For example, consider the following cases: People v. Hernandez (1994) 30 Cal.App.4th 919, 924 [the officer 'failed to establish a nexus between the criminal activities and the residence. No information was presented that [the suspected drug dealer] lived at the 610 Orange Drive residence, received mail or phone calls at the residence, or was seen carrying packages to and from it[]']; . . . . "
Rohrbach's motion nowhere mentions that the affidavit fails to establish that the address to be searched is Rohrbach's home; nor does it argue that this omission means that the affidavit lacks probable cause. In fact, the motion implicitly acknowledges that the address to be searched is Rohrbach's residence. During argument on the motion, Rohrbach's counsel made no reference to the affidavit's failure to state that the address to be searched was his home. This issue, never having been raised, was not addressed by the People in their pleadings or argument, nor by the court in its decision. In sum, Rohrbach's motion did not offer any factual basis or legal argument in support of the issue he now raises for the first time on appeal. The only relevant case he cited below was cited to support a different proposition. We do not think this was sufficient to comply with Penal Code section 1538.5, or to give the prosecution "fair notice of the moving party's argument," and thus to preserve the issue for appeal. (See People v. Williams, supra, 20 Cal.4th at p. 135.) Rohrbach's claim is forfeited.
B. Rohrbach's Ineffective Assistance of Counsel Claim Is Not Cognizable On Appeal
Rohrbach argues in the alternative - in case we find (as we do) he forfeited his claim that the affidavit does not connect him to the address to be searched - that his trial counsel was ineffective in failing to file an adequate motion to suppress on that basis. We conclude that this claim is not cognizable on appeal.
Penal Code section 1237.5 states, in relevant part: "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court." (Pen. Code, § 1237.5.) Penal Code section 1538.5, subdivision (m) provides that "A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty." (Pen. Code, § 1538.5, subd. (m).) Thus, the claims that may be raised in an appeal following a guilty or no contest plea without the issuance of a certificate of probable cause are limited to those "issues relating to the validity of a search or seizure, for which an appeal is provided under section 1538.5, subdivision (m)." (People v. Jones (1995) 10 Cal.4th 1102, 1106, disapproved on another ground in In re Chavez (2003) 30 Cal.4th 643, 656.)
"Because he is barred from arguing the search and seizure issue on appeal by his failure to raise that issue in the superior court, defendant argues in the alternative that he was denied effective assistance of counsel because of his trial counsel's failure to preserve the search and seizure issue for appellate review. We cannot review this argument either, however, because it is beyond the limited issues that are reviewable on appeal from a conviction following a guilty plea." (People v. Richardson (2007) 156 Cal.App.4th 574, 595-596 (Richardson); see People v. Johnson (2009) 47 Cal.4th 668, 683-685 [claim of ineffective assistance of counsel does not obviate need for certificate of probable cause].)
In Richardson, the defendant filed a motion to suppress evidence before the preliminary examination, and a superior court judge, sitting as a magistrate, denied the motion. (Richardson, supra, 156 Cal.App.4th at pp. 581-582.) The defendant then entered a plea of guilty, was sentenced, and appealed the denial of the suppression motion without a certificate of probable cause. (Id. at p. 582.) After concluding that the defendant was precluded from challenging the suppression ruling on appeal because he failed to renew his motion before a superior court judge acting in that capacity, the court considered defendant's argument that his counsel was ineffective in failing to preserve the issue for appeal. (Id. at pp. 595-596.) The court concluded that the defendant's ineffective assistance claim was not cognizable on appeal because it did not relate to "proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed." (Id. at p. 596, citation omitted.)
Rohrbach attempts to distinguish Richardson on the grounds that, unlike the defendant in Richardson, he did not "fail to bring his suppression motion in the superior court," and that in Richardson "there was no suppression issue properly before the court." But, as discussed above, we conclude that Rohrbach did not adequately raise this specific suppression issue before the superior court, and thus Richardson controls his case and his ineffective assistance of counsel claim is not properly before us.
Rohrbach also filed a supplemental brief, arguing that, in the event we conclude that his ineffective assistance claim is not cognizable on appeal absent a certificate of probable cause, then his counsel was ineffective in failing to seek a certificate of probable cause based on his own ineffectiveness in failing to adequately preserve the suppression issue for appeal. We reject this argument for the same reasons given above with respect to the original ineffective assistance claim. In addition, as the People note, allowing a defendant to raise issues otherwise requiring a certificate of probable cause by arguing that counsel was ineffective in failing to obtain such a certificate would completely eviscerate the requirement of a certificate of probable cause and defeat its purpose. (See People v. Panizzon (1996) 13 Cal.4th 68, 75 ["The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas"].)
C. The Affidavit Otherwise Supports a Finding of Probable Cause
Rohrbach next offers several additional arguments that the affidavit did not provide probable cause to search his home. This is so, he argues, because none of the computer activity at issue was connected to the address in the warrant; there was nothing to suggest perpetrators store evidence in their homes and, in fact, the perpetrator here seemed to be taking steps to keep evidence out of his home; there was no assertion regarding the habits of people who "commit electronic invasion of privacy and internet extortion offenses"; and Detective Buchignani did not have experience with "electronic/internet crimes." Rohrbach also argues that the affidavit does not supply probable cause to believe that he committed the charged crimes. We conclude that the affidavit supports a finding of probable cause to search Rohrbach's home.
When an appellate court reviews the validity of a search warrant, "the magistrate's determination will not be overturned unless the supporting affidavit fails as a matter of law to support the finding of probable cause. [Citations.] Doubtful or marginal cases are resolved in favor of upholding the warrant. [Citations.] The burden is on [the defendant] to establish invalidity of [a] search warrant[]." (Fenwick & West v. Superior Court (1996) 43 Cal.App.4th 1272, 1278 (Fenwick & West).) "The magistrate's determination of probable cause is entitled to deferential review." (People v. Kraft (2000) 23 Cal.4th 978, 1041.) "In determining whether an affidavit is supported by probable cause, the magistrate must make a 'practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.' [Citation.] The sufficiency of the affidavit must be evaluated in light of the totality of the circumstances. [Citation.]" (Fenwick & West, supra, 43 Cal.App.4th at p. 1278.)
According to the affidavit, two of Rohrbach's co-workers separately observed him positioning his phone in a container at his work station so that it was standing up and pointing toward his co-workers, in a way that suggested he was filming them. Three co-workers also separately observed that he appeared to be videotaping his co-workers in the break room because he followed people with the phone's camera lens. Several co-workers noticed Rohrbach going back and forth between the unisex restrooms and the break room across the hall from which those restrooms were visible, always while wearing a backpack. Rohrbach's phone was also twice found by co-workers in the unisex restrooms, on one occasion propped up and facing the toilet.
The affidavit indicates that Rohrbach had left his job at Redwood Toxicology about two months before the first anonymous email, and had been seen "peering into" Jane Doe 1's vehicle at Redwood Toxicology approximately three weeks before the email was sent. Jane Doe 1 had also refused Rohrbach's request to have a sexual relationship with her, causing an argument and the end of their friendship. The affidavit also states that the first anonymous email originated from a computer likely located at the Santa Rosa Junior College, where Rohrbach was a student, and where he had recently been the subject of an investigation after "a co-ed reported that Rohrbach was taking pictures of her and some other female students while he tried to conceal a cell phone or camera in his backpack." We find that these circumstances, taken as a whole, support a finding of a "fair probability" that evidence of the crime, namely photos taken in the unisex restroom that the perpetrator threatened to distribute, would be located on Rohrbach's cell phone. (Fenwick & West, supra, 43 Cal.App.4th at p. 1278.)
Given that there was probable cause to search Rohrbach's phone, we think it is a reasonable inference that evidence was likely to be found on computers and electronic storage devices in his home as well. "[T]he magistrate must make a 'practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.' [Citation.] The sufficiency of the affidavit must be evaluated in light of the totality of the circumstances. [Citation.]" (Fenwick & West, supra, 43 Cal.App.4th at p. 1278.) Given that evidence in the form of images of the victims was likely to be found on Rohrbach's phone and those images were attached to emails which were likely sent by Rohrbach, a common sense reading of the affidavit supported the conclusion that there was a fair probability that Rohrbach stored those or similar images on computers or storage devices in his home. We conclude that the magistrate did not err in finding that the affidavit provided adequate probable cause for the search of Rohrbach's residence. II. The Trial Court Did Not Err In Imposing Lifetime Sex Offender Registration
Penal Code section 290.006 gives the trial court discretion to require sex offender registration. (Pen. Code, § 290.006.) When ordering discretionary sex offender registration, " 'the trial court must engage in a two-step process: (1) it must find whether the offense was committed as a result of sexual compulsion or for purposes of sexual gratification, and state the reasons for these findings; and (2) it must state the reasons for requiring lifetime registration as a sex offender.' " (People v. King (2007) 151 Cal.App.4th 1304, 1308.) The trial court's ruling is reviewed for an abuse of discretion. (See Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 79.)
Rohrbach argues that the trial court abused its discretion in imposing a lifetime sex offender registration requirement on him because: (1) the trial court rejected "considerable evidence" that he committed the offenses to hurt and embarrass Jane Doe 1 as punishment for rejecting him, and not for purposes of sexual gratification; and (2) the reasons given did not support the court's conclusion that he was likely to reoffend.
In support of his argument that his offenses were not committed for purposes of sexual gratification, Rohrbach points to a letter and evaluation by defense expert Dr. Gonick-Hollows, as well as Rohrbach's statements to Detective Buchignani that he had targeted Jane Doe 1 because he was angry with her over the end of their friendship. But there was countervailing evidence upon which the trial court relied - it gave a lengthy, detailed explanation of the reasons it concluded sex offender registration was appropriate in this case. The court observed that Rohrbach's email to Jane Doe 1 contained a request for explicit photos of her and that Rohrbach admitted making repeated requests for sex with Jane Doe 1. By this conduct, Rohrbach demonstrated he had a sexual interest in Jane Doe 1, not just a desire to punish her for ending their friendship. In his second email to Jane Doe 2, Rohrbach similarly requested provocative pictures, belying his claim that his only motive for contacting Jane Doe 2 was to show Jane Doe 1 that he was "still out there." Rohrbach stored the images in a folder on his computer labeled "porn," and admitted to masturbating to them, both evincing sexual gratification as a motive. The court found it significant that Rohrbach had taken pictures of 11 women in the restrooms at Redwood Toxicology.
The trial court also explained at length its reasons for finding Dr. Gonick-Hallows's evaluation unpersuasive: (1) because it focused only on Rohrbach's actions with respect to Jane Doe 1 and did not address his conduct toward Jane Doe 2 or any of the other nine victims; (2) because Dr. Gonick-Hallows opined that Rohrbach was incapable of lying or deception, despite the fact that he initially lied to the law enforcement officers executing the search warrant and that he went to great lengths to conceal his identity as the originator of the emails; and (3) because Dr. Gonick-Hallows concluded Rohrbach derived no sexual pleasure from his actions, despite compelling evidence to the contrary. Given these findings, we cannot say that the trial court abused its direction in concluding that Rohrbach's crimes were committed "for purposes of sexual gratification." (People v. King, supra, 151 Cal.App.4th at p. 1308.)
In finding the second prong satisfied, the trial court considered "the facts of this case, the passage of time, the number of victims, [and] the method by which this was done," and concluded that Rohrbach was likely to commit similar acts in the future. In particular, the trial court focused on the fact that Rohrbach victimized Jane Doe 2, even though he had no personal connection to her, and that he threatened a third employee that she "[would] be next."
Rohrbach argues that the reasons given by the trial court do not support its conclusion. In response to the court's conclusion that Rohrbach's offenses formed a "pattern," Rohrbach argues that the offenses "occurred within a brief time period" and only "with a specific subset of people at Redwood Toxicology," and again relies on Dr. Gonick-Hallows's report. Rohrbach also disputes the court's finding that he lacked appreciation for the consequences of his actions as a basis for imposing lifetime registration, and cites to the probation report for the proposition that Rohrbach did in fact take responsibility for his actions. Finally, Rohrbach contends that his score on the Static-99 test, which showed a "moderate to high risk" that he would reoffend, was merely one of several factors the trial court should have considered.
We find no abuse of discretion. The duration of Rohrbach's crimes (approximately four months between the time he took the photographs and his email to Jane Doe 2), the number of victims (11), and Rohrbach's failure to understand and appreciate the seriousness of his crimes were all plainly relevant to Rohrbach's likelihood of reoffending, and tended to undercut his argument that this was an isolated incident arising from his relationship with Jane Doe 1. (See People v. Garcia (2008) 161 Cal.App.4th 475, 485 ["Where registration is discretionary, . . . one consideration before the court must be the likelihood that the defendant will reoffend"], disapproved on other grounds in Johnson v. Department of Justice (2015) 60 Cal.4th 871, 888.) The trial court expressly weighed the fact that Rohrbach had at least four months to contemplate his conduct, realize it was wrong, and elect to refrain from imposing further harm. As discussed above, the trial court explained at length that it had considered Dr. Gonick-Hallows's report, but found it unreliable for several reasons, particularly because it discussed the offense only with respect to Jane Doe 1 and did not address the other ten victims. While, as Rohrbach notes, the presentence report states that he "took responsibility for much of . . . his conduct as described in the police report" (except for the extortion attempt with respect to Jane Doe 2), the report went on to conclude that the "instant offenses were not a momentary lapse in judgment; rather, the circumstances reflect a sustained effort to dehumanize, exploit, and humiliate the victims over an extended time period." The Probation Officer ultimately recommended that the court impose Penal Code section 290 registration. Rohrbach's arguments on appeal amount to little more than a request that this court reweigh the evidence before the trial court. (See People v. JTH Tax, Inc. (2013) 212 Cal.App.4th 1219, 1250 [in reviewing for abuse of discretion " '[w]e do not reweigh the evidence or substitute our notions of fairness for the trial court's' "].) We conclude there was no abuse of discretion. III. Probation Condition Prohibiting Internet Use Other Than For School or Work Not Unconstitutionally Overbroad
We respectfully disagree with Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 78, to the extent it suggests that discretionary registration is appropriate only when the defendant is likely to commit violent sexual offenses or sexual offenses against minors. We believe discretionary registration may be imposed properly when the evidence supports the conclusion that the defendant will continue to commit the offenses that led to his conviction.
As a condition of his probation, the trial court ordered Rohrbach "not to use a computer that is connected to any other computer or connected to the internet or any other computer network except for schooling and/or employment." Rohrbach contends that this condition is (1) unconstitutionally overbroad on its face; (2) unconstitutionally vague on its face because it conflicts with other conditions of probation; and (3) unreasonable as applied to him. We disagree.
1. The Internet Condition Is Not Unconstitutionally Overbroad
Rohrbach argues that the probation condition is unconstitutionally overbroad because it is a "blanket condition" that impermissibly infringes on his First Amendment rights.
"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.) We review constitutional challenges to probation conditions de novo. (In re J.B. (2015) 242 Cal.App.4th 749, 754; People v. Appleton (2016) 245 Cal.App.4th 717, 723.)
In this case, the probation condition is closely related to the crime. Rohrbach used the internet to commit the offenses, contacting the victims by anonymous email, providing links to the offending images to be accessed online, creating fake Facebook accounts for the victims, and sending "friend requests" to the victims' coworkers. Thus, this is a case where the condition is "reasonably related to defendant's offense and necessary to the important dual goals of deterrence and protection of the public." (People v. Harrisson (2005) 134 Cal.App.4th 637, 647; see In re Hudson (2006) 143 Cal.App.4th 1, 10-11 [finding ban on internet use without prior approval of probation officer "related to [defendant's] offense and . . . reasonably related to deterring future criminality"].) In addition, we disagree with Rohrbach's contention that the condition amounts to a "blanket prohibition." As noted, the condition permits Rohrbach free use of the internet for school or employment purposes. Given the role of the internet in the underlying offense, and the exceptions for internet use for school or employment, we conclude that the condition here is not unconstitutionally overbroad. (See People v. Pirali (2013) 217 Cal.App.4th 1341, 1349 ["C]ourts have also permitted probation conditions and parole conditions limiting computer and Internet access in cases where the limitation is not a blanket prohibition, and in cases where the Internet played a role in the underlying offense"].)
Rohrbach also argues that the internet use condition is not narrowly tailored because it is unnecessary in light of other conditions of probation, including the conditions that Rohrbach have no contact with the victims and a condition allowing the probation department to search his electronic devices. We disagree. Any restriction limited to the "victims" is necessarily under-inclusive, because several of the women depicted in the images found on Rohrbach's phone were not identified. In addition, the statement of probable cause indicated that Rohrbach was being investigated for taking pictures of the crotches of other women at Santa Rosa Junior College while trying to conceal his cell phone in his backpack. Given that Rohrbach's offenses reached beyond the identified victims, and the fact that those offenses were committed primarily over the internet, we do not agree it was unnecessary or overbroad to restrict Rohrbach's internet use.
To the extent Rohrbach's unreasonableness argument is based on People v. Lent (1975) 15 Cal.3d 481, it fails because the internet condition has a "relationship to the crime of which the offender was convicted," as discussed above. (Id. at p. 486.)
2. The Internet Condition Is Not Unconstitutionally Vague
Rohrbach also argues that the internet use condition is unconstitutionally vague because it conflicts with two more specific conditions that Rohrbach have "no contact with any of the victims either directly or indirectly, through a third party or via any electronic or communication platform or gaming service," and that Rohrbach not "access or participate in any online gaming sites."
Rohrbach argues that the "inclusion of conditions that [he] not participate in online gaming contemplates internet use beyond that which is necessary for school or work." We disagree. The first condition bans any contact with the victims, including through "any electronic or communication platform or gaming service," even through methods other than a computer connected to the internet. The ban on "online gaming sites" may be mostly superfluous given the internet ban, but clarifies that Rohrbach is not to access such sites, even through his phone or a cellular data connection. We find that these conditions, taken together, are " 'sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' " as required to withstand a vagueness challenge. (In re Sheena K., supra, 40 Cal.4th at p. 890.) IV. The Polygraph Condition Is Not Overbroad
The trial court imposed a condition that Rohrbach "submit to and pay for any polygraph examination whenever directed by probation." Rohrbach argues that this condition is overbroad because it does not limit the type of questions that may be asked. In fact, the trial court ordered that "the results of said polygraph test will be used by probation only as an investigative tool to help monitor your compliance with the conditions of probation, prevent possible future criminality and will not be directly used, nor introduced as evidence for revocation or new sentencing proceedings." So limited, we conclude the condition is not overbroad. (See People v. Miller (1989) 208 Cal.App.3d 1311, 1315 [construing polygraph condition as "necessarily . . . limited to questions relevant to compliance" with probation condition].) V. The Condition Requiring Rohrbach to Pay for Polygraph Testing Must Be Stricken
Rohrbach argues that it was error for the trial court to require him to pay the cost of any polygraph examinations, and the People agree that the requirement that Rohrbach pay for the tests should have been entered as a separate order, not as a condition of probation.
A defendant who is granted probation may be ordered to pay the reasonable costs of probation, but the payment of such collateral costs cannot be made a condition of probation, and the payment of such costs cannot be ordered until a determination is made that the defendant is financially able to comply. (See Pen. Code § 1203.1, subd. (b); People v. Hall (2002) 103 Cal.App.4th 889, 892; Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321.) Accordingly, the requirement that Rohrbach pay the costs of any polygraph examination will be stricken, without prejudice to the trial court's discretion to enter a separate order requiring Rohrbach to pay the costs after an inquiry and determination as to Rohrbach's ability to pay. (See People v. Hall, supra, 103 Cal.App.4th at p. 894.) VI. The Probation Condition Forbidding Contact With Victims Is Not Overbroad
Rohrbach argues that the probation condition that he not have any contact with the victims or their families was unconstitutionally overbroad because it did not include a knowledge requirement. The People agree that this condition should include a knowledge requirement, but argue that such a requirement is implicit.
After briefing in this matter was completed, our Supreme Court decided People v. Hall (2017) 2 Cal.5th 494 (Hall). In Hall, the trial court imposed a condition of probation that defendant not possess firearms or illegal drugs, but did not expressly require "knowing" possession, and the defendant challenged those conditions as unconstitutionally vague. (Id. at p. 498.) After noting that "probation conditions [are] generally presumed to require some form of willfulness," the Supreme Court found that it was unnecessary to modify the conditions in order to make them constitutional, and instead found them "properly construed" to require knowing possession. (Id. at pp. 502-503.) Since the parties agree that the conditions at issue here are properly construed to require knowing contact with the victims, modification to make that requirement express is unnecessary after Hall. (Id. at p. 503.)
Rohrbach also argues that the condition that he not "enter the premises, travel past or loiter near where any of the victims reside or where any of the victims are employed or attend school" is unconstitutionally vague because it contains no knowledge requirement and because it is unclear what "near" means. (See People v. Barajas (2011) 198 Cal.App.4th 748, 760-62 [finding "adjacent to any school campus" to be unconstitutionally vague].) As discussed above, the condition is properly construed to include a knowledge requirement. (See Hall, supra, 2 Cal.5th at p. 503.) We will modify the condition to state that Rohrbach shall not "enter the premises, travel past or loiter within 100 yards of where any of the victims reside or where any of the victims are employed or attend school." (See People v. Barajas, supra, 198 Cal.App.4th at p. 763.) VII. The Encryption Systems Condition Contains Implicit Knowledge Requirement
Finally, the trial court ordered Rohrbach not to "use any encryption of any file system, computer or data of any type" while on probation. Rohrbach argues that this condition is vague because it conflicts with the condition allowing him to use the internet for work or for school, and that it should be modified to include a knowledge requirement. The People agree that the condition should be modified to permit Rohrbach to use a computer that uses an encryption system for school or work, and argue that the knowledge requirement is implicit. As discussed above, it is unnecessary to modify the condition to include a knowledge requirement. (See Hall, supra, 2 Cal.5th at p. 503.) Given the People's concession, we will modify the condition so that Rohrbach is not to "use any encryption of any file system, computer, or data of any type, other than for work or for school purposes."
III. DISPOSITION
The probation condition requiring Rohrbach to pay the costs of polygraph testing is stricken, without prejudice to the trial court's discretion to enter a separate order requiring Rohrbach to pay the costs after a determination of Rohrbach's ability to pay. The victim contact condition is modified to state that Rohrbach shall not "enter the premises, travel past or loiter within 100 yards of where any of the victims reside or where any of the victims are employed or attend school." The encryption condition is modified to state that Rohrbach shall not "use any encryption of any file system, computer, or data of any type, other than for work or for school purposes." As so modified, the judgment is affirmed.
/s/_________
Rivera, J. We concur: /s/_________
Reardon, Acting P.J. /s/_________
Streeter, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.