1

Filed 5/12/20

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

BENJAMIN SADIKI PROWELL,

Defendant and Appellant.

C086156

(Super. Ct. No. CRF170417)

APPEAL from a judgment of the Superior Court of Yolo County, Paul K. 

Richardson, Judge. Affirmed as modified.

Suzanne M. Nicholson, 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 Attorney General, Daniel B. Bernstein and Peter H. 

Smith, Deputy Attorneys General, for Plaintiff and Respondent.

 

*

 Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified 

for publication with the exception of part II.
2

Following defendant Benjamin Sadiki Prowell’s misdemeanor conviction for 

making harassing electronic communications (Pen. Code, § 653m, subd. (b)),1the trial 

court placed him on three years’ probation with conditions prohibiting him from using or 

accessing social media Web sites and allowing warrantless searches of his 

communication devices. On appeal, defendant contends these probation conditions are 

overbroad. 

The trial court imposed a variety of other probation conditions under section 

1203.097, conditions mandated for crimes of domestic violence. As to these conditions, 

defendant contends there is no substantial evidence that he and the victim were in a 

dating relationship necessary to support the domestic violence conditions. 

In the published portion of this opinion, we shall strike the communication device 

search condition and remand the case to the trial court to consider whether it can be 

narrowed in a manner that will allow it to pass constitutional muster. We otherwise 

affirm the judgment.

BACKGROUND

Defendant and the victim, Allison V., worked at the same location. They became 

friends, and a few months after defendant and Allison started working together, they 

began dating. Approximately six months later, in February 2016, Allison ended things

with defendant because they both knew there was no future in the relationship. The 

initial breakup with defendant went fine, but shortly thereafter, he became agitated and 

“said no thank you to the breakup.” 

Defendant began calling Allison, sending her text messages, and messages through 

Facebook Messenger almost daily. He was angry and upset. For about a month, Allison 

attempted without success to defuse the conflict with politeness. Near the end of March

 

1 Undesignated statutory references are to the Penal Code.
3

of 2016, she stopped responding to defendant’s e-mails and answering his calls. 

Defendant sent “e-mail after e-mail,” close to 100 in all, and sent Allison Facebook 

messages in the middle of the night. He e-mailed her at her work and home e-mail

addresses. Through texts, e-mails, and Facebook Messenger, Allison told defendant that 

his behavior was inappropriate, asked him to stop, and told him he was harassing her. In 

the spring of 2016, she blocked him from some social media, and blocked his number on 

her cell phone. He then contacted her on Instagram and she blocked him from that 

account as well. In some of the e-mails, defendant discussed Allison’s children and her 

sister. He told her he was upset because Facebook was suggesting her family members as 

friends for him. He told her his Navy friends were coming to town, they knew what she 

looked like, and he did not want them to get in trouble or cause trouble, “because the 

Navy frowns upon cheaters.” Defendant told Allison he had access to all of her account 

and computer information. In July 2016, she sent him an e-mail telling him to leave her 

and her family alone, that his behavior was unacceptable, he was harassing her, and that 

she was afraid. 

Unrelated to these events, defendant’s employment was terminated in April 2016, 

and his employer removed his key code access to the building. After defendant was 

fired, he knocked on the back door of the building, gave a male employee a box, and 

asked him to leave it in Allison’s office. The box contained some belongings Allison had 

left at defendant’s house, including a curling iron. It also contained things that were not 

hers, such as a journal notebook in defendant’s handwriting in which he discusses their 

relationship and his anger about the relationship being over. The journal also contained 

poems and drawings. At home, Allison took security measures including getting a dog, 

hanging blackout curtains on her windows, and changing her alarm code. The e-mails 

from defendant also indicated he was using the Internet to obtain current information on 

her and her new boyfriend, including pictures. He told her he knew her secrets, 

commented about a photograph on Facebook of her and her son, and cautioned Allison to 
4

be more careful about the information she posted on social media about her new 

boyfriend. He also communicated with the new boyfriend, and a friend of Allison’s, 

through Facebook Messenger, text messages, and e-mails. In the communication with 

Allison’s new boyfriend, defendant suggested that Allison was promiscuous and detailed 

what he said were her sexual preferences. 

In October 2016, Allison contacted law enforcement. Detective Joshua Helton of 

the Davis Police Department called defendant, identified himself as law enforcement, and 

discussed defendant’s contacts with Allison. Helton told defendant that Allison was 

feeling threatened by the contact and, in his opinion, defendant’s conduct was criminal. 

Even after this conversation with Helton, defendant continued to contact Allison via email and social media. He sent her a message asking her not to call law enforcement 

again and claimed he would not contact her again. In the next two months, defendant 

sent Allison 25 more e-mails. In the e-mails, defendant indicated that law enforcement 

had contacted him about his communications with her. Defendant also sent an Instagram

message to Allison’s new boyfriend, under the account name “TheStalker0000.” 

Defendant also sent Helton a number of e-mails. 

Detective Helton spoke to defendant again in January 2017. Helton told defendant 

he was going to forward the case to the district attorney, and if defendant continued to 

contact Allison, he might have to take additional action. Over the following weeks, 

defendant sent Allison numerous additional e-mails. Helton sought a warrant and 

arrested defendant. 

After defendant’s arrest, law enforcement officers examined his phone and found 

text messages with his former boss. In these exchanges, defendant admitted he had been 

sending Allison e-mails for months and that she called it harassment. At that point, 

defendant indicated he had to be more careful. He discussed attempting to break up the 

relationship between Allison and her friend, damaging Allison’s professional reputation, 
5

and disrupting her family member’s business. He also admitted sending Allison’s new 

boyfriend a message and using Facebook to find that boyfriend’s information. 

A jury found defendant not guilty of stalking but guilty of the lesser included 

offense of annoying or harassing communication (§ 653m, subd. (b)). After the verdict, 

defendant posted a picture on social media of Hannibal Lector eating flesh and said, “I 

hope she chokes on whatever pound of flesh she may have received from having pursued 

this matter.” 

Before sentencing, defense counsel raised the issue of whether the relationship 

qualified as a “dating relationship” and whether defendant’s actions constituted 

“domestic violence” necessary for the imposition of section 1203.097 probation 

conditions. The trial court found there was clear evidence of a dating history, not just a 

casual relationship. The trial court also found the repeated contact, including after the 

police told him to stop, would instill fear, and thus constituted domestic violence. 

The trial court placed defendant on three years’ formal probation. Over 

defendant’s overbreadth objection, the trial court imposed the following condition in 

handwriting on the probation order: “Defendant shall not use any social media sites or 

apps[,] including but not limited to Twitter, Facebook, Instagram and[,] in addition, 

[defendant] shall consent to the search of any communication devices in his possession 

[and] control and disclose passwords to any such devices and provide those to probation 

officers or police officers upon demand without warrant or suspicion.” The trial court 

also imposed a number of probation conditions related to domestic violence, including 

entry and completion of a batterer’s intervention program, a $500 fine under section 

1203.097, subdivision (a)(5), and a 10-year no-contact order. 
6

DISCUSSION

I

Probation Conditions

Defendant contends that the prohibition on accessing social media Web sites and 

applications, and the communication device search condition, are overbroad. 

“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. [Citation.]” (In re Sheena K. (2007) 

40 Cal.4th 875, 890.) “Certain intrusions by government which would be invalid under 

traditional constitutional concepts may be reasonable at least to the extent that such 

intrusions are required by legitimate governmental demands.” (In re White (1979) 

97 Cal.App.3d 141, 149-150.) “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 . . . .” (In re E.O. (2010) 188

Cal.App.4th 1149, 1153.) “A [probation condition] is unconstitutionally overbroad . . . if 

it (1) ‘impinge[s] on constitutional rights,’ and (2) is not ‘tailored carefully and 

reasonably related to the compelling state interest in reformation and rehabilitation.’ 

[Citations.]” (Ibid.) We independently review defendant’s constitutional challenge to a 

probation condition. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)

Social Media Sites

Defendant argues the social media condition goes further than necessary to 

accomplish the state’s goal of ensuring he does not use social media to harass or annoy 

Allison, especially given the no-contact order, relying primarily on cases dealing with 

probation conditions that prohibit all access to the Internet. The condition at issue here is 

not nearly so broad; accordingly, those cases are of limited applicability. 

“A fundamental principle of the First Amendment is that all persons have access 

to places where they can speak and listen, and then, after reflection, speak and listen once 
7

more.” (Packingham v. North Carolina (2017) 582 U.S. ___, ___ [198 L.Ed.2d 273, 

279] (Packingham).) An important forum for such communication today is found on 

social media, and “to foreclose access to social media altogether is to prevent the user 

from engaging in the legitimate exercise of First Amendment rights.” (Id. at p. ___ [198 

L.Ed.2d at p. 281].) In light of social media’s role in protected communication, the 

United States Supreme Court struck down a state law making it a felony for registered 

sex offenders who had already completed their sentences “ ‘to access a commercial social 

networking Web site where the sex offender knows that the site permits minor children to 

become members or to create or maintain personal Web pages.’ ” (Id. at pp. ___ [198 

L.Ed.2d at pp. 278, 282-283].)

In In re L.O. (2018) 27 Cal.App.5th 706, Division Four of the Court of Appeal, 

First Appellate District, relied on Packingham to invalidate as facially unconstitutional a

probation condition imposed on a minor convicted of battery which provided that “ ‘[t]he 

Minor shall not access or participate in any Social Networking Site, including but not 

limited to Facebook.com.’ ” (L.O., at pp. 708, 711, 713.) The court modified the 

condition to provide that “[a]s long as Minor’s probation officer has the authority to 

allow social media use that is consistent with the state’s compelling interest in 

reformation and rehabilitation, that probation condition is not facially overbroad.” (Id. at 

p. 713.)

We disagree that Packingham, which involved the blanket criminalization of First 

Amendment activity on the part of those previously convicted of certain crimes, and who 

have already completed their sentences, compels the conclusion that all prohibitions on

probationer access to social media are per se overbroad. Accordingly, we depart from the 

conclusion in In re L.O. that a probation restriction on accessing social media sites is 

unconstitutional in every potential application. The issue in Packingham was the 

constitutionality of a statute prohibiting registered sex offenders from accessing or 

creating or maintaining personal pages on social networking sites that permit minors to 
8

become members. The statute also applied to those who had completed their sentences

and were no longer in custody or under any judicial supervision. (Packingham, supra, 

582 U.S. at p. ___ [198 L.Ed.2d at p. 278].) The Supreme Court held the statute 

burdened substantially more speech than necessary to further the government’s interests 

in protecting minors from sexual abuse. (Id. at pp. ___ [198 L.Ed.2d at pp. 282-283].) 

That is quite a different circumstance from a probationer, whose rights are more limited. 

We conclude, as have many federal courts, that the reasoning of Packingham cannot and

should not be used to assess whether there may be a circumstance in which a probationer 

may be prohibited from utilizing social networking sites in a manner consistent with 

constitutional principles during the period of probation. (United States v. Carson (8th 

Cir. 2019) 924 F.3d 467, 473; see United States v. Halverson (5th Cir. 2018) 897 F.3d 

645, 657-658; United States v. Browder (2d Cir. 2017) 866 F.3d 504, 511, fn. 26; United 

States v. Rock (D.C. Cir. 2017) 863 F.3d 827, 831.)

A complete prohibition on a probationer’s access to social networking Web sites 

during the term of probation might in some circumstances be a close fit between the 

legitimate purpose of the restriction—i.e., the reformation and rehabilitation of that 

probationer—and the burden that such a condition would impose on that probationer for 

the duration of the probationary term. This is such a case. 

Defendant committed his crime, harassing Allison, via e-mail, text message, and 

Facebook. After she told him to stop contacting her, and blocked him on some social 

media platforms, he continued to e-mail her and contacted her through another social 

media site. He utilized social media sites to track her activities with her son and new 

boyfriend. He expanded his harassment of Allison to include contacting her friend and 

new boyfriend through social media applications. He created an alternate social media

user name to contact her new boyfriend. Even after conviction, he posted a meme about 

Allison and this case on social media. Under these circumstances, where defendant used 

social media to perpetrate the crime for which he is on probation, gathered information 
9

on the victim and her family through social media, had inappropriate contacts with the 

victim’s friends through social media, and continued to use social media to discuss this 

case even after conviction, it is appropriate and constitutionally sound to impose such a 

complete prohibition. As applied to a defendant who has utilized social networking sites 

in such a manner, imposition of a complete prohibition with respect to social networking 

sites is sufficiently tailored to the state’s legitimate interest in reformation and 

rehabilitation of that probationer.

Communication Devices

As to the communication device search condition, defendant argues it is overbroad

because there is no limit on the type of information to be searched or the permissible 

timeframe of any such search. 

The United States Supreme Court’s observations in Riley v. California (2014) 573

U.S. 373, 396-397 [189 L.Ed.2d 430, 448] make clear that a probation condition that 

authorizes the warrantless search of an electronic storage device, such as a cell phone, 

carries the potential for a significant intrusion into defendant’s private affairs. The 

electronic search condition at issue here “arguably sweeps more broadly than the standard 

three-way search condition allowing for searches of probationers’ persons, vehicles, and 

homes. First, by allowing warrantless searches of all of defendant’s computers and 

electronic devices, the condition allows for searches of items outside his home or vehicle, 

or devices not in his custody—e.g., computers or devices he may leave at work or with a 

friend or relative. Second, the scope of a digital search is extremely wide . . . . Thus, 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 correspondence with family and friends.” (People v. Appleton (2016) 

245 Cal.App.4th 717, 725.) The mobile application software could also include 
10

information about defendant’s political and religious affiliations, health concerns, 

medical and financial data, hobbies, and social life. (Riley, at p. 396.) 

The condition at issue here specifies “communication devices,” rather than 

“electronic storage devices.” A probation condition should be given “ ‘the meaning that 

would appear to a reasonable, objective reader.’ ” (People v. Olguin (2008) 45 Cal.4th 

375, 382.) We interpret a probation condition in context and using “common sense.” 

(In re Ramon M. (2009) 178 Cal.App.4th 665, 677, disapproved on other grounds in In re 

G.C. (2020) 8 Cal.5th 1119, 1133.) Given the trial court’s specification of the devices 

subject to search as communication devices, rather than electronic storage devices, and 

the particular facts of this case, it appears to us that the trial court likely intended for the 

search condition to allow warrantless searches only of communication applications on 

those devices.2 Thus, we agree with defendant that the electronic search condition 

impinges on his constitutional rights under the Fourth Amendment. (See People v.

Appleton, supra, 245 Cal.App.4th at p. 724.) As currently stated, the communication 

device search condition “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 

correspondence with family and friends.” (Id. at p. 725.) The state’s interests in 

preventing communication with and harassment of the victim, and fostering defendant’s 

rehabilitation, could be served through narrower means. We therefore conclude that the 

communication device search condition is not sufficiently tailored to its purpose and must 

be modified to limit authorization of searches to devices, accounts, and applications that 

are reasonably likely to reveal whether defendant has engaged in prohibited 

 

2 We observe that many communication devices, including cell phones, computers,

and tablets, also function as electronic storage devices.
11

communication with the victim or the use of social media, or otherwise violated the terms 

of his probation. 

II

Substantial Evidence of a Dating Relationship

Defendant contends there is not substantial evidence to support the trial court’s 

finding that he and Allison had a “dating relationship.” Accordingly, he concludes the 

trial court erred in imposing the probation conditions mandated by section 1203.097 for 

people convicted of crimes of domestic violence.

Section 1203.097 requires that if the defendant “is granted probation for a crime in 

which the victim is a person defined in Section 6211 of the Family Code,” the probation 

must include a number of specific terms, including a minimum probationary period, a 

criminal protective order, specific fines and fees, and successful completion of a 

batterer’s program. As relevant to this case, one category of people defined in section 

6211 of the Family Code is a “person with whom the respondent is having or has had a

dating or engagement relationship.” (Fam. Code, § 6211, subd. (c).) 

We review the trial court’s finding that Allison and defendant had a dating 

relationship for substantial evidence. That is, whether, based on the whole record, a 

reasonable trier of fact could have found a dating relationship. As always in a substantial 

evidence review, we resolve all factual conflicts and questions of credibility in favor of 

the prevailing party and indulge all reasonable inferences to support the trial court’s 

order. (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 849-850.) 

The term “dating relationship” is used both to proscribe and punish abuse in 

intimate partnerships through the Penal Code and to provide protection by way of a 

restraining order to victims under the Domestic Violence Protection Act. “ ‘ “Dating 

relationship” means frequent, intimate associations primarily characterized by the 

expectation of affection or sexual involvement independent of financial considerations.’ 

(Fam. Code, § 6210.)” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1116.) This 
12

definition “does not require ‘serious courtship,’ an ‘increasingly exclusive interest,’ 

‘shared expectation of growth,’ or that the relationship endures for a length of time.” 

(Ibid.) Conversely, the definition does not include a “ ‘casual relationship or an ordinary 

fraternization between [two] individuals in a business or social context.’ ” (Id. at p.

1117.) 

Here, Allison indicated she and defendant started out as friends, then the 

relationship changed and they began dating. They dated for approximately six months. 

Defendant spent time at her home. Friends of each of them knew they were involved 

with each other. She ended the dating part of their relationship, realizing there was not a 

future in the relationship. Defendant told her he was “hers” until she said otherwise. 

After the relationship ended, he returned her belongings that had been at his home and 

gave her a journal notebook in his own handwriting that talked about their relationship. 

Defendant also indicated he believed Allison had been unfaithful to him. Defendant’s 

roommate at the time described the relationship between Allison and defendant as a 

loving dating relationship. Her friends and his defined the termination of the relationship 

as a “break up.” The termination of a casual relationship or “ordinary fraternization” is 

not generally considered as “break up.” The trial court drew reasonable inferences from 

the evidence in concluding that there was a dating relationship. Substantial evidence 

supports the trial court’s finding that Allison and defendant had a dating relationship. 

(Phillips v. Campbell, supra, 2 Cal.App.5th at pp. 850-851.)

DISPOSITION

The judgment is modified to strike the communication device search condition. 

The trial court is directed to issue an amended probation order striking the 

communications device search condition. As modified, the judgment is affirmed. 

Because the trial court may be able to impose a valid electronic search condition more 
13

narrowly tailored to the state’s interests, the case is remanded to the trial court for further 

proceedings consistent with this opinion. 

 KRAUSE , J.

We concur:

 MURRAY , Acting P. J.

 DUARTE , J.