3 Cal. App. 5th 729
Cal. Ct. App.2016Background
- Defendant James Connors, a registered sex offender, received felony probation in 2013 after pleading no contest to a registration violation; probation included a condition barring association with persons on probation/parole.
- Defendant successfully obtained a narrow modification to permit contact with his wife (Jennifer Chapman) but did not object generally to the association condition when probation was imposed.
- In March–April 2015 probation officers found sexually explicit/violent pornography on defendant's phone and observed defendant associating with probationer Sheryl Rhodes (whom he later called his girlfriend). He was warned and then arrested for violating the association condition.
- At the revocation hearing the court found a violation, reinstated probation, credited 145 days served, modified the association condition to permit contact with Rhodes (and excluded no others), and added a condition prohibiting possession of "sexually explicit materials for the purposes of arousing prurient interest" plus forensic-search and password-disclosure requirements.
- On appeal Connors argued (1) the association condition was unreasonable as applied because it prohibited intimate association with a girlfriend, and (2) the sexually explicit materials condition was unconstitutionally vague/overbroad and lacked a knowledge requirement.
- The Court of Appeal affirmed as modified: it held Connors forfeited his Lent challenge to the association condition and required the pornography prohibition be narrowed by adding a knowledge/notice element identifying which items are prohibited.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant could raise an "as-applied" reasonableness (Lent) challenge to the association-with-probationers condition despite not objecting when imposed | People: condition was reasonable and related to rehabilitation/public safety; no forfeiture issue blocks review | Connors: the condition was unreasonable as applied because it barred intimate association with a girlfriend fiancée and should not support revocation | Forfeited: under Welch and Sheena K. Connors failed to timely object to the condition so his Lent "as-applied" challenge is waived on appeal |
| Whether the new prohibition on possessing "sexually explicit materials for the purposes of arousing prurient interest" is valid, or is vague/overbroad and needs a knowledge requirement | People: condition reasonably relates to defendant's sex-offense history and future risk; searchable devices and passwords are permissible supervision tools | Connors: the prohibition is vague/overbroad; ubiquitous sexual content would unconstitutionally restrict his daily life and lacks a required knowledge element | Condition valid as to purpose and relation to risk but must be narrowed: add a knowledge/notice element so it applies only to materials the probation officer identifies and informs the defendant are sexually explicit for arousal purposes |
Key Cases Cited
- People v. Lent, 15 Cal.3d 481 (adopts reasonableness test for probation conditions)
- People v. Welch, 5 Cal.4th 228 (failure to timely object to probation conditions forfeits Lent challenge)
- In re Sheena K., 40 Cal.4th 875 (narrow exception to forfeiture for facial vagueness/overbreadth; discusses excusing forfeiture rarely)
- People v. Pirali, 217 Cal.App.4th 1341 (probation ban on pornographic materials rendered constitutional by adding a knowledge/notice requirement)
- People v. Dominguez, 256 Cal.App.2d 623 (earlier case applying reasonableness standard later adopted in Lent)
- People v. Hackler, 13 Cal.App.4th 1049 (Court of Appeal exercised discretion to review forfeited probation-condition challenge prior to Welch)