People v. BrayPeople v. Bray
I. BACKGROUND2
On March 29, 2022, the National Center for Missing and Exploited Children (NCMEC) received two cybertips regarding the transmission of child pornography. An investigation was initiated, and a search warrant was obtained for Daniel Bray‘s residence. The search was conducted in June 2022, and Bray‘s computer, two cell phones, and several electronic storage devices were seized. The devices were forensically analyzed. The investigator estimated that there were thousands of image and video files of child pornography involving minors as young as five years old. Bray admitted to the investigating officer that he came into possession of child pornography “through various media platforms and through torrent web browsers, Megalinks, and private online chat rooms.” Bray stated that he originally was looking for glamour images of children for his social media photogrаphy work, which led “to a ‘rabbit hole.’ ” Bray confessed that he first possessed child pornography while he was in high school, that he did not actively search for it, but it was regularly accessible on chat sites, and he may have uploaded it to a Russian website. Bray later sent an email to the investigator again admitting his possession of child pornography and what he described as an addiction to pornography. In the email, Bray stated “that people who are online a lot and have a porn addictiоn tend to eventually start searching for more messed up stuff over time cause regular porn becomes stale and not as stimulating so they start looking into kinks and darker things and I know for a fact that is what happened to me.”
In July of 2022, the prosecution charged Bray with one count of possession or control of any matter depicting sexual conduct of a person under 18 years of age in violation of
In July of 2023, the trial court suspended imposition of sentence and granted formal probation for a period of two years, subject to the following conditions, among others3:
- You shall not knowingly access the Internet or any other online service other than chase.com through the use of a computer or other electronic device at any location, including any place of employment, without prior approval of the probation officer. You shall not knowingly possess or use any data encryption technique program.4 (Condition 12)
- During the term of probation, you may not date, socialize with, or form a romantic relationship with any person who has physical custody of a minor child unlеss approved by the probation officer. (Condition 20)
You shall not knowingly purchase or possess pornographic or explicit material as defined by the probation officer during the term of probation. (Condition 21) - You shall not knowingly frequent, be employed by, or engage in any business where pornographic materials are openly exhibited. (Condition 22)
At the time of the sentencing hearing, Bray objected to conditions 12, 20, and 22. The trial court overruled Bray‘s objections, finding that the restrictions were for a minimal аmount of time, reasonably related to the crime and nature of the offense, and would prevent conduct that might prove harmful or pose a threat to minors.
Bray timely appealed.
II. DISCUSSION
A. Legal Principles
“In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and protect public safety pursuant to
“[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ ” (Sheena, supra, 40 Cal.4th at p. 890.) “A probation condition ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.]” (Ibid.)
A constitutional challenge to a “probation condition as facially vague and overbroad presents an asserted error that is a pure question of law, easily remediable on appeal by modification of the condition. [Citations.]” (Sheena, supra, 40 Cal.4th at p. 888.) Therefore, such challenges are generally not forfeited for failure to raise them in the trial court. (Id. at p. 889; see also People v. Pirali (2013) 217 Cal.App.4th 1341, 1345 (Pirali) [“A Court of Appeal may review the constitutionality of a prоbation condition, even when it has not been challenged in the trial court, if the question can be resolved as a matter of law without reference to the sentencing record.“].)
Bray argues probation condition 20, which limits the group of people with whom Bray may date, socialize, or form romantic relationships “should be stricken in its entirety because it is unconstitutionally overbroad, and unreasonably infringes on [Bray‘s] fundamental rights to marry and to freedom of association.” Alternatively, Bray contends “the term ‘socialize’ must be removed from the condition as it is unconstitutionally overbroad.” At the outset, we note the Attorney General concedes “the ‘socialize’ restriction should be deleted” as unconstitutionally broad, but argues the remainder should be affirmed. We accept the Attorney General‘s concession, but for reasons we will discuss, we conclude the probation condition should be even further modified or stricken in its entirety.5
This condition does infringе on Bray‘s right to freedom of association, a right that has been long recognized by the United States Supreme Court. (Roberts v. United States Jaycees (1984) 468 U.S. 609, 617.) The question is whether preventing Bray from dating, socializing, or forming a romantic relationship with another adult, who happens to have physical custody of a child, without the permission of a probation officer is closely tailored to the reformation and rehabilitation of Bray such that it overcomes this infringement. (See Sheena, supra, 40 Cal.4th at p. 890; see also O‘Neil, supra, 165 Cal.App.4th at p. 1356.)
The case of U.S. v. Wolf Child (9th Cir. 2012) 699 F.3d 1082 (Wolf Child) is instructive and persuasive. In Wolf Child, the trial court imposed a condition that the defendant could not “datе or socialize with anybody who has children under the age of
The Attorney General contends “the terms ‘date’ and ‘form a romantic relationship’ both clearly describe the pursuit of an intimate or sexual relationship, the nuances of which can be judged accurately by a probation officer.” The Attorney General argues further that these terms are “narrowly tailored to the goal of preventing [Bray] from using the guise of a romantic relationship to gain unguarded access to potential underage victims.”
While the purpose of the condition mаy be to keep Bray from having unrestricted contact with minors, it is not carefully tailored to achieve that purpose. The Attorney General has acknowledged the impropriety of the term “socialize,” but the restrictions on dating and forming romantic relationships are also overbroad. The condition prevents Bray from dating an individual with minor children or forming a romantic relationship, even if Bray will never encounter those children.
The condition also lacks any knowledge component, such that Bray could go on a “date” and violate the condition despite not knowing the person has “physical custody of
Additionally, it is not apparent what specifically would constitute a “date.” Would a “date” only cover conduct such as going out to a restaurant or a movie, or would it also include meeting for coffee? Would the time of day matter? Does Bray define “date” or does the probation officer? What if Bray believes he is meeting a new friend, but the other person thinks it is a “date“? Nor is it clear how to distinguish the difference between a date and a romantic relationship. Would Bray need to return for additional approval if he finds that a dating relationship has intensified into a romantic relationship?
In O‘Neil, the court ordered the following condition: ” ‘You shall not associate socially, nor be present at any time, at any рlace, public or private, with any person, as designated by your probation officer.’ ” (O‘Neil, supra, 165 Cal.App.4th at p. 1354.) In finding this condition constitutionally overbroad, the court noted that the condition does not “provide any guideline as to those with whom the probation department may forbid association.” (Id. at pp. 1357-1358). Here, the condition similarly does not provide any guidelines for the probation department to permit or deny Bray‘s request to date, socialize, or form a romantic relationship, much less define what constitutes a violatiоn.
We acknowledge that “[a] limitation on the right to associate which takes the form of a probation condition is permissible if it is ‘(1) primarily designed to meet the ends of rehabilitation and protection of the public and (2) reasonably related to such ends.’ [Citations.]” (People v. Lopez (1998) 66 Cal.App.4th 615, 628.) But “[w]ithout a meaningful standard, [an] order is too broad and it is not saved by permitting the probation department to provide the necessary specificity.” (O‘Neil, supra, 165 Cal.App.4th at p. 1358.) Because these conditions impinge on Bray‘s right of association, but only indirectly serve the interest of protecting minor children with whom Bray may never come into contact, probation condition 20 is overbroad. There are other
C. Probation Condition 12: No Internet Access
Bray argues probation condition 12 limiting Bray‘s Internet access “should be stricken because it is unconstitutionally overbroad and unreasonably infringes upon [Bray‘s] fundamental right to freedom of speech.”
Pirali involved a similar probation condition to the one in this case: ” ‘You are not to have access to the Internet or any other on-line service through use of your computer or other electronic device at any location without prior approval of the probation officer.’ ” (Pirali, supra, 217 Cal.App.4th at p. 1345.) As Bray does here, the defendant in Pirali argued the probation condition was unconstitutionally overbroad.7 (Id. at p. 1346.)
Noting that “access to computers and the Internet [has] been recognized by courts as increasingly important,” the Pirali court stated that “certain restrictions on ‘access to the Internet necessarily curtail First Amendment rights,’ ” and “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
Observing that access to the Internet has become even more necessary and integral to daily life since Pirali was decided in 2013, this Court more recently found that a probation condition prohibiting Internet access, even with exceptions upon probation offiсer approval, was overly broad and unduly burdensome in most cases. (People v. Salvador (2022) 83 Cal.App.5th 57, 67 (Salvador).) The Court stated that “[n]o valid purpose is served by preventing [the defendant] 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. . . . 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.” (Ibid.)
While we do not hold that a blanket Internet prohibition can never be appropriate, we continue to agree with Salvador that the Internet today is so enmeshed with society and day-to-day life that such a prohibition that is not narrowly and carefully tailored will be overbroad and restrict a probationer‘s life in ways that are not sufficiently connected to the goal of rehabilitation.
Bray used the Internet as the instrumentality to commit this crime, and he himself admits that his access to child pornography grew out of a “rabbit hole” of unfettered file-sharing and image searches. Thus, we agree that a condition to prevent him from accessing child pornography on the Internet is appropriate. Condition 12, however, is overbroad in that it restricts all use of the Internet, including access to websites and email that are necessary in today‘s sоciety, rather than limiting the restriction more narrowly. For example, the condition could be drafted to permit Bray identified non-recreational uses, or prohibit Bray from visiting websites involving children, entering chat rooms, or accessing file-sharing platforms (all which Bray admitted were involved in the commission of this crime). The trial court ordered many unchallenged conditions that would ensure Bray‘s compliance with those more specific orders including a prohibition on accessing social media and a waiver оf his rights to privacy on all of his electronic devices, including providing passwords and maintaining search history.
We recognize that Salvador left a door open to an exception to its ruling on the Internet condition, stating that “[w]ith respect to some offenses—e.g., possession or
D. Probation Conditions 21 and 22: Restrictions on Pornography and Sexually-Explicit Material
Bray argues probation conditions 21 and 22, regarding Bray‘s access to pornography, are unconstitutionally vague, and this court should remand to the trial court for the conditions to be modified for specificity.10 In response, the Attorney Generаl agrees that these probation conditions should be modified. Among other cases, the Attorney General bases this concession on People v. Gruis (2023) 94 Cal.App.5th 19 (Gruis).
In Gruis, “[a]s one of the conditions of probation, defendant was ordered as follows: ‘You may not possess any pornographic magazines, videos, pictures or written material or images unless prescribed by a therapist during the course of your treatment.’ ” (Gruis, supra, 94 Cal.App.5th at p. 22.) The Gruis court observed that “[t]here appears a general consensus among courts, including those upholding no-pornography conditions of probation or supervised release against constitutional challenges, that the terms ‘pornographic’ and ‘pornography,’ standing by themselves, are subjective and vague. [Citations.]” (Id. at pp. 23-24.) “[T]he term ‘pornography’ could conceivably encompass many well-known works of artistic and cultural significance featuring nudity or sexually explicit material. [Citation.]” (Id. at p. 24.)
As in Gruis, the challenged conditions do not define pornography; they allow for subjective application by a probation officer and they may encompass materials whose primary purpose is not pornographic. (Gruis, supra, 94 Cal. App.5th at pp. 25-26). We agree with Gruis and conclude probation conditions 21 and 22 are unconstitutionally vague. We accept the Attorney General‘s concession, and remand with directions to either strike or modify probation conditions 21 and 22 for specificity.
III. DISPOSITION
We remand this matter to the trial court to strike or modify probation conditions 12, 20, 21, and 22 in accordance with this opinion. In all other respects, the judgment is affirmed.
Notes
The trial court also ordered Bray to comply with other conditions relevant to the issues presented: waive his Fourth Amendment rights to permit law enforcement and probation to search all of his electronic devices and provide passwords for the electronic devices and his email accounts to permit searching of those devices; provide his email addresses; not clean or delete his Internet browsing activity, and keep at least four weeks of said browsing activity; and not knowingly enter any social networking sites unless approved by the probation department. Bray was also ordered to seek and maintain employment or participate in academic or vocational training. Bray does not challenge any of these conditions.