In the unpublished portions of this opinion, we conclude there is substantial evidence Charley committed sexual battery, and that his challenge to the electronics search condition of probation has been forfeited. In the published portion, however, we agree with Charley and hold that the condition of probation forbidding him from using, owning or possessing depictions of nudity is unconstitutionally overbroad and therefore we will order the condition stricken. As so modified, the court's disposition order will be affirmed.
BACKGROUND
Part I.
These Welfare and Institutions Code section 602 wardship proceedings were originally commenced in October 2013, when Charley, then 14 years old, was charged with two felony counts, including participating in a criminal street gang (§ 186.22, subd. (a)). The original petition was prеcipitated by an incident that took place at Charley's middle school when he was waiting in an office for his mother to pick him up after he'd been suspended that day
Approximately seven months lаter, in August 2015, Charley, then 16 years old, was arrested again after police officers encountered him with a documented Norteño gang member who was on adult probation. Police discovered Charley in possession of marijuana and, when they seаrched his cell phone, found photos of him wearing gang-related clothing, communications
Several months later, in March 2016, Charley, still 16, was arrested a third time, again for violating probation. This time, in his second probation violation petition, he was alleged to have twice tested positive for marijuana, repeatedly been late to school and been discharged from his court-ordered counseling program fоr missing three consecutive weekly sessions. Charley once again admitted the violations and the juvenile court sustained the petition. He was continued as a ward of the court and again reinstated on probation.
These wardship proceеdings culminated approximately ten months later, in January 2017, when Charley (by then, age 17) was charged in a supplemental Welfare and Institutions Code section 602 petition with five misdemeanor counts and a violation of probation, stemming from an incident in his high schоol classroom on January 23 in which he allegedly touched a female student inappropriately, in a sexual manner. Count three concerned the breast touching at issue in this appeal.
Part II.
At the conclusion of the jurisdictional hearing, after several counts had been dismissed, the juvenile court found that Charley had committed simple battery in connection with the thigh touching of his classmate (a lesser included offense of count two), misdemeanor sexual battery in connection with the breast touching (count three) and a violation of probation (count six).
Thereafter, an uncontested disposition hearing took place on February 27, 2017. The juvenile court continued Charley as a ward of the court, placed him under the supervision of the probation department, initially to be detained at juvenile hall at the department's discretion for a period of 45 days (with credit for 34 days) and thereafter placed back in his mother's home, subject to specified conditions of probation, twо of which we address below.
This timely appeal followed.
DISCUSSION
I.
II.
The Probation Condition Banning Charley from Owning, Using or Possessing Depictions of Nudity Is Unconstitutionally Overbroad (Condition Number 20).
Charley contends the juvenile court erred by imposing a condition of probation that is unconstitutionally overbroad in viоlation of his First Amendment rights and asks us to strike it, and here we agree.
The challenged provision, condition number 20, states that Charley "shall not own, use, or possess any form of sexually arousing materials which include computer based movies, videos, magazines, bоoks, games, sexual aids or devices, or any material which depicts partial or complete nudity or sexually explicit language, nor frequent any establishment where such items are the
The trial courts have greater discretion in formulating the terms of probation for minors than for adults, because minors are " 'more in need of guidance and supervision than adults, and because a minor's constitutional rights are more circumscribed.' " ( In re Victor L. (2010)
Although no Cаlifornia court has addressed the issue, the three federal circuits to have done so have, almost uniformly, struck down as unconstitutionally overbroad conditions prohibiting adult offenders from possessing depictions of nudity.
The People's principal argument is not to defend the constitutionality of this condition but, rather, to construe it narrowly. It argues the disputed nudity language "is not overbroad when considered in the context of the condition as a whole, and given its ordinary meaning and interpreted with common sense," because it supposedly contains a limitation that the depiction be "sexually arousing" in the manner of materials found in X-rated movies or adult bookstores. Thus, the People contend, as so construed condition number 20 does not prohibit Charley from viewing displays of nudity in mainstream movies or television shows, or in great works of art or educational text books. We disagree. Thаt interpretation is at odds with the plain text of what the court ordered. The People in fact have it backwards. The nudity language is not limited by the phrase "any form of sexually arousing material," but is a subcategory identified as (and therefore prohibited as) "sexually arоusing material." Simply put, the court's order broadly defines the prohibited category of "any form of sexually arousing material" as including "any material which depicts partial or complete nudity." Implicit in the People's interpretation of condition number 20 is a concession, however, that the juvenile court did not intend to restrict Charley's access to all depictions of nudity. So we have little trouble concluding the condition as written must be modified.
The People also stress that Charley committed a sex offense. But sex offenses were involved in many of the federal cases too. (See Simons , supra ,
Finally, the People distinguish the federal authorities on the ground they involve adult probationers whereas the constitutional rights of Charley, a minor, are more circumscribed. And that is true. But there are, of course, limits. "The essential question in an overbreadth challenge is the closeness of the fit between the legitimаte purpose of the restriction and the burden it imposes on the defendant's constitutional rights ...." ( In re E.O. (2010)
A condition that goes beyond that, however, to include a total ban оn depictions of nudity is, even for a juvenile sex offender, unconstitutionally overbroad. Accordingly, we will modify condition number 20 by striking the challenged nudity language, as the People concede we may do. (See, e.g., People v. Turner , supra ,
III.
The disposition order is modified to strike the language in probation condition number 20 stating "or any material which depicts partial or complete nudity." In all other respeсts it is affirmed.
We concur.
KLINE, P.J.
MILLER, J.
Notes
The parties referred to Carlos C. by his nickname "Charley" throughout the proceedings. To avoid confusion, we will also refer to him by this nickname.
Unless otherwise noted, all further statutory references are to the Penal Code.
See footnote *, ante .
See footnote *, ante .
This issue is cognizablе on appeal despite the fact that Charley did not object below to the nudity condition on constitutional overbreadth grounds. (He did object to it, but without specifying the grounds.) That is because it presents a facial constitutional challenge, i.е., a pure question of law we can decide without reference to the particular record developed below that implicates a potential error we can easily remedy. (See In re Sheena K. (2007)
The only outlier of which we are aware is the Seventh Circuit's decision in United States v. Holm (7th Cir. 2003)
See Nudity in American television-Wikipedia, The Free Encyclopedia < https://en.wikipedia.org/wiki/Nudity_in_American_television> (as of Dec. 21, 2017) [noting that the miniseries "featured some partial nudity of its cast, usually fleetingly, but more so than other commercial network programming in the US in the 1970s"].
See 7 Things Parents Should Know About 'The Vietnam War' on PBS-< https://geekdad.com/2017/09/7-things-ken-burns-the-vietnam-war/ > (as of Dec. 21, 2017) [alluding to "graphic footage of ... children running down the street naked in flames"].
See footnote *, ante .