People v. GruisPeople v. Gruis
In May 2018, Menlo Park police officers responded to a domestic disturbance call from M.O.,2 who told the officers she was dating defendant and had discovered nude pictures of her 13-year-old daughter, C.V., on one of his electronic devices. Officers obtained a search warrant and seized several of defendant‘s devices, including USB drives and a laptop computer. One of the USB drives contained 60 images and three video recordings of C.V. in various states of undress. According to Menlo Park Police Detective Josh Russell, the laptop‘s hard drive contained “over 500 still images and videos of [C.V.] or [C.V.‘s] mother or her sister in their home, in the bedroom, and the bathroom, throughout the house in various stages of dress or undress.”3 A 17-minute video found on defendant‘s laptop contained explicit depictions of C.V. in the bathroom of the residence.
Defendant was charged by information with felony possession of child pornography (
Defendant timely appealed.
In granting probation, the trial court has broad discretion to impose conditions that foster rehabilitation and protect public safety, but that discretion is not boundless (People v. Carbajal (1995) 10 Cal.4th 1114, 1120–1121), and a probation condition may be challenged as unconstitutionally vague and overbroad (In re Sheena K. (2007) 40 Cal.4th 875, 887 (Sheena K.)). Constitutional claims raising pure questions of law that can be resolved without reference to the facts developed in the trial court may be considered for the first time on appeal. (Id. at p. 889.) “[W]e review constitutional challenges to a probation condition de novo.” (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
A. Vagueness
” ’ “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders’ [citation], protections that are ‘embodied in the due process clauses of the federal and California Constitutions.’ ” ’ ” (In re D.H. (2016) 4 Cal.App.5th 722, 727 (D.H.).) To withstand a vagueness challenge, a probation condition must be sufficiently precise for probationers to know what is required of them, and for the court to determine whether the condition has been violated. (Sheena K., supra, 40 Cal.4th at p. 890.) In making this determination, courts are not limited to the condition‘s text and must consider other sources of applicable law, including judicial construction of similar provisions. (People v. Hall (2017) 2 Cal.5th 494, 499–501.) A claim of vagueness will be rejected if the language of the condition is susceptible of any reasonable and practical construction or
In Sheena K., supra, 40 Cal.4th 875, the California Supreme Court reviewed a vagueness challenge to a probation condition, explaining the governing principles as follows. “The vagueness doctrine bars enforcement of ’ “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” [Citation.]’ A vague law ‘not only fails to provide adequate notice to those who must observe its strictures, but also “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” [Citation.]’ [Citation.] In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that ‘abstract legal commands must be applied in a specific context,’ and that, although not admitting of ‘mathematical certainty,’ the language used must have ’ “reasonable specificity.” ’ ” (Sheena K., at p. 890, italics omitted.) Applying these principles, the Sheena K. court found unconstitutionally vague a probation condition that the defendant ” ‘not associate with anyone disapproved of by probation.’ ” (Sheena K., at p. 878, 891–892.)
There 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. (See, e.g., D.H., supra, 4 Cal.App.5th at pp. 728–729; People v. Pirali (2013) 217 Cal.App.4th 1341, 1353 (Pirali); accord, United States v. Adkins (7th Cir. 2014) 743 F.3d 176, 193–196; Farrell v. Burke (2d Cir. 2006) 449 F.3d 470, 490 (Farrell); United States v. Simmons (2d Cir. 2003) 343 F.3d 72, 81 (Simmons); United States v. Guagliardo (9th Cir. 2002) 278 F.3d 868, 872; United States v. Loy (3d Cir. 2001) 237 F.3d 251, 264–265 (Loy).) As one court observed, the term “pornography” could conceivably encompass many well-known works of artistic and cultural significance featuring nudity or sexually explicit material. (Loy, at p. 264.)
Here, the People acknowledge that the language of the instant no-pornography condition, without more, does not pass constitutional muster. Nonetheless, the People contend the vagueness problem could be cured by modifying the condition to prohibit only materials that a probation officer has informed defendant are pornographic. (See Pirali, supra, 217 Cal.App.4th at p. 1353 [probation condition modified to prohibit only materials as “informed by the probation officer“]; People v. Turner (2007) 155 Cal.App.4th 1432, 1436 (Turner).) We disagree. A modification requiring a probationer “to know or to be informed in advance that materials are ‘pornography’ fails to address the term‘s inherent vagueness.” (D.H., supra, 4 Cal.App.5th at pp. 728–729.) Moreover, the suggested modification appears to “improperly delegate the determination of the ‘nature of the prohibition’ to the probation department.” (People v. Gonsalves (2021) 66 Cal.App.5th 1, 8.)
The People next suggest utilizing the analysis in Simmons, supra, 343 F.3d 72, which involved a challenge to a prohibition against ” ‘any pornographic material’ ” as a special condition of supervised release. (Simmons, supra, 343 F.3d at p. 77.) Simmons started by acknowledging that, for purposes of evaluating artistic or cultural merit, the process for determining what material constitutes pornography was “subjective” and “heavily influenced by the individual, social, and cultural experience of the person making the determination.” (Id. at p. 81.) Simmons, however, found
In Simmons, the defendant had been convicted of child pornography under
In the case at bar, defendant was convicted under
Here, the removal of
First, the probation condition here, as written, does not actually define pornographic matter by reference to sections
Second, even if “pornographic” is defined with reference to the statute of conviction, the term can still be read to encompass works that depict even a single act of simulated adult sex, “however fleeting or veiled, and regardless of how insignificant it may be to the overall content of an art exhibit, play, or
Although we have the power to modify probation conditions to render them constitutional (Turner, supra, 155 Cal.App.4th at p. 1436), we decline to do so here. Instead, we remand the matter with directions to the trial court to either strike the no-pornography condition or modify it consistent with the views expressed in this opinion. In doing the latter, the court may consider utilizing the Simmons approach in order to craft a nonsubjective definition of “pornographic” based on sections
Defendant additionally contends the no-pornography condition is not narrowly tailored to achieve the government‘s compelling interests in public safety and rehabilitation because nothing in the instant record “suggests that sexually explicit material involving only adults contributed to [his] offense.” In light of our conclusion above that the condition must be vacated or revised by the trial court on remand, we need not reach the merits of defendant‘s overbreadth claim.5 However, we offer the following discussion as guidance.
Nonobscene, sexually explicit materials involving adults generally “receive full First Amendment protection when in the possession of ordinary adults.” (Farrell, supra, 449 F.3d at p. 497.) As the United States Supreme Court has long recognized, the First Amendment prohibits a state from telling people “what books [they] may read or what films [they] may watch” in the privacy of their own homes. (Stanley v. Georgia (1969) 394 U.S. 557, 565.) But “[i]nherent in the very nature of probation is that probationers ‘do not enjoy “the absolute liberty to which every citizen is entitled.” ’ ” (United States v. Knights (2001) 534 U.S. 112, 119.)
In cases involving sex crimes, including child pornography offenses, courts in California and elsewhere have rejected overbreadth challenges to conditions prohibiting the possession of sexually oriented or sexually stimulating materials featuring adults. (See, e.g., Turner, supra, 155 Cal.App.4th at pp. 1435, 1437 [defendant convicted of indecent exposure to children and possession of child pornography]; United States v. Boston (8th Cir. 2007) 494 F.3d 660, 663, 667–668 [defendant convicted of producing child pornography]; United States v. Rearden (9th Cir. 2003) 349 F.3d 608, 611, 619–620 (Rearden) [defendant convicted of shipping child pornography]; United States v. Bee (9th Cir. 1998) 162 F.3d 1232, 1234–1235 (Bee) [defendant convicted of sexual abuse of minor]; accord In re Carlos C. (2018) 19 Cal.App.5th 997, 1002 [noting, based on Turner and Bee, that conditions prohibiting possession of sexually arousing materials and similar language “have been upheld against constitutional overbreadth challenge by other courts“].) In such cases, the conditions were found to promote the interests of public safety and rehabilitation. (E.g., Turner, at p. 1437; Rearden, at pp. 619–620.) Although the overbreadth analyses in these cases are
Other courts analyzing the issue, however, have stricken similar conditions in response to as-applied overbreadth challenges where the record failed to show a close relationship between the prohibition and the circumstances of the offender‘s crime. For example, in United States v. Taylor (7th Cir. 2015) 796 F.3d 788, a probation condition prohibited a defendant convicted of transferring obscene material to a person under 16 years of age from viewing ” ‘any form of pornography which contains adults.’ ” (Id. at p. 792.) The appellate court vacated that condition because the record contained no evidence that viewing adult pornography in any way led the defendant to commit that crime or would make the repeat of that crime or similar crimes more likely, and no finding by the district court of “any relationship between [the defendant‘s] viewing of adult pornography and the likelihood of recidivism.” (Id. at p. 793; see also United States v. Voelker (3d Cir. 2007) 489 F.3d 139, 151 [vacating “unprecedented” lifetime ban on use and access to sexually explicit materials because “nothing on this record suggests that sexually explicit material involving only adults contributed in any way to Voelker‘s offense, nor is there any reason to believe that viewing such material would cause Voelker to reoffend“].)
In the event defendant raises an overbreadth challenge on remand (see fn. 5, ante), we encourage the trial court to carefully consider whether prohibiting defendant from possessing sexually stimulating materials involving adults is closely tailored to the interests of public safety and
DISPOSITION
The matter is remanded with directions for the trial court to strike or modify the no-pornography probation condition in a manner consistent with the views expressed in this opinion. Further, the trial court shall forward a copy of the modified order to the probation authorities.
Fujisaki, Acting P. J.
WE CONCUR:
Petrou, J.
Rodríguez, J.