Opinion
A152107
04-24-2018
In re A.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1700225)
A.R. appeals from a juvenile court order declaring him a ward of the court and placing him on probation after he pleaded no contest to a charge of felony sexual battery. His sole contention on appeal is that a probation condition prohibiting him from viewing, possessing, or distributing any sexually explicit or pornographic images is unconstitutionally vague. The People concede the matter must be remanded for the juvenile court to modify the challenged condition. We agree that remand is appropriate to permit the juvenile court to define the material prohibited by the pornography condition with greater precision.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2017, the minor victim reported to the San Pablo Police Department that she and her older stepbrother, A.R., were watching television on their couch at home two years earlier. At the time, A.R. was 17 years old and the victim was 10 or 11. A.R. and his stepsister were sharing a blanket when A.R. pulled down his pants and exposed his penis. He placed the victim's hand on his penis and moved it up and down. After about five minutes, she pulled her hand away and told him she did not "want to do that." The victim reported that, since 2015, there had been approximately 15 incidents in which A.R. had touched her on the buttocks on the outside of her clothes. These incidents usually occurred when she was watching television in her room, lasted several seconds, and ended when she told A.R. to leave her room.
A.R. was arrested and acknowledged touching the victim while they were watching television. He believed the incident happened when he was 15 years old and the victim was 7. He denied the reports of subsequent inappropriate touching.
The Contra County District Attorney filed a juvenile wardship petition alleging that A.R., then 18 years old, committed a forcible lewd act upon a child under the age of 14, in violation of Penal Code section 288, subdivision (b)(1). The district attorney later amended the petition to allege that A.R. committed felony sexual battery in violation of Penal Code section 243.4, subdivision (a).
A.R. entered in an agreement to plead no contest to the count of felony sexual battery in exchange for dismissal of the original count of committing a forcible lewd act upon his stepsister. At the dispositional hearing, the juvenile court adjudged A.R. a ward of the court and placed him on probation subject to various terms and conditions. Among the conditions the court imposed orally was that A.R. was "not to knowingly view, possess or distribute any sexually explicit or pornographic images." A.R. did not object to that condition. The court's written order from the dispositional hearing includes the same condition in handwriting, although the handwritten condition omits the knowledge requirement orally pronounced by the court, i.e., it omits the word "knowingly."
DISCUSSION
A.R. contends the pornography condition imposed by the juvenile court is unconstitutionally vague because the terms " 'pornography' " and " 'sexually explicit' " are " 'inherently imprecise.' " The People concede the claim is meritorious and urge that the matter be remanded to modify the condition. The concession is well taken.
"Whether a term of probation is unconstitutionally vague or overbroad presents a question of law, which we review de novo." (People v. Martinez (2014) 226 Cal.App.4th 759, 765; accord, In re Sheena K. (2007) 40 Cal.4th 875, 888.) Because the issue here presents a pure question of law, A.R.'s vagueness challenge is cognizable on appeal despite the failure to object to the challenged condition below, as the People acknowledge. (In re Sheena K., supra, at p. 888; People v. Pirali (2013) 217 Cal.App.4th 1341, 1345 (Pirali).)
Both parties agree that the juvenile court's oral pronouncement controls over the handwritten version contained in the clerk's minutes. "[T]he modern rule is that if the clerk's and reporter's transcripts cannot be reconciled, the part of the record that will prevail is the one that should be given greater credence in the circumstances of the case." (Pirali, supra, 217 Cal.App.4th at p. 1346.) Here, there is no indication the juvenile court intended the handwritten condition to modify or correct its oral pronouncement, which included a knowledge requirement. Accordingly, the operative condition is the court's oral pronouncement, which prohibits A.R. from "knowingly" viewing, possessing, or distributing sexually explicit or pornographic images. But the mere inclusion of a scienter requirement does not cure the condition's vagueness problem.
As our colleagues in Division One explained in In re D.H. (2016) 4 Cal.App.5th 722, 727 (D.H.), " ' "[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 grounds of vagueness." ' " In many cases, a probation condition that restricts otherwise lawful activity but that suffers from vagueness may be modified to add an express knowledge requirement in order to address the vagueness problem. (Id. at p. 729.) As an example, a condition prohibiting contact with gang members is vague because "probationers cannot be aware of the gang status of every person with whom they have contact." (Ibid.) Adding a knowledge requirement makes the condition more precise by specifying that it prohibits contact with anyone the probationer actually knows is a gang member. (Ibid.) But adding an express knowledge requirement to a pornography condition does not fix the condition's vagueness because the term "pornography" is itself "subjective and subject to different interpretations." (Ibid.) The term "sexually explicit" is likewise unclear.
In Pirali, supra, 217 Cal.App.4th 1341, 1352, and People v. Turner (2007) 155 Cal.App.4th 1432, 1436 (Turner), the Courts of Appeal considered whether probation conditions prohibiting the possession of sexually explicit materials deemed inappropriate by the probation officer were unconstitutionally vague. The courts concluded the conditions were vague because they left the determination of which materials were prohibited to the probation officer's sole discretion and therefore did not provide advance notice of which items were barred. (Pirali, supra, 217 Cal.App.4th at p. 1353; Turner, supra,155 Cal.App.4th at p. 1436.) However, in both cases, the courts modified the conditions to render them constitutional by specifying that the probationer could not possess any sexually explicit material "having been informed by the probation that such material is inappropriate." (Turner, at p. 1436; see Pirali, at p. 1353 ["having been informed by the probation officer that such items are pornographic or sexually explicit"].)
The court in D.H. declined to adopt a proposed modification similar to those in Pirali and Turner, reasoning that "both decisions were concerned only with the lack of notice created by leaving the prohibited category's definition to the probation officer." (D.H., supra, 4 Cal.App.5th at p. 728.) In the view of the D.H. court, "a modification requiring D.H. to know or be informed in advance that materials are 'pornography' fails to address the term's inherent vagueness." (Id. at p. 729.) Instead, the D.H. court directed the juvenile court to modify the condition "to define more precisely the material the court intends to prohibit." (Ibid.)
A.R. urges us to follow D.H. and remand the matter to the juvenile court to fashion a condition that more precisely defines the prohibited material. The People concur. We agree that modifying the condition in the manner described in Turner and Pirali would not cure the vagueness problem. Among other things, how would A.R. know the probation officer's opinion about whether any particular material is pornographic without first viewing it and showing it to the officer? And even if this practical obstacle could not be overcome, the fundamental problem of the inherent vagueness of the terms "pornography" and "sexually explicit" remains. Accordingly, the juvenile court must be afforded the opportunity to modify the condition in the first instance in order to define the prohibited material more precisely, consistent with rehabilitative goals the court had in mind when it imposed the condition. (See D.H., supra, 4 Cal.App.5th at p. 729.)
As a final matter, we note that A.R. proposes, in the alternative, to strike the pornography condition in its entirety. We decline to do so. A.R. has not challenged the condition on reasonableness or overbreadth grounds. We therefore need not decide whether the condition could be properly imposed at all. (D.H., supra, 4 Cal.App.5th at p. 729.)
DISPOSITION
The matter is remanded to the juvenile court with directions to modify the pornography condition in a manner consistent with this decision. The jurisdictional and dispositional orders are otherwise affirmed.
/s/_________
McGuiness, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------