Opinion
H042994 H043864
10-04-2017
THE PEOPLE, Plaintiff and Respondent, v. DONALD JEFFREY ARNDT, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. C1483344, C1637560)
I. INTRODUCTION
In 2015, in case No. C1483344, defendant was convicted after court trial of two counts of possession of child pornography (Pen. Code, § 311.11, subd. (a)). The trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions. Defendant was required to register as a sex offender.
All further statutory references are to the Penal Code.
In 2016, in case No. C1637560, defendant was convicted by plea of failing to register as a sex offender (§ 290, subd. (b)). The trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions. As defendant also admitted violating his probation in the child pornography case, the court extended probation in that case to be coterminous with the probation in the sex offender registration case, under all original terms and conditions.
On appeal, defendant does not raise any issue in the sex offender registration case (No. C1637560). In the child pornography case (No. C1483344), defendant challenges probation conditions (a) prohibiting his access to computers, (b) restricting his Internet access, (c) subjecting his electronic devices and websites to search and requiring disclosure of passwords, (d) requiring polygraph examinations and waiver of the psychotherapist-patient privilege as part of his participation in a sex offender management program, and (e) restricting romantic relationships with anyone who has physical custody of a minor child.
In the child pornography case, defendant has appealed from (1) the original order granting probation, and (2) the subsequent order reinstating probation on the same terms and conditions after his admission to violating probation. This court ordered the appeals to be considered together for briefing, oral argument, and decision. Because the second trial court order reimposing the same conditions of probation essentially superseded the first order originally granting probation, we need not separately consider the validity of the original conditions.
For reasons that we will explain, in the child pornography case (No. C1483344) we will order (1) the probation condition prohibiting computer access stricken and remand the matter to the trial court to address the extent to which computer access should be banned, if it all, beyond those limitations already contemplated by the other probation conditions and (2) the probation condition restricting romantic relationships modified.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Child Pornography Case (No . C1483344)
1. The information
In January 2015, defendant was charged by information with two counts of possession of child pornography (§ 311.11, subd. (a)) in case No. C1483344. Defendant waived his right to a jury trial.
2. The court trial
In 2014, San Jose police discovered that a computer using a peer-to-peer file sharing network was sharing files related to child pornography. After downloading one of the files and confirming that it was a video of child pornography, the police served a search warrant on the Internet provider associated with the computer and obtained the name and address of the Internet subscriber. The police then obtained and executed a search warrant for the subscriber's residence. The police determined that defendant was one of the residents. In his bedroom, defendant had a tower computer containing child pornography.
The police interviewed defendant. A video of his interview was played at trial. During the interview, after being advised of his Miranda rights, defendant admitted that he watched pornography and that he used his computer to download it. He stated that he looked at the downloaded material and that if it was not appropriate, he deleted it. Defendant claimed that he used computer search terms such as sex and woman. He indicated that he did not knowingly search for child pornography, and that he never purposely downloaded child pornography. He looked at it out of curiosity and then deleted it. Defendant asserted that only a small percentage of the pornography he downloaded was child pornography. At some point during the interview, defendant indicated that the computer was not used by his roommate or the owner of the residence.
Miranda v. Arizona (1966) 384 U.S. 436.
A forensic examination of defendant's tower computer revealed child pornography on the computer. The police determined that defendant had used search terms related to child pornography on a computer program for accessing a peer-to-peer filing sharing network. The search terms that defendant claimed to have used, such as sex and woman, did not come up as search terms. The computer hard drive contained child pornography videos in a "downloads" folder, within a subfolder named "special." While the Windows operating system "already creates" a "downloads" folder, the computer user "would have to make" the subfolder called "special." The videos included an adult male putting his penis in the vagina of two- to four-year old girl. There were approximately 2,000 images in the "unallocated" portion of the computer, meaning they had been deleted but not completely erased from the computer. These images were child pornography or were part of a child pornography series, meaning possibly an image from a video that had been deleted.
The police obtained a search warrant for a laptop that was from defendant's place of employment. The laptop also contained child pornography. The name of the user associated with the hard drive that was examined was "Don.Arndt." In the "downloads directory" was a video in which two girls approximately seven to 11 years old perform oral sex on an adult male, and a boy approximately seven to 10 years old performs oral sex on the girls. One of the "thumbnails" or "preview images" for a file showed a male putting a string of beads into a 3- to 6-year old girl's anus. The laptop also had the "remnants" of 39 videos that could not be played but had child pornography file names, such as "pedo." The laptop had approximately 24 video files that were recently opened and that had file names similar to those found in child pornography. In addition, 28 search terms were used in the program for accessing a peer-to-peer filing sharing network, and approximately 20 were associated with child pornography.
The trial court found defendant guilty of two counts of possession of child pornography. Defendant requested that he remain free on bail until sentencing. The prosecutor requested that conditions be imposed, including regarding computer usage. Following an unreported bench conference, the court imposed conditions on defendant's continued release on bail, including precluding him from having access to any computer at work or home, and precluding him from having contact with minor children.
3. The sentencing
According to the probation report, defendant was a 66-year-old engineer. Defendant told the probation officer that he was " 'an extremely curious person.' " He claimed to have heard an "NPR" story about kids in another country "asking tourists if they wanted to watch children have sex with animals." Defendant claimed that he wanted to educate himself on the subject matter, that his interest was purely educational, and that he was in the process of deleting all the content from his computers. Defendant told the probation officer that his " 'research' " lasted approximately six months, that it was coming to an end, and that if the police had come a week later everything would have been deleted. Defendant believed that his actions were taken out of context, that the matter was not as serious at it seemed, and that he " 'should have been given a warning [by law enforcement] and that would have been the end.' " The probation officer expressed concern that defendant did not accept responsibility, minimized his actions, claimed to not know that child pornography was illegal to view although he was well-educated, had ongoing contact with children as a volunteer and coach, and intended to publish a children's book which might put him in direct contact with children. The probation officer recommended that defendant be placed on probation with various conditions, including continuing the condition that he have no access to computers as previously imposed by the court while defendant remained out on bail, and also recommending apparently standard conditions for sex offenders, including allowing defendant internet access under specified conditions.
In October 2015, the trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that he serve one year in county jail. He was ordered to register as a sex offender pursuant to section 290. Other probation conditions included the following.
The probation conditions were stated orally by the trial court and also appear in the probation report. All but one of the conditions also appear in a separate document entitled "Conditions of Sentence/Probation (Sex Offender)." This separate document is a preprinted form with boxes marked for probation conditions that were ordered by the court. Defendant and the Attorney General cite to the probation conditions as numbered in this separate document. We also follow the numbering and wording in the separate document, except to the extent the court orally modified a probation condition or ordered a probation condition that is not included in this separate document.
The trial court ordered that defendant "shall have no access to computers."
The trial court also ordered defendant to not knowingly "access the Internet or any other on-line service through use of a computer, or other electronic device at any location (including place of employment) without prior approval of the probation officer," and to not knowingly "possess or use any data encryption technique program." (Condition No. 23.) He was ordered not to "clean or delete Internet browsing activity" and to "keep a minimum of four weeks of history." (Condition No. 24.)
The trial court further ordered that defendant's "computer and all other electronic devices (including but not limited to cellular telephones, lap-top computers or notepads) . . . be subject to Forensic Analysis search" (condition No. 16), and that he "provide all passwords to any electronic devices (including but not limited to cellular telephones, computers or notepads) within his . . . custody or control and . . . submit said devices to search at anytime without a warrant by any peace officer" (condition No. 17). He was ordered to "provide all passwords to any social media sites (including but not limited to Facebook, Instagram and Mocospace) and . . . submit said sites to search at anytime without a warrant by any peace officer." (Condition No. 18.) Defendant was also ordered to "report all personal e-mail addresses used and . . . report websites with passwords to the probation officer within 5 days." (Condition No. 20.) He was also ordered not to knowingly "purchase or possess any pornographic or sexually explicit material." (Condition No. 21.)
Defendant was ordered to "enter, participate and complete an approved sex offender management program" as required by section 1203.067. (Condition No. 1.) He was also ordered to "participate in polygraph examinations, which shall be part of the sex offender management program." (Condition No. 2.) Defendant was further ordered to "waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the Probation Officer . . . [f]or the purposes of probation supervision only." (Condition No. 3.)
The trial court also ordered that defendant "may not date, socialize or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer." (Condition No. 5.)
At the sentencing hearing, defendant objected to the probation condition that prohibited him from dating a person who has physical custody of a minor. The court denied defendant's request to strike or modify the condition.
Near the end of the sentencing hearing, defendant stated, "I'm not a sexual offender," "this has nothing to do with sexual at all, has nothing to do with kids, has nothing to do with any of that," "[t]he files that were on my computer were not mine," and "the hard drive was not mine."
B. The Sex Offender Registration Case (No . C1637560)
1. The complaint
In May 2016, defendant was charged by complaint in case No. C1637560 with failing to register as a sex offender (§ 290, subd. (b); count 1) and misdemeanor failing to provide information or providing false information on a registration form (§ 290.018, former subd. (j), now subd. (k); count 2).
In the child pornography case (No. C1483344), the probation officer reported that defendant had violated probation by committing the new offenses, failing to provide an accurate email address and password, failing to notify probation of his whereabouts, and failing to provide proof of enrollment in a sex offender counseling program. The trial court revoked defendant's probation.
2. The plea
In June 2016, defendant pleaded no contest to failing to register as a sex offender (§ 290, subd. (b)) with the understanding that he would be placed on probation with various terms and conditions, including that he serve six months in county jail. The remaining count was submitted for dismissal at the time of sentencing. Defendant also admitted violating probation in the child pornography case.
3. The August 4, 2016 sentencing
A combined sentencing hearing was held on August 4, 2016. In the sex offender registration case, the trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that he serve six months in county jail. The remaining count was dismissed.
In the child pornography case, in which defendant admitted violating probation, defendant contended that the probation condition prohibiting his access to computers was unconstitutionally overbroad and should be stricken. The trial court denied the request. The court extended probation to be coterminous with the probation in the sex offender registration case, under all original terms and conditions.
III. DISCUSSION
A. Computer Access Condition
Upon defendant's conviction for two counts of possessing child pornography, the trial court ordered that defendant have no access to computers while he remained free on bail prior to sentencing. In granting probation, the court continued this restriction as a condition of probation, ordering that defendant "shall have no access to computers." Defendant did not object to this condition when the court initially granted probation. At the sentencing hearing for his probation violation, defendant contended that the condition was unconstitutionally overbroad.
On appeal, defendant contends that the probation condition prohibiting computer access is unconstitutionally vague, unconstitutionally overbroad, and unreasonable under state law. He also argues that all these claims may be raised on appeal. Regarding vagueness, defendant contends that the probation condition prohibiting access to computers conflicts with, among other probation conditions, condition No. 23, which allows Internet access through a computer with prior approval of the probation officer.
The Attorney General agrees that defendant may raise a facial vagueness challenge on appeal, but contends that the probation condition banning computer access "could not be more clear and thus is not vague." The Attorney General agrees, however, that the computer ban is "confusing" in light of condition No. 23, which permits Internet access with the probation officer's approval. The Attorney General states that the condition banning computer access "should be modified to add the same language that appears in Condition 23 to permit access to computers with the prior approval of the probation officer."
Defendant in his reply brief interprets the Attorney General's brief as conceding that the probation condition prohibiting computer access should be stricken.
It appears from the record that the trial court had earlier ordered as a condition of defendant's continued release on bail, and until sentencing, that defendant have no access to computers. That ban on computer access was subsequently included as a condition of defendant's probation. However, neither the court, the probation officer, or the parties expressly addressed the inconsistency between the ban on computer access and the apparently standard probation conditions imposed in Santa Clara County sex offender cases, including defendant's case, that contemplate computer usage under specified conditions.
If the probation condition prohibiting computer access is modified with the language suggested by the Attorney General, that is, prohibiting computer access unless defendant has the prior approval of the probation officer, the modified probation condition would still restrict defendant's computer use beyond that covered by probation condition No. 23 or any of the other probation conditions. For example, under probation condition No. 23, defendant may use a computer as long as he does "not access the Internet or any other on-line service." However, under the Attorney General's proposed modification of the probation condition prohibiting computer access, defendant would still be precluded from using a computer even if he was offline, such as to draft a resume or other document, unless he had the probation officer's prior approval.
As we have explained, the record does not reflect that anyone in the trial court raised or considered the conflict or inconsistency between the probation condition banning all computer access and the other probation conditions that contemplate computer usage under limited circumstances. Given the inconsistency regarding the computer ban and the Attorney General's concession that the condition is "confusing," we will strike the condition banning computer access and remand the matter for the trial court and the parties to address the extent to which computer access should be banned, if at all, beyond those limitations already contemplated by the other probation conditions.
B. Internet Access Condition (No. 23)
Probation condition No. 23 provides in part that defendant shall not knowingly "access the Internet or any other on-line service through use of a computer, or other electronic device at any location (including place of employment) without prior approval of the probation officer."
On appeal, defendant contends that the probation condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent). Although he did not object to the probation condition on this ground below, he argues that his appellate claim is preserved. In this regard, defendant contends that, in view of the trial court's refusal to strike the probation condition prohibiting computer access on overbreadth grounds, "it would have been futile to lodge further objection to the scope of discretion delegated to the probation officer in [probation condition No. 23]" regarding Internet access.
The Attorney General contends that defendant's claim under Lent has been forfeited and that the probation condition is reasonable.
The failure to challenge the reasonableness of a probation condition under Lent in the trial court forfeits the claim on appeal. (People v. Welch (1993) 5 Cal.4th 228, 230, 237.) However, "[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence. [Citations.]" (Id. at pp. 237-238.)
Assuming defendant did not forfeit his objection to the reasonableness of the probation condition under Lent, we determine that his claim fails on the merits.
"In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. [Citations.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.) "Generally, '[a] condition of probation will not be held invalid unless it "(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . ." [Citation.]' [Citation.] This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.]" (People v. Olguin (2008) 45 Cal.4th 375, 379, quoting Lent, supra, 15 Cal.3d at p. 486.) "On appeal, '[w]e review conditions of probation for abuse of discretion.' [Citation.] That is, a reviewing court will disturb the trial court's decision to impose a particular condition of probation only if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable. [Citation.]" (People v. Moran (2016) 1 Cal.5th 398, 403 (Moran).)
Defendant contends the probation condition restricting Internet access contains "[o]nly a kernel . . . relat[ing] to [his] criminal offense" and that it is not reasonably related to future criminality. He also contends that the condition is unnecessary in view of the search conditions, and that if a condition restricting Internet access is imposed, it should be limited to restricting his access to peer-to-peer file sharing networks. Defendant contends that his "entire education, career, and adult life was built around computers," and that in recent years he has worked in the field of wireless network communications. He argues that the conditions are "so onerous as to forbid conduct that would promote [his] rehabilitation." He characterizes his crimes as involving usage of peer-to-peer networks that "captured child pornography," which he looked at when "he came across" it, and which he deleted but "unwittingly" left "remnants" in his computer. Defendant contends that this reflects the "limited nature" of his unlawful conduct, which was a "first-time offense." Defendant argues that the probation condition prohibiting possession of pornographic and sexually explicit material (Condition No. 21) along with reasonable search conditions are adequate to supervise past or future criminality and to promote his rehabilitation.
We determine that defendant fails to establish Lent's first and third factors for invalidity. Specifically, we determine that the probation condition prohibiting Internet access without prior approval of the probation officer is related to defendant's convictions for possession of child pornography and is reasonably related to preventing future criminality. Defendant's convictions involved him accessing the Internet to search for, locate, and download child pornography to his computers. Defendant's crimes therefore have a relationship to the probation condition restricting his access to the Internet unless he has the prior approval of the probation officer. Further, defendant at various times has claimed that he was simply doing research, that he never purposely downloaded child pornography, and that he did not know child pornography was illegal to view. The probation officer accordingly expressed concern that defendant did not accept responsibility for his crimes and minimized his actions. Under the circumstances, and in view of defendant's apparent computer and Internet skills, requiring prior approval by the probation officer before defendant accesses the Internet is reasonably related to preventing future criminality.
Defendant cites two federal opinions finding similar probation conditions overbroad. (See United States v. Freeman (3d Cir. 2003) 316 F.3d 386, 392, fn. omitted (Freeman) ["it is not reasonably necessary to restrict all of Freeman's access to the internet when a more limited restriction will do"]; United States v. Sofsky (2d Cir. 2002) 287 F.3d 122, 126 (Sofsky) ["Although the condition . . . is reasonably related to the purposes of his sentencing, . . . the condition inflicts a greater deprivation on Sofsky's liberty than is reasonably necessary"].)
However, as defendant acknowledges, this court rejected an overbreadth challenge to a similar condition in People v. Pirali (2013) 217 Cal.App.4th 1341 (Pirali). In Pirali, this court found "no merit to defendant's contention that the existence of the other, less restrictive Internet- and computer-related probation conditions renders the broader Internet condition superfluous . . . ." (Id. at p. 1347.) This court also concluded that the condition at issue was not a "blanket prohibition" on Internet access because it "grants defendant the ability to access the Internet on his computer and other electronic devices so long as he obtains prior permission from his [probation] officer." (Id. at pp. 1349-1350.) Other federal opinions have also upheld such conditions. (See United States v. Rearden (9th Cir. 2003) 349 F.3d 608, 621 ["The condition does not plainly involve a greater deprivation of liberty than is reasonably necessary for the purpose because it is not absolute; rather, it allows for approval of appropriate online access by the Probation Office"]; United States v. Ristine (8th Cir. 2003) 335 F.3d 692, 695-696 [declining to follow Freeman and Sofsky]; United States v. Zinn (11th Cir. 2003) 321 F.3d 1084, 1093 [same].) Moreover, although the evidence at trial showed that defendant had located and obtained the child pornography by using a particular means over the Internet, that is, a peer-to-peer file sharing network, it was permissible for the trial court to impose a more "wide-ranging" Internet restriction condition, "for conditions of probation aimed at rehabilitating the offender need not be so strictly tied to the offender's precise crime." (Moran, supra, 1 Cal.5th at pp. 404-405.) We conclude the trial court did not abuse its discretion by imposing the Internet access condition.
C. Search and Password Conditions (Nos. 16 , 18 , and 20)
Probation condition No. 16 provides that defendant's "computer and all other electronic devices (including but not limited to cellular telephones, lap-top computers or notepads) shall be subject to Forensic Analysis search."
Probation condition No. 18 requires defendant to "provide all passwords to any social media sites (including but not limited to Facebook, Instagram and Mocospace) and . . . submit said sites to search at anytime without a warrant by any peace officer."
Probation condition No. 20 requires defendant to "report all personal e-mail addresses used and . . . report websites with passwords to the probation officer within 5 days." (Condition No. 20.)
On appeal, defendant contends that all three probation conditions impinge on his First Amendment rights to privacy and freedom of speech and Fourth Amendment right to be free from warrantless searches. He argues that the conditions are unconstitutionally overbroad and must be stricken or modified. Although he did not object to these conditions below, defendant contends that he has not forfeited his overbreadth claim because it involves a pure question of law.
Before considering the substance of defendant's challenge to each of the search and password conditions, we first set forth some general legal principles regarding raising an overbreadth challenge for the first time on appeal.
A defendant may raise for the first time on appeal a facial constitutional defect in a probation condition, where the claim involves " ' "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." [Citations.]' " (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.); see also id. at p. 887.) A facial constitutional challenge to the "phrasing or language of a probation . . . does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court." (Id. at p. 885.)
In contrast, a constitutional defect that is "correctable only by examining factual findings in the record or remanding to the trial court for further findings" is subject to forfeiture if the claim was not raised in the trial court. (Sheena K., supra, 40 Cal.4th at p. 887.) In other words, not " 'all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." [Citation.] In those circumstances, "[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court." [Citation.]' [Citation.]" (Id. at p. 889.)
"A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]" (Sheena K., supra, 40 Cal.4th at p. 890.) "The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) We review the constitutionality of a probation condition de novo. (People v. Appleton (2016) 245 Cal.App.4th 717, 723 (Appleton).)
With these standards in mind, we turn to the probation conditions at issue and defendant's contentions concerning overbreadth.
1. Forensic analysis search condition (No. 16)
Defendant contends that probation condition No. 16, which subjects his computer and all other electronic devices to a forensic analysis search, is overbroad because it may reveal a large amount of private information, including medical and financial information, that may have nothing to do with illegal activity or have any relation to his crimes. Defendant argues that the forensic searches of his devices should be limited "to still or moving photographic images, and to exclude text." He argues that if there is any doubt as to law enforcement's search capability in this regard, then a hearing should be held on the issue.
The Attorney General contends that an electronic search condition is not facially unconstitutional, and that whether the invasion of privacy occasioned by the condition is justified depends on the particular facts of the case. As defendant did not object to the electronic search condition below, the Attorney General contends that defendant has forfeited his overbreadth claim. Regarding condition No. 16 in particular, which subjects defendant's computer and all other electronic devices to a forensic analysis search, the Attorney General observes that defendant has described himself as a computer engineer, "a person with far more knowledge than the average person regarding how to use, or misuse, computers and other electronic devices." The Attorney General argues that it was "reasonable for the trial court here to be concerned with the myriad ways in which [defendant] might acquire and view child pornography."
In support of his overbreadth argument, defendant primarily relies on Riley v. California (2014) 573 U.S. ___ (Riley) and an opinion from this court, Appleton, supra, 245 Cal.App.4th 717. Appleton distinguished another opinion from this court concerning probation conditions, People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski).
In Riley, the United States Supreme Court held that the warrantless search of a suspect's cell phone implicated and violated the suspect's Fourth Amendment rights. (Riley, supra, 134 S.Ct. at p. 2493.) In so holding, the court explained that modern cell phones, which may have the capacity to be used as mini-computers, can potentially contain sensitive information about a number of areas of a person's life. (Id. at pp. 2488-2489.) The court emphasized, however, that its holding was only that cell phone data is subject to Fourth Amendment protection, "not that the information on a cell phone is immune from search." (Id. at p. 2493.)
As Riley did not involve probation conditions, it is inapposite. Unlike the defendant in Riley, who at the time of the search had not been convicted of a crime and was still protected by the presumption of innocence, defendant is a probationer. "Inherent in the very nature of probation is that probationers 'do not enjoy "the absolute liberty to which every citizen is entitled." ' [Citations.] Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens." (United States v. Knights (2001) 534 U.S. 112, 119.)
This court rejected an overbreadth argument in Ebertowski, supra, 228 Cal.App.4th 1170, where the challenged probation conditions required the defendant to (1) " ' provide all passwords to any electronic devices, including cell phones, computers or notepads, within [the defendant's] custody or control, and submit such devices to search at any time without a warrant by any peace officer,' " and (2) " 'provide all passwords to any social media sites, including Facebook, Instagram and Mocospace and to submit those sites to search at any time without a warrant by any peace officer.' " (Id. at p. 1172.) The defendant was a member of a criminal street gang who had promoted his gang on social media. (Id. at p. 1175.) This court rejected the defendant's claim that the probation conditions were "not narrowly tailored to [its] purpose so as to limit [its] impact on his constitutional rights to privacy, speech, and association." (Id. at p. 1175.) This court explained that the state's interest in preventing the defendant from continuing to associate with gangs and participate in gang activities, which was served by the probation conditions, outweighed the minimal invasion of his privacy. (Ibid.)
In Appleton, supra, 245 Cal.App.4th 717, this court distinguished Ebertowski and found unconstitutionally overbroad a probation condition requiring the defendant's electronic devices to be " 'subject to forensic analysis search for material prohibited by law.' " (Appleton, at p. 721.) In Appleton, the defendant was convicted of false imprisonment based on an incident that occurred about a year after he used a social media website to meet the minor victim. (Id. at p. 719.) The trial court imposed the electronic devices search condition over the defendant's overbreadth objection. (Id. at p. 721.) On appeal, this court held that the electronic devices search condition was overbroad because it "would allow for searches of vast amounts of personal information unrelated to defendant's criminal conduct or his potential for future criminality." (Id. at p. 727.) This court concluded that "the state's interest here—monitoring whether defendant uses social media to contact minors for unlawful purposes—could be served through narrower means," such as by imposing "the narrower condition approved in Ebertowski, whereby defendant must provide his social media accounts and passwords to his probation officer for monitoring." (Ibid., fn. omitted.)
In this case, defendant contends that probation condition No. 16, which requires his electronic devices be subject to forensic analysis search, is overbroad based on the information that he maintains on his electronic devices. According to defendant, the "expanse" of the condition "exposes" a vast array of his data and information "that is none of the government's business and has not the slightest relation to [his] crime." Defendant's claim requires a fact-based inquiry that should have been raised in the trial court, which can scrutinize individual facts and circumstances. (Cf. In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373 (Pedro Q.) [observing that, "[f]or example, while a travel restriction may be proper for a minor who lives outside the gang's territory, it may be overbroad for one who lives, works or goes to school within the area"].) To this extent, defendant has forfeited his claim. (Sheena K., supra, 40 Cal.4th at pp. 885, 887, 889.)
Further, defendant fails to demonstrate that it is possible to conduct a forensic analysis search of only files containing images and excluding files containing text. He suggests a remand so that a hearing may be "held to question a forensic analyst of the Internet Crimes Against Children Task Force" about law enforcement's capability in this regard. To this extent as well, defendant has forfeited his overbreadth claim. (Sheena K., supra, 40 Cal.4th at p. 887 [a constitutional defect that is "correctable only by . . . remanding to the trial court for further findings" is subject to forfeiture].)
Moreover, the probation condition requiring defendant's electronic devices be subject to forensic analysis search serves the state's interest in preventing defendant from possessing child pornography. Defendant used his computers to search for, locate, download, possess, and view child pornography. Defendant recognizes that some intrusion on his privacy rights would be justified, but he asserts that the probation condition should be limited to searches of files containing "still or moving photographic images, and to exclude text." According to defendant "[o]ther than the filename itself, there is no chance that a folder's text-based contents might contain pornography." However, text in general, and files containing text, may indicate whether defendant is searching for, downloading, viewing, or otherwise attempting to possess child pornography regardless of whether a particular file actually contains a pornographic image. Limiting the search of defendant's electronic devices to only files containing photographs or videos would not permit the probation officer to ensure defendant has not sought to obtain such images by way of his electronic devices, which was the conduct that led to defendant's convictions. Thus, the probation condition is closely tailored to the purposes of the condition in this case. (See Sheena K., supra, 40 Cal.4th at p. 890.) The government's interest in ensuring defendant complies with the terms of his probation outweighs the intrusion on defendant's privacy rights. We therefore determine that the forensic analysis search condition (No. 16) is not constitutionally overbroad.
The California Supreme Court has granted review in In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted February 17, 2016, S230923, which involves the propriety of a probation condition requiring a minor to submit to an electronics search condition. Review has been granted in a number of other cases presenting similar issues, with briefing deferred. (See, e.g., In re Patrick F. (2015) 242 Cal.App.4th 104, review granted Feb. 17, 2016, S231428; In re Alejandro R. (2015) 243 Cal.App.4th 556, review granted Mar. 9, 2016, S232240; In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25, 2016, S233932; In re J.E. (2016) 1 Cal.App.5th 795, review granted Oct. 12, 2016, S236628; People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted Dec. 14, 2016, S238210; In re Q.R. (2017) 7 Cal.App.5th 1231, review granted April 12, 2017, S240222.)
2. Social media condition (No. 18)
Defendant contends that probation condition No. 18, which requires him to provide passwords to social media sites and to submit those sites to a search without a warrant, is overbroad because his crimes entailed downloading child pornography from a particular peer-to-peer file sharing network. Defendant argues that "[t]here is no evidence and it is not plausible that child pornography is at all on [the] radar for the standard social networking sites like Facebook," the probation condition "restricts" him from "communications media that are not reasonably likely to entail proscribed activity or to reveal him being involved in proscribed activity," and the other conditions allowing forensic searches for pornography and requiring the disclosure of email addresses are sufficient to supervise him. Defendant contends condition No. 18 concerning social media sites should be stricken or, alternatively, that the condition be limited to prohibiting access to websites that "feature pornography" and/or sites that utilize peer-to-peer file sharing networks.
We are not persuaded by defendant's claim of overbreadth to the social media condition (No. 18). First, to the extent defendant's overbreadth challenge is based on factual assertions regarding the content of social media sites, for example that such sites do not contain child pornography, defendant's claim involves a factual issue and may not be raised for the first time on appeal. (Sheena K., supra, 40 Cal.4th at pp. 885, 887, 889.) Second, defendant's contention that the social media condition "restricts" him from "communications media" is inaccurate. The condition requires only that he disclose passwords to such sites and submit the sites to a search. The condition does not prohibit him from using social media sites. Third, in order to withstand an overbreadth challenge, we do not believe that the probation condition must be limited to only websites that "feature pornography" and/or only websites that utilize peer-to-peer file sharing networks. As the Attorney General points out, other types of websites may provide access to pornographic images, and it would be "short-sighted" to assume that defendant would continue to seek and store child pornography on his computer in the same fashion, now that he is aware of how law enforcement tracked child pornography to his computer. We conclude that the social media condition (No. 18) is not constitutionally overbroad.
3. Website password condition (No. 20)
Probation condition No. 20 requires defendant to report his personal e-mail addresses and to report websites with passwords to the probation officer. Defendant agrees that it is reasonable to require him to disclose personal email addresses "to identify him in connection with potentially illicit Internet activity," but he contends that reporting all his website passwords "accomplishes little, is unduly burdensome, and potentially fosters deep intrusions without reasonable limitation." He contends that forensic searches of his electronic devices and the disclosure of email addresses are sufficient.
We are not persuaded by defendant's overbreadth challenge. First, whether the probation condition "fosters deep intrusions" into defendant's privacy requires a fact-based inquiry that should have been raised in the trial court, which can scrutinize individual facts and circumstances. (Cf. Pedro Q., supra, 209 Cal.App.3d at p. 1373.) To this extent, defendant has forfeited his claim. (Sheena K., supra, 40 Cal.4th at pp. 885, 887, 889.) Second, as the Attorney General observes, pornography may be maintained in a password protected website, which law enforcement would not have access to without the password. We determine that the website password condition (No. 20) is not constitutionally overbroad.
D. Sex Offender Management Conditions (Nos. 2 and 3)
As a condition of probation, defendant was ordered to complete an approved sex offender management program. He was also ordered to "participate in polygraph examinations, which shall be part of the sex offender management program," pursuant to subdivision (b)(3) of section 1203.067. (Condition No. 2.) Defendant was further ordered to "waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the Probation Officer . . . [f]or the purposes of probation supervision only," pursuant to section 1203.067, subdivision (b)(4). (Condition No. 3.)
In his opening brief on appeal, defendant contended that the polygraph condition (No. 2) violated his Fifth Amendment rights, and that the psychotherapist privilege waiver condition (No. 3) violated his federal constitutional right to privacy, infringed upon his state statutory psychotherapist-patient privilege, and was unconstitutionally overbroad.
The Attorney General contends that, subsequent to the filing of defendant's opening brief, the California Supreme Court in People v. Garcia (2017) 2 Cal.5th 792 (Garcia) upheld the constitutionality of both probation conditions, and that defendant's challenges to these conditions must therefore be rejected.
In his reply brief regarding probation condition Nos. 2 and 3, defendant acknowledges the California Supreme Court's decision in Garcia, "submits his federal challenge as briefed in his opening brief, and withdraws his state challenge."
In Garcia, the California Supreme Court upheld against a Fifth Amendment challenge a probation condition requiring the defendant to participate in polygraph examinations as part of the sex offender management program, pursuant to section 1203.067, subdivision (b)(3). (Garcia, supra, 2 Cal.5th at p. 798.) The court explained that the probation condition directs the defendant "to answer fully and truthfully all questions posed to him as part of the sex offender management program. But because we deem his responses compelled within the meaning of the Fifth Amendment, they cannot lawfully be used against him in a criminal proceeding. [Citations.] Where, as here, the responses would therefore pose no risk of incrimination, neither the fact that he was compelled to respond nor the fact that his responses were being monitored by a polygraph offends the Fifth Amendment." (Ibid.) Moreover, "to remove any doubt on this score," the court "explicitly declare[d] that probationers have immunity against the direct and derivative use of any compelled statements elicited under the [section 1203.067,] subdivision (b)(3) condition." (Id. at p. 807.) The court further determined that a probation condition requiring waiver of the psychotherapist-patient privilege to enable communication between the sex offender management professional and the probation officer, pursuant to section 1203.067, subdivision (b)(4), did not violate the defendant's federal constitutional right to privacy and was not unconstitutionally overbroad. (Garcia, supra, at pp. 810, 811.) We are bound by the court's decision and therefore we reject defendant's challenges to condition Nos. 2 and 3. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v. Superior Court (Williams) (1992) 8 Cal.App.4th 688, 702-703.)
E. Romantic Relationship Condition (No. 5)
Probation condition No. 5 provides that defendant "may not date, socialize or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer." At the original sentencing hearing on his convictions for possession of child pornography, defendant requested that the condition be stricken, or that it be modified to indicate that he was "not . . . allowed to be alone with or isolated with [a] minor child." He argued that he should not "be prevented or restricted in terms of his social life." The court denied defendant's request to strike or modify the condition.
On appeal, defendant contends that the probation condition is (1) unconstitutionally vague regarding the terms "date," "socialize," and "form a romantic relationship," and (2) unconstitutionally overbroad in violation of his right to freedom of association. Regarding overbreadth, defendant argues that the condition prohibits him from socializing with an extremely large category of people regardless of whether he has any contact with their children. He contends that the condition must be more narrowly tailored by, for example, prohibiting him from being in the same room as a minor absent adult supervision.
The Attorney General concedes that the term "socialize" is vague and overbroad and should be stricken, because it "could even bar trivial interactions with the majority of people in the country." The Attorney General argues, however, that the terms "date" and "form a romantic relationship" both "clearly describe the pursuit of an intimate or sexual relationship" and are "narrowly tailored to the goal of preventing [defendant] from using the guise of a romantic relationship to gain unguarded access to potential underage victims." The Attorney General contends that the condition is not a blanket prohibition on dating; that defendant may date someone who is childless, who has adult children, or who has children but lacks physical custody; and that the condition only requires defendant to obtain his probation officer's permission before starting a romantic relationship with a person who has physical custody of a minor.
We agree with the parties that the condition imposes significant restrictions on defendant's constitutional right to free association and is overbroad with respect to the prohibition on socializing. A similar condition was found overbroad in United States v. Wolf Child (9th Cir. 2012) 699 F.3d 1082, 1101 (Wolf Child).
In Wolf Child, one of the conditions of the defendant's supervised release was that he not " 'date or socialize with anybody who has children under the age of 18' without prior written approval from his probation officer." (Wolf Child, supra, 699 F.3d at p. 1100, fn. omitted.) In determining that the condition infringed on Wolf Child's right to free association and was overbroad (id. at p. 1100), the Ninth Circuit Court of Appeals noted, "[t]he prohibited group includes people close to Wolf Child, such as family members, friends, and neighbors who might have children. It would also include a boss or coworker, a sponsor in a support group, or a spiritual leader. The number of people with whom Wolf Child might socialize, knowing them to have children under the age of 18, is indeed vast. For the 10 years of his supervised release, Wolf Child would be required to obtain prior written approval from his probation officer before, for instance, having dinner with [the mother of his oldest child] on a special occasion, or meeting a close family member or friend for coffee, or going to an AA meeting or a tribal function with others seeking to improve their own lives or their tribe's social conditions generally; he might even find himself prohibited from joining his coworkers in the lunchroom or at a social activity sponsored by his employer." (Id. at p. 1101.) The Wolf Child court went on to say, "It is hard to imagine how Wolf Child would be able to develop friendships, maintain meaningful relationships with others, remain employed, or in any way lead a normal life during the 10 years of his supervised release were he to abide" by the condition that he not date or socialize with anybody who has children under the age of 18. (Ibid.) The Wolf Child court found the condition "overbroad and thus not sufficiently limited to achieving the goals of deterrence, protection of the public or rehabilitation." (Id. at p. 1100.)
The probation condition imposed in this case is designed to prevent defendant having contact with children. However, the condition prohibits defendant from socializing with people such as family, friends, and coworkers, even though he may never come into contact with their children. A restriction on socializing with anybody who has a child under the age of 18, even though defendant may never come into contact with those children, is not carefully tailored to the purpose of the condition. Simply put, it burdens activity that does not raise a sufficiently high probability of harm to governmental interests to justify the interference. Thus, we agree that the term "socialize" should be stricken from the condition.
On the other hand, the terms "date" and "form a romantic relationship" do not suffer from similar overbreadth problems. The number of individuals who defendant might seek to date or form a romantic relationship with is not nearly as large as the number of individuals defendant might socialize with. Further, although it is possible for a probationer to date or form a romantic relationship without coming into contact with the minors the condition seeks to protect, the condition is sufficiently restrictive in light of its purpose, which is to reduce defendant's opportunities for contact with minors.
Nor do we believe the terms "date" and "romantic relationship" are unconstitutionally vague. The vagueness doctrine, "which derives from the due process concept of fair warning, bars the government from enforcing a provision that 'forbids or requires the doing of an act in terms so vague' that people of 'common intelligence must necessarily guess at its meaning and differ as to its application.' [Citations.] To withstand a constitutional challenge on the ground of vagueness, a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition. [Citation.] . . . [A] probation condition should not be invalidated as unconstitutionally vague ' " 'if any reasonable and practical construction can be given to its language.' " ' [Citation.]" (People v. Hall (2017) 2 Cal.5th 494, 500-501 (Hall).)
The terms "date" and "romantic relationship" both "have a 'plain commonsense meaning, which is well settled . . . .' [Citations.]" (In re R.P. (2009) 176 Cal.App.4th 562, 566-567.) The verb "date," in this context, is commonly understood to mean to engage in activities with another person with the intent of forming a romantic relationship. A romantic relationship is commonly understood to mean a relationship in which two people have feelings of love or affection for one another. Thus, the terms "date" and "romantic relationship" are "sufficiently definite to inform the probationer what conduct is required or prohibited." (Hall, supra, 2 Cal.5th at p. 500.)
One meaning of the noun "date" is "a social engagement between two persons that often has a romantic character," and the verb "date" can mean "to make or have a date with" or "to go out on usu. romantic dates." (Merriam-Webster's Collegiate Dict. (10th ed. 1993) p. 294.)
One meaning of "romantic" is "marked by expressions of love or affection." (Merriam-Webster's Collegiate Dict. (10th ed. 1993) p. 1016.)
Accordingly, we will order condition No. 5 modified to provide: "The defendant may not date or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer."
IV. DISPOSITION
In case No. C1483344, the August 4, 2016 order is reversed and the matter is remanded to the trial court with the following instructions:
The trial court is directed to strike the probation condition that states defendant "shall have no access to computers," and upon remand the trial court and the parties shall address the extent to which computer access should be banned, if at all, beyond those limitations already contemplated by the other probation conditions.
The trial court is directed to modify the probation condition that states, "The defendant may not date, socialize or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer" (condition No. 5), to state as follows: "The defendant may not date or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer."
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.