Opinion
B299584
08-31-2020
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP CALDERON, Defendant and Appellant.
Heather E. Shallenberger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Jaime L. Fuster and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 9PH02751) APPEAL from a judgment of the Superior Court of Los Angeles County, Robert M. Kawahara, Judge. Affirmed. Heather E. Shallenberger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Jaime L. Fuster and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
After two prior sex-offense convictions, appellant Philip Calderon was convicted of using the Internet to arrange a meeting with a minor for sexual purposes. He was sentenced to prison and released on parole, subject to conditions restricting his use of the Internet, including a condition prohibiting access to sexually explicit electronic media. His parole officer later found over 300 pictures of young-male nudity on his cell phone, some of which were sexually explicit. The parole officer petitioned for revocation of appellant's parole on the ground, inter alia, that appellant had violated the explicit-media condition. The petition reported that appellant's STATIC-99 score was six, representing a high risk of reoffending. (See People v. Roa (2017) 11 Cal.App.5th 428, 445 (Roa).) The trial court found that appellant had violated the explicit-media condition and a condition requiring him to report a romantic relationship (with a youth he claimed was 19 years old) to his parole officer. The court imposed a new condition prohibiting appellant's use of the Internet or Internet-connected devices except as approved by his parole officer.
Appellant contends the new parole condition is unconstitutionally overbroad. We disagree and affirm.
PROCEEDINGS BELOW
A. Appellant's Underlying Offense and Parole Violations
On June 14, 2017, appellant was convicted of violating Penal Code section 288.4, subdivision (b), which makes it a felony for any person "motivated by an unnatural or abnormal sexual interest in children" to "arrange[] a meeting with a minor or a person he or she believes to be a minor for the purpose of . . . having the child expose his or her genitals or pubic or rectal area, or engaging in lewd or lascivious behavior," provided that the person "goes to the arranged meeting place at or about the arranged time . . . ." Appellant committed this offense by attempting to meet a minor "on the internet" in order to "have the minor expose his genitals and rectal areas for Lewd and Lascivious purposes." He was sentenced to three years in prison.
On July 29, 2018, appellant was released on parole supervision. His parole conditions included several restrictions on Internet use, including prohibitions against: (1) accessing sexually explicit electronic media; (2) accessing "social media sites, social networking sites, peer-to-peer networks, or computer or cellular instant message systems," including "any site which allows the user to have the ability to navigate the Internet undetected"; (3) using a computer "for any purpose which might further sexual activity," including viewing or downloading sexual material online; and (4) accessing a personal computer. His parole conditions also included a requirement to inform his parole officer of any romantic or other significant relationship.
On April 17, 2019, appellant's parole officer visited the home appellant shared with his father. When escorted by the father to appellant's room, the parole officer saw appellant attempting to hide a cell phone under his pillow. The officer found a second cell phone under the pillow and a computer under dirty clothes. Appellant denied the computer and cell phones were his, but admitted nobody else resided in his room.
The first phone contained "over 300 pictures showing young males in the nude," and "also contained sexually explicit photos of young men in the nude." The "time frames of the pictures" coincided with the term of appellant's parole.
The record does not reveal whether any of the youths pictured were minors. The trial court viewed the images and found that the youths could be either "young-looking adults or average-looking teenagers."
The parole officer directed appellant to report to the parole office. There, the officer showed appellant the explicit photos, and appellant claimed the phone belonged to his 19-year-old boyfriend. The officer had been unaware of appellant's boyfriend, who failed to respond to the officer's attempts to contact him. Appellant admitted he had been in two additional relationships that he had not reported.
B. The Parole Revocation Petition
On April 24, 2019, appellant's parole officer filed a petition for revocation of parole under Penal Code sections 1203.2 and 3000.08, subdivision (f), alleging appellant had violated three parole conditions by: (1) accessing a personal computer; (2) failing to inform the parole officer of a romantic relationship; and (3) accessing sexually explicit electronic media.
The parole officer reported that in January 2008, appellant was convicted in New York of a misdemeanor sexual-abuse offense. He further reported that in August 2014, appellant was convicted in California of a lewd act upon a child in violation of Penal Code section 288, subdivision (c)(1), and sentenced to one year in prison. Finally, he reported that appellant was "a High-Risk Sex Offender with a Static 99 Score of (6)."
"A common diagnostic tool for predicting violent sexual behavior," the STATIC-99 is "'an actuarial instrument that allows an evaluator to place sexual offenders in different risk categories based on historical (static) factors such as age, marital status, the number of prior offenses, the relationship of the offender to the victims and the gender of the victims.'" (Roa, supra, 11 Cal.App.5th at 445.) A Static-99 score of six "indicates a high risk of reoffending." (Ibid.)
The parole officer recommended that appellant be jailed for 135 days, reasoning that lesser sanctions were insufficient due to appellant's attempt to conceal the cell phones, his denial of responsibility, and the "serious" nature of the parole violations.
C. Revocation , Reinstatement , and Modification of Parole
On May 3, 2019, the trial court held a parole revocation hearing. Appellant did not dispute the petition's factual allegations, but his counsel asked the court to require appellant to serve only a 90-day jail term. Noting that there were "serious" violations with a "connection" to the underlying offense, the court stated that it would impose at least a 135-day jail term. It indicated that if appellant pleaded guilty to the explicit-media and relationship-reporting allegations, the court would dismiss the personal-computer allegation and impose a 135-day jail term. The prosecutor requested a 140-day term. The court responded, "Well, how about the 135 and I'm imposing the condition: no access to any computers. . . . [N]o access to any electronic devices, smartphones and computers. And after today, parole can figure it out." Appellant and the prosecutor agreed to this proposal.
The court found appellant in violation of his explicit-media and relationship-reporting parole conditions, revoked supervision, ordered appellant to serve 135 days in jail (with 34 days of credit), and further ordered that parole would be reinstated upon the completion of his jail term. The court added the following parole condition: "[Appellant] is not to possess or have access to electronic devices that connect to the Internet (e.g. smart phone, computers) or have access to the Internet without consent of the agent of record." Appellant did not object. He timely appealed.
DISCUSSION
Appellant contends his parole condition prohibiting use of the Internet or Internet-connected devices except as approved by his parole officer is unconstitutionally overbroad. "An overbreadth challenge considers whether limitations are narrowly tailored to their purpose." (People v. Austin (2019) 35 Cal.App.5th 778, 787; cf. In re Taylor (2015) 60 Cal.4th 1019, 1037-1038 ["every parolee retains basic constitutional protection against arbitrary and oppressive official action," but "'[t]he interest in parole supervision to ensure public safety . . . permits restrictions on parolees' liberty and privacy interests'"].)
Appellant did not raise an overbreadth contention below, but the parties agree the contention was not forfeited. (See People v. Pirali (2013) 217 Cal.App.4th 1341, 1347 (Pirali) [defendant's failure to object to probation condition requiring prior approval for Internet access did not forfeit overbreadth contention on appeal].) In light of the parties' agreement, we exercise our discretion to reach the merits of the contention regardless of whether it was forfeited, and therefore express no opinion on forfeiture. (See In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7 [appellate courts may engage in discretionary review of forfeited claim].)
The challenged restriction on appellant's Internet use is not overbroad. Instead, it is sufficiently tailored to its purpose of preventing appellant -- a recidivist sex offender found to present a high risk of again reoffending -- from preying on minors. Appellant used the Internet to commit his underlying offense of arranging a meeting with a minor for sexual purposes. In violation of a narrower Internet-use restriction imposed in response to this offense, appellant used the Internet to collect the sexually explicit images of young-male nudity found in his phone. This warranted the new, broader restriction on his Internet use. Though broader, the restriction is far from absolute, as it allows any Internet use approved by appellant's parole officer.
Similar conditions have typically been upheld against overbreadth challenges. In People v. Kendrick (2014) 226 Cal.App.4th 769, we rejected the defendant's contention that his trial counsel was ineffective for failing to raise an overbreadth objection to a similar no-Internet-access-without-probation-officer-approval condition, imposed in 2009. (Id. at 772, 778-780.) We reasoned, in part, that "by that time case law had upheld Internet access conditioned on a probation officer's approval." (Id. at 779.) We cited, inter alia, In re Hudson (2006) 143 Cal.App.4th 1 (Hudson), and quoted its refusal to assume that parole officers "'will unreasonably withhold permission for legitimate computer and Internet usage.'" (Kendrick, supra, at 779; Hudson, at 11.) We likewise refuse to make that assumption.
More recent California caselaw is in accord with Hudson. (See Pirali, supra, 217 Cal.App.4th at 1350 [following Hudson and rejecting overbreadth challenge to probation condition prohibiting Internet access without probation officer approval]; In re L.O. (2018) 27 Cal.App.5th 706, 708-709, 713-714 (L.O.) [probation condition categorically prohibiting juvenile from using social networking sites was not overbroad as modified with "small adjustment," viz., addition of exception for use approved by probation officer].) Several recent federal cases are also in accord. (See United States v. Perrin (8th Cir. 2019) 926 F.3d 1044, 1045, 1047-1050 [rejecting, on review for plain error, First Amendment overbreadth challenge to condition of supervised release prohibiting computer and Internet use without probation officer approval, where defendant had used Internet for unlawful contact with minor and production of child pornography]; United States v. Aquino-Florenciani (1st Cir. 2018) 894 F.3d 4, 6-7 [rejecting, on plain-error review, statutory overbreadth challenge to condition of supervised release prohibiting possession and use of Internet-connected devices without probation officer approval, where underlying offense involved extensive downloading of child pornography]; United States v. Halverson (5th Cir. 2018) 897 F.3d 645, 649, 657-658 [rejecting, on plain-error review, First Amendment overbreadth challenge to condition of supervised release prohibiting access to Internet-connected devices without probation officer approval, where defendant had knowingly possessed many digital images of child pornography]; United States v. Rock (D.C. Cir. 2017) 863 F.3d 827, 829, 831 [rejecting, on plain-error review, statutory overbreadth challenge to condition of supervised release prohibiting computer and Internet use without probation officer approval, where defendant had distributed child pornography online].)
We acknowledge that the challenged condition here is broader than the social-networking-site condition affirmed as modified in L.O. (See People v. Prowell (2020) 48 Cal.App.5th 1094 (Prowell) [noting categorical prohibition on access to social media was "not nearly so broad" as prohibition on all Internet access].) In L.O., however, neither the juvenile's underlying offense nor any of his prior offenses involved any Internet use, and there was no indication that he had violated any term of probation. (L.O., supra, 27 Cal.App.5th at 708-709.) Appellant's use of the Internet to commit his underlying offense and one of his parole violations justifies a broader prohibition than the one in L.O. (Cf. Prowell, supra, 48 Cal.App.5th at 442-444 [categorical prohibition on access to social media was not overbroad, even without probation-officer-approval exception, due to defendant's repeated unlawful uses of social media].)
Against this weight of authority, appellant relies on In re Stevens (2004) 119 Cal.App.4th 1228, where the court found a parole condition prohibiting Internet and computer use "unreasonable" on the facts before it. (Id. at 1231, 1239-1240.) Stevens is distinguishable, as the defendant's underlying offense "did not involve a computer," and the prohibition included no exception for Internet or computer use approved by a parole officer. (Id. at 1231.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J. We concur: WILLHITE, J. COLLINS, J.