Opinion
A147727
08-04-2017
THE PEOPLE, Plaintiff and Respondent, v. JASON CONNELLY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR294861)
Defendant Jason Connelly appeals after the trial court found him in violation of his probation and imposed new conditions of probation. He contends certain conditions of his probation are unconstitutionally vague and overbroad and that substantial evidence does not support the trial court's finding that he violated probation. We agree that the condition prohibiting defendant from possessing pornography was unconstitutionally vague, that the finding that he violated his probation must therefore be reversed, and that the new conditions must be stricken.
I. BACKGROUND
Defendant was charged with three counts of committing a lewd act upon a child who was fifteen years old (Pen. Code, § 288, subd. (c)(1)), based on acts occurring between August 2011 and December 2011. Pursuant to a negotiated disposition, he pled no contest to an additional count, unlawful sexual intercourse with a minor, and the remaining counts were dismissed. (§ 261.5.) According to the presentence report, defendant sexually abused his stepdaughter on several occasions in 2011. On one of these occasions, either defendant or the victim's mother had given the victim marijuana; on another, he indicated he was teaching her about "what boys do"; and on two occasions he touched her vaginal area when she complained of ingrown hairs.
All statutory references are to the Penal Code.
The trial court suspended imposition of judgment and placed defendant on probation for four years in February 2014. Among the terms and conditions of his probation were that he "[n]ot possess pornographic material unless approved in advance by therapist and/or probation officer."
The trial court revoked probation in November 2015. Defendant denied violating his probation and a formal revocation hearing was set. At the hearing, deputy sheriff Charles Olmstead testified that he carried out a probation check of defendant in October 2015. Olmstead looked through the browser history on defendant's phone and found that he had been looking up pornographic material. There were searches for "celebrity tits," "Dash girls nude," "Megan Fox sex tape," "Selena Gomez nude masturbation video," and "Iggy Azalea sex tape." The phone did not contain saved videos related to these searches.
Defendant's cell phone contained a photograph of a female wearing panties and socks (Exhibit 1), one of a female wearing stockings, with exposed buttocks, being spanked by a male (Exhibit 2), one of a female wearing pink panties (Exhibit 3), and a picture that included the three previous images as well as another of exposed buttocks (Exhibit 4). The metadata indicated that these photographs were sent to defendant rather than taken with his own phone.
The trial court found defendant had violated his probation, and said it appeared that Exhibit 3 showed a minor child. The court set a sentencing hearing.
When interviewed by the probation officer, defendant said that he had become lonely and Google searched for "celebrity boobs." His search results showed numerous web sites, but he denied viewing them. He said that the photographs were sent to him by a friend who asked him to make them into a collage for her boyfriend. He said he did not consider the pictures pornographic and that he was "helping a friend out." He denied the photographs depicted a child.
The probation officer's report indicated that before the probation violation, defendant had asked for permission to access pornography "now that [he was] single," but was denied permission.
Defendant said that if probation were reinstated, he would refrain from using the Internet and from using his social media accounts, which included Facebook, Instagram, and Snapchat. The probation officer expressed concern about defendant's use of Snapchat, because it allowed videos and photographs to be sent and viewed for a few seconds before being automatically deleted. This application could allow defendant to view prohibited images or videos that would be untraceable.
Before the sentencing hearing, defendant submitted a "Statement in Mitigation," in which he indicated that the images on his phone were of a 41-year-old colleague who had asked him to turn them into a collage, and that the colleague would be in court.
At the sentencing hearing, the trial court expressed its skepticism that the images were all of an adult, saying that one of them appeared to be of a child aged eight or nine years old. The prosecutor indicated that she and defense counsel had met with the coworker, who was in court, and had seen her tattoo and the panties, and that it appeared the photograph was of the coworker. The court replied, "This photograph is not of a woman. This is not of a woman. And if this person is going to come forward and say that, I think I need to appoint counsel for her, to be honest, because that is not possibly a woman." Defense counsel continued, "She actually has—your Honor, the person in the picture is, if you would raise your hand? . . . She brought the clothing in that she has worn in those pictures. She is 41 years old. . . . She showed us those pictures." The court replied, "I think I need to appoint her counsel then because I think she is about to incriminate herself. . . . That is not a grown woman."
The trial court reinstated probation and imposed an additional condition that defendant not have access to the Internet, except email at work, or to any social media sites, including Snapchat, Facebook, and Instagram.
II. DISCUSSION
A. Prohibition on Pornography
Defendant contends the probation condition prohibiting him from possessing pornography is unconstitutionally vague and overbroad, and that the finding that he violated the condition must therefore be stricken. The People assert that if a scienter requirement is added, the condition passes constitutional muster. Although defendant did not raise this objection below, "[a] Court of Appeal may review the constitutionality of a probation condition, even when it has not been challenged in the trial court, if the question can be resolved as a matter of law without reference to the sentencing record. [Citation.] Our review of such a question is de novo. [Citation.]" (People v. Pirali (2013) 217 Cal.App.4th 1341, 1345 (Pirali).)
Defendant did not appeal the original order of probation. (See People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 [an order granting probation and suspending sentence is appealable].) In general, an appealable order that is not appealed may not be attacked on an appeal from a later appealable order. (Ibid.) This rule does not appear to apply, however, where a defendant who has been found in violation of probation challenges a condition of probation on constitutional grounds that raise a pure question of law, and the Attorney General does not argue otherwise. (People v. Hackler (1993) 13 Cal.App.4th 1049, 1055-1057 (Hackler).) To the extent defendant's challenge is a purely facial constitutional challenge to this probation condition, we will not treat it as forfeited. (Compare People v. Connors (2016) 3 Cal.App.5th 729, 734-737 (Connors) [defendant could not challenge reasonableness of probation condition "as applied" on appeal from finding that he violated condition].) --------
The People ask us to follow the lead of two cases that upheld similar conditions, as modified to add a requirement of knowledge. The defendant in Pirali, who had been convicted of possessing child pornography, was barred by the conditions of his probation from possessing or purchasing "any pornographic or sexually explicit material as defined by the probation officer." (Pirali, supra, 217 Cal.App.4th at p. 1344.) He challenged this condition on the grounds that it was vague and lacked specificity, and that without an express knowledge requirement he would not know what the condition forbade. (Id. at p. 1352.) The appellate court agreed, explaining, "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." ' [Citation.] Here, [the court found] the probation condition does not sufficiently provide defendant with advance knowledge of what is required of him. The fact that the probation officer may deem material sexually explicit or pornographic after defendant already possesses the material would produce a situation where defendant could violate his probation without adequate notice." (Ibid.) The court therefore modified the condition to state: " 'You're ordered not to purchase or possess any pornographic or sexually explicit material, having been informed by the probation officer that such items are pornographic or sexually explicit.' " (Id. at p. 1353; see also Connors, supra, 3 Cal.App.5th at p. 738 [adding express knowledge requirement to prohibition on possession of pornographic or sexually explicit material].)
The court in Pirali relied on People v. Turner (2007) 155 Cal.App.4th 1432, 1436-1437 (Turner). (See Pirali, supra, 217 Cal.App.4th at pp. 1352-1353.) The defendant in Turner exposed himself indecently to a three-year-old girl. (Turner, at p. 1434.) One of his conditions of probation was that he " '[n]ot possess any sexually stimulating/oriented material deemed inappropriate by the probation officer and/or patronize any places where such material or entertainment is available.' " (Ibid.) The appellate court concluded this condition was unconstitutionally vague: "The phrase 'sexually stimulating/oriented material deemed inappropriate by the probation officer' is an inherently imprecise and subjective standard." (Id. at p. 1436.) The court modified the condition to read, " 'Not possess any sexually stimulating/oriented material having been informed by the probation officer that such material is inappropriate and/or patronize any places where such material or entertainment in the style of said material are known to be available.' " (Ibid.) The court also concluded that, as modified, the condition was not overbroad because "[p]reventing the possession of sexually oriented materials by persons such as defendant promotes public safety and his rehabilitation." (Id. at p. 1437.)
Our colleagues in Division One of the First Appellate District recently reached a different result than that in Pirali and Turner. In In re D.H. (2016) 4 Cal.App.5th 722, 724, a minor was declared a ward of the court and placed on probation after admitting to indecent exposure. As a condition of probation, he was ordered "not to access pornography on any electronic devices or otherwise." (Id. at p. 725.) The minor contended the condition was unconstitutionally vague. (Id. at p. 727.) Relying on Pirali and Turner, both the minor and the Attorney General proposed that the appellate court modify it to incorporate a requirement that the minor have advance knowledge that the materials were pornographic. (Id. at p. 728.) Our colleagues declined this invitation, reasoning: "Pirali and Turner provide little guidance here, however, because both decisions were concerned only with the lack of notice created by leaving the prohibited category's definition to the probation officer. In our view, a modification requiring [the minor] to know or to be informed in advance that materials are 'pornography' fails to address the term's inherent vagueness. We recognize that probation conditions that restrict otherwise lawful activity by prohibiting 'association with certain categories of persons, presence in certain types of area, or possession of items that are not easily amenable to precise definition' are routinely modified to add an express knowledge requirement. [Citation.] In these cases, however, the vagueness arises not because the category itself is unclear, but instead because it is unclear whether particular people, areas, or items fall within the category. Take, for example, a condition prohibiting contact with 'gang members.' Such a condition is not vague because the term gang members is itself unclear; rather, it is vague because probationers cannot be aware of the gang status of every person with whom they have contact. Thus, the condition can be made more precise by limiting it to prohibit contact with any person the probationer actually knows is a gang member. [Citation.] In contrast, the no-pornography condition is vague because the term 'pornography' itself is unclear. As a result, it cannot be made sufficiently precise by modifying it to prohibit accessing materials that the probationer knows are pornographic because the term itself is subjective and subject to different interpretations." (In re D.H., 4 Cal.App.5th at pp. 728-729.) Rather than modifying the condition, the appellate court directed the juvenile court "to modify it to define more precisely the material the court intends to prohibit." (Id. at p. 729.) The opinion went on: "We suggest that in doing so the court carefully consider what purpose this condition is intended to serve, as it is far from clear to us how restricting [the minor's] access to any materials that might be considered pornographic will help him avoid the behavior he exhibited in committing this offense or aid more generally in his rehabilitation." (Ibid.)
We agree with the reasoning of In re D.H. The no-pornography probation condition as currently written is unconstitutionally vague and must be stricken. (See People v. Dominguez (1967) 256 Cal.App.2d 623, 624, 629 [striking invalid condition of probation after defendant found to have violated it].) We are not satisfied that the People's proposed modification of the condition, based on the language of Pirali—that defendant " 'not . . . possess any pornographic or sexually explicit material, having been informed by the probation officer that such items are pornographic or sexually explicit' "—solves this problem. (Pirali, supra, 217 Cal.App.4th at p. 1353.) First, there is a logistical difficulty with this approach: How could defendant get the probation officer's opinion on whether any particular material is pornographic without first viewing it and showing it to the officer? Even if this obstacle could be overcome, the more fundamental problem of the inherent vagueness of the term "pornography" remains.
This inherent vagueness distinguishes this case from our Supreme Court's recent decision in People v. Hall (2017) 2 Cal.5th 494, upon which the Attorney General relies. The court there considered whether conditions barring a probationer from possessing firearms or illegal drugs were unconstitutionally vague because they did not state explicitly that they applied only to knowing possession of the prohibited items. (Id. at p. 497.) The court concluded that "the probation conditions already include an implicit requirement of knowing possession, and thus afford defendant fair notice of the conduct required of him." (Ibid.) Unlike a condition barring possession of firearms or illegal drugs, however, a condition barring pornographic material would remain "subjective and subject to different interpretations" (In re D.H., supra, 4 Cal.App.5th at p. 729) even if it contains an implicit knowledge requirement.
In the absence of a valid condition of probation, we must necessarily reverse the finding that defendant violated this condition of his probation. (See Hackler, supra, 13 Cal.App.4th at p. 1060.) Because the trial court may be able to impose a valid condition, we shall remand the matter to the trial court to consider fashioning a probation condition that defines the prohibited material more precisely. (See People v. Appleton (2016) 245 Cal.App.4th 717, 727; § 1203.3 [court has power to modify order of probation].)
Because we reverse the finding on this ground, we need not consider defendant's additional contention that the condition was overbroad. Nothing we say, however, is intended to prevent defendant from raising this point in any further proceedings.
B. Internet and Social Media
Defendant contends the new probation condition the trial court imposed at the sentencing hearing, that he not have access to the Internet or social media sites, is unconstitutionally overbroad.
"A probation condition cannot be overbroad. [Citations.] 'A restriction is unconstitutionally overbroad . . . if it (1) "impinge[s] on constitutional rights," and (2) is not "tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation." [Citations.] 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.' [Citation.]" (People v. Stapleton (2017) 9 Cal.App.5th 989, 993 (Stapleton).) In considering a facial overbreadth challenge, we apply "more than a one-size-fits-all approach. Our inquiry does not take into account the individual facts pertaining to this particular probationer—as would an 'as applied' challenge—but it must take into account the nature of the case and the goals and needs of probation in general." (Ibid.)
Defendant did not object to the Internet and social media restrictions on overbreadth grounds in the trial court, and the People contend he therefore forfeited his challenge. We disagree. "[W]here a claim that a probation condition is facially overbroad and violates fundamental constitutional rights is based on undisputed facts, it may be treated as a pure question of law, which is not forfeited by failure to raise it in the trial court." (Stapleton, supra, 9 Cal.App.5th at p. 994; see also In re Sheena K. (2007) 40 Cal.4th 875, 888-889; but see People v. Kendrick (2014) 226 Cal.App.4th 769, 777-778 [overbreadth challenge to Internet prohibition not a facial challenge where it required review of facts underlying conviction].) The pertinent facts here are undisputed. Moreover, this case is in an unusual procedural posture, in that the new conditions were imposed as a result of a probation violation that we have concluded must be reversed. We shall consider the issue on the merits.
"The right to free speech is a fundamental, constitutionally protected right. [Citation.] Laws that attempt to regulate expression are carefully scrutinized because they pose a particular danger of state abuse. [Citation.] . . . [C]ourts have recognized the increasing importance of computer and Internet access [citation], and have held that restricting such access impacts First Amendment rights [citations]. [¶] California appellate courts have generally upheld the constitutionality of probation conditions prohibiting the use of electronic devices as narrowly tailored when they are closely related to the circumstances of an adult offender's crime. (See Pirali, supra, 217 Cal.App.4th at p. 1343 [upholding prohibition on Internet use without probation officer preapproval when crime involved possession of child pornography on the appellant's computer]; People v. Harrisson (2005) 134 Cal.App.4th 637, 641, 647 [upholding prohibition on Internet access when crime involved Internet use in an attempt to solicit sex with a minor]; but see [In re] Stevens [(2004)] 119 Cal.App.4th [1228,] 1238-1239 [reversing prohibition on computer and Internet access when the appellant's molestation conviction was unrelated to his computer or Internet use].)" (In re M.F. (2017) 7 Cal.App.5th 489, 493-494; see also Packingham v. North Carolina (2017) ___ U.S. ___, 2017 U.S. Lexis 3871, *15 ["[T]o foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights"].) Thus, in In re M.F., a minor was found to have threatened gun violence and possessed ammunition. Because he routinely used the Internet to obtain information about how to plan and carry out his threat, the appellate court concluded that a prohibition on unsupervised use of electronic devices with Internet access was "related to the circumstances of his crime and appropriately tailored to his rehabilitation." (Id. at p. 495.) However, to the extent the condition prohibited him from using electronic devices irrespective of Internet access or text messaging capability, it was not closely connected to the circumstances of the crime. (Ibid.)
The People argue that the restriction on the Internet is proper because, although defendant's original offense did not involve the Internet, he used the Internet to search for pornography in violation of his terms of probation. However, we have already concluded that the finding that defendant violated his probation must be reversed because the probation condition was unconstitutionally vague. There is thus no offense or violation involving Internet or social media use to serve as a predicate for a condition restricting the use of such media. In the circumstances, we must order the conditions stricken.
III. DISPOSITION
The order finding defendant in violation of his probation is reversed. The conditions of probation prohibiting use of the Internet or social media sites are stricken. The matter is remanded for further proceedings consistent with this opinion.
/s/_________
Rivera, J. We concur: /s/_________
Reardon, Acting P.J. /s/_________
Streeter, J.