Opinion
E081985
08-14-2024
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DERUYTER, Defendant and Appellant.
Lauren Noriega, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, and Steve Oetting and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI22000007 Melissa A. Rodriguez, Judge. Reversed and remanded with directions.
Lauren Noriega, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, and Steve Oetting and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER J.
Defendant and appellant Michael DeRuyter's probation was revoked after the trial court found that he violated the following probation term: "Not own, use, or possess any form of sexually explicit movie videos, material, or devices unless recommended by a therapist and approved by the probation officer. Do not frequent any establishment where such items are the primary items viewed, or sold at such establishments and do not utilize any sexually oriented telephone services." Defendant contends that this condition is unconstitutionally vague; the People agree. For the reasons set forth post, we agree with the parties. Therefore, we reverse and remand with directions.
FACTUAL AND PROCEDURAL HISTORY
On September 28, 2020, in Los Angeles, a complaint charged defendant with exhibiting a minor in pornography under Penal Code section 311.2, subdivision (b) (count 1); distribution of obscene matter depicting a minor under section 311.1, subdivision (a) (count 2); and two counts of possession of over 600 images of child or youth pornography under section 311.11, subdivision (c)(1) (counts 3 &4).
All statutory references are to the Penal Code unless otherwise specified.
On August 4, 2021, defendant pled nolo contendere to count 2. On September 10, 2021, the court dismissed the remaining counts, suspended imposition of the sentence, and placed defendant on formal probation for two years. On January 14, 2022, "Los Angeles County ordered the jurisdictional transfer of the above case to San Bernardino County pursuant to PC 1203.9."
In a "PC 1203.9 TRANSFER IN TERMS AND CONDITIONS MODIFICATION HEARING" memorandum, the San Bernardino County probation officer recommended defendant's probation be continued under certain terms and conditions. At the transfer hearing on July 19, 2022, the trial court stated that it "is going to accept jurisdiction over the defendant." At the hearing, defense counsel requested modification of certain probation terms and conditions. Relevant to this case, defense counsel objected to the condition "about not owning, using, or possessing any form of sexually explicit movies, material, or devices" as vague (the sexually explicit probation condition). Relying on People v. Pirali (2013) 217 Cal.App.4th 1341 (Pirali), counsel asked for the condition to be modified to state, "that you're not to purchase or possess photographic or sexually explicit material, having been informed by the probation officer that such items are pornographic or sexually explicit." The trial court denied the request and stated: "If there's something that [defendant] feels that he needs to possess[,] some sort of porn that he wants, he can talk to his therapist and he can have probation review it and decide if they're okay with it. So that objection is overruled."
On September 10, 2022, a home compliance check was conducted at defendant's home. "A search of defendant's cell phone yielded he was using an application called TikTok to view females, who appeared to be very young and 'liking' pictures of women with minimal clothing." Moreover, the probation officers found that defendant had downloaded Instagram and Snapchat where "he followed pages of women in sexually explicit positions," and communicated with females. It also appeared that defendant "was paying a female via Venmo to take videos of her performing sexual acts on an unknown male." Defendant had "[a] Dropbox [account] which he accessed on August 22, 2022. The video was of a female showering and groping her breasts and genitalia, during the video she was masturbating and used a sex toy for gratification. A further search of defendant's phone yielded other Dropbox videos in his email, with approximately (5) videos. Each video contained a female being either fully nude or masturbating. The defendant was advised he was being arrested for a probation violation and he was transported and booked."
On September 14, 2022, a petition for revocation of probation and remand was filed. The petition alleged that defendant violated numerous probation terms, including the sexually explicit probation condition: "Not own, use, or possess any form of sexually explicit movie videos, material, or devices unless recommended by a therapist and approved by the probation officer. Do not frequent any establishment where such items are the primary items viewed, or sold at such establishments and do not utilize any sexually oriented telephone services."
At a hearing on September 14, 2022, the trial court "set bail at no bail," and stated, "Court does find by clear and convincing evidence that there are no means reasonably available to provide protection to the public based on the allegations in the report." The court then set a probation hearing for October 11, 2022.
After numerous continuances, at a hearing on August 11, 2023, the trial court held the hearing on the petition for revocation of probation. Probation Officer Gregory Camarena testified on behalf of the People.
Officer Camarena stated that on September 10, 2022, he conducted "a home compliance check to ensure that the defendant was in compliance with the terms and conditions of probation." A search of defendant's phone revealed that defendant had downloaded various social media applications and had used those applications to view women in various stages of undress. Moreover, defendant used one of the applications to view videos of a woman performing a sexual act on a man, women showering, and women masturbating. However, there was no evidence to show the specific dates when defendant accessed the photos and videos, or whether defendant accessed the materials after the probation condition was imposed.
Officer Camarena testified that a search of defendant's cell phone revealed that in addition to the applications, defendant had downloaded Dropbox. Defendant accessed the video of a naked woman masturbating on his account on August 22, 2022. Although the officers accessed the video through defendant's Dropbox application, there was no evidence whether other individuals could have accessed the same evidence through Dropbox.
Defendant was arrested for violating his probation terms, and the People filed a petition to revoke defendant's probation.
After further discussion, the court found "that the defendant is in violation of the terms and conditions of his probation, specifically the term not to own, use, or possess any form of sexually explicit videos, material, or devices."
Defense counsel then asked if the trial court wanted to address defendant's "motion to reinstate probation and modify impermissibly vague conditions." (All caps omitted.) After hearing defense counsel's argument, the trial court stated: "The Court has reviewed your motion, as well as some subsequent case law. And the Court is persuaded by the case of [People v. Connors (2016) 3 Cal.App.5th 729], which specifically addresses the type of condition that we are discussing here. The probation condition was considered to be unconstitutionally vague and overbroad. [¶] However, the Court did indicate that if there was a knowledge term added to it, that it is not unconstitutionally vague. And that knowledge is knowledge by the probation officer. Defendant here has a condition that says, unless it's recommended by a therapist and approved by the probation officer. So the defendant at this point has an obligation to ask probation whether or not this is something that would be considered sexually explicit. And that's pursuant to the case law. [¶] So I'm going to deny your motion, and I am going to find that he is in violation of the terms and conditions of his probation."
Thereafter, the trial court revoked defendant's probation and imposed the low term of 16 months.
On August 17, 2023, defendant filed a timely notice of appeal.
DISCUSSION
THE PROBATION CONDITION PROHIBITING DEFENDANT FROM OWNING, USING, OR POSSESSING SEXUALLY EXPLICIT MATERIAL UNLESS APPROVED BY HIS PROBATION OFFICER IS UNCONSITUTIONALLY VAGUE
On appeal, defendant contends that the sexually explicit probation condition is unconstitutionally vague. In its response brief, the People agree "that, as written, the condition must be modified to include a proper scienter requirement."
"Penal Code section 1203.1 et seq. gives trial courts broad discretion to determine whether to grant an eligible defendant probation, and if so, what terms of probation will promote rehabilitation and protect public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) A probation condition is valid under the statutory scheme if it relates to the crime for which the defendant was convicted, relates to other criminal conduct, or requires or forbids conduct that is reasonably related to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486.)" (People v Hall (2017) 2 Cal.5th 494, 498.)
Probation conditions, however, must meet due process requirements of avoiding vagueness. "[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.'" (In re Sheena K. (2007) 40 Cal.4th 875, 890.) "A probation condition must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated, if it is to withstand a challenge on the ground of vagueness." (Ibid.) That is, the defendant must know in advance when he may be in violation of the condition. "[T]he law has no legitimate interest in punishing an innocent citizen who has no knowledge of the presence of a [prohibited item]." (People v. Freitas (2009) 179 Cal.App.4th 747, 752.)
Therefore, courts have ordered modification of probation conditions to incorporate a scienter requirement where a probationer could unknowingly engage in the prohibited activity. (In re Victor L. (2010) 182 Cal.App.4th 902, 912-913 [modified probation condition to prohibit knowing presence of weapons or ammunition]; In re Justin S. (2001) 93 Cal.App.4th 811, 816 [modified prohibition on association with gang members to prohibit association with known gang members]; In re Kacy S. (1998) 68 Cal.App.4th 704, 713 [modified probation condition that defendant not associate with any persons not approved by his probation officer].)
Courts review facial constitutional challenges to probation conditions de novo. (People v. Mendez (2013) 221 Cal.App.4th 1167, 1172.)
In this case, defendant contends that the sexually explicit probation condition, that provides that he may "[n]ot own, use, or possess any form of sexually explicit movie videos, material, or devices unless recommended by a therapist and approved by the probation officer," is unconstitutionally vague. The People agree.
In Pirali, supra, 217 Cal.App.4th 1341, the court held that a probation condition that prohibited a defendant from purchasing or possessing "pornographic or sexually explicit materials as defined by the probation officer" was unconstitutionally vague because it lacked an express knowledge requirement. (Id. at pp. 1352-1353.) The court stated that "we find 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." (Id. at p. 1352.) Therefore, the court modified the condition to specify that the defendant was "prohibited from purchasing or possessing pornography or sexually explicit materials, having been informed by the probation officer that such items are pornographic or sexually explicit." (Id. at p. 1353.) After modifying the condition, the court upheld the probation condition. (Ibid.)
Similarly, in People v. Turner (2007) 155 Cal.App.4th 1432 (Turner), a court found a probation condition that prevented a defendant from possessing "'sexually stimulating/oriented material deemed inappropriate by the probation officer'" as unconstitutionally vague. (Id. at p. 1436.) The court, therefore, modified the condition to provide that the defendant could not possess these materials after "'having been informed by the probation officer that such material is inappropriate.'" (Id. at pp. 1436-1437.)
We agree with Pirali and Turner that the challenged probation condition is vague and that we have the power to modify the probation condition to render it constitutional. We, however, decline to do so here.
In In re D.H. (2016) 4 Cal.App.5th 722 (D.H.), a minor who admitted to indecent exposure on a public bus was placed on probation with a condition that prohibited him from accessing "'pornography on any electronic devices or otherwise.'" (Id. at pp. 724725.) The court found the term "'pornography'" inherently vague and stated that it could not "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." (Id. at p. 729.) The appellate court, therefore, remanded the matter and directed the trial court to "define more precisely the material the court intends to prohibit." (Ibid.) Just as the term "'pornography'" was deemed vague by the D.H. court (ibid.), we find the term "'sexually explicit'" to also be inherently vague in this case. The People, in its response brief asked that the matter "be remanded to the trial court with instructions to modify the probation condition regarding appellant's possession or use of 'sexually explicit' material."
Based on the above, we will follow the approach taken in D.H., supra, 4 Cal.App.5th 722, and remand the matter to the trial court to define more precisely the prohibited sexually explicit materials and include a scienter requirement. As in D.H., we encourage the trial court, on remand, to carefully consider the scope and purpose of the probation condition. Defendant's underlying sex offenses were against minors. His probation, however, was revoked not for images or videos of minors, but because he visited adult pornographic applications and watched adult pornographic videos. This observation suggests the condition might not be specifically tailored to discouraging a recurrence of defendant's harmful behaviors while aiding in his rehabilitation. (See People v. Johnson (2020) 58 Cal.App.5th 363, 370 ["maintaining public safety and ensuring parolees' rehabilitation are the twin objectives of parole supervision"].)
In light of our decision to remand for modification of the condition, we need not and do not consider defendant's challenge to the condition as unconstitutionally overbroad. Defendant, however, remains free, on remand, to raise any overbreadth objection to any modified condition.
In light of our holding, we need not address defendant's claims that the court's ruling was based on hearsay, and the court abused its discretion in revoking defendant's probation and sentencing him to prison.
DISPOSITION
The order revoking defendant's probation is reversed. The matter is remanded for further proceedings to modify the sexually explicit probation condition in a manner consistent with this opinion.
We concur: RAMIREZ P. J., FIELDS J.