Opinion
A150474
11-15-2018
In re JOSE V., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JOSE V., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 16-JW-0523)
Jose V. (Minor), a ward of the juvenile court, appeals a dispositional order which declared him a ward of the court and placed him on probation after he admitted to a felony count of rape of a drugged victim. Minor appeals three issues: (1) whether Minor's counsel provided ineffective assistance when she failed to object to conditions involving warrantless electronic searches that could be unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent); (2) whether the juvenile court abused its discretion when it delegated authority to probation officers and the Youth Services Center staff; and (3) whether seven of the probation conditions imposed by the court are facially unconstitutional for vagueness or overbreadth. We reject Minor's ineffective assistance argument; we conclude that the juvenile court did not abuse its discretion in delegating authority to probation officers and the Youth Services Center staff; and we modify three of the challenged probation conditions on constitutional grounds, vacate one of the challenged conditions on constitutional grounds, and affirm all the other conditions that were challenged on constitutional grounds.
I. BACKGROUND
On December 10, 2016, Minor, then 14 years old, was arrested following an incident involving the rape of Victim-1, also 14 years old at the time. The prior day, Minor went to his friend's house with a large bottle of stolen alcohol. Present during the incident were Minor, Victim-1, Victim-2, Witness-1, and Witness-2. Although Victim-2, Witness-1, and Witness-2 did not witness the actual rape, they were present when Minor made sexual advances towards Victim-1 and in the aftermath of the rape. It is contested whether Minor was invited to the gathering or came of his own volition. Victim-2 told deputies Minor called the group at the house and asked if he could "hang out." Victim-2 stated she did not want Minor to come but he came over anyway. Minor stated that his friends had invited him over to hang out.
After Minor arrived at the house, the group decided to sit inside a car parked in the driveway and began to consume the alcohol. At the beginning, Minor was sitting in the back seat between Witness-1 and Witness-2. Victim-1 was sitting in the front passenger's seat and Victim-2 was sitting in the driver's seat. As more alcohol was consumed, Minor made sexual advances towards Victim-2 but she was able to stop Minor. Minor then began to touch Victim-1, whom witnesses reported was visibly intoxicated and appeared semi-conscious. At some point, Minor and Victim-2 switched seats.
The group was called inside the house to eat, but Minor and Victim-1 remained in the vehicle while the others left. Victim-1 told deputies that after the group left, she and Minor moved to the back seat. When Minor tried to kiss her, she told him to stop. Minor then took out a condom, put it on, and placed his penis inside her vagina, despite Victim-1 telling him "no." Victim-1 reported that Minor inserted his penis into her anus and he would not stop. After approximately 10 minutes, the group returned to the vehicle, and reported seeing Victim-1 crying in the back seat with her pants down, with Minor also in the back seat with his pants unfastened and the front zipper open. Minor subsequently left the scene on foot after deputies were called.
Minor was taken into custody on December 10, 2016, and he told deputies that Victim-1 did not say no to his advances and that she was awake and smiling during the incident. On December 14, 2016, a Welfare and Institutions Code section 602 petition was filed in court, alleging nine counts of Penal Code violations stemming from the incident. Additionally, a probation violation notice was filed, which alleged Minor violated curfew and consumed alcohol while on probation for a prior incident. At a pretrial conference on January 11, 2017, Minor admitted to one felony count of rape of a drugged victim under section 261, subdivision (a)(3) of the Penal Code, and all the remaining counts of the petition were dismissed at the prosecutor's request, including the probation violation notices. In a January 26, 2017 dispositional hearing, the court continued Minor as a ward of the court, committing him to the Youth Services Center, and imposed probation conditions, none of which drew any objection from his counsel.
Several of the probation conditions focused on Minor's behavior at school (behave-at-school conditions). Several other conditions focused on his enrollment in the court's Electronic Monitoring Program (EMP), including that he follow all rules of the EMP. To monitor compliance with the EMP and track Minor's location, Minor was fitted with a global positioning system (GPS) device. To track Minor's Internet activity, the court imposed electronic search conditions requiring him to surrender all electronic devices with passwords upon request by the probation officer. A condition related to the electronic search condition ordered Minor not to possess or utilize any program or application that automatically or through remote command deletes data from any device (electronic deletion condition). In addition, Minor was ordered not to associate with female minors under the age of 16 unless in the presence of an approved responsible adult (association-with-female-minors condition), and was prohibited from possessing or viewing pornographic material (pornographic-materials condition).
Minor timely appealed and now argues that (1) his counsel was ineffective for failing to object to the various electronic search and electronic search-related probation conditions; (2) the court abused its discretion by delegating too much statutory authority to his probation officers and the staff at the Youth Services Center; and (3) the behave-at-school conditions, EMP conditions, electronic-search conditions, electronic-deletion condition, association-with-female-minors condition, and pornographic-materials condition are unconstitutionally vague or overbroad.
II. DISCUSSION
A. Ineffective Assistance of Counsel and Reasonableness of Electronic Search Probation Conditions
Minor challenges three probation conditions relating to electronic search on grounds he received ineffective assistance of counsel. Specifically, he challenges the following probation conditions: (1) "Any electronic data storage and/or communication device under the Minor's control and/or which the Minor has shared, partial or limited access, is subject to a full and complete search, by any probation officer, in any manner required to guarantee full disclosure by any probation officer, during the day or night, with or without his consent, with or without a search warrant, and without regard to probable and reasonable cause"; (2) "The Minor shall provide encryption keys or passwords to the probation officer for any computer or electronic data storage devices, in his possession, custody or control and to which he has sole, shared, partial, or limited access"; (3) "The Minor shall not possess or utilize any program or application, on any electronic data storage device, that automatically or through a remote command deletes data from that device."
A criminal defendant has the right to the assistance of counsel by the Sixth Amendment of the United States Constitution and by article I, section 15, clause 3 of the California Constitution. This is in order to protect the fundamental right to a fair trial under the due process clause. (Strickland v. Washington (1984) 466 U.S. 668, 684 (Strickland).) Counsel's skills play a crucial role in the adversarial system of the courts, ensuring defendants have the ability to properly defend themselves against the prosecution's case. (Id. at p. 685.) Simply having counsel present is not enough to satisfy the due process clause. (Ibid.) The defendant is entitled to be assisted by an attorney whose skill and knowledge ensure the criminal proceeding is fair, recognized by the courts as the right to the effective assistance of counsel. (Id. at pp. 685-686.) Under this right, counsel is deemed ineffective and in violation of the United States Constitution when (1) counsel's performance was deficient because it fell below an objective standard of reasonableness under the prevailing professional norms; and (2) there is a reasonable probability that but for counsel's errors, the result of the criminal proceeding would have been different, resulting in prejudice to the appellant. (Strickland, at pp. 687-688.)
In imposing conditions of juvenile probation, a juvenile court has broad discretion and under Welfare and Institutions Code section 730 is empowered to impose " 'any . . . reasonable condition[] that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.' " (In re Erica R. (2015) 240 Cal.App.4th 907, 911 (Erica R.).) Because juvenile probationers are more in need of guidance than their adult counterparts, " ' " 'a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.' " ' " (In re Victor L. (2010) 182 Cal.App.4th 902, 910 (Victor L.).) But a juvenile court's discretion to set the terms of a ward's probation is not without limit. The Supreme Court in Lent set forth three criteria for analyzing the validity of a probation condition. (Lent, supra, 15 Cal.3d at p. 486.) A probation condition will be held invalid if (1) the condition bears no relationship to the offender's crime of conviction; (2) the condition relates to conduct which is not criminal in itself; and (3) the condition requires or forbids conduct that is not reasonably related to future criminality. (Ibid.) Lent is also applicable to juvenile probation conditions. (In re D.G. (2010) 187 Cal.App.4th 47, 52.)
In the first part of his appeal, the Minor challenges three probation conditions involving electronic searches. Although his trial counsel failed to object to these conditions at the hearing in the juvenile court, he argues he should nonetheless be allowed to attack as erroneous these three electronic search conditions on appeal because, by failing to object to the conditions, his trial counsel provided ineffective assistance.
The Attorney General contends Minor has shown neither deficient performance nor prejudice and thus has failed to establish the elements of ineffective assistance. He argues the record is silent concerning why counsel failed to object and, as a result, Minor cannot show there was no conceivable tactical purpose for counsel's omission. In any event, the Attorney General adds, similar electronic search conditions have been found valid under Lent.
We decline to decide whether counsel's performance was deficient and will only address the prejudice prong under Strickland. Because Minor does not meet the first prong of the Lent test (Lent, supra, 15 Cal.3d at p. 486), he fails to show prejudice. The record indicates there is evidence an electronic device (i.e., a cell phone) played a role in the Minor's crime of felony rape of a drugged victim under Penal Code section 261, subdivision (a)(3). Though there was some discrepancy as to how the Minor was invited to the location where the rape occurred, there is substantial evidence—in the form of one witness's testimony—that Minor called his friend, who lived at the house where the rape took place, and asked to come over.
This case differs from prior cases where courts found no relationship between the condition and the convicted crime. In Erica R., for example, the court ultimately found the probation condition invalid, stating that there was no evidence suggesting that the crime of drug possession was related to the minor's use of electronic devices. (Erica R., supra, 240 Cal.App.4th at pp. 912-913.) Nothing in "the record . . . connects Erica's use of electronic devices or social media to her possession of any illegal substance." (Id. at p. 912.) The court was not swayed by the Attorney General's argument that an electronic device may have been used to negotiate sales of illegal substances because Erica's crime was possession, and sale of the illegal substances was speculative. (Id. at pp. 912-913.)
Similarly, Minor's appeal differs from In re J.B. (2015) 242 Cal.App.4th 749, 754 (J.B.).) J.B. concluded that electronic devices had no relationship to the crime of petty theft and it was pure speculation to say that the minor may have used electronic devices or the Internet to facilitate the crime by arranging to meet at a specific place with the idea of stealing items. (Ibid.) There was nothing in the record that indicated the minor may have used social networking, e-mail, or texting to commit the crime. (Ibid.) In this case, by contrast, there was evidence that Minor learned of the gathering at which he committed the offense and arranged an invitation to it by cell phone.
B. Improper Delegation of Authority
Next, Minor contends the juvenile court abused its discretion when it improperly delegated statutory authority to probation officers and school personnel in the probation conditions that require Minor to follow their "reasonable and proper directives." This probation condition requires Minor to "follow the reasonable and proper directives" of probation officers, parents, school personnel, and the Youth Services Center staff. Minor cites to People v. Cervantes (1984) 154 Cal.App.3d 353, where the defendant's probation officer was allowed to determine the amount of restitution the defendant had to pay. (Id. at p. 358.) Because that, in effect, was an abdication of judicial authority, it was found to be an abuse of discretion. (Ibid.) Minor's case is different. In short, the juvenile court has required Minor to be respectful to adults and people with authority over him in school. Monitoring such an obligation is in no respect a judicial function. We find nothing so broad or without content about the directive that it amounts to an improper delegation.
C. Vagueness and Overbreadth
The constitutional standards governing Minor's vagueness and overbreadth arguments are well established. (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) The due process concept of "fair warning" underpins vagueness challenges to probation conditions. (Id. at p. 890.) Under the vagueness doctrine, a statute is void for vagueness if it " 'fails to provide adequate notice to those who must observe its strictures' " or " ' "impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc or subjective basis, with the attendant dangers of arbitrary and discriminatory application." ' " (Ibid.) Analysis of adequacy of notice does not require " 'mathematical certainty' " but " ' "reasonable specificity." ' " (Ibid.) The probation condition in question need only be precise enough " 'for the probationer to know what is required of him, and for the court to determine whether [it] . . . has been violated.' " (Ibid.)
Generally, a probation violation must be willful for the court to revoke probation. (People v. Hall (2017) 2 Cal.5th 494, 498 (Hall).) To violate probation conditions where conduct is required or prohibited, the probationer must knowingly engage in the transgressive conduct. (Id. at p. 500.) But the requisite guilty state of mind need not be expressly articulated in the language of the condition for it to withstand a vagueness challenge. (Id. at p. 503.) A probation condition is unconstitutionally vague only when the category of what is prohibited is so indefinite that it leaves the defendant without notice of what kind of conduct violates probation. (Id. at pp. 502-503.) When determining whether a condition is sufficiently definite, the court can consider other sources of applicable law and consider if there is " ' " 'any reasonable and practical construction' " ' " of the condition's text by reference to other definable sources. (Hall, at pp. 500-501.)
In addition to the vagueness doctrine, any probation condition that implicates a probationer's constitutional rights must not be overbroad. (Sheena K., supra, 40 Cal.4th at p. 890.) Overbreadth is closely related to, and often arises along with, problems of vagueness, but calls for a separate analysis. "[T]he overbreadth doctrine requires that conditions of probation that impinge on constitutional rights must be tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation." (Victor L., supra, 182 Cal.App.4th at p. 910.)
A juvenile may bring a constitutional challenge to a probation condition on the grounds of vagueness and overbreadth for the first time on appeal. (Sheena K., supra, 40 Cal.4th at p. 889.) Ordinarily, the appellant must object to an allegedly erroneous ruling in the trial court to preserve the claim on appeal or else the claim is forfeited or waived under the rule of forfeiture or waiver. (Id. at p. 880.) However, for " 'pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court,' " the probation condition can be challenged on a constitutional ground for the first time on appeal. (Id. at p. 889.)
The Attorney General argues that Minor forfeited all of the following claims by failing to object on constitutional grounds at trial. Minor acknowledges no vagueness and/or overbreadth objections were raised before the juvenile court, but he contends that the issues present "pure questions of law," which the court reviews de novo. On this record, Minor is correct, and on the authority of Sheena K., we proceed to evaluate each probation condition despite the lack of a contemporaneous objection in the juvenile court.
1. Condition to Behave at School
Here, Minor appeals the following condition: "The Minor . . . shall behave in school . . . ." He argues the condition is vague because it does not explicitly provide the standard used to monitor compliance and thus can be subjectively enforced. Minor asks we modify the condition to state he shall "obey school rules" and be given a copy of the school rules. We decline to do so.
The probation condition reads in its entirety: "The Minor shall attend the Youth Services Center school regularly without tardiness or unexcused absence, shall behave in school, and shall obey all reasonable and proper directives of the Youth Services Center teaching staff." Minor's appeal only requests modification of the ". . . behave in school . . ." portion of the condition.
This condition is clear when read in context with the other probation conditions that "Minor shall obey all rules and regulations of the Youth Services Center and shall not leave or be absent from the facility without prior authorization of the Court"; and "Minor shall follow the reasonable and proper directives and instructions of the Youth Services Center staff and the probation officer." Additionally, the behave-at-school condition does not implicate any "important issue of constitutional law or a substantial right." (Sheena K., supra, 40 Cal.4th at p. 887, fn. 7.) It is a commonsense expectation of all students, whether they are wards of the state or not, and creates no conceivable chilling effect on the Minor's or any student's constitutional rights.
2. Condition to Follow the Rules of the EMP
The second challenged probation condition is "the Minor shall obey all rules and regulations of the [EMP]." Minor asks that this condition be modified to read "obey all rules and regulations of the [EMP], as posted on the department's website, as approved by the court, and as explained to [Minor] by his probation officer," because the record does not indicate what the rules and regulations of the program are nor does the record indicate Minor was made aware of the rules.
The Attorney General argues that this condition is not vague when read in context with the other probation conditions relating to the EMP: "(1) 'The Minor is detained on Electronic Monitoring for ninety (90) consecutive days . . .'; (2) 'While subject to the [EMP]/[GPS], in response to a violation of Court orders or the [EMP] Agreement, the Minor is subject to temporary detention in the [Youth Services Center] . . .'; (3) 'The Minor's care and maintenance expense is a parental responsibility'; [and] (4) 'The cost of the [EMP] is a parental responsibility.' " The Attorney General argues that these conditions provide the rules and regulations of the EMP. Additionally, the first EMP condition mentions an "agreement," which likely provides Minor with a written account of all the other rules and regulations.
We agree with Minor that this condition, even when read in context, is standardless and vague on its face. The assertion by the Attorney General that the EMP "agreement" will likely provide Minor with the necessary rules and regulations is speculative and nothing in the record indicates Minor was apprised of whatever standards of conduct being fitted with a GPS and being in the EMP may impose on him. We can only guess what the "rules and regulations" of the EMP may be. As such, a probation condition where the probationer does not know what is expected of him would allow the probation officer the power of interpretation, which the vagueness doctrine is meant to protect against. (In re Ana C. (2016) 2 Cal.App.5th 333, 352 (Ana C.), disapproved on other grounds by People v. Hall, supra, 2 Cal.5th at p. 503, fn. 2.) We will modify the probation condition to specify that Minor shall " 'obey all rules and regulations' of the Electronic Monitoring Program, as posted on the probation department's website, as approved by the court, and as explained to [him] by his probation officer." (Ana C., at p. 352.)
3. Electronic Monitoring and Search Conditions
The electronic monitoring and search probation conditions require: (1) "Any electronic data storage and/or communication device under the Minor's control and/or which the Minor has shared, partial or limited access, is subject to a full and complete search, by any probation officer, in any manner required to guarantee full disclosure by any probation officer, during the day or night, with or without his consent, with or without a search warrant, and without regard to probable and reasonable cause"; and (2) Minor to "provide encryption keys or passwords to the probation officer for any computer or electronic data storage devices, in his possession, custody or control and to which he has sole, shared, partial, or limited access."
Some of the appellate divisions in the First District Court of Appeal have found similar probation conditions to be unconstitutionally overbroad, depending on the circumstances. (See In re P.O. (2016) 246 Cal.App.4th 288, 291 (P.O.); In re Malik J. (2015) 240 Cal.App.4th 896.) We are aware the California Supreme Court has recently granted petitions for review in other cases with similar probation conditions. (In re Alejandro R. (2015) 243 Cal.App.4th 556, review granted Mar. 9, 2016, S232240; In re Patrick F. (2015) 242 Cal.App.4th 104, review granted Feb. 17, 2016, S231428; In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923; In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25, 2016, S233932.)
In P.O., the court found a similar probation condition overbroad because it impacted the juvenile's (P.O.'s) constitutional right to privacy by not being narrowly tailored to the state's interest in furthering P.O.'s rehabilitation. (P.O., supra, 246 Cal.App.4th at p. 298.) After P.O. admitted to a misdemeanor count of public intoxication, the juvenile court required him to submit to warrantless searches of his electronics, including divulging of passwords. (Id. at p. 291.) But the appellate court found that while the condition's purpose may have been to allow monitoring of P.O.'s exposure to drugs, it also permitted review of all sorts of private information that was highly unlikely to shed light on whether P.O. was complying with all the terms of his probation. (Id. at p. 298.) Therefore, in light of all the circumstances, the condition was not sufficiently tailored because P.O.'s rehabilitative needs were less severe, making the condition overbroad. (Ibid.)
Similar to P.O., People v. Appleton found a defendant's electronic search probation condition was overbroad because the search could potentially expose a large volume of data that had nothing to do with illegal activity or the defendant's crime. (People v. Appleton (2016) 245 Cal.App.4th 717, 725 (Appleton).) The defendant pleaded no contest to false imprisonment by means of deceit after meeting a minor on social media. (Id. at pp. 719-720.) However, the state's interest in monitoring whether the defendant used social media to contact minors for unlawful purposes could be served through narrower means. (Id. at p. 727.)
In contrast, in In re J.E., we found a similar electronic search probation condition was not overbroad. (In re J.E. (2016) 1 Cal.App.5th 795, 805-806 (J.E.), review granted Oct. 12, 2016, S236628.) J.E. pleaded guilty to misdemeanor second degree burglary (id. at p. 797), had admitted to experimenting with drugs and alcohol in the past, had failed a drug test while on probation, was in danger of failing middle school, and had multiple suspensions and reprimands for behavioral issues at school. (Id. at p. 798.) These collective circumstances justified the broader probation condition as a means of adequately supervising J.E.'s compliance with the set of probation conditions to protect the public and J.E. from future criminality. (Id. at p. 806.)
Similarly, the defendant in People v. Ebertowski was found to require more intensive supervision to protect the public and ensure compliance with his probation conditions, making the electronic search probation condition not constitutionally overbroad. (People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1176.) This defendant was granted probation after pleading no contest to criminal threats and resisting or deterring an officer. (Id. at p. 1172.) He also admitted a gang allegation. (Ibid.) The court allowed the conditions because the narrowly tailored conditions helped to protect the state's interest in preventing the defendant from associating with gangs. (Id. at p. 1176.)
Minor contends the electronic search conditions at issue here are unconstitutionally overbroad because they infringe on his right to privacy. We disagree under the circumstances presented. The underlying crime is quite serious and the state has an interest in protecting girls, or any child for that matter, who may be around Minor, whether by choice or not. Minor has a record of truancy and, at the time of the offense he was found to have committed here, was on probation for prior juvenile adjudications. This case is similar to the circumstances surrounding J.E.'s electronic search probation conditions. (J.E., supra, 1 Cal.App.5th at pp. 797-798, 805-806.) While Minor has a reasonable expectation of privacy, that right to privacy is outweighed by the state's interest in the safety of others.
This is not like the circumstances in P.O. and Appleton where the defendant's needs were less severe, warranting a less expansive probation condition. P.O.'s public intoxication and Appleton's false imprisonment by means of deceit did not warrant the level of supervision imposed by the electronic search condition. (P.O., supra, 246 Cal.App.4th at pp. 291, 298; Appleton, supra, 245 Cal.App.4th at pp. 719-720, 725, 727.) However, rape by use of drugs warrants a higher level of supervision. This is especially true since the circumstances indicate Minor may have used an electronic device to receive notice that his friends were going to be hanging out at the location of the rape. Thus, the probation conditions imposed here are narrowly tailored for the state's purpose and are not overbroad.
Lastly, Minor invokes the sweeping language of Riley v. California (2014) 573 U.S. ___, 134 S.Ct. 2473 (Riley). Based on that case, Minor notes the significance that cell phones have in people's lives and argues information contained in those devices are worthy of constitutional protection against the threat of unfettered searches. In Riley, the high court held the warrantless search of a suspect's cell phone violated the suspect's Fourth Amendment rights. (Id. at p. 2493.) The Attorney General argues Riley is distinguishable because it did not involve an individual on probation and probationers have fewer constitutional rights than nonprobationers.
We agree with the Attorney General. Riley did not involve probation conditions and the appellant in Riley had not been convicted of a crime at the time of the search. (Riley, supra, 134 S.Ct. at p. 2493.) Here, Minor is a probationer and probationers do not enjoy all the constitutional rights to which every citizen is entitled. (Ana C., supra, 2 Cal.App.5th at p. 340.) The constitutional rights of juvenile probationers are even more circumscribed. (Ibid.)
Given that Minor is an adjudicated offender who was found to have committed rape and is now subject to probation supervision as a result, we disagree with his contention that the challenged conditions are unconstitutionally overbroad because they implicate his right to privacy.
4. Electronic Deletion Condition
In another probation condition logically stemming from the electronic monitoring and search conditions above, the juvenile court ordered that Minor "not possess or utilize any program or application, on any electronic data storage device, that automatically or through a remote command deletes data from that device."
We conclude this clause is unconstitutionally vague because all electronic data storage devices and programs have the capability to automatically delete data. (See Ana C., supra, 2 Cal.App.5th at pp. 350-351.) All electronic devices and programs have some form of a delete function. Some programs have the deletion function automatically on, such as computers at public libraries or mobile apps like Snapchat. Some programs allow the user to erase data remotely, such as iPhones, which allow users to log in to their accounts remotely and delete data from lost or stolen phones. This condition is also overbroad because it could prevent Minor from using a public or school library computer for scholarly or job-related purposes. (See Victor L., supra, 182 Cal.App.4th at p. 926.) We vacate and invite modification on remand by using examples designed to narrow this condition's intended purpose.
5. Female Minor Association Prohibition Condition
Minor claims the probation condition to not associate with females under the age of 16 unless in the presence of a responsible adult, approved by the probation officer, is unconstitutionally vague because it restricts his freedom of association, makes it difficult to identify a "responsible adult," and lacks a personal knowledge requirement. As noted above, scienter is not required for a probation condition to pass constitutional muster. (Hall, supra, 2 Cal.5th at p. 503.)
We are, however, concerned that "responsible adult" is vague because the condition does not notify the defendant, the probation officer, or the court who can be labeled as a "responsible adult." In Sheena K., the court held a probation condition was vague when it failed to specify which persons the probation officer had disapproved of. (Sheena K., supra, 40 Cal.4th at pp. 890-891.) Minor faces a similar problem. Presumably, "responsible adults" include Minor's teachers and his parents. But beyond that, one can readily imagine many circumstances in which that is not so clear. For example, Minor would likely need to move though the school hallways between classes or eat lunch in the cafeteria. Must he be escorted by a "responsible adult" during those transitions? Would any school faculty member count as a "responsible adult?" What about school bus drivers? Would a parent of one of Minor's friends be a responsible adult to chaperone a trip to the movies or other social activity?
We modify this condition, striking the term "responsible." Thus, the modified probation condition makes it clear to Minor that he needs approved adult supervision to associate with female minors under the age of 16.
6. Pornography Prohibition Condition
The last challenged condition on appeal requires Minor to "not possess or view any pornographic material." Minor argues the term "pornography" is inherently vague and subjective because reasonable minds can differ as to what constitutes "pornography." The Attorney General concedes that the term is vague and recommends a modification, striking the term "pornography" and replacing it with "obscene material" because obscene has a legal definition. We agree the term is vague but decline to modify the probation condition in that manner.
California Code of Regulations, title 15, section 3006, subdivision (c)(15) defines obscene material.
Identification of pornography is inherently imprecise and subjective. (People v. Turner (2007) 155 Cal.App.4th 1432, 1436 (Turner); People v. Pirali (2013) 217 Cal.App.4th 1341, 1353 (Pirali).) But, other courts have found similar probation conditions constitutional when modified to include a mechanism for providing notice of what materials are covered, specifically to prohibit pornographic or sexually explicit material that the probation officer informs the probationer is inappropriate. (Turner, at p. 1436; Pirali, at p. 1353.)
Both parties rely on In re D.H. (2016) 4 Cal.App.5th 722 (D.H.), but we disagree with D.H., and believe Pirali and Turner provide more substantial guidance for trial courts. D.H. held that a no-access-to-pornography condition was inherently vague because the term "pornography" is so subjective that leaving the prohibited category's definition to the probation officer would not provide the probationer with sufficient advance knowledge. (D.H., at pp. 728-729.) However, courts have been struggling with the definition of pornography because the term lacks any recognized legal definition. (United States v. Guagliardo (9th Cir. 2002) 278 F.3d 868, 872 [recognizing the term "pornography" is inherently subjective and lacks any recognized legal definition]; see United States v. Phipps (5th Cir. 2003) 319 F.3d 177, 193 [recognizing a lack of specificity in the term but holding that the pornography prohibition condition could be read in a commonsense way].) Therefore, we will not follow D.H., which, in effect, remanded to the juvenile court to try and define a term that prior courts have failed to define. (D.H., at p. 729.)
Instead, we follow Pirali and Turner, modifying the probation condition to include a mechanism for notifying Minor as to what materials are prohibited. (Pirali, supra, 217 Cal.App.4th at p. 1353; Turner, supra, 155 Cal.App.4th at p. 1436.) We will order the condition modified to state that the "Minor shall not possess or view pornographic or sexually explicit material, having been informed by the probation officer that specified publications, websites, or other materials are pornographic or sexually explicit." In our view, the modified condition best serves the state's interest in Minor's rehabilitation, while also protecting Minor's constitutional rights.
III. DISPOSITION
The conditions of probation imposed on Minor in the January 26, 2017 dispositional order are modified as follows:
(1) The condition that "Minor shall obey all rules and regulations of the Electronic Monitoring Program" is modified to state that Minor shall "obey all rules and regulations of the Electronic Monitoring Program, as posted on the probation department's website, as approved by the court, and as explained to him by his probation officer."
(2) The condition that "Minor shall not possess or utilize any program or application, on any electronic data storage device, that automatically or through a remote command deletes data from that device" is vacated, subject to reinstatement in a narrower form after further consideration by the juvenile court.
(3) The condition that "Minor shall not associate with Female minor's [sic] under the age of 16, unless in the presence of a responsible adult, approved by the probation officer" is modified to state that "Minor shall not associate with female minors under the age of 16, unless in the presence of an adult approved by the probation officer."
(4) The condition that "Minor shall not possess or view any pornographic material" is modified to state that "Minor shall not possess or view any pornographic or sexually explicit material, having been informed by the probation officer that specified publications, websites, or other materials are pornographic or sexually explicit."
As so modified, the judgment is affirmed.
/s/_________
Streeter, Acting P. J. We concur: /s/_________
Reardon, J. /s/_________
Lee, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Judge of the Superior Court, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------