Opinion
A164625
07-12-2023
THE PEOPLE, Plaintiff and Respondent, v. WON KWAK, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. 11957653)
BOWEN, J. [*]
Won Kwak - who was convicted of possessing child pornography and destroying evidence - challenges probation conditions prohibiting him from possessing pornography and restricting his contact and association with minors. Kwak also asserts he is entitled to one additional day of presentence credit. We modify one probation condition, and we award Kwak one additional day of presentence credit. As modified, we affirm.
BACKGROUND
In November 2020, Contra Costa County law enforcement officers discovered approximately 1,800 files of child pornography - including videos of prepubescent minors engaged in sexual conduct with adults - on one of Kwak's computers. Kwak admitted downloading child pornography onto his computer and erasing files as police officers arrived at his residence to serve a search warrant.
A jury convicted Kwok of possessing child pornography (Pen. Code, § 311.11, subd. (a); undesignated statutory references are to this code), and it found true an allegation that he possessed more than 600 images he knew were of a minor engaging in, or simulating, sexual conduct and at least 10 images of a prepubescent minor or a minor under age 12. (§ 311.11, subd. (c)(1).) The jury also convicted Kwak of misdemeanor destroying evidence (§ 135).
In January 2022, trial court imposed a prison sentence on the child pornography conviction, suspended execution of that sentence, and placed Kwak on probation for two years with various conditions, among them that he not possess pornography, not contact or associate with minors, and that he serve one year in jail. Defense counsel did not object to the probation conditions. On the misdemeanor destroying evidence conviction, the court ordered Kwak to serve a concurrent 180-day jail term. The court awarded 20 days of presentence credit - 10 actual days plus 10 conduct credits.
At sentencing, the trial court orally imposed a five-year probation term. The sentencing minute order, however, reflects imposition of a two-year term. The court's oral pronouncement does not control because the maximum term of probation for possessing child pornography is two years. (§ 1203.1, subds. (a), (a)(1); see In re D.H. (2016) 4 Cal.App.5th 722, 725 [discussing which record prevails in the event of a conflict between the clerk's and reporter's transcripts].)
DISCUSSION
Kwak raises three claims on appeal. He first contends the probation condition prohibiting him from possessing "any type of pornography, including written pornography, pictures, videotapes, or electronic computer applications or telecommunications access to such applications" (nopornography condition) is unconstitutionally vague. This argument is cognizable for the first time on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 888.) "The vagueness doctrine bars enforcement of [a probation condition] which either 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." (Id. at p. 890, internal quotation marks omitted; In re D.H., supra, 4 Cal.App.5th at p. 727.) We independently review a constitutional challenge to a probation condition. (People v. Mendez (2013) 221 Cal.App.4th 1167, 1172.)
The Attorney General agrees the no-pornography condition is vague, as do we. (See In re D.H., supra, 4 Cal.App.5th at pp. 728-729 [probation condition forbidding defendant from accessing" 'pornography'" is unconstitutionally vague].) With the parties' agreement, we modify the first sentence of the condition to provide that Kwak "shall not possess at any time any materials that his probation officer has informed him, or that he knows or reasonably should know, have the primary purpose of causing sexual arousal, including pictures, videotapes, or electronic computer applications or telecommunications access to such applications." (See In re David C. (2020) 47 Cal.App.5th 657, 660, 666-667 [upholding similar condition against vagueness challenge].)
The second sentence of the no-pornography condition - which provides that the "defendant shall not contact minors or persons . . . he believes to be minors via the Internet" - is unchanged, as is the separate probation condition prohibiting Kwak from possessing child pornography.
Kwak next asserts the probation conditions barring him from associating "with any minors under age 18" and prohibiting him from having "contact with any minors under the age of 18, unless and until authorized by the Probation Officer," are unconstitutionally overbroad. This contention is forfeited. An appellate court may review a claim that a probation condition is overbroad without an objection in the trial court if the condition is capable of correction" 'without reference to the particular sentencing record developed in the trial court.'" (In re Sheena K., supra, 40 Cal.4th at p. 886.) Kwak purports to make a facial constitutional challenge to the condition, but his argument that the condition is not narrowly tailored to promote his rehabilitation and protect the community requires us to refer to the sentencing record to determine whether there is a close fit between the legitimate purpose of the restrictions and the burdens they impose.
Accordingly, we decline to consider Kwak's overbreadth claim as to this probation condition for the first time on appeal. (In re Cesar G. (2022) 74 Cal.App.5th 1039, 1047; In re G.B. (2018) 24 Cal.App.5th 464, 469 [defendant forfeited overbreadth challenge by failing to object in the trial court]; In re I.V. (2017) 11 Cal.App.5th 249, 260-261 [purported facial overbreadth challenge forfeited].)
Finally, Kwak asserts - and the Attorney General concedes - that he is entitled to one additional day of presentence credit. The parties are correct. Kwak is "entitled to actual custody credit for 'all days of custody' in county jail." (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.) He is also entitled to conduct credit "for complying with applicable rules and regulations" while in custody, accrued at a rate of two days for every two days in confinement. (Ibid.; People v. Chilelli (2014) 225 Cal.App.4th 581, 588 [conduct credits are rounded down to nearest even number].) Kwak spent 11 actual days in custody. He is therefore entitled to 11 days of custody credit and 10 days of conduct credit, for a total of 21 days of presentence credit. (See People v. Roldan (2012) 205 Cal.App.4th 969, 973.)
DISPOSITION
The probation order is modified in two respects:
(1) The first sentence of the no-pornography condition (condition number 6) is modified to read: "The defendant shall not possess at any time any materials that his probation officer has informed him, or that he knows or reasonably should know, have the primary purpose of causing sexual arousal, including pictures, videotapes, or electronic computer applications or telecommunications access to such applications."
(2) Kwak is entitled to 21 days of presentence credit.
The trial court is ordered to prepare an amended probation order reflecting these modifications. As modified, the judgment is affirmed.
WE CONCUR: MARGULIES, ACTING P.J., BANKE, J.
[*] Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.