Opinion
H051181
05-01-2024
THE PEOPLE, Plaintiff and Respondent, v. WILFREDO MARROQUINZUNIGA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C2101361)
BROMBERG, J.
Defendant Wilfredo Marroquinzuniga pleaded no contest to a single count of possession of child pornography under section 311.11, subdivision (a) of the Penal Code. The trial court imposed a two-year term of probation with a number of conditions, including one that prohibits him from accessing the Internet without the approval of his probation officer. Defendant argues that the Internet restriction is overbroad and therefore violates his First Amendment rights. We conclude that this condition is not overbroad because the conduct underlying defendant's offense provides good reason to bar unrestricted access to the Internet and because the Attorney General has represented that the probation officer will afford defendant supervised access to the Internet.
Subsequent undesignated statutory references are to the Penal Code.
I. Background
Because defendant pleaded no contest, we draw the following facts from his sentencing memorandum and the prosecutor's opposition.
Based on a "[c]ybertip" that someone using the IP address of defendant's mother had uploaded child pornography, the police obtained and executed a search warrant at Defendant's family residence. Defendant admitted to the police that he had uploaded the image in question, which he described in detail. In addition to admitting that he had been looking at child pornography for several years, defendant informed officers that he went on Internet chat sites to find such material and that he used Internet browsers to seek sexual materials. The police found multiple images of child pornography in defendant's possession, including 273 images of child pornography and 126 images of child erotica on his phone.
On February 1, 2021, defendant was charged with a single count of possession of child pornography under section 311.11, subdivision (a), as a felony. On January 17, 2023, he pleaded no contest to the offense with an understanding that the trial court would place him on probation and reduce the offense to a misdemeanor after successful completion of one year of probation.
The probation department recommended probation subject to several conditions. Among other things, these conditions required defendant to consent to the search and seizure of his computers, cellular telephones, and other electronic devices; forensic analysis of those devices; disclosure of his personal email addresses and passwords; and restrictions on the use of social networking sites and the Internet in general. In particular, the probation department recommended the following restriction on defendant's Internet use: "The defendant shall not knowingly access the Internet or any other online service through the use of a computer or other electronic device at any location (including your place of employment) without the prior approval of the probation officer."
Defendant objected to the Internet restriction proposed by the probation department, but the trial court overruled the objection, stating, "I am going to deny your request because this is the standard terms and conditions in these kinds of cases that I impose on everyone." The court then sentenced defendant to two-years' probation with the Internet restriction and other conditions proposed by the probation department.
Defendant filed a timely notice of appeal.
II. Discussion
Defendant argues that the Internet restriction is unconstitutional because it is overbroad and therefore violates the First Amendment. Reviewing this constitutional challenge de novo (People v. Appleton (2016) 245 Cal.App.4th 717, 723 (Appleton)), we conclude that the Internet restriction is not overbroad.
"A sentencing court has 'broad discretion' to fashion appropriate conditions of probation that facilitate rehabilitation and foster public safety." (People v. Patton (2019) 41 Cal.App.5th 934, 944.) As a general rule, "a condition of probation which requires or forbids conduct which is not criminal is valid if the conduct is reasonably related to the crime for which the defendant was convicted or to future criminality." (People v. Lent (1975) 15 Cal.3d 481, 486.) Consequently, a condition of probation generally will be upheld unless it" '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.'" (Ibid.)
However, probation conditions that impinge on constitutional rights are subject to greater scrutiny. "A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (In re Sheena K. (2007) 40 Cal.4th 875, 890.) Because the Internet provides an especially effective way to disseminate and receive speech," '[Restrictions upon access to the Internet necessarily curtail First Amendment rights.'" (People v. Salvador (2022) 83 Cal.App.5th 57, 65 (Salvador), quoting In re Stevens (2004) 119 Cal.App.4th 1228, 1236 (Stevens).) As a consequence, probation conditions that restrict use of the Internet must be closely tailored to the circumstances of the underlying offense. (See People v Pirali (2013) 217 Cal.App.4th 1341, 1348 (Pirali); but see Appleton, supra, 245 Cal.App.4th at p. 723 [" 'perfection in such matters is impossible, and . . . practical necessity will justify some infringement' "].)
The Internet restriction imposed in this case is reasonably related to the offense committed. Defendant used the Internet to seek out, access, and upload child pornography. He admitted that he went onto chat sites to find child pornography and that he used browsers to search the Internet for sexual materials. As a consequence, there is a danger that, if permitted unrestricted access to the Internet, defendant again would seek out child pornography and engage in the same conduct that led to the offense for which he was convicted. The Internet restriction prohibits him from doing that and thus seeks to prevent him from committing further offenses. Thus, there is a clear connection between the Internet restriction and the offense for which defendant was convicted justifying imposition of the condition.
Furthermore, the Internet restriction is closely tailored. The restriction is not a blanket ban on Internet use. Instead, it allows defendant to use the Internet with the permission of his probation officer. Moreover, the Attorney General has represented to this court that the Internet restriction is a "supervised-access condition," and the prosecutor similarly represented in the trial court that the only burden on defendant would be to come up with a list of websites and applications regularly used and obtain approval from his probation officer to access them. We understand these representations to mean that the probation officer will grant defendant reasonable access to the Internet. Obviously, this means that defendant will not be allowed to visit chat rooms or search for sites that provide access to child pornography. However, we expect that, at a minimum, the probation officer will permit defendant any Internet access needed for him to work, to go to school, and to conduct business and banking transactions such as paying the bills. (See Salvador, supra, 83 CalApp.5th at pp. 67.) Should probation deny reasonable requests for Internet access, defendant may request a modification of probation. We therefore conclude that the restriction is closely tailored to its goal of preventing defendant from misusing the Internet to obtain child pornography and engage in further criminal activity.
In People v. Pirali, supra, 217 Cal.App.4th 1341 this court upheld a similar probation condition. In Pirali, as here, after the defendant was convicted for having child pornography on his computer, the trial court imposed a probation condition precluding the defendant from using the Internet without prior permission from a probation officer. (Id. at p. 1341.) The court recognized the increasing importance of the Internet and noted that probation conditions involving Internet restrictions repeatedly have been upheld where the condition "is not a blanket prohibition" and "the Internet played a role in the underlying offense." (Id. at pp. 1349, discussing Stevens, supra, 119 Cal.App.4th 1228, In re Hudson (2006) 143 Cal.App.4th 1, and People v. Harrison (2005) 134 Cal.App.4th 637.) Because the condition imposed upon the defendant was not a "blanket prohibition" and allowed the defendant Internet access when granted permission by a probation officer, Pirali upheld the condition. (Id. at p. 1350.) This case is indistinguishable. Here, as in Pirali and the cases preceding it, the Internet played a role in the underlying offense, and the restriction does not impose a blanket prohibition because defendant is allowed Internet access when granted permission by a probation officer.
Defendant asserts that other conditions imposed on his probation-such as the consent to seizure and search of his electronic devices and to forensic analysis as well as the requirement that he disclose passwords and not enter social networking sites- accomplish the Internet restriction's goals. We disagree. These other conditions do not prohibit defendant from searching the Internet for sexually explicit material, which may be illegal and, even if not, may be detrimental to his rehabilitation. In addition, while other conditions give the probation department the ability to monitor defendant's Internet use after the fact, we are not persuaded that the probation department has sufficient resources to monitor that use in a manner that would reduce adequately the danger that defendant will misuse the Internet if given unrestricted access to it.
Defendant also points to Salvador, supra, 83 Cal.App.5th 57 in arguing that the Internet restriction is overbroad. This reliance is misplaced. In Salvador, the defendant pleaded no contest to charges related to inappropriately touching two teenage sisters who resided in the house where he rented a room, and the trial court imposed a condition upon his probation restricting his use of the Internet. (Id. at pp. 61-62.) The Salvador decision concluded that this condition was overbroad because, unlike defendant here, the defendant in Salvador did not use the Internet in committing the offense at issue and therefore the prohibition against access to the Internet prohibited more speech than necessary to prevent or deter similar misconduct in the future. (Id. at pp. 66-67.) Moreover, far from rejecting Pirali and similar cases, Salvador states that an Internet restriction may still be justified with respect to offenses such as "possession or distribution or child pornography, as in Pirali." (Salvador, supra, at p. 67.)
Defendant argues as well that this court should strike the Internet restriction imposed here because the defendant in Salvador committed a more serious offense. However, the key issue for present purposes is not the seriousness of the offense at issue, but whether a restriction on Internet access is related to the way in which the offense was committed and closely tailored to the public's interest in deterring similar misconduct in the future. In Salvador that was not the case because the offense was committed in person. Here, by contrast, the offense was committed through the Internet-specifically, by uploading child pornography from a chat site-and therefore a more general restriction on Internet use is closely tailored to the underlying offense.
Finally, defendant asserts that the importance of the Internet has increased since Salvador was decided, and this court should consider this increased reliance in deciding whether the Internet restriction is closely tailored. While the importance of the Internet may have increased, that does not help defendant. Whatever the Internet's current importance, the restriction imposed on his use of it is closely tailored because he committed his offense through the Internet and will be granted reasonable access to it so long as he obtains prior permission from his probation officer.
We therefore conclude that the Internet restriction is not overbroad.
Defendant requested that the court take judicial notice of three documents concerning use of the Internet, smart phones, tablets, computer, and e-commerce: (1) "3.9 billion internet users worldwide" in mid-2018 "increased to about 5.16 billion as of 2023" (N. Cveticanin, DataProt, The Internet Statistics That Matter in 2023 and Beyond (June 14, 2023)); (2) "The second quarter 2023 e-commerce estimate increased 7.5 percent (±1.4%) from the second quarter of 2022 while total retail sales increased 0.6 percent (±0.4%) in the same period" (U.S. Census Bureau News, Quarterly Retail E-Commerce Sales, 2nd Quarter 2023); and (3) "A large majority of U.S. adults (82%) say they often or sometimes get news from a smartphone, computer or tablet, including 49% who say they do so often." (N. Forman-Katz and K. Matsa, Pew Research Center, News Platform Fact Sheet (Sept. 20, 2022).) We decline this request because these documents do not concern matters necessary to the resolution of this appeal and because they do not appear to contain "[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy." (Evid. Code, § 452, subd. (h); see also Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 ["Although a court may judicially notice a variety of matters [citation], only relevant material may be noticed."].)
III. Disposition
The judgement is affirmed.
WE CONCUR: BAMATTRE-MANOUKIAN, ACTING P. J., DANNER, J.