People v. Gruis

94 Cal.App.5th 19

311 Cal.Rptr.3d 751

The PEOPLE, Plaintiff and Respondent,

v.Michael GRUIS, Defendant and Appellant.

A165298

Court of Appeal, First District, Division 3, California.

Filed August 1, 2023

Jeremy Price, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Alice B. Lustre and Lisa Ashley Ott, Deputy Attorneys General, for Plaintiff and Respondent.

Fujisaki, Acting P. J. Defendant Michael Gruis pleaded no contest to one count of possession of child pornography ( Pen. Code, § 311.11, subd. (a) (hereafter § 311.11(a) )),¹ and the trial court suspended imposition of sentence and placed defendant on two years’ probation, with one year in county jail. On appeal, defendant challenges a condition of his probation prohibiting him from possessing pornographic materials, claiming the term "pornographic" is unconstitutionally vague. He also contends the condition is overbroad because it infringes on his First Amendment right to view sexually oriented materials involving adults. We agree the no-pornography condition is impermissibly vague as written. Accordingly, we remand the matter with directions to the trial court to strike or modify the condition in light of this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2018, Menlo Park police officers responded to a domestic disturbance call from M.O.,² who told the officers she was dating defendant and had discovered nude pictures of her 13-year-old daughter, C.V., on one of his electronic devices. Officers obtained a search warrant and seized several of defendant's devices, including USB drives and a laptop computer. One of the USB drives contained 60 images and three video recordings of C.V. in various states of undress. According to Menlo Park Police Detective Josh Russell, the laptop's hard drive contained "over 500 still images and videos of [C.V.] or [C.V.’s] mother or her sister in their home, in the bedroom, and the bathroom, throughout the house in various stages of dress or undress."³ A 17-minute video found on defendant's laptop contained explicit depictions of C.V. in the bathroom of the residence.

Defendant was charged by information with felony possession of child pornography ( § 311.11(a) ; count one) and disabling a telephone line (§ 591; count two). He pleaded no contest to count one in exchange for dismissal of count two and a maximum sentence of one year in county jail. The trial court suspended imposition of sentence, placed defendant on two years’ probation, and ordered him to serve one year in county jail. As one of the conditions of probation, defendant was ordered as follows: "You may not possess any pornographic magazines, videos, pictures or written material or images unless prescribed by a therapist during the course of your treatment."

Defendant timely appealed.

DISCUSSION

In granting probation, the trial court has broad discretion to impose conditions that foster rehabilitation and protect public safety, but that discretion is not boundless ( People v. Carbajal (1995) 10 Cal.4th 1114, 1120–1121, 43 Cal.Rptr.2d 681, 899 P.2d 67 ), and a probation condition may be challenged as unconstitutionally vague and overbroad ( In re Sheena K. (2007) 40 Cal.4th 875, 887, 55 Cal.Rptr.3d 716, 153 P.3d 282 ( Sheena K. )). Constitutional claims raising pure questions of law that can be resolved without reference to the facts developed in the trial court may be considered for the first time on appeal. ( Id. at p. 889, 55 Cal.Rptr.3d 716, 153 P.3d 282.) "[W]e review constitutional challenges to a probation condition de novo." ( In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143, 116 Cal.Rptr.3d 84.)

A. Vagueness

" ‘ "[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders’ [citation], protections that are ‘embodied in the due process clauses of the federal and California Constitutions.’ " ’ " ( In re D.H. (2016) 4 Cal.App.5th 722, 727, 208 Cal.Rptr.3d 738 ( D.H. ).) To withstand a vagueness challenge, a probation condition must be sufficiently precise for probationers to know what is required of them, and for the court to determine whether the condition has been violated. ( Sheena K. , supra , 40 Cal.4th at p. 890, 55 Cal.Rptr.3d 716, 153 P.3d 282.) In making this determination, courts are not limited to the condition's text and must consider other sources of applicable law, including judicial construction of similar provisions. ( People v. Hall (2017) 2 Cal.5th 494, 499–501, 213 Cal.Rptr.3d 561, 388 P.3d 794.) A claim of vagueness will be rejected if the language of the condition is susceptible of any reasonable and practical construction or if its terms may be made reasonably certain by reference to other definable sources. (See People v. Lopez (1998) 66 Cal.App.4th 615, 630, 78 Cal.Rptr.2d 66.)

In Sheena K. , supra , 40 Cal.4th 875, 55 Cal.Rptr.3d 716, 153 P.3d 282, the California Supreme Court reviewed a vagueness challenge to a probation condition, explaining the governing principles as follows. "The vagueness doctrine bars enforcement of ‘ "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." [Citation.]’ A vague law ‘not only fails to provide adequate notice to those who must observe its strictures, but also "impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." [Citation.]’ [Citation.] In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that ‘abstract legal commands must be applied in a specific context,’ and that, although not admitting of ‘mathematical certainty,’ the language used must have ‘ "reasonable specificity." ’ " ( Sheena K. , at p. 890, 55 Cal.Rptr.3d 716, 153 P.3d 282, italics omitted.) Applying these principles, the Sheena K. court found unconstitutionally vague a probation condition that the defendant " ‘not associate with anyone disapproved of by probation.’ " ( Sheena K. , at p. 878, 891–892, 55 Cal.Rptr.3d 716, 153 P.3d 282.)

There appears a general consensus among courts, including those upholding no-pornography conditions of probation or supervised release against constitutional challenges, that the terms "pornographic" and "pornography," standing by themselves, are subjective and vague. (See, e.g., D.H. , supra , 4 Cal.App.5th at pp. 728–729, 208 Cal.Rptr.3d 738 ; People v. Pirali (2013) 217 Cal.App.4th 1341, 1353, 159 Cal.Rptr.3d 335 ( Pirali ); accord, United States v. Adkins (7th Cir. 2014) 743 F.3d 176, 193–196 ; Farrell v. Burke (2d Cir. 2006) 449 F.3d 470, 490 ( Farrell ); United States v. Simmons (2d Cir. 2003) 343 F.3d 72, 81 ( Simmons ); United States v. Guagliardo (9th Cir. 2002) 278 F.3d 868, 872 ; United States v. Loy (3d Cir. 2001) 237 F.3d 251, 264–265 ( Loy ).) As one court observed, the term "pornography" could conceivably encompass many well-known works of artistic and cultural significance featuring nudity or sexually explicit material. ( Loy , at p. 264.)

Here, the People acknowledge that the language of the instant no-pornography condition, without more, does not pass constitutional muster. Nonetheless, the People contend the vagueness problem could be cured by modifying the condition to prohibit only materials that a probation officer has informed defendant are pornographic. (See Pirali , supra , 217 Cal.App.4th at p. 1353, 159 Cal.Rptr.3d 335 [probation condition modified to prohibit only materials as "informed by the probation officer"]; People v. Turner (2007) 155 Cal.App.4th 1432, 1436, 66 Cal.Rptr.3d 803 ( Turner ).) We disagree. A modification requiring a probationer "to know or to be informed in advance that materials are ‘pornography’ fails to address the term's inherent vagueness." ( D.H. , supra , 4 Cal.App.5th at pp. 728–729, 208 Cal.Rptr.3d 738.) Moreover, the suggested modification appears to "improperly delegate the determination of the ‘nature of the prohibition’ to the probation department." ( People v. Gonsalves (2021) 66 Cal.App.5th 1, 8, 280 Cal.Rptr.3d 705.)

The People next suggest utilizing the analysis in Simmons , supra , 343 F.3d 72, which involved a challenge to a prohibition against " ‘any pornographic material’ " as a special condition of supervised release. ( Simmons , supra , 343 F.3d at p. 77.) Simmons started by acknowledging that, for purposes of evaluating artistic or cultural merit, the process for determining what material constitutes pornography was "subjective" and "heavily influenced by the individual, social, and cultural experience of the person making the determination." ( Id . at p. 81.) Simmons , however, found the lack of definitional clarity "significantly eliminated in the context of federal criminal law," which provides "considerable guidance" as to the meaning of pornography. ( Ibid . )

In Simmons , the defendant had been convicted of child pornography under 18 United States Code section 2256(8), which features a definition of "the more general category of pornography" and other separate provisions narrowing the scope of the statute to child pornography specifically. ( Simmons , supra , 343 F.3d at p. 82.) As Simmons noted, once the statutory references to minors are omitted, what remains is the following definition of the broader category of pornography: " ‘any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit...