In re Anthony S. CA1/5

Filed 7/21/14 In re Anthony S. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re Anthony S., a Person Coming Under
the Juvenile Court Law.

THE PEOPLE,
Plaintiff and Respondent, A139568
v.
(Alameda County
ANTHONY S., Super. Ct. No. SJ13021037)
Defendant and Appellant.

Seventeen-year-old Anthony S. admitted committing a lewd act on a child under
the age of 14 (Pen. Code, § 288, subd. (a)) and was granted probation. Anthony
challenges the juvenile court’s dispositional order, contending that several probation
conditions are unreasonable or unconstitutionally vague and overbroad. The People
concede that two of the probation conditions should be modified. We modify those
probation conditions but otherwise affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Welfare and Institutions Code Section 602 Petition1
On May 20, 2013, Jane Doe reported that, during the afternoon of the prior day,
she was hanging out by her apartment complex swimming pool when Anthony
approached and asked if her brother was home. Anthony stated he wanted to speak with

1 All further undesignated statutory references are to the Welfare and Institutions
Code.

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Doe’s brother, so she escorted him to the apartment. She unlocked a door leading to a
stairwell. While Doe was walking up the stairs to the apartment, Anthony grabbed her
left arm and pinned her against a wall. Anthony held Doe against the wall, felt her breast,
and removed her pants and underwear. Doe attempted to push Anthony off but was
unable, as he had her pinned to the wall. Anthony penetrated Doe’s anus and vagina and
did not use a condom. Doe was unsure if he ejaculated.
Doe later underwent a sexual assault examination at the Oakland Children’s
Hospital and an interview at the Child Abuse Listening, Interviewing and Coordination
Center. The sexual assault examination revealed “abrasions and tearing around [Doe’s]
anus and hymenal area and vaginal bruising.” Doe identified Anthony via a photo lineup,
and after further investigation he was arrested. Anthony acknowledged having sexual
contact with Doe, but maintained it was consensual.
On May 31, 2013, the district attorney filed a section 602 wardship petition
alleging that Anthony committed a forcible lewd and lascivious act on a child under
14 years old (Pen. Code, § 288, subd. (b)). Anthony later admitted the lesser offense of
having committed a lewd and lascivious act on a child under the age of 14 (Pen. Code,
§ 288, subd. (a)), and the forcible lewd act allegation was dismissed with “facts and
restitution open.” The juvenile court accepted the plea, found a factual basis for the
admission, and concluded that Anthony was a person described by section 602. The
juvenile court also advised Anthony that his maximum term of confinement was eight
years and referred him for a mental health evaluation.
Guidance Clinic Evaluation and Disposition Report
Anthony was evaluated by Jeremy Atkins, Psy.D., of the Guidance Clinic. Atkins
opined that sex specific treatment was warranted. Although Atkins was concerned that
Anthony’s learning disabilities might make it difficult for him to complete treatment,
Anthony was accepted on a provisional basis in the STRIVE sex offender treatment

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program.2 Atkins also believed that Anthony should be returned home to his supportive
family and “that treating him in a more restrictive environment . . . could be more
detrimental to him than helpful.” Anthony received a recidivism risk score of “6,”
placing him in the “moderate category” for risk of re-offending.
The dispositional report, prepared by the probation department, recommended that
“[Anthony] be declared a ward of the Court and that the care, custody, control and
conduct of [Anthony] be under the supervision of the Probation Officer, with [Anthony]
to reside in the home of his parents . . . .” The probation department recommended, inter
alia, the following probation conditions: “Stay away from any child under the age of 14.
[¶] . . . [¶] Consent to the search of his . . . person, vehicle, property, or place of residence
at any time, day or night, with or without a search warrant and with or without probable
or reasonable cause, on the direction of the probation officer or a peace officer. [¶] Do not
[possess] any pornographic materials.”
Disposition Hearing
At the disposition hearing, on June 27, 2013, the court granted probation, removed
Anthony from his parents’ custody, then effectively stayed its out-of-home placement
order by releasing Anthony to his parents’ home with juvenile electronic monitoring.
The court ordered Anthony to attend the outpatient STRIVE counseling program for
juvenile sex offenders. The court also ordered various terms and conditions of probation,
including that Anthony was to have no contact with children under 14 years old without
adult supervision, including his two brothers (aged 10 and 12); was not to possess any
pornographic material; and was to submit his person and any vehicle, room or property,
including computers and any electronic device under his control, to search by a probation
officer or a peace officer with or without a search warrant.
Defense counsel objected to the search and pornography conditions, as “not
warranted under the facts of this case.” Specifically, defense counsel argued that “there
was never any indication in the report that [pornography] was an issue for [Anthony]

2At the time of disposition, Anthony had an individual education plan and was six
or more grade levels behind in all subjects.

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And the family was specifically asked about that and they were never aware he was in
possession of those materials.” The court responded, “There is also information the
family counseled [Anthony] on sexual activity, so I take it they were not aware of this
situation or there was a possibility for this situation. The court is going to put in the
requirements addressing pornographic materials and expand it to include electronic
devices. I’m open to modifying it if it seems appropriate at some later date, but I think
this is where we should start.” Anthony filed a timely notice of appeal from the
dispositional order.
II. DISCUSSION
On appeal, Anthony argues: (1) that the probation condition prohibiting
possession of pornography is unreasonable and unconstitutionally vague; (2) that the
warrantless search condition is unreasonable; and (3) that the condition prohibiting
unsupervised contact with minors under 14 is unconstitutionally vague and overbroad.
We address each argument in turn.
“Section 730, subdivision (b) authorizes the juvenile court to ‘impose and require
any and all reasonable conditions that it may determine fitting and proper to the end that
justice may be done and the reformation and rehabilitation of the ward enhanced.’ A
juvenile court enjoys broad discretion to fashion conditions of probation for the purpose
of rehabilitation and may even impose a condition of probation that would be
unconstitutional or otherwise improper so long as it is tailored to specifically meet the
needs of the juvenile. [Citation.]” (In re Josh W. (1997) 55 Cal.App.4th 1, 5.) We
review challenges to probation conditions for abuse of discretion. (Ibid.) “However, we
review constitutional challenges to a probation condition de novo. [Citation.]” (In re
Shaun R. (2010) 188 Cal.App.4th 1129, 1143; accord, People v. Mendez (2013)
221 Cal.App.4th 1167, 1172 [“[i]f the vagueness of a probation condition may be
corrected ‘without reference to the particular sentencing record developed in the trial
court’ [citation], an issue of law arises subject to de novo review on appeal”].)
“In distinguishing between the permissible exercise of discretion in probationary
sentencing by the juvenile court and that allowed in ‘adult’ court, we have advised that,

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‘[a]lthough the goal of both types of probation is the rehabilitation of the offender,
“[j]uvenile probation is not, as with an adult, an act of leniency in lieu of statutory
punishment . . . .” [¶] In light of this difference, 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. . . . [¶] . . . [N]o choice is given to the
youthful offender [to accept probation]. By contrast, an adult offender “has the right to
refuse probation, for its conditions may appear to defendant more onerous than the
sentence which might be imposed.” [Citations.]’ [Citations.]” (In re Sheena K. (2007)
40 Cal.4th 875, 889–890 (Sheena K.).)
“An appellate court will not disturb the juvenile court’s broad discretion over
probation conditions absent an abuse of discretion. [Citations.] We grant this broad
discretion so that the juvenile court may serve its rehabilitative function and further the
legislative policies of the juvenile court system. [Citations.] [¶] In fashioning the
conditions of probation, the juvenile court should consider the minor’s entire social
history in addition to the circumstances of the crime. [Citation.] Thus, ‘[a] condition of
probation which is [legally] impermissible for an adult criminal defendant is not
necessarily unreasonable for a juvenile receiving guidance and supervision from the
juvenile court.’ [Citation.]” (In re Walter P. (2009) 170 Cal.App.4th 95, 100.)
“[J]uvenile conditions may be broader than those pertaining to adult offenders. This is
because juveniles are deemed to be more in need of guidance and supervision than adults,
and because a minor’s constitutional rights are more circumscribed.” (In re Antonio R.
(2000) 78 Cal.App.4th 937, 941.) “Further, when the state asserts jurisdiction over a
minor, it stands in the shoes of the parents. A parent may curtail a child’s exercise of
constitutional rights because a parent’s own constitutionally protected ‘ “ ‘liberty’ ” ’
includes the right to ‘ “ ‘bring up children’ ” ’ and to ‘ “ ‘direct the upbringing and
education of children.’ ” ’ [Citation.]” (In re Antonio C. (2000) 83 Cal.App.4th 1029,
1033–1034.)

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A. Pornography Condition
Anthony was ordered to “not possess any pornographic materials.” Although the
right to possess adult pornography in the privacy of one’s home is constitutionally
protected (Stanley v. Georgia (1969) 394 U.S. 557), Anthony does not contend that the
condition is unconstitutionally overbroad. Instead, he contends that this probation
condition is unreasonable, under People v. Lent (1975) 15 Cal.3d 481 (Lent). Under
Lent, “[a] condition of probation will not be held invalid 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 . . . .’ [Citation.] Conversely, a condition of probation which requires
or forbids conduct which is not itself criminal is valid if that conduct is reasonably related
to the crime of which the defendant was convicted or to future criminality.” (Id. at
p. 486, italics added & fn. omitted, superseded on another ground, as stated in People v.
Wheeler (1992) 4 Cal.4th 284, 290.) “Lent applies to juvenile court probation orders.
[Citation.]” (In re Josh W., supra, 55 Cal.App.4th at p. 6.)
Anthony points out that the crime he admitted did not involve pornography and
contends that the pornography condition therefore fails all three prongs of the Lent test.
“[The Lent] test is conjunctive—all three prongs must be satisfied before a reviewing
court will invalidate a probation term. [Citations.] As such, even if a condition of
probation has no relationship to the crime of which a defendant was convicted and
involves conduct that is not itself criminal, the condition is valid as long as the condition
is reasonably related to preventing future criminality. [Citation.]” (People v. Olguin
(2008) 45 Cal.4th 375, 379–380.) We focus on the final justification under Lent—future
criminality. (Lent, supra, 15 Cal.3d at p. 486.)
“[T]he law authorizes . . . probation conditions that, if not tied to the crime or
crimes adjudicated in the current proceeding and not intended to restrict noncriminal
behavior, are conditions ‘ “reasonably related to . . . future criminality.” ’ [Citation.]
When a probation condition ‘lack[s] any reasonable nexus to . . . present or future
criminality’ [citation], there is ‘no reasonable basis for sustaining [the] condition’

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[citation].” (People v. Brandão (2012) 210 Cal.App.4th 568, 574.) In order to support a
probation condition, “[t]here must be some rational factual basis for projecting the
possibility that [the] defendant may commit a particular type of crime in the future.” (In
re Martinez (1978) 86 Cal.App.3d 577, 583.)
In our view, it is not determinative that “there is no evidence [Anthony] viewed or
possessed pornography at any time prior to the offense.” Some studies suggest a “causal
link between pornography and sex crimes,” although there is also an “array of academic
authority on the other side.” (Amatel v. Reno (D.C. Cir. 1998) 156 F.3d 192, 199–200
[discussing studies and upholding federal statute restricting distribution of pornography
in prison as rationally related to rehabilitation].) It is not our job to resolve the conflict in
the academic literature. Given the nature of the offense Anthony admitted, we cannot say
that it is unreasonable for the juvenile court to believe that preventing Anthony from
viewing pornography will have some tendency to reduce his likelihood of future criminal
behavior. We conclude that the challenged condition is “reasonable” within the meaning
of both section 730 and Lent, supra, 15 Cal. 3d 481.
Anthony also maintains that the pornography condition is unconstitutionally vague
on its face. Specifically, Anthony complains that the condition is vague because it does
not “expressly requir[e] that [he] know that the materials qualif[y] as pornography.” “It
is an essential component of due process that individuals be given fair notice of those acts
which may lead to a loss of liberty. [Citation.]” (In re Robert M. (1985) 163 Cal.App.3d
812, 816.) A probation condition is “unconstitutionally vague if it is not ‘ “sufficiently
precise for the probationer to know what is required of him, and for the court to
determine whether the condition has been violated.” ’ ([Sheena K., supra, 40 Cal.4th] at
p. 890 . . . .) A restriction failing this test does not give adequate notice—‘fair
warning’—of the conduct proscribed. [Citations.]” (In re E.O. (2010) 188 Cal.App.4th
1149, 1153.) “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.]’
[Citation.] . . . In deciding the adequacy of any notice afforded those bound by a legal

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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.” ’ [Citation.]” (Sheena K., supra,
40 Cal.4th at p. 890.)
Anthony did not raise his vagueness challenge to the pornography condition at the
disposition hearing. However, the People do not contest Anthony’s right to present this
challenge on appeal. We agree that, because Anthony raises only a pure question of law,
his claim has not been forfeited. (Sheena K., supra, 40 Cal.4th at pp. 888–889
[defendant’s challenge to probation condition as unconstitutionally overbroad and vague
not forfeited by failing to object in trial court].)
There is authority to support the merits of Anthony’s claim. (People v. Pirali
(2013) 217 Cal.App.4th 1341, 1353 [modifying pornography condition to prohibit
defendant “from purchasing or possessing pornography or sexually explicit materials,
having been informed by the probation officer that such items are pornographic or
sexually explicit”]; People v. Turner (2007) 155 Cal.App.4th 1432, 1436; U.S. v.
Guagliardo (2002) 278 F.3d 868, 872 [“a probationer cannot reasonably understand what
is encompassed by a blanket prohibition on ‘pornography[]’ [because] [t]he term itself is
entirely subjective . . . [and] lacks any recognized legal definition”].)3 Acknowledging
this authority, the People concede that a knowledge element must be added to this
condition. We agree and modify the challenged probation condition to read: “Do not
possess any materials you know are pornographic or the probation officer has informed
you are pornographic.”4

3 Neither People v. Turner, supra, 155 Cal.App.4th 1432, nor People v. Pirali,
supra, 217 Cal.App.4th 1341 addresses reasonableness under Lent. Thus, we are not
persuaded, as Anthony suggests, that this authority instructs a “no pornography”
condition can only be imposed when the crime committed is possession of child
pornography. Opinions are not authority for propositions not considered. (People v.
Avila (2006) 38 Cal.4th 491, 566.)
4 As Anthony acknowledges, some courts have implied a knowledge requirement
and concluded that modification of probation conditions is unnecessary. (People v.
Rodriguez (2013) 222 Cal.App.4th 578, 593–594; People v. Moore (2012)

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B. Warrantless Search Condition
The juvenile court also ordered Anthony “to consent to the search of [his] person,
[his] vehicle, [his] property and place of residence at any time of the day or night, with or
without a search warrant, and with or without probable cause on the direction of a police
or peace officer.” The search condition was expanded to include “any and all commuter
[sic] and electronic devices at [Anthony’s] disposal at [his] home.”
Anthony contends, “If the probation condition prohibiting [him] from possessing
pornography [is] unreasonable, the search condition . . . [is] also unreasonable.” (Fn.
omitted.) Having rejected his argument with respect to the pornography condition, we
need not further address this derivative argument.
C. Contact with Minors Under the Age of 14
The trial court also ordered that Anthony is “not to have any contact with children
under 14 years old without adult supervision.” The trial court made clear that the
condition applied to Anthony’s two younger brothers.5 On appeal, Anthony contends
that the condition is “facially vague and overbroad for two reasons. First, the juvenile
court did not include an express knowledge requirement. Second, the condition lacks a
definition for ‘contact.’ ”
We will address the overbreadth and knowledge arguments, despite Anthony’s
failure to assert them below, because they raise pure questions of law. (Sheena K., supra,
40 Cal.4th at pp. 888–889.) “A probation condition, whether in an adult or juvenile case,

211 Cal.App.4th 1179, 1185; People v. Patel (2011) 196 Cal.App.4th 956, 960.)
However, another division of this court has declined to follow this approach. (In re
Victor L. (2010) 182 Cal.App.4th 902, 913 [“[due process] requires that the probationer
be informed in advance whether his conduct comports with or violates a condition of
probation”].) In our view, modification is the better approach. The People do not
disagree.
5 The prosecutor asked for clarification regarding contact with Anthony’s brothers.
Specifically, she asked the court, “Are you ordering that he not be in their presence
unless there is an adult present? Because that’s what the STRIVE program requests and
that’s what I am requesting, that he not be left alone with his two little brothers.” The
court responded, “I’ll make that order at this time. The brothers are in the home. That all
of the contact with the brothers should be supervised at this point.”

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may be challenged as unconstitutionally vague or overbroad. (See [id.] at p. 887.)
Although the two objections are often mentioned in the same breath, they are
conceptually quite distinct. A restriction is unconstitutionally vague if it is not
‘ “sufficiently precise for the probationer to know what is required of him, and for the
court to determine whether the condition has been violated.” ’ (Id. at p. 890 . . . .) A
restriction failing this test does not give adequate notice—‘fair warning’—of the conduct
proscribed. [Citations.] A restriction is unconstitutionally overbroad, on the other hand,
if it (1) ‘impinge[s] on constitutional rights,’ and (2) is not ‘tailored carefully and
reasonably related to the compelling state interest in reformation and rehabilitation.’
[Citations.] The essential question in an overbreadth challenge is the closeness of the fit
between the legitimate purpose of the restriction and the burden it imposes on the
defendant’s constitutional rights—bearing in mind, of course, that perfection in such
matters is impossible, and that practical necessity will justify some infringement.” (In re
E.O., supra, 188 Cal.App.4th at p. 1153.) “[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.”
(In re Victor L., supra, 182 Cal.App.4th at p. 910; accord, People v. Harrison (2005)
134 Cal.App.4th 637, 641 [“[i]t is not enough to show the government’s ends are
compelling; the means must be carefully tailored to achieve those ends”].)
The condition requiring Anthony to have no unsupervised contact with minors
under the age of 14 restricts his right to freedom of association. (U.S. Const.,
1st Amend.; Cal. Const., art. I, § 1.) Thus, it “ ‘ “must be narrowly drawn.” ’ ” (People
v. Garcia (1993) 19 Cal.App.4th 97, 102.) “The right to associate . . . ‘may be restricted
if reasonably necessary to accomplish the essential needs of the state and public order.’
[Citations.] Such restrictions are ‘ “part of the nature of the criminal process.
[Citation.]” ’ [Citation.] A limitation on the right to associate which takes the form of a
probation condition is permissible if it is ‘(1) primarily designed to meet the ends of
rehabilitation and protection of the public and (2) reasonably related to such ends.’
[Citations.]” (People v. Lopez (1998) 66 Cal.App.4th 615, 627–628, fn. omitted.)

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 Here, the probation condition has been narrowly tailored to promote Anthony’s
rehabilitation and the public’s protection. The juvenile court did not prohibit all contact
with minors under the age of 14, only unsupervised contact. Thus, the condition is
tailored to allow Anthony to continue living at home and to maintain his ability to have
relationships with his siblings and other minors, without endangering them. The
probation condition does not unduly infringe on Anthony’s constitutional right of
association.
The People also concede that a knowledge element should be added. (See People
v. Turner, supra, 155 Cal.App.4th at p. 1436 [“fair notice . . . is not possible unless the
probation condition . . . require[s] that defendant must either know or reasonably should
know that persons are under [a specified age] before he is prohibited from associating
with them”].) Accordingly, we will modify the challenged condition to reflect that
Anthony is not to have any knowing contact with children he knows, or reasonably
should know, are under 14 years old without adult supervision.
Anthony goes on to assert that, even with a knowledge element added, “contact”
requires further definition. He suggests that he might be found guilty of violating
probation simply by “being in . . . the same building with the children,” such as by going
to a restaurant or movie theater where minors under the age of 14 are also present.
However, Anthony did not raise this concern before the trial court. Unlike the
overbreadth challenge in Sheena K., supra, 40 Cal.4th at page 880, Anthony asks us to
qualify the language here in a way that does “require scrutiny of individual facts and
circumstances.” (Id. at p. 885.) Because “ ‘[t]raditional objection and waiver principles
encourage development of the record and a proper exercise of discretion in the trial
court’ ” (id. at p. 889), we agree with the People that the forfeiture rule applies. In any
event, we do not believe Anthony’s proposed reading of the modified condition would be
reasonable. (People v. Olguin, supra, 45 Cal.4th at p. 382 [“[a] probation condition
should be given ‘the meaning that would appear to a reasonable, objective reader’ ”].)

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 III. DISPOSITION
The disposition order is modified as follows: (1) The probation condition
prohibiting possession of pornography is modified to state, “Do not possess any materials
you know are pornographic or the probation officer has informed you are pornographic”;
(2) The probation condition regarding contact with minors under 14 is modified to state,
“You are not to have any knowing contact with children you know, or reasonably should
know, are under 14 years old unless you are supervised by an adult.” As modified, the
judgment is affirmed.

_________________________
Bruiniers, J.

We concur:

_________________________
Simons, Acting P. J.

_________________________
Needham, J.

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