Filed 2/29/24 P. v. Valete CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 ONE
THE PEOPLE,
Plaintiff and Respondent, A167600
v. (San Francisco City &
MARK VALETE, County Super. Ct.
Nos. CRI20002624,
Defendant and Appellant.
233982)
After a jury convicted defendant Mark Valete of one count of felony
meeting a minor for lewd purposes and felony contact with a minor for sexual
offense, the trial court sentenced defendant to the midterm of two years but
suspended execution of sentence and placed defendant on probation, subject
to numerous terms and conditions.
On appeal, defendant (1) contends the trial court committed prejudicial
error in failing to instruct on entrapment; (2) contends he should be awarded
20 days’ conduct credit pursuant to Penal Code section 4019;1 (3) challenges
two probation conditions that restrict his Internet and social networking
usage as unconstitutionally overbroad; and (4) challenges a “no-pornography”
condition as unconstitutionally vague.
All further statutory references are to the Penal Code unless
1
otherwise indicated.
1
The Attorney General concedes, and we agree, defendant should have
been awarded conduct credits; the two Internet conditions are impermissibly
overbroad; and the no-pornography condition is impermissibly vague as
written. Accordingly, we remand the matter with directions to the trial court
to correct the minute order to reflect the correct conduct credits and to strike
or modify the challenged probation conditions. In all other respects, we
affirm.
BACKGROUND
The San Francisco County District Attorney filed an information
charging defendant with felony meeting a minor for lewd purposes (§ 288.4,
subd. (b)—count 1); felony contact with a minor for sexual offense (§ 288.3,
subd. (a)—count 2); and misdemeanor arranging to meet with a minor for
lewd purposes (§ 288.4, subd. (a)(1)—count 3).
At trial, San Francisco Police Sergeant Christopher Servat explained
the “Internet Crimes Against Children Unit” “investigate[s] individuals who
use the Internet to what we call sexual[ly] exploit[] . . . minors,”
“investigate[s] individuals that attempt to meet children online to have
sexual contact with them, and then we also investigate individuals that
download, distribute, and possess child pornography.” As part of its
investigations, the unit will perform “undercover operations,” in which
officers “pose as underage children on social media sites or chat sites and
basically find individuals that are trying to target children for sexual
exploitation.”
Sergeant Servat set up an account on Grindr, “a geosocial networking
and online dating application geared towards gay, bi, trans, and queer
2
people,”2 on a department-issued phone. Servat explained that with Grindr,
“you need to put in an age,” of at least 18 years old. However, there is “no
verification” of the information provided, meaning “anyone, any child, anyone
in the world, can just create an account.” Servat typically would make up a
birthdate that made him very recently 18 years old. He uses photos from
younger officers, when they were children, as his profile picture. The policy is
to not make initial contact, but instead, to wait to see who contacts him.
In February 2020, Sergeant Servat set up a profile with the username,
“Nico Here” with a smiley face emoji, and a profile picture from a fellow
officer when he was 14 years old. Servat listed “Nico’s” age as 18 years old,
and the age was visible on the profile.
After Sergeant Servat set up the “Nico profile,” defendant made contact
and sent a picture of himself. Defendant asked “Nico,” “U have a nice ass?”
Servat, pretending to be “Nico,” replied, “I guess lol.” When defendant asked
for another picture, Servat sent defendant a different picture of the same
police officer at age 14. Defendant asked for an “Ass pic?” To which Servat
responded, “Nah I don’t send pics like that.” Servat asked defendant how old
he was, and defendant responded, “60.” When Servat stated, “You don’t look
60,” defendant replied, “I’m late 20[,] [¶] You?” Servat asked defendant why
he said he was 60, and defendant stated, “It was a joke.” Servat responded,
“K,” and then “I’m not exactly 18. . . .” Defendant asked, “How old are you?”
and Servat told defendant he was 14 years old. Defendant then asked Servat
2 The application “makes use of a mobile device’s geolocation, a feature
of smart phones and other devices, which allows users to locate other users
who are nearby. This is accomplished through a user interface that displays
a grid of representative photos of men, arranged from nearest to furthest
away. Tapping on a picture will display a brief profile for that user, as well
as the option to chat, send pictures, and share one’s precise location.”
3
where he was located, but before responding to the question, Servat asked,
“Is my age . . [.] ok with u”? Defendant replied, “Yea. [¶] Dnt matter[.]
[¶] Where u at[.] [¶] How bout you . . [.] does it matter? [¶] ? [¶] No?
[¶] Yea?” Servat replied, “I’m cool w it. [¶] I live in sf.” Defendant asked if
Servat wanted to meet, and if so, where and when. Servat stated Thursday,
and that he was “usually off school around 2:30.” Over the course of texting
on Grindr, defendant repeatedly asked for “ass” pictures from Servat, who
refused. The two then switched to “WhatsApp.”
Servat explained he switched to WhatsApp, “another online app,
messaging app, that enables you to message with other users,” because
Servat did not “feel that Grindr software works very well,” and there would
be “times where I’ll send a message, and the message will idle. So it won’t
send right away. And then in the meantime, the user may send other
messages. [¶] And so I wanted just to move over to a chat platform that
works, in my opinion, very well, one of them being WhatsApp. And so it’s just
more, just, a functionality reason more than anything else.”
On WhatsApp, defendant continued to repeatedly ask for “ass” pictures,
and Servat continued to refuse. The two eventually arranged to meet up,
near “Nico’s” house in San Francisco. When Servat asked, “What u wanna do
today?” Defendant replied, “I want that ass.” Defendant later asked, “Where
we doing it,” and Servat stated, “We can go to my place, my mom is at work
until 8pm.” Defendant asked if it was going to be “[j]ust you” and Servat
stated, “Yea just me.” They arranged to meet at 3:00 p.m., after Servat
stated classes ended at 2:30 p.m.
Defendant asked Servat if his “ass hairy or smooth?” Servat responded,
“Smooth.” Defendant also asked about Nico’s sexual history, and for him to
send “your ass pic??” Defendant then once again checked to see if Nico would
4
be “alone when u get home?” Servat informed defendant, his mom would be
working. Defendant told Servat, “Maybe I’ll fuck u twice then.” Servat
stated, “Ok but with condom ok,” to which defendant replied, “Ok. [¶] I have
condom.” He next stated, “You’re ass better be ready.” When defendant was
close by he confirmed Servat was near, and sent defendant a map of his
location.
Servat was waiting at the designated meeting location and arrested
defendant. Servat found a bag in defendant’s vehicle containing “condoms
and bottle of jelly lubricant.” After being Mirandized,3 defendant told Servat
he was there to meet someone he met on Grindr. He admitted the person he
was talking to told him he was “fifteen or fourteen” and told Servat he had
brought condoms and lubricant with him. Defendant stated he knew it was
wrong to have sex with minors, to tell minors that he wanted to have sex
with them, and to go and meet minors for sex. Defendant additionally
admitted to having messaged another minor on Grindr, and that he had met
yet another minor in a park months before his arrest and had sex with him.
Servat obtained a “cell phone extraction report” from defendant’s
conversations with “Nico.” Additionally, Servat manually reviewed
defendant’s Grindr activity to “see all the different chats he was having.” The
report showed several sexually explicit chats between defendant and other
users on Grindr or Snapchat who identified themselves as minors. In one,
defendant spoke with a user whose name was “ ‘13 here,’ ” which led Servat
to believe defendant was communicating with a 13 year old. Defendant had
sent that user a photo—the same photo he sent to Servat—and asked the
user if he wanted to meet. The chat showed defendant made arrangements
to meet up with “13 here.” That user also stated, “ ‘I have a friend that’s
3 Miranda v. Arizona (1966) 384 U.S. 436.
5
younger that might want to join in on the fun,’ ” and that the friend was nine
years old. Servat found this significant because as one “investigating child
exploitation,” this implied “there’s going to be a younger child involved that’s
nine, that’s obviously very concerning.” Throughout the conversation
defendant exchanged sexually explicit messages and photos and asked for
pictures of the “13 here” user and his nine-year-old friend.
Defendant called one witness, Jesse Huber an investigator for the San
Francisco Public Defender’s Office. Huber testified that he had been “asked
to download the Grindr app and see if it was possible to set up an account if I
put my age” as under 18 years old. Huber stated when he picked a birthdate,
which made him under the age of 18, the app “stopped me.” When he
changed his birthdate to make him older than 18 years of age, he was able to
create an account.
The jury found defendant guilty of counts 1 and 2.4 The trial court
sentenced defendant to the midterm of two years, but suspended execution of
the sentence and placed defendant on probation subject to numerous terms
and conditions.
DISCUSSION
Entrapment
Defendant filed a motion to instruct the jury on entrapment. At the
hearing on the motion, defense counsel argued the fact that the profile was
titled “ ‘Nicohere18’ ” indicated defendant was “speaking with an adult”; that
Grindr “is an adult-only website” and caters to “a lot of fantasies . . . with
over 100 different categories including the category bear”; and that “31
4 The trial court subsequently granted the People’s motion to dismiss
count 3, which was a lesser included offense of count 1.
6
messages and 49 minutes” passed before the “police indicated that the profile
is actually 14 years old” were relevant to an entrapment defense.
The prosecution’s position was that, although a certain number of
messages were exchanged, “it’s very early on in the entire context of the
conversation that Sergeant Servat—posing as Nico—states that he is actually
not 18 but in fact 14,” and he followed up by asking defendant, “ ‘Is that okay
with you?’ ” To which defendant responded, “ ‘It doesn’t matter.’ ” The two
then conversed over a three-day period. These facts, asserted the prosecutor,
were similar to those in People v. Fromuth (2016) 2 Cal.App.5th 91
(Fromuth), in which the court held instruction on entrapment was not
warranted.
The trial court agreed the instant case was similar to Fromuth and that
defendant “himself . . . engaged in contacting underaged minors on the site
and in fact had contacted them.” Ruling there was no substantial evidence
defendant was entrapped in encountering Sergeant Servat, the court refused
to give the requested instruction.
Entrapment is an affirmative defense proven by a preponderance of the
evidence. (People v. Fiu (2008) 165 Cal.App.4th 360, 383.) The test for
entrapment is objective and focuses on police conduct (People v. Watson
(2000) 22 Cal.4th 220, 223), and is established “if the law enforcement
conduct is likely to induce a normally law-abiding person to commit the
offense.” (Ibid., italics omitted; People v. Barraza (1979) 23 Cal.3d 675, 689–
690 (Barraza) [the test for entrapment asks “was the conduct of the law
enforcement agent likely to induce a normally law-abiding person to commit
the offense?”].) “ ‘[S]uch a person would normally resist the temptation to
commit a crime presented by the simple opportunity to act unlawfully.
Official conduct that does no more than offer that opportunity to the
7
suspect—for example, a decoy program—is therefore permissible; but it is
impermissible for the police or their agents to pressure the suspect by
overbearing conduct such as badgering, cajoling, importuning, or other
affirmative acts likely to induce a normally law-abiding person to commit the
crime.’ ” (Watson, at p. 223, quoting Barraza, at p. 690.)
Our Supreme Court has established two guiding principles for
assessing whether police conduct amounts to entrapment: “First, if the
actions of the law enforcement agent would generate in a normally law-
abiding person a motive for the crime other than ordinary criminal intent,
entrapment will be established. An example of such conduct would be an
appeal by the police that would induce a person to commit the act because of
friendship or sympathy, instead of a desire for personal gain or other typical
criminal purpose. Second, affirmative police conduct that would make
commission of the crime unusually attractive to a normally law-abiding
person will likewise constitute entrapment. Such conduct would include, for
example, a guarantee that the act is not illegal or the offense will go
undetected, an offer of exorbitant consideration, or any similar enticement.”
(Barraza, supra, 23 Cal.3d at p. 690.) The court further explained, “[W]hile
the inquiry must focus primarily on the conduct of the law enforcement
agent, that conduct is not to be viewed in a vacuum; it should also be judged
by the effect it would have on a normally law-abiding person situated in the
circumstances of the case at hand. Among the circumstances that may be
relevant for this purpose, for example, are the transactions preceding the
offense, the suspect’s response to the inducements of the officer, the gravity of
the crime, and the difficulty of detecting instances of its commission.” (Ibid.)
Defendant maintains that because the evidence showed Grindr is an
“adults-only site that requires users to certify they are 18” years of age or
8
older and to enter a birthdate confirming the user’s age; and because Grindr
“caters to various fantasies and fetishes,” “a normally law-abiding person
could easily have believed . . . ‘Nico 18 here’ was actually 18—and was
playing out a 14-year-old fantasy for appellant.” Thus, “On these facts,”
defendant continues, “a juror could reasonably believe that the police conduct
made meeting up with a 14 year old to commit a lewd act unusually
attractive to a normally law-abiding person.”
Fromuth, supra, 2 Cal.App.5th 91, on which the trial court relied, is
particularly instructive.
In that case, a police officer, as part of an investigation, posted an
online advertisement pretending to be a “ ‘Young cutie looking for a hookup,’ ”
in the “ ‘casual encounters’ ” section of Craigslist, a section “ ‘known . . . for
people looking for . . . casual sex.’ ” (Fromuth, supra, 2 Cal.App.5th at p. 96.)
The officer left the age blank because the platform would have deleted it if he
listed an age younger than 18, as Craigslist “prominently states that ‘ “by
posting here you confirm you’re 18 or older.” ’ ” (Ibid.) The defendant
responded with his picture and information about himself. The officer
responded and informed defendant she was only 15 years old. Defendant
initially told the officer “ ‘to stop telling people you’re 15 because that makes
people worry about if you’re actually 15 trying to hook up, or police.’ ” He
then asked if there was “ ‘something else you can do today besides hook up
with someone,’ ” and if they had another messaging system they could use,
like “ ‘skype or AIM.’ ” (Id. at p. 97)
The officer ceased communicating with the defendant because it was
“his protocol . . . to terminate contact if the responder suggested something
other than sex,” and then took down the advertisement a little later. The
defendant once again reached out to the officer, asking about the removed ad,
9
sharing his personal e-mail address, and wishing the user “ ‘Good luck I hope
everything goes okay.’ ” (Fromuth, supra, 2 Cal.App.5th at p. 97.) Several
hours later, the officer reached out to the defendant asking if he was “ ‘still
interested?’ ” The defendant eventually responded he was “ ‘down,’ ” and
asked, “ ‘What’s the plan?’ ” (Ibid.) Over the next few hours, the two
exchanged “a flurry of e-mails,” in which the two figured out where to meet,
whether defendant would use protection, and other sexual details. (Id. at
pp. 97–98.) The defendant warned they were both “facing a risky situation”
and asked if it was too late for the girl to meet, to which the officer
responded, “ ‘No my mom works nights.’ ” (Ibid.) When defendant arrived at
the designated location, he was arrested. (Id. at p. 98.)
The Court of Appeal concluded the facts did not support instruction on
entrapment, explaining the officer’s “conduct would not have induced a
normally law-abiding man to arrange to have sex with a 15-year-old girl. His
conduct did nothing more than present the defendant with the opportunity to
commit the offense. ‘[A] person who steals when given the opportunity is an
opportunistic thief, not a normally law-abiding person.’ [Citation.] Similarly,
a person who arranges to have sex with a child when given the opportunity is
an opportunistic sexual predator, not a normally law-abiding person. A
normally law-abiding person would not have continued to arrange a ‘hookup’
after [the officer] revealed that ‘Maria’ was a 15-year-old girl. Nothing [the
officer] did thereafter would have ‘ “pressure[d]” ’ a normally law-abiding
man to pursue sex with a 15-year-old girl. An objective examination of [the
officer’s] conduct reveals no basis for an entrapment defense.” (Fromuth,
supra, 2 Cal.App.5th at p. 111.)
So too here. Sergeant Servat did not badger, cajole, importune, entice,
or do anything else that would be likely to induce a normally law-abiding
10
person to attempt to meet a 14-year-old boy for sex. Servat merely provided
defendant with an opportunity to do so. While the posting initially indicated
“Nico” was 18 years old, Servat quickly informed defendant he was actually
14 years old. Defendant acknowledged the fictional child’s age, stated it did
not matter, and continued to ask for sexually explicit pictures, arranged to
meet with the boy, asked if they would be alone, arranged to bring condoms,
and told the boy what he had planned for him. Nothing about the encounter
suggested the two were engaged in any sort of fantasy or fictional role
playing. Nor did Servat do anything to make the commission of the crime
unusually attractive to a normally law-abiding person. As in Fromuth,
Sevart’s conduct “did nothing more than present defendant with the
opportunity to commit the offense.” (Fromuth, supra, 2 Cal.App.5th at
p. 111.)
The trial court did not err in declining to instruct on entrapment.
Conduct Credits
Defendant maintains he is entitled to “20 days presentence conduct
credit pursuant to section 4019.” (Capitalization & boldface omitted.) The
Attorney General agrees.
The concession is well taken.
The trial court sentenced defendant to “seven months in the county jail
with credit for having served 21 days.” The court stated it would “stay
surrender to do the balance of the seven months in lieu of doing 400 hours of
community service,” and once completed “the seven months will be stayed
permanently except for the 21 days you’ve already served.” The court made
no mention of conduct credits.
A defendant earns conduct credit at a rate of two days for every two
days of presentence custody. (§ 4019; People v. Chilelli (2014)
11
225 Cal.App.4th 581, 591.) “The failure to properly calculate custody and
conduct credit is a jurisdictional error that can be corrected at any time.” (Id.
at p. 588.)
Here, defendant served 21 days in custody before he was released on
electronic monitoring. The probation report notes defendant is entitled to 20
days’ conduct credit but the court’s minute order makes no mention of the
credits. Accordingly, we shall order the minute order modified to reflect that
defendant is entitled to 20 days’ conduct credit, in addition to 21 days’ actual
credit, for a total of 41 days’ presentence custody credit. (§ 4019.)
Probation Conditions5
Condition Nos. 22 and 23
Condition No. 22 provides, The defendant shall obtain prior approval
from the probation officer to engage in the following activities: interpersonal
communication (chatting, texting, instant messaging, etc.); producing Web
content on sites such as, including but not limited to, YouTube, Podcasting,
blogging, Facebook, Twitter, Instagram, Grindr and other social networking
sites and/or applications (“apps”) pertaining to said accounts nor post any
ads, either electronic or written; participate in social networking activities;
and participating in Internet related telephone communication (including but
not limited to Voice Over Internet Protocol).
Condition No. 23 provides, the defendant shall not share any files by
any method, (including but not limited to, Peer-to-Peer, Internet Relay Chat,
attachments to e-mails, iTunes) without approval by probation.
5 “Generally, we review the [trial] court’s imposition of a probation
condition for an abuse of discretion. [Citations.] However, we review [facial]
constitutional challenges to a probation condition de novo.” (In re Shaun R.
(2010) 188 Cal.App.4th 1129, 1143.)
12
Defendant contends, and the Attorney General agrees, condition Nos.
22 and 23 are unconstitutionally overbroad.
“ ‘[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.’ ”
(People v. Olguin (2008) 45 Cal.4th 375, 384.) “ ‘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.’ ” (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346 (Pirali).)
In People v. Salvador (2022) 83 Cal.App.5th 57 (Salvador), which both
parties agree is on point, the Sixth District addressed, among other things,
whether two conditions restricting the defendant’s social networking and
Internet use were constitutionally permissible.6 (Salvador, at p. 65.) The
court noted, “ ‘Restrictions upon access to the Internet necessarily curtail
First Amendment rights.’ (In re Stevens (2004) 119 Cal.App.4th 1228, 1235
. . . (Stevens).) ‘ “The architecture of the Internet, as it is right now, is
perhaps the most important model of free speech since the founding [of the
6 As relevant, the conditions in Salvador stated, the defendant “shall
not knowingly enter any social networking sites, (including but not limited to
Facebook, Instagram, Twitter, Snapchat or any other site which the
Probation Officer informs him of), or applications pertaining to such accounts,
nor post any ads, either electronic or written, unless approved by the
Probation Officer” and the defendant “shall not knowingly access the Internet
or any other online service through use of a computer, or other electronic
device at any location (including his place of employment) without prior
approval of the Probation Officer, and he shall not knowingly possess or use
any data encryption technique program.” (Salvador, supra, 83 Cal.App.5th
at pp. 60–61.)
13
Republic]. Two hundred years after the framers ratified the Constitution, the
Net has taught us what the First Amendment means. . . . The model for
speech that the framers embraced was the model of the Internet—
distributed, noncentralized, fully free and diverse.” [Citation.] “Through the
use of chat rooms, any person with a phone line can become a town crier with
a voice that resonates farther than it could from any soapbox. Through the
use of Web pages, mail exploders, and newsgroups, the same individual can
become a pamphleteer.” [Citation.]’ (Stevens, at p. 1236.)” (Salvador, at
pp. 65–66.) The court concluded the conditions constituted “prior restraints
on [the defendant’s] ability to engage in communications that would
otherwise be protected under the First Amendment.” (Id. at p. 66.)
In addressing whether this curtailment was unconstitutional, the court
discussed two pivotal cases: Stevens, supra, 119 Cal.App.4th 1228 and Pirali,
supra, 217 Cal.App.4th 1341:
“In Stevens, the Court of Appeal invalidated a broad prohibition on a
parolee’s use of the computer and Internet under the First Amendment,
holding the condition ‘bore no relation to [the parolee’s] conviction for child
molestation and imposed a greater restriction of his rights than was
reasonably necessary to accomplish the state’s legitimate goal.’ (Stevens,
supra, 119 Cal.App.4th at p. 1239.)” (Salvador, supra, 83 Cal.App.5th at
p. 66.)
“In Pirali, the defendant was convicted of possession of child
pornography on his computer, and the trial court imposed probation
conditions substantially similar to the . . . conditions imposed here. We held
both conditions were sufficiently narrowly tailored to withstand the
defendant’s First Amendment challenge. ([Pirali, supra, 217 Cal.App.4th] at
pp. 1349–1350.) The fact that the defendant could still access social media
14
and the Internet with the prior approval of his probation officer was central
to our analysis. (Id. at p. 1350.) On that basis, we distinguished the
conditions from the parole condition struck down in Stevens.” (Salvador,
supra, 83 Cal.App.5th at p. 66.)
The Salvador court concluded Pirali controlled with respect to the
condition restricting the defendant’s access to social media sites and upheld
the condition. (Salvador, supra, 83 Cal.App.5th at p. 66.) However, with
respect to the condition that restricted the defendant’s “access to the Internet
more generally,” the court found Pirali was distinguishable in three ways:
First, there was “nothing in the record that support[ed]” the more general
Internet restriction because the “factual nexus was [the defendant’s] use of
social media to contact the victims, not his access to materials on any other
part of the Internet.” The general Internet restriction would “thereby sweep[]
far more broadly than necessary to serve the purpose of the condition—
preventing or deterring contact with minors for sexual purposes.” (Id. at
pp. 66–67.) Second, since the 2013 Pirali decision, “the Internet has become
even more central and commonplace in the lives of ordinary people; it is now
practically unavoidable in daily life.” (Id. at p. 67.) “No valid purpose,”
continued the court, “is served by preventing [the defendant] from engaging
in the kinds of Internet access that have become common and ubiquitous—
e.g., performing work-related tasks, accessing or commenting on news sites,
or conducting commercial or business transactions in ways that require
engaging in protected speech,” and “Access to some part of the Internet is so
necessary and frequent as a part of daily life that it may become unduly
burdensome to obtain a probation officer’s approval for every use of it.”
(Ibid.) Finally, the court noted other imposed conditions “permitting law
enforcement to search [the defendant’s] electronic devices for communications
15
over social media are adequate to achieve the legitimate purposes of the
conditions.” (Ibid.)
As the Attorney General observes, the social networking (condition No.
22) and the Internet (condition No. 23) conditions at issue here go far beyond
those at issue in Salvador, in that condition No. 22 prohibits defendant from
participating in all “Internet related telephone communication” and condition
No. 23 prohibits defendant from sending “any files by any method” without
prior approval by a probation officer. They, thus, sweep “too broadly.” For
instance, continues the Attorney General, under the conditions, if defendant’s
job involved sending e-mails with attachments, he would need the prior
approval of the probation officer before any such e-mail. Here, the factual
nexus is defendant’s use of social media to contact minors, “not his access to
materials on any other part of the Internet.” (Salvador, supra,
83 Cal.App.5th at p. 67.)
We agree with the Attorney General’s observations and therefore
conclude portions of both condition Nos. 22 and 23 are unconstitutionally
overbroad in violation of defendant’s First Amendment rights. We shall
remand to allow the trial court to more narrowly tailor the conditions to the
legitimate purposes they serve.
Condition No. 47
Condition No. 47 provides, the defendant shall not possess at any time
any type of pornography, including viewing or possessing child pornography
as defined in sections 311.1 and 311.11 of the Penal Code; written
pornography, pictures, videotapes, or electronic computer applications or
telecommunications access to such applications.
Defendant contends this no-pornography condition is
unconstitutionally vague.
16
“The vagueness doctrine bars enforcement of ‘ “[a probation condition]
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.” ’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 890; In re
D.H. (2016) 4 Cal.App.5th 722, 727 (D.H.).)
The Attorney General also concedes the no-pornography condition is
vague. (See People v. Gruis (2023) 94 Cal.App.5th 19, 23 (Gruis) [probation
condition forbidding defendant from accessing “pornography” is
unconstitutionally vague]; D.H., supra, 4 Cal.App.5th at pp. 728–729 [same].)
We agree with the observation in Gruis that the problem arises because
the terms “pornographic” and “pornography,” standing alone are subjective
and vague. (Gruis, supra, 94 Cal.App.5th at p. 24.) Here, however, the
probation condition contains a reference to sections 311.11 and 311.1,7 which
collectively define “pornographic.” But it does not contain a knowledge
7 Sections 311.11, subdivision (a) and 311.1, subdivision (a) prohibit
the knowing possession or control and the knowing sale or distribution of any
matter, representation of information, data, or image (e.g., film, photograph,
computer-generated image), the production of which involves the use of or
depicts “a person under 18 years of age, knowing that the matter depicts a
person under 18 years of age personally engaging in or personally simulating
sexual conduct, as defined in [section 311.4, subdivision (d)].” (§ 311.11,
subd. (a); Gruis, supra, 94 Cal.App.5th at p. 25.) In turn, section 311.4,
subdivision (d) defines “ ‘sexual conduct’ ” as “any of the following, whether
actual or simulated: sexual intercourse, oral copulation, anal intercourse,
anal oral copulation, masturbation, bestiality, sexual sadism, sexual
masochism, penetration of the vagina or rectum by any object in a lewd or
lascivious manner, exhibition of the genital or pubic or rectal area for the
purpose of sexual stimulation of the viewer, any lewd or lascivious act as
defined in Section 288, or excretory functions performed in a lewd or
lascivious manner, whether or not any of the above is performed alone or
between members of the same or opposite sex or between humans and
animals. An act is simulated when it gives the appearance of being sexual
conduct.” (§ 311.4, subd. (d); Gruis, at p. 25.)
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requirement (People v. Connors (2016) 3 Cal.App.5th 729, 738 [upholding
modified condition prohibiting possession of sexually explicit materials the
“ ‘probation officer identifies and informs you are sexually explicit’ ”]) or the
“ ‘primary purpose of causing sexual arousal’ ” (In re David C. (2020)
47 Cal.App.5th 657, 667 (David C.) [upholding probation condition
prohibiting possession of materials that have “ ‘primary purpose of causing
sexual arousal’ ”]).
Although we have the power to modify probation conditions to render
them constitutional, we decline to do so here. Instead, we remand the matter
with directions to the trial court to either strike the no-pornography condition
or modify it consistent with the views expressed in this opinion. For
example, the court could modify the condition to add in the “primary purpose”
or similar phrasing from David C. along with the already-included
nonsubjective definition of “pornographic” based on sections 311.1,
subdivision (a), 311.11, subdivision (a) and 311.4, subdivision (d), which
“would distinguish the prohibited materials from those depicting sexual
conduct but having primarily literary, artistic, political, or scientific value.”
(Gruis, supra, 94 Cal.App.5th at p. 26 & fn. 4.)
In light of our decision to remand for modification or to strike the
condition, we need not and do not consider defendant’s challenge to the
condition as unconstitutionally overbroad. However, defendant remains free,
on remand, to raise any overbreadth objection to any modified condition.
(Gruis, supra, 94 Cal.App.5th at p. 26 & fn. 5.)
DISPOSITION
The matter is remanded to allow the trial court to modify probation
condition Nos. 22, 23, and 47 consistent with this opinion. We further order
the minute order dated January 3, 2023, modified to reflect defendant’s
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entitlement to 21 days’ actual credit plus 20 days’ conduct credit pursuant to
section 4019, for a total of 41 days of presentence custody credit. The clerk of
the Superior Court is directed to prepare a modified minute order stating the
correct number of credits. In all other respects, the judgment is AFFIRMED.
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_________________________
Banke, Acting P. J.
We concur:
_________________________
Langhorne, J.
_________________________
Castro, J.*
*Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
A
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