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Filed 10/28/15 P. v. Bell CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. JORDAN L. BELL, Defendant and Appellant. A144174
(Contra Costa County Super. Ct. No. 51209089)

Defendant Jordan L. Bell challenges the constitutionality of five probation conditions that were imposed on him in connection with his conviction for a single count of possessing child pornograp hy

. He argues the conditions are unconstitutionally vague
and overbroad, and requests we modify four of them and strike the fifth . The Attorney
General ’s position is that all five conditions should be modified, although for some of the conditions, the At torney General’s proposed modifications differ from the modifications proposed by defendant. As we explain in detail below, we will modify each of the five conditions, and affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND
In February 2 012, a detective with the Pleasant Hill Police Department detected an Internet Service Provider (IP) address sharing files suspected of being child pornography.
The detective obtained a search warrant for the IP address to determine the physical
address w here it was located. The detective determined the IP address was at a residence2

on Reed Way in Concord. The detective then obtained a search warrant to search computers located at the residence. The search warrant was served on March 14, 2012. The of ficers performing the search found a laptop computer under a bed belonging to defendant. The detective searched the computer and discovered a shared folder containing files that depicted child pornography. The detective then interviewed defendant at the residence, where defendant said that the “stuff” on his laptop was “definitely inappropriate.” Defendant
was arrested a nd taken to the Pleasant Hill police station. There, he told the detective that the computer was his and that he put pornography on it. Defendant was charged with one count o f pos sessing child pornography (Pen.
Code § 311.11, subd. (a) ) . He pled not guilty . A jury trial commenced on November 20, 2014 and, following trial, defendant was convicted on the single count

. The trial court suspended imposition of defendant’s sentence and placed him on formal probation for four years. This timely appeal followed

. DISCUSSION Defendant argues that condition numbers 6, 8, 14, 18, and 20 of his probation are unconstitutionally vague and overbroad

. 1

“ Under the void for vagueness doctrine, based on the due process concept of fair warning, an order ‘ “ must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condi tion has been
violated. ” ’ ( Sheena K. , supra, 40 Cal.4th at p. 890 .) The doctrine invalidates a condition of probation ‘ “ ‘ so vague that men of common intelligence must necessarily guess at its meaning and di ffer as to its application.’ ” ’ ( Ibid. ) By failing to clearly

1 Defendant did not object to any of the five conditions as being unconstitutionally vague or overbroad to the trial court. Nevertheless, his arguments m ay be made for the first time on appeal “so long as they present pure questions of law based solely on facial constitutional grounds and do not require a review of the sentencing record, and are easily remediable on appeal.” ( In re Victor L. (2010) 182 Cal.App.4th 902, 907.) Thus,

w e will address the merits to the extent that they present “ ‘ “ pure question[s] of law, easily remediable on appeal by modification of the condition[s]. ” ’ ” ( In re Sheena K (2007) 40 Cal.4th 875, 888 ( Sheena K .) .)3

define the prohibited conduct, a vague condition of probation allows law enforcement and the courts to apply the restriction on an ‘ “ ‘ ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applicatio n.’ ” ’ ( Ibid. )” ( In re Victor
L

. supra , 182 Cal.App.4th at p. 910.) “In addition, the overbreadth doctrine requires that conditions of probation that impinge on constitutional rights must be tailored carefully and reasonably related to the compelling s tate interest in reformation and rehabilitation.” ( Ibid .)
Condition 6 Condition 6 states: “That the defendant not use, possess, or have under his control any dangerous drug or narcotic paraphernalia.” Defendant argues condition 6 is vague because i t does not define “dangerous drug,” a term that defendant argues “could be interpreted to apply to any number of legal,
even over the count er , ‘ drugs ’ [.]” Defendant also argues the condition is vague and overbroad because “the condition does not specify t hat the possession or control must be ‘knowingly.’ ” The Attorney General argues that the term “dangerous drug [] ” is “sufficiently precise becau se, as reasonably interpreted .

. . it does not include properly

- administered and prescribed prescription or over

- the

- counter medicine in that category.” However, t he Attorney General agrees that the condition should have a kno wledge requirement , and proposes modifying the condition to state that “defendant not use, possess, or have under his control any drug that he knows or reasonably should know, is dangerous, or narcotic paraphernalia

. ” In his reply brief, defendant no longer opposes the term “dangerous drug” and agrees wi th the Attorney General’s proposal to add a knowledge requirement

. We agree that condition 6 should be modified to add a knowledge requirement. ( Sheena K

., supra , 40 Cal.4th at p. 8 92 [adding knowledge requirement to probation condition was necessary to prevent condition from being unconstitutionally vague ]

. ) Accordingly, this condit ion is modified to say: “ That the defendant not use, possess, or4

have under his control any drug that he knows or reasonably should know is dangerous, or narcotic paraphernalia.”
Condition 8
Condition 8 states: “That the defendant have no contact with any minors under the age of 18, unless and until authorized by the probation officer.” Defendant argues condition 8 “is vague and overbroad without a knowledge requirement as, unless appellant asks the age of every young person he ‘contacts,’ he will
h ave no way of knowing their exact age.” Defendant also argues that the word “contact” is vague and overbroad because he “could ‘contact’ a minor while purchasing most anything from a sales person at a retail outlet, restaurant, or any other business
estab lishment.” Defendant proposes adding a knowledge requirement to the condition, as well as the phrase “except during normal daily incidental/commercial activities and
transactions.” The Attorney General agrees that the condition should be modified to ad d a knowledge requirement. The Attorney General did not address whether the phrase “except during normal daily incidental/commercial activities and transactions” should
also be added to the condition.
We agree that condition 8 should include a n express knowledge requirement

. ( Sheena K

., supra , 40 Cal.4th at p. 8 92.) We also believe that an express knowledge requirement eliminates defendant’s concern that he can violate condition 8 through
incidental confrontations with minors

. If condition 8 c ontains an express knowledge requirement, it c annot be reasonably interpreted to extend to the type of incidental contact with minors described by defendant. ( See United States v. Loy (7th Cir. 2001) 237 F.3d 251, 269 [condition prohibiting defendant from unsupe rvised contact with minors interpreted as not applying to “accidental or unavoidable contact with minors in public places”] ; People v. Moore (2012) 211 Cal.App.4th 1179, 1185 [express knowledge requirement may be required for conditions “ that are not easil y a menable to precise definition”]. ) It is not necessary to add the phrase “except during normal daily
incidental/commercial activities and transactions” to condition 8

.5

Accordingly, c ondition 8 is modified to say: “That the defendant have no contact with any person he knows or reasonably should know is a minor under the age of 18 unless authorized by the probation officer.”
Condition 14 Condition 14 states: “That the defendant not possess a t any time any type of pornography, including written pornography, pictures, videotapes, or electronic computer applications or telecommunications access to such applications and that the defendant not contact minors or person(s) he believes to be minors v ia the internet. ” Defendant argues that the phrase “electronic computer applications or
telecommunications access” makes condition 14 unco nstitutionally vague because it can

“ possibly be[] read to prohibit the possession of phones, tablets and computers or software such as an internet browser.” Defendant proposes modifying the condition to replace the phrase “electronic computer applications or telecommunications access” with “computer images.” Defendant also proposes the addition of an express knowled ge requirement because without such a requirement, he “could unwittingly violate the condition as there are situations where he may not know he possesses pornography or electronic computer applications.” The Attorney General responds that condition 14 “ does not

. . . prohibit the possession of phones, tablets, or internet browsers themselves[.] ” Instead, the Attorney General argues that “examined in context, the condition simply prohibits electronic computer applications that are specifically used to ac cess pornography

. ” The Attorney General agrees, however, that condition 14 should have an express knowledge requirement “[w]ith regard to the prohibition on possessing pornography itself

. ” We agree with the Attorney General that, when read in context, condition 14 applies to electronic computer applications specifically used to access pornography and
does not prohibit the possession of phones, tablets, computers , and software

. The plain language of the c ondition states that it prohibits defendant from possessing pornography;
it does not extend to all uses of electronic computer applications and telecommunications. This interpretation is buttressed by other conditions of probation which contemplate that6

d efendant will be able to use computer applications and telecommunications devices subject to limitations

. For example, Condition 15 states that defendant must make available to the probation officer all user ID’s and passwords for computers, email,

camera s, smart phones, and cell phones. Condition 17 states that defendant must make available to the probation officer user ID’s, access codes, and passwords for social networking sites, email, chat rooms, and the like. Those conditions would have little

mean ing if, as defendant suggests, condition 14 prohibit s him from possessing phones,
tablet s, computers , or software

. That said , we agree with both parties that condition 14 should contain an express knowledge requirement. ( Sheena K
., supra , 40 Cal.4th at p. 8 92.) Accordingly, condition 14 is modified to say: “That the defendant not knowingly possess at any time any type of pornography, including written pornography, pictures, videotapes, or electronic computer applications or telecommunications access to such applications and that the defendant not knowingly contact minors or person(s) he bel ieves to be minors via the internet.”
Condition 18 Condition 18 states: “That the defendant have no access to open wireless network(s). All wireless networks must be closed and locked down, with the password provided to the probation officer. The defendant cannot possess or use any encrypted data, files, encrypted whole disk, and encrypted volumes.”
Defendant makes several terse arguments about condition 18 . According to defendant, condition 18 is “simply impossible to comply with without an ex press knowledge requirement” because it is “unclear how a ‘closed and locked down’ network differs from an ‘open’ network

. ” Defendant fur ther contends that “open wirele ss networks are found everywhere including airports, restaurant s, private residences, e tc.” Defendant also challenges the “encrypted data” portion of condition 18, arguing that
“ma n y lawful and essential computer programs and applications contain and/or require the use of encrypted data, files, encrypted whole disk, and encrypted volumes.”7

Defendant requests we strike condition 18 in its entirety because it is “totally unworkable
and unenforceable

. ” The Attorney General a rgues condition 18 should not be stricken. The Attorney
Genera l argues that the password protection requirement does not require any modification (including a knowledge requirement), because defendant “does not automatically connect to any internet connection he comes across and he has the capacity to not use the internet in situations where a password

- protected network is unavailable.” The Attorney General argues that the “encrypted data” portion of the condition should be modified to add an express knowledge requirement
, because “a basic knowledge requirement ensures that [defendant] will not be punished for unwitting incidental interactions with encrypted data while providing [defendant] sufficient notice. ”
We agree with the Attorney General that t he password protection portion of
condition 18 does not require modification. The text of condition 18 makes clear that a “closed and locked down” network is one that requires the user to provide a password to access the internet. It states: “All wireless networks must be closed and locked down, with the password provided to the probation officer .” (Emphasis added.) De fendant is
correct that non

- password protected internet networks (i.e., “open” networks) can be found in a variety of locations. However, defendant’s computers or mobile devices will not automatically access those networks. Rather, an affirmative act by defendant to connect to and use the network is required. Defendant will know whether he is required to enter a password prior to accessing any network. Accordingly, this portion of
condition 18 is “ ‘sufficiently precise for [defendant] to know what is r equired of him, and for the court to determine whether the condition has been violated.’ ” ( Sheena K.,

supra , 40 Cal.4th at p. 890.) Regarding the encrypted data portion of condition 1 8, we conclude that an express
knowle dge requirement should be added s o that defendant will not unwittingly violate the
condition. ( Sheena K

., supra , 40 Cal.4th at p. 8 92.) We do not believe other modifications to the encrypted data portion of condition 18 are necessary. This portion of
the probation condition, as modifie d with a knowledge requirement , is not8

unconstitutionally vague since it will sufficiently notify defendant regarding the types of
data and files he cannot use . (See People v. Pirali (2013) 217 Cal.App.4th 1341, 1351

- 13 52 [ knowledge requirement added to c ondition prohibiting internet access to prevent it from being unconstitutionally vague].) We also cannot conclude that the condition is overbroad, as defendant has not explained how his inability to use encrypted files or data imposes limitations on any o f his constitutional rights. ( See Sheena K
., supra , 40 Cal.4th at p. 8 90 [o verbreadth doctrine applies to conditions imposing limitations on a person’s constitutional rights]. ) Accordingly, condition 18 is modified to say: “ That the defendant have no access to open wireless network(s). All wireless networks must be closed and locked down, with the password provided to the probation officer. The defendant cannot knowingly possess or use any encrypted data, files, encrypted whole disk, and encrypted vo lumes.”
Condition 20 Condition 20 states: “That the defendant not frequent or visit places that exist primarily for the enjoyment of minors (i.e. circuses, playgrounds, arcades, amusement parks, zoos, etc.). ” Defendant argues this condition is uncon stitutionally vague because it lacks a knowledge requirement. The Attorney General agrees that because the condition “is not subject to an exclusive list of places or types of places, this term should be modified to specify that [defendant] may not visit places he knows, or reasonably should know, exist primarily for the enjoyment of children

. ” We agree , and modify the condition to state: “That the defendant not frequent or visit places that he knows or should know exist primarily for the enjoyment of mi nors (i.e. circuses, playgrounds, arcades, amusement parks, zoos, etc.).”
DISPOSITION The five probation conditions from which defendant has appealed are mod ified to read as follows: (6) “That the defendant not use, possess, or have under his control any drug that he knows or reasonably should know is dangerous, or narcotic paraphernalia”; (8) “That the defendant have no contact with any person he knows or reasonably should9

know is a minor unless authorized by the probation officer”; (14) “ That the defend ant not knowingly possess at any time any type of pornography, including written pornography, pictures, videotapes, or electronic computer applications or telecommunications access to such applications and that the defendant not knowingly contact minors or person(s) he
believes to be minors via the internet. ”; (18) “ That the defendant have no access to open wireless network(s). All wireless networks must be closed and locked down, with the password provided to the probation officer. The defendant cannot k nowingly possess or use any encrypted data, files, encrypted whole disk, and encrypted volumes. ”; (20) “That the defendant not frequent or visit places th at he knows or should know exist primarily for the enjoyment of minors (i.e. circuses, playgrounds, ar cades, amusement parks, zoos, etc.).” As so modified, the judgment is affirmed.10 _________________________ Miller, J.

We concur:

_________________________ Kline, P.J.

_________________________ Stewart, J.

A144174, People v. Bell