Filed 7/17/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN PIRALI,

Defendant and Appellant.

 H038349

 (Santa Clara County

 Super. Ct. No. C1198906)

Defendant John Pirali pleaded no contest to a charge of felony possession of child 

pornography (Pen. Code, § 311.11).1 On appeal, defendant challenges probation 

conditions restricting his access to the Internet and forbidding him from possessing or 

purchasing sexually explicit materials or pornography as overbroad and 

unconstitutionally vague. For the reasons set forth below, we modify the condition 

restricting his access to the Internet to include a knowledge requirement, and further 

modify the condition restricting his purchase and possession of sexually explicit or 

pornographic materials with the requirement that he is forbidden from possessing and 

purchasing these items having been told by the probation officer that such items are 

sexually explicit or pornographic. As modified, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2008, defendant was served with a search warrant pursuant to an auto 

insurance fraud investigation. Defendant‟s computer was taken to a computer analyst, 

who discovered the existence of possible child pornography on one of the seized hard 

 

1

Further unspecified statutory references are to the Penal Code.
2

drives. The computer analyst requested that another search warrant be obtained to search 

for child pornography, as the parameters of the original search warrant only concerned 

auto insurance fraud. A search warrant was obtained to search for child pornography on 

the computer.

The district attorney filed an information charging defendant with a count of 

felony possession of child pornography (§ 311.11) in August 2011. Defendant 

subsequently entered a plea of nolo contendere on February 16, 2012. As part of his plea, 

the trial court placed defendant on three years formal probation.2 The trial court imposed 

several conditions of probation, among others, that defendant now challenges on appeal 

during the sentencing hearing.

“You‟re not to enter any social networking sites, nor post any ads, either electronic 

or written, unless approved by probation officer [sic].”

“You‟re to report all personal e-mail addresses used and shall report Web sites and 

passwords to the probation officer within five days.”

“You‟re ordered not to purchase or possess any pornographic or sexually explicit 

material as defined by the probation officer.”

“You are not to have access to the Internet or any other on-line service through use 

of your computer or other electronic device at any location without prior approval of the 

probation officer. And shall not possess or use any data encryption technique program.”

No objection was made to the imposed probation conditions. Defendant filed a 

timely notice of appeal on May 25, 2012, and subsequently filed an amended notice of 

appeal on June 8, 2012. 

 

2 During the sentencing hearing, the trial court also imposed various fees and 

fines, including a $259.50 booking fee and a probation supervision fee not to exceed 

$110 a month during the period of probation. In a letter dated December 17, 2012, 

defendant withdrew his claim that there was insufficient evidence of his ability to pay 

these fees. 
3

STANDARD OF REVIEW

A court of appeal may review the constitutionality of a probation condition, even 

when it has not been challenged in the trial court, if the question can be resolved as a 

matter of law without reference to the sentencing record. (In re Sheena K. (2007) 40 

Cal.4th 875, 888-889 (Sheena K.).) Our review of such a question is de novo. (In re 

Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) 

DISCUSSION

Defendant challenges two of his probation conditions on the grounds that they are 

unconstitutionally vague and overbroad. First, defendant challenges the probation 

condition restricting his Internet access. Second, defendant challenges the probation 

condition forbidding him from purchasing or possessing pornographic or sexually explicit 

material as defined by the probation officer. We address each of defendant‟s arguments 

in turn.

1. Probation Condition Restricting Internet Access

The probation condition restricting defendant‟s Internet access, as pronounced by 

the court, states: “You are not to have access to the Internet or any other on-line service 

through use of your computer or other electronic device at any location without prior 

approval of the probation officer.” (Italics added.) In a written attachment to the minute 

order placing defendant on probation, the Internet-related restriction is stated as: “The 

defendant shall not access the Internet or any other on-line service through use of a 

computer, or other electronic device at any location (including place of employment) 

without prior approval of the Probation Officer. The defendant shall not possess or use 

any data encryption technique program.” (Italics added.) We note that there is a 

difference between the oral condition of probation imposed by the trial court and the 

written condition as set forth in the minute order. In People v. Gabriel (2010) 189 

Cal.App.4th 1070, this court stated that “[w]hen there is a discrepancy between the 
4

minute order and the oral pronouncement of judgment, the oral pronouncement controls.” 

(Id. at p. 1073.) In People v. Freitas (2009) 179 Cal.App.4th 747, the appellate court 

decided to review “the more inclusive oral pronouncement” instead of the written 

probation order signed by the judge. (Id. at p. 750, fn. 2.)

However, as the Supreme Court has reasoned in People v. Smith (1983) 33 Cal.3d 

596, though the older rule is to give preference to the reporter‟s transcript where there is a 

conflict, the modern rule is that if the clerk‟s and reporter‟s transcript cannot be 

reconciled, the part of the record that will prevail is the one that should be given greater 

credence in the circumstances of the case. (Id. at p. 599; People v. Harrison (2005) 35 

Cal.4th 208, 226.) In People v. Thrash (1978) 80 Cal.App.3d 898, the appellate court 

held that probation conditions “need not be spelled out in great detail in court as long as 

the defendant knows what they are; to require recital in court is unnecessary in view of 

the fact the probation conditions are spelled out in detail on the probation order.” (Id. at 

pp. 901-902.)

Here, we find that the oral conditions of probation control in light of the 

circumstances. The trial judge did not mention the written probation conditions in the 

hearing, absent a comment in the beginning that the “recommendations in the reports 

appear to be consistent with the negotiated plea.” Furthermore, neither the trial judge nor 

defendant signed the written probation conditions. We therefore cannot find that the 

written conditions were meant to control and override the conditions imposed orally by 

the court. Accordingly, we review the oral conditions imposed by the trial court during 

the sentencing hearing.

On appeal, defendant argues that the Internet restriction is unconstitutionally 

overbroad and should also be stricken as the other Internet and computer-related 

probation conditions imposed are sufficient to serve the state‟s interests. Defendant also 
5

contends that the probation condition is unconstitutionally vague. We first address 

defendant‟s arguments concerning overbreadth. 

A. Overbreadth

“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.” (Sheena K., supra, 40 Cal.4th at p. 890.) 

“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.

(2010) 188 Cal.App.4th 1149, 1153.)

Although a probation condition may be overbroad when considered in light of all 

the facts, only those constitutional challenges presenting a pure question of law may be 

raised for the first time on appeal. (Sheena K., supra, 40 Cal.4th at pp. 888-889.) The 

Supreme Court has made it clear that not all constitutional defects in conditions of 

probation may be raised for the first time on appeal; some questions cannot be resolved 

without reference to the particular sentencing record developed in the trial court. (Id. at 

p. 889.) 

Preliminarily, the People contend that defendant‟s failure to object to the probation 

condition to the trial court forfeited his argument on appeal, as the validity of the 

probation condition does not present a pure question of law. We disagree with the 

People‟s argument of forfeiture, as defendant‟s position is that the Internet restriction is 

unduly overbroad and a violation of his First Amendment rights. Such an argument does 

not rely on facts in the sentencing record, and presents a pure question of law. We do 

find, however, that defendant has forfeited any such claim that the probation condition is 

unreasonable due to his failure to object below. (Sheena K., supra, 40 Cal.4th at p. 889.) 
6

Accordingly, defendant‟s argument that the conditions are not necessary because the 

other imposed Internet and computer-related restrictions are sufficient to serve the state‟s 

interest is forfeited. Defendant‟s argument on this point is essentially one of 

reasonableness, and is specific to the circumstances of his underlying offense and 

whether the broader Internet prohibition would deter future criminality.

We also find no merit to defendant‟s contention that the existence of the other, less 

restrictive Internet and computer-related probation conditions renders the broader Internet 

condition superfluous or contradictory. It is defendant‟s argument that the restriction on 

his access to social networking sites, and the condition requiring him to turn over Web 

site and password information, contradict the broader condition forbidding him from 

having access to the Internet without prior approval. A similar argument was presented 

to the appellate court in In re Victor L. (2010) 182 Cal.App.4th 902 (Victor L.), which 

involved several computer-related probation conditions imposed on a minor defendant. 

Two of the conditions forbade the minor from accessing social networking sites such as 

MySpace or Facebook, and another condition required all Internet access to be 

supervised. (Id. at p. 926.) The court concluded that “[s]o interpreted, [the conditions‟] 

overlap is neither incomprehensible nor contradictory. They limit [minor‟s] access to the 

Internet in ways designed to minimize the temptation to contact his gang friends or 

otherwise use the computer for illegal purposes by requiring adult supervision whenever 

he goes online.” (Ibid.) 

However, the Victor L. court did find that a third Internet-related probation 

condition imposed on the minor, which stated that “ „[t]he Minor shall not use, possess or 

have access to a computer which is attached to a modem or telephonic device‟ ” (Victor 

L., supra, 182 Cal.App.4th at p. 923), conflicted with the other two Internet conditions 

that required all Internet use to be supervised and restricting access to social networking 

sites. (Id. at pp. 926-927.) The court then struck the language prohibiting “use” and 
7

“access” to a computer, leaving only the condition that the minor could not possess a

computer attached to a modem. (Ibid.)

Here, the probation conditions challenged by defendant, when considered together, 

are not inherently contradictory or superfluous. Defendant is subject to Internet 

restrictions that require prior approval before having access to the Internet, as well as 

restrictions against accessing social networking sites. This is analogous to the two 

conditions deemed not to be incomprehensible and contradictory in Victor L., namely the 

condition imposed on the minor defendant that required supervision of Internet access 

and the condition restricting access to social networking sites. Accordingly, we find no 

merit to defendant‟s argument that read together, the Internet restrictions are superfluous 

or contradictory. 

We now turn to the question of whether or not the Internet restrictions imposed on 

defendant are unconstitutionally overbroad. We note that access to computers and the 

Internet have been recognized by courts as increasingly important. “Computers and 

Internet access have become virtually indispensable in the modern world of 

communications and information gathering.” (U.S. v. Peterson (2nd Cir. 2001) 248 F.3d 

79, 83.) Additionally, appellate courts have found that computers and Internet both “ 

„comprise[] the “backbone” of American academic, governmental, and economic 

information systems.‟ ” (In re Stevens (2004) 119 Cal.App.4th 1228, 1234 (Stevens).) 

Accordingly, as defendant asserts, certain restrictions on “access to the Internet 

necessarily curtail First Amendment rights.” (Id. at p. 1235.) It therefore follows that 

probation conditions restricting or prohibiting the use of a computer, or restricting or 

prohibiting access to the Internet, “must closely tailor those limitations to the purpose of 

the condition to avoid being invalidated as unconstitutionally overbroad.” (Sheena K., 

supra, 40 Cal.4th at p. 890; see Stevens, supra, at p. 1237.)
8

In support of his argument that the probation condition significantly curtails his 

rights, defendant cites to Stevens, in which the Second Appellate District reviewed and 

considered a parole condition that broadly prohibited use of the computer and the 

Internet. The defendant in Stevens pleaded guilty to the crime of committing lewd 

conduct on a child under the age of 14. (Stevens, supra, 119 Cal.App.4th at p. 1231.) 

After his release from prison, Stevens was placed on parole and was subject to the 

condition that he “ „shall not possess or have access to computer hardware or software 

including the internet.‟ ” (Ibid.) Stevens objected to the condition as unreasonable, and 

the appellate court agreed. (Id. at p. 1239.) The court noted that though there was a 

legitimate concern that a “released child molester‟s unfettered access to a computer might 

result in criminal conduct,” there could be more focused prohibitions on Stevens‟ Internet 

and computer use in place of a blanket ban that would achieve the same goals of 

supervision and protection for the public. (Ibid.)

Nonetheless, as defendant concedes, courts have also permitted probation 

conditions and parole conditions limiting computer and Internet access in cases where the 

limitation is not a blanket prohibition, and in cases where the Internet played a role in the 

underlying offense. For example, in In re Hudson (2006) 143 Cal.App.4th 1, the First 

Appellate District upheld a parole condition that prohibited Hudson from possessing or 

having access to computers, the Internet, or camera equipment absent permission from 

the Department of Adult Parole Operations (DAPO). (Id. at p. 4.) The court 

distinguished the case from Stevens by noting that unlike the defendant in Stevens, 

Hudson deliberately prevented authorities from searching his computer while on 

probation and also deliberately encrypted his computer and withheld passwords. (Id. at 

pp. 10-11.) Furthermore, unlike the parole condition contemplated in Stevens, the 

condition at issue in Hudson was not a blanket prohibition as Hudson would be allowed 
9

to use the computer and access the Internet so long as he first received permission from 

the DAPO. (Ibid.)

Likewise, the appellate court in People v. Harrisson (2005) 134 Cal.App.4th 637 

upheld a probation condition imposed that prohibited defendant from access to the 

Internet and from possessing any Internet device after the defendant pleaded no contest to 

felony possession of child pornography. (Id. at pp. 639-640.) Harrisson objected to the 

probation condition before the trial court, and the appellate court found that the probation 

condition was not constitutionally overbroad. (Id. at pp. 642, 647.) The court, in 

upholding the condition, distinguished the case from Stevens in so much that unlike the 

Stevens defendant, Harrisson utilized the Internet to send pornographic images and solicit 

sex with a minor, that he had also spoken with a therapist about a “vengeful, thought-out 

plan to murder the prosecutor,” and that Harrisson was violating the ban on Internet 

access. (Id. at p. 647.) The court thereafter found the prohibition against Internet usage 

was “reasonably related” to Harrisson‟s offense, and was “necessary to the important 

dual goals of deterrence and protection of the public.” (Ibid.)

Defendant here is challenging a probation condition, not a parole condition as 

discussed in Stevens and Hudson. Nonetheless, we find these cases discussing the 

validity of Internet and computer-related prohibitions in both the parole and probation 

context persuasive as to what type of prohibitions on Internet access should be deemed 

constitutionally overbroad. Here, like the parole condition contemplated in Hudson, 

defendant is not faced with a blanket prohibition. The probation condition clearly grants 

defendant the ability to access the Internet on his computer and other electronic devices 

so long as he obtains prior permission from his parole officer. This makes the probation 

condition distinguishable from the parole condition discussed in Stevens, and less 

restrictive than the probation condition discussed in Harrisson that was deemed valid. 

Defendant may still use the Internet and a computer while at home, or at his place of 
10

employment. Defendant may also still continue to access and use the Internet for e-mail, 

and other methods of online communication, subject to prior approval by his probation 

officer. 

Accordingly, we find that there is no constitutional overbreadth with respect to 

this restriction.3 

B. Vagueness

Defendant next advances the argument that the prohibition against having access 

to the Internet is unconstitutionally vague. “ „Inherent in the very nature of probation is 

that probationers “do not enjoy „the absolute liberty to which every citizen is entitled.‟ ” 

[Citation.] Just as other punishments for criminal convictions curtail an offender‟s 

freedoms, a court granting probation may impose reasonable conditions that deprive the 

offender of some freedoms enjoyed by law-abiding citizens.‟ (United States v. Knights

(2001) 534 U.S. 112, 119.) Nevertheless, probationers are not divested of all 

constitutional rights. „A probation condition “must be sufficiently precise for the 

probationer to know what is required of him, and for the court to determine whether the 

condition has been violated,” if it is to withstand a [constitutional] challenge on the 

ground of vagueness. . . .‟ (Sheena K., supra, 40 Cal.4th at p. 890.)” (People v. Barajas 

(2011) 198 Cal.App.4th 748, 753.) 

Defendant argues that the condition is unconstitutionally vague because it lacks a 

knowledge requirement, and because the phrase “other electronic devices at any location” 

lacks the requisite specificity. We agree in part. First, we agree that without an express 

 

3

Some federal courts have upheld similar restrictions on a defendant‟s Internet 

access. (See U.S. v. Rearden (9th Cir. 2003) 349 F.3d 608, 613-619; U.S. v. Zinn (11th 

Cir. 2003) 321 F.3d 1084, 1093.) Nonetheless, we note that not all federal courts are in 

agreement, as other courts have held that such restrictions are invalid. (See U.S. v. Sofsky 

(2nd Cir. 2002) 287 F.3d 122, 126; U.S. v. Freeman (3rd Cir. 2003) 316 F.3d 386, 391-

392.)
11

knowledge requirement, defendant could unwittingly violate the condition as there are 

situations in which he may not know he has access to or has accessed the Internet. 

Therefore, we modify the probation condition to add a requirement that defendant must 

knowingly have access to the Internet. (Sheena K., supra, 40 Cal.4th at p. 890.)

In their reply brief, the People suggest we adopt the Third Appellate District‟s 

approach in People v. Patel (2011) 196 Cal.App.4th 956. In Patel, the Third District 

considered a probation condition forbidding defendant from drinking or possessing 

alcohol, or being in a place where alcohol is the chief item of sale, was invalid because 

the condition lacked an express knowledge requirement. (Id. at p. 959.) The court 

expressed its frustration with the “dismaying regularity” to which it must revisit the issue 

of a lack of an express scienter requirement in orders of probation. (Id. at p. 960.) The 

court noted that since there exists a substantial uncontradicted body of case law that 

establishes that a “probationer cannot be punished for presence, possession, association, 

or other actions absent proof of scienter,” it would no longer entertain the issue on 

appeal. (Ibid.) The Third Appellate District then stated that going forward, it would 

construe every such probation condition proscribing restrictions on presence, possession, 

association, or other actions with the requirement that the action be undertaken 

knowingly. (Id. at p. 961.) 

Nonetheless, a number of the courts of appeal have declined to follow the rationale 

of Patel, including the Fourth Appellate District in People v. Moses (2011) 199 

Cal.App.4th 374, 381, where the court chose to modify the probation conditions to 

include a knowledge requirement. We too decline to follow the Third Appellate 

District‟s approach in Patel. Our Supreme Court faced the issue of the lack of a 

knowledge requirement in a probation condition and concluded that “modification to 

impose an explicit knowledge requirement is necessary to render the condition 

constitutional.” (Sheena K., supra, 40 Cal.4th at p. 892.) Until our Supreme Court rules 
12

differently, we will follow its lead on this point. (Auto Equity Sales, Inc. v. Superior 

Court (1962) 57 Cal.2d 450, 455.)

However, as to defendant‟s other vagueness argument, we do not find that the 

phrase “other electronic devices” is constitutionally infirm. As defendant posits, use of a 

smart phone, a Kindle, or even a swipe of his credit card may inadvertently put him on 

the Internet. The People concede this issue, stating that use of the Internet through lawful 

financial transactions should not be prohibited under the challenged condition. The 

People suggest that we modify the condition of probation to state that such transactions 

are not prohibited “provided they are lawful and not in violation of the other conditions 

of probation.” We disagree with the necessity of the People‟s suggested modification. 

The probation condition, modified with an express knowledge requirement, is sufficient 

to put defendant on notice for his actions. As modified with the express scienter 

requirement, defendant would not be found in violation of the Internet condition if he 

unknowingly has access to the Internet while using a computer or electronic device like 

an electronic reader or a smart phone, or unknowingly has access to the Internet when 

engaged in some sort of financial transaction. As modified, defendant would only violate 

the condition if he knowingly has access to the Internet without prior approval from the 

probation officer. With the requirement of knowledge explicit in the condition, the 

various scenarios posited by defendant demonstrating the condition‟s alleged vagueness 

will not be an issue.

2. Probation Condition on Pornographic or Sexually Explicit Material

Defendant also challenges the constitutionality of the probation condition 

prohibiting him from purchasing or possessing pornographic or sexually explicit 

materials as defined by the probation officer. He argues that the condition is vague and 

lacks specificity, and that without an express knowledge requirement he would be unable 

to know what the condition forbids. We agree with defendant‟s arguments.
13

As previously discussed, a probation condition “ „must be 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.) Here, we 

find the probation condition does not sufficiently provide defendant with advance 

knowledge of what is required of him. The fact that the probation officer may deem 

material sexually explicit or pornographic after defendant already possesses the material 

would produce a situation where defendant could violate his probation without adequate 

notice.

We find People v. Turner (2007) 155 Cal.App.4th 1432 instructive on this point. 

The court in Turner evaluated a probation condition that the defendant “ „[n]ot possess 

any sexually stimulating/oriented material deemed inappropriate by the probation officer 

and/or patronize any places where such material or entertainment is available.‟ ” (Id. at 

p. 1435.) The court held that the phrase “ „sexually stimulating/oriented material deemed 

inappropriate by the probation officer‟ ” was an “inherently imprecise and subjective 

standard,” and that as a result was not “materially distinguishable by the probation 

condition in Sheena K. forbidding association with anyone disapproved of by the 

probation department.” (Id. at p. 1436.) The court then modified the probation condition 

to read: “ „Not possess any sexually stimulating/oriented material having been informed 

by the probation officer that such material is inappropriate and/or patronize any places 

where such material or entertainment in the style of said material are known to be 

available.‟ ” (Ibid.) As modified, the court held that the probation condition was not 

unconstitutionally vague or overbroad. (Id. at pp. 1436-1437.)

We find that the probation condition prohibiting defendant‟s purchase or 

possession of pornography or sexually explicit material suffers from the same defect 

articulated by the court in Turner. Materials deemed explicit or pornographic, as defined 

by the probation officer, is an inherently subjective standard that would not provide 
14

defendant with sufficient notice of what items are prohibited. Following the court‟s 

rationale in Turner, we modify the condition such that defendant is prohibited from 

purchasing or possessing pornography or sexually explicit materials, having been 

informed by the probation officer that such items are pornographic or sexually explicit.

DISPOSITION

The first part of the probation condition restricting Internet access is modified to 

state: “You are not to knowingly have access to the Internet or any other on-line service 

through use of your computer or other electronic device at any location without prior 

approval of the probation officer.”

The probation condition prohibiting purchase or possession of pornographic or 

sexually explicit materials is modified to state: “You‟re ordered not to purchase or 

possess any pornographic or sexually explicit material, having been informed by the 

probation officer that such items are pornographic or sexually explicit.”

As modified, the judgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.
Trial Court: Santa Clara County Superior Court

Superior Court No. C1198906

Trial Judge: Hon. Jerome M. Brock

Attorneys for Plaintiff/Respondent:

The People

Kamala D. Harris

Attorney General

Dane R. Gillette

Chief Assistant Attorney General

Gerald A. Engler

Senior Assistant Attorney General

Catherine A. Rivlin

Supervising Deputy Attorney General

Allan Yannow

Deputy Attorney General

Attorneys for Defendant/Appellant:

John Pirali

Under appointment by the Court of Appeal 

Maria T. Rogers