People v. Pirali

• Decision Date: 17 July 2013
• Docket Number: H038349
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. John PIRALI, Defendant and Appellant.

217 Cal.App.4th 1341

159 Cal.Rptr.3d 335

The PEOPLE, Plaintiff and Respondent,

v.John PIRALI, Defendant and Appellant.

H038349

Court of Appeal, Sixth District, California.

Filed July 17, 2013

See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 652 et seq.

Santa Clara County Superior Court, Superior Court No. C1198906, Hon. Jerome M. Brock (Santa Clara County Super. Ct. No. C1198906)

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

Premo, J.

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 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.

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, 55 Cal.Rptr.3d 716, 153 P.3d 282( Sheena K.).) Our review of such a question is de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143, 116 Cal.Rptr.3d 84.)

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, 117 Cal.Rptr.3d 513, this court stated that “[w]hen there is a discrepancy between the minute order and the oral pronouncement of judgment, the oral pronouncement controls.” (Id. at p. 1073, 117 Cal.Rptr.3d 513.) In People v. Freitas (2009) 179 Cal.App.4th 747, 102 Cal.Rptr.3d 51, 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, 102 Cal.Rptr.3d 51.)

However, as the Supreme Court has reasoned in People v. Smith (1983) 33 Cal.3d 596, 189 Cal.Rptr. 862, 659 P.2d 1152, 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, 189 Cal.Rptr. 862, 659 P.2d 1152; People v. Harrison (2005) 35 Cal.4th 208, 226, 25 Cal.Rptr.3d 224, 106 P.3d 895.) In People v. Thrash (1978) 80 Cal.App.3d 898, 146 Cal.Rptr. 32, 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, 146 Cal.Rptr. 32.)

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 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, 55 Cal.Rptr.3d 716, 153 P.3d 282.) “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, 115 Cal.Rptr.3d 869.)

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, 55 Cal.Rptr.3d 716, 153 P.3d 282.) 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, 55 Cal.Rptr.3d 716, 153 P.3d 282.)

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, 55 Cal.Rptr.3d 716, 153 P.3d 282.) Accordingly, defendant's argument that the conditions are not necessary because the other imposed...