This post examines
a very recent decision from the California Court of Appeals for the Fourth District: In re C.G., 2016 WL 853547 (2016).
You may find the title of the case peculiar, in that it does not conform
to the usual “State v. Doe” or United States v. Doe” model you usually see in
criminal cases (and in the posts on this site).
The reason the title is different is that this is a juvenile case, i.e.,
it involves a minor who has come under the supervision of the California Division of Criminal Justice. In re C.G., supra.
The Court of
Appeals begins its opinion by explaining that
C.G.
(the minor), who was then 11 years old, and his siblings committed sexual
offenses against a seven-year-old neighbor. The juvenile court found the
allegations against the minor to be true, and made him a ward of the court. The
court imposed probation conditions on the minor. On appeal, the minor
challenges a number of those probation conditions.
In re C.G., supra.
The court then went
on to outline the facts that led to this juvenile proceeding and the judicial
proceedings below:
The
minor, who was then 11 years old, lived in the garage of the home in which the
seven-year-old victim lived. The minor's older brother thought the victim was
annoying. On May 5, 2012, the minor and his two brothers restrained the victim
and took him out of his bedroom to an enclosed outdoor shower, where the
minor's older brother sodomized the victim. The minor's older brother told the
victim they would kill him if he reported what had happened.
The
minor's older brother told investigating officers that he had watched
pornography sometime before the assault, and was thinking about that
pornography while assaulting the victim. The minor's older brother pleaded
guilty to charges that he had raped the victim, and served 330 days in juvenile hall. At the minor's adjudication hearing, his older brother denied committing
the offense, and claimed he had been lying when he admitted guilt in his own
proceedings.
A
petition was filed pursuant to Welfare and Institutions Code section 602,
alleging the minor had committed rape of a minor under age 14 (California Penal Code § 264.1(b)(1)); sodomy by force of a minor under age 14 (California Penal Code § 286 subd. (c)(2)(B)); forcible lewd act on a child under age 14 (CaliforniaPenal Code § 288 subd. (b)(1)); and assault of a minor with the intent to
commit a sexual offense (California Penal Code § 220, subd. (a)(2)).
After
a contested adjudication and disposition hearing, the juvenile court found
those counts true beyond a reasonable doubt. The court declared the minor to be
a ward of the court, declared the maximum term of confinement to be 14 years,
and placed the minor on probation with conditions. The minor filed a timely
notice of appeal.
In re C.G., supra.
The Court of
Appeals then outlined the “standard of review” it would apply in assessing the
propriety of the lower court’s actions:
We
review the probation conditions imposed by the juvenile court for abuse of
discretion. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) A
juvenile court `may impose and require any and all reasonable [probation]
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.’ (Welfare & Inst.Code, § 730, subd. (b).) A minor may raise
for the first time on appeal a challenge to a probation condition based on
vagueness, overbreadth, or violation of due process. (In re Sheena K. (2007)
40 Cal.4th 875, 885–887.)
In re C.G., supra.
The Court of
Appeals then took up C.G.’s challenge to the
following
probation conditions relating to his use of computers and the Internet: `Court
will allow minor to have unsupervised computer use, however, probation may
monitor minor's usage. [¶] Do not use a computer for any purposes other than
school related assignments, and only in the common area of his residence or in
a supervised school setting. [¶] Do not password protect any file or computer
he uses. [¶] Do not participate in any chat rooms, email, engage in instant
messaging, ICQ, or other similar communication programs. [¶] . . . [¶] Do not
possess or access any modem or device allowing a computer to connect to another
computer or network without permission of the probation officer. [¶] Do not
have encrypted files, including any steganographic, or otherwise secured
files.’
In re C.G., supra.
It explained that
`[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.”
(People v. Lent (1975) 15 Cal.
3d 481, 486 fn. omitted.)
In re C.G., supra.
The Court of Appeals then summarized the initial part of
C.G.’s argument on appeal:
The minor cites two cases in which
restrictions on the defendants' access to the Internet were upheld because the
probation conditions were related to the offenses and necessary to protect the
public. In People v. Harrisson (2005) 134 Cal.App.4th 637,
639–640, the defendant pleaded no contest to possession of child pornography.
The probation condition completely
banning his use of the Internet was upheld because he had used the Internet to
send pornographic images and to solicit sex with a minor; had expressed a desire
to seek revenge against the prosecutor; and had violated probation by reviewing
pornography online while looking for a job. (Id. at pp. 646–647.)
In In re Hudson (2006)
143 Cal.App.4th 1, 4–5, 10–11, the defendant parolee was a convicted child
molester who used the Internet to download instructions on what to do if
accused of child molestation, and had encrypted his computer while on probation
for a previous offense. The court upheld the probation condition prohibiting
the defendant parolee from possessing or having access to computers, the
Internet, or camera equipment without permission from his parole officer. (Id. at
pp. 9–11)
In re C.G., supra.
Next, the court noted that
[t]he minor contends that because he
did not use a computer or the Internet in committing the crimes against the
victim, it is inappropriate to include probation conditions that restrict his
use of computers and the Internet. The minor contends such conditions do not
serve a rehabilitative purpose and are not necessary to protect the public. (In
re Stevens, (2004) 119
Cal.App.4th 1228, 1234.)
In re C.G., supra.
But the Court of Appeals was not persuaded. It explained that probation conditions
restricting
computer use and Internet access are not reserved exclusively for those
convicted of computer-related crimes, however. In In re Victor L.(2010)
182 Cal.App.4th 902, 926–927, the court upheld probation conditions that
prohibited Victor from accessing any social networking site, and that required
Victor's Internet access to be supervised. Victor had admitted
violating Penal Code section 12020, subdivision (a), by possessing an
illegal weapon. (In re Victor L., supra, at p. 908.) The court
concluded the probation conditions were appropriate because `[t]hey limit
Victor's access to the Internet in ways designed to minimize the temptation to
contact his gang friends or to otherwise use the computer for illegal purposes
by requiring adult supervision whenever he goes online.’ (Id. at p.
926.)
The probation conditions in the present
case were reasonably related to the goal of rehabilitating the minor by
preventing him from accessing sexual content on the Internet and engaging in
acts of `cyberbullying,’ by ensuring that his only access to the Internet would
be in situations where there would be adult supervision.
In re C.G., supra.
The court also addressed another argument C.G. included in
his appeal:
The minor also argues that the
probation conditions listed above are overbroad and must be modified to add a
scienter requirement. We disagree. The probation conditions that the minor
argues are most in need of a scienter requirement—that the minor not access a
modem or connection device, not participate in e-mailing or messaging, not have
encrypted files, and not password-protect computers or files—all involve
intentional activity, and could not reasonably be inadvertently violated by the
minor.
In re C.G., supra.
The Court of Appeals then took up C.G.’s argument with
regard to the “probation conditions relating to `sexually explicit materials’
as vague and overbroad.” In re C.G., supra. More
precisely, C.G. challenged
the
following probation conditions relating to sexually explicit materials as vague
and overbroad: `Minor not to use or possess any sexually explicit material,
including but not limited to, CDs, DVDs, video cassettes, magazines, pictures,
letters, or drawing, which depict or describe any sexual act, or nudity. [¶] .
. . [¶] Minor not to use, subscribe to, or download any sexually explicit
content to a personal electronic device. [¶] . . . [¶] Do not possess any
pornographic material, including computer files, and disks, nor frequent any
area of pornographic activity. [¶] Do not access any adult sexually explicit
web site. [¶] Do not frequent any establishment where sexually explicit movies,
videos, materials, or devices are viewed or sold.’
In re C.G., supra.
The Court of Appeals explained that
[t]o survive a challenge on vagueness
grounds, a probation condition must be precise enough to allow the probationer
to determine what is required of him or her, and to allow the court to
determine whether the condition has been violated. (In re Sheena K., supra, 40
Cal.4th at p. 890.) The minor contends that the probation conditions
restricting possession of and access to sexually explicit and pornographic
materials are vague because those terms are `imprecise and capable of various
interpretations.’
In People v. Moses (2011)
199 Cal.App.4th 374, 377, another panel of this court concluded the phrase
`”sexually explicit . . . devices” is not so imprecise that defendant will be
unable to determine whether he is in compliance with the terms of his
probation. [Citation.]’ Here, too, we conclude the terms `sexually explicit’
and `pornographic’ are sufficiently clear so as to permit the minor to
determine whether he is complying with the terms of his probation.
The minor correctly argues, and the
Attorney General concedes, that these probation conditions are overbroad due to
the lack of a scienter requirement. We direct the trial court to modify its
minute order and the minor's probation conditions to explicitly include a
knowledge requirement.
In re C.G., supra.
The Court of
Appeals therefore directed
the
trial court to modify its minute order and the minor's probation conditions to
add the phrase `you know or reasonably should know’ to each and every
probation condition that refers to sexually explicit or pornographic materials,
activities, or Web sites. In all other respects, the order is affirmed.
In re C.G., supra.
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