People v. Reyes CA4/1

Filed 7/18/24 P. v. Reyes CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D083572

Plaintiff and Respondent,

v. (Super. Ct. No. SCD292030)

DANIEL REYES,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Rachel Cano, Judge. Vacated and remanded with directions. Robert L. Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher Beesley and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent. MEMORANDUM OPINION Daniel Reyes appeals from an order revoking his probation and reinstating it on modified terms. The challenged condition contains the

phrase “pornographic material,” which Reyes claims is unconstitutionally vague. The People concede this point. Resolving this matter by memorandum opinion (see generally People v. Garcia (2002) 97 Cal.App.4th 847), we accept the People’s concession, vacate and remand to the trial court. Reyes pled guilty to a single count of lewd and lascivious act on a child in violation of Penal Code section 288(a). The court placed Reyes on probation. Reyes was subsequently arrested for violating the terms of his probation for failing to (1) register as a sex offender and (2) report to probation. The court reinstated probation on modified terms, including condition 10(p), which states in full: “Do not knowingly possess any pornographic material, including computer files and disks, or knowingly be in places where you know, or a P.O. or other law enforcement officer informs you, that pornographic materials are the main item for sale.” Constitutional challenges to probation conditions are reviewed de novo. (People v. Appleton (2016) 245 Cal.App.4th 717, 723.) When a probationer challenges a condition as unconstitutionally vague, we consider whether the condition is “‘sufficiently precise for the probationer to know what is required of [the probationer], and for the court to determine whether the condition has been violated.’” (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) Though we can rely on “context and common sense” when interpreting the condition, we must reverse where no “reasonable and practical construction can be given to its language.” (People v. Rhinehart (2018) 20 Cal.App.5th 1123, 1129 [cleaned up].) We agree with the parties that condition 10(p) is unconstitutionally vague. The condition is not sufficiently precise to notify Reyes of prohibited conduct because the term “pornographic material” is inherently subjective.