People v. Aragon CA6

Filed 5/21/14 P. v. Aragon CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039880 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1240122)

v.

ISMAEL ARISTER ARAGON,

Defendant and Appellant.

Ismael Arister Aragon appeals a judgment entered following a guilty plea. He asserts some of the probation conditions ordered by the court are unconstitutionally vague and overboard. In addition, defendant asserts the trial court erred in imposing a probation supervision fee. STATEMENT OF THE CASE In May 2013, defendant pleaded no contest to one count of possessing matter depicting a person under the age of 18 engaging in or simulating sexual conduct. (Pen. Code, § 311.11, subd. (a).)1 The court suspended imposition of sentence, and placed defendant on probation for three years. The court also imposed the following conditions of probation, among others. “15. The defendant shall not purchase or possess any pornographic or sexually explicit material as defined by the probation officer. . . .

1 All further statutory references are to the Penal Code.

[¶] 17. 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. [¶] 18. The defendant shall not clean or delete Internet browsing activity and must keep a minimum or four weeks of history.” In addition to the probation conditions, the court imposed a probation supervision fee of $50 per month. Defendant filed a timely notice of appeal. DISCUSSION On appeal, defendant asserts conditions 15 and 17 are unconstitutionally vague and overbroad. In addition, defendant asserts condition 18 should be modified to expressly require knowledge. Finally, defendant argues there was insufficient evidence that he could pay the probation supervision fee ordered by the trial court, and the trial court failed to comply with the statutory requirements for imposition of such fee. Probation Condition 15 Defendant asserts probation condition 15, which prohibits the possession or purchase of pornographic or sexually explicit material is vague, because “[r]easonable minds can differ greatly about what is encompassed by ‘pornography.’ ” (United States v. Guagliardo (9th Cir. 2002) 278 F.3d 868, 887.) It should be noted that although defendant did not challenge this condition in the trial court, he can raise the issue of whether the condition is constitutionally vague on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 885-557.) In a case almost identical to the present, this court considered whether a probation condition prohibiting the possession of pornographic material was vague. In People v. Pirali (2013) 217 Cal.App.4th 1341 (Pirali), the probation condition at issue ordered the defendant “ ‘not to purchase or possess any pornographic or sexually explicit material as