People v. Jose CA1/5

Filed 12/16/21 P. v. Jose CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A161138 v. JULIANO JOSE, (Solano County Super. Ct. No. FCR344511) Defendant and Appellant.

In February 2020, defendant and appellant Juliano Jose (appellant) pled no contest to a charge of unlawful sexual intercourse (Pen. Code, § 261.5, subd. (c)); two other counts were dismissed. The charges arose out of an incident in which appellant, who was 18 years old, had sex with a 13-year-old girl. In September, the trial court suspended imposition of sentence and granted probation, imposing a three-year term. On appeal, appellant challenges two of the trial court’s probation conditions on constitutional grounds. First, the court directed that appellant was “not to possess any pornographic material unless approved in advance in writing by therapist and/or probation officer.” Second, the court directed that appellant was “not to access or subscribe to any computer internet or local bulletin [board] service which provides access to or markets

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pornographic imagery, unless approved in writing by his therapist and/or probation officer.” Appellant contends the term “pornographic” as used in both conditions is unconstitutionally vague. The “void-for-vagueness doctrine” “bars the government from enforcing a provision that ‘forbids or requires the doing of an act in terms so vague’ that people of ‘common intelligence must necessarily guess at its meaning and differ as to its application.’ ” (People v. Hall (2017) 2 Cal.5th 494, 500.) Respondent agrees the term “pornographic” is unconstitutionally vague. (See, e.g., In re D.H. (2016) 4 Cal.App.5th 722, 728.) Respondent suggests the challenged conditions should be modified to remove the term “pornographic” and instead to reference materials or imagery “ ‘that have a primary purpose of causing sexual arousal.’ ” (In re David C. (2020) 47 Cal.App.5th 657, 667.) Appellant agrees that language would be constitutional, as do we. We will remand with directions that the trial court modify both conditions. Appellant also contends the second challenged condition relating to internet access is unconstitutionally overbroad. “ ‘[T]he overbreadth doctrine requires that conditions of probation that impinge on constitutional rights must be tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.’ ” (People v. Quiroz (2011) 199 Cal.App.4th 1123, 1128.) Appellant contends the language of the condition prohibits him from using any internet browser able to access pornographic websites, which effectively prohibits appellant from using any internet browser for any purpose. He argues the trial court did not intend to prevent him from accessing the internet altogether because the court opted not to impose the standard sex offender probation condition, which would