Filed 11/1/17 P. v. Carothers CA6
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

JAMES CAROTHERS,

Defendant and Appellant.
H040513
(Santa Clara County
Super. Ct. No. C1242433)

The California Supreme Court transferred this case to us for reconsideration following the high court’s decision in People v. Garcia (2017) 2 Cal.5th 792 (Garcia).
A jury found defendant James Carothers guilty of possessing child pornography. (Pen. Code, § 311.11, subd. (a).) The trial court granted a five-year term of probation and imposed probation conditions including one year in county jail and the requirement that Carothers complete a sex offender management program as mandated by section 1203.067.
In his original appeal, Carothers challenged the constitutionality of several probation conditions, including a requirement that he waive his privilege against self-incrimination, among other things. We struck down the requirement of a waiver against self-incrimination and narrowly construed or modified some of the probation conditions. Both parties sought review. The high court granted review and deferred consideration pending a disposition in Garcia, supra, 2 Cal.5th 792. In Garcia, the high court held the challenged probation conditions were constitutional provided the probationer enjoys immunity against the direct and derivative use of any compelled statements made under the waiver conditions. The court then transferred this case back to us.
We requested supplemental briefing from the parties addressing the effect of Garcia, supra, 2 Cal5th 792 on this case. Carothers requests that we apply the high court’s holdings in Garcia, and asks that we issue a modified opinion incorporating the conclusions of our initial opinion as to issues not addressed in Garcia. The Attorney General agrees that Garcia resolves the claims regarding the conditions imposed in connection with the sex offender management program and asks that we issue a modified opinion. The Attorney General does not challenge the holdings in our initial opinion concerning claims not addressed in Garcia.
We will reverse the judgment and remand to the trial court for modification of certain probation conditions as set forth in detail below.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts of the Offense
Carothers shared a two-bedroom house in Campbell with his housemate, Anthony Englehart. They lived in separate bedrooms. In 2011, federal and local law enforcement agents executed a search warrant at the house as part of an investigation into an international child pornography network. Agents seized multiple computers, including computers belonging to both Carothers and Englehart. Among other machines, agents found a desktop computer in Carothers’ bedroom and a laptop in the living room. Carothers identified those two computers as his. He told agents he had exclusive use of his computers and nobody else was authorized to use them. Carothers provided a password to the desktop computer. Agents found several hundred photographic images of child pornography on Carothers’ computers. They also found a video of child pornography that had been downloaded 33 hours before the warrant search was conducted.
Agents also recovered numerous electronic communications between Carothers and others discussing child pornography. Investigators subpoenaed Carothers’ e-mails from Comcast and discovered e-mails between Carothers and Shawn McCormack, a producer of child pornography. Agents also found logs of chat room conversations stored on the desktop computer taken from Carothers’ bedroom. One of the chat room conversations had taken place about three weeks before the warrant search. A participant using the screen name “Witchovarozona” identified his real name as “Jim.” The user stated that he was “into images of little toddlers” and expressed an interest in obtaining more images. Agents also found logs of another chat room conversation involving a participant identified as “jameslboluvs.” The user discussed his sexual activities in the Campbell area and indicated that having a housemate made his efforts more difficult. The user also discussed trading images with another participant.
Carothers took the stand in his defense. He testified that he had given the password to his Comcast account to Englehart, his housemate. He stated that Englehart had experienced constant problems with his own computer, so Carothers allowed Englehart to use Carothers’ computer dozens of times. Carothers had also allowed Englehart to use the computer in his (Carothers’) bedroom. Several months before the warrant search, Carothers’ hard drive died, so Englehart gave him a used hard drive as a replacement. Carothers installed it in his own computer.
Carothers testified that Englehart’s Internet connection was not working on the night before the warrant search. Carothers let Englehart use Carothers’ computer in Carothers’ bedroom while Carothers slept on the couch. When law enforcement knocked on the door, Englehart said, “Fuck, they’re here for me.” Carothers testified that he did not recall telling law enforcement agents about his computers or giving them the password.
Carothers denied having any knowledge of the child pornography on his computer. He testified that he had never downloaded or viewed any child pornography. He denied that he sent the e-mails presented by the prosecution, and he denied engaging in conversations in chat rooms.
B. Procedural Background
The prosecution charged Carothers with one count of possessing child pornography. (§ 311.11, subd. (a).) Carothers waived his right to a preliminary hearing and the case proceeded to trial in September 2013.
At trial, the prosecution sought to introduce the content of chat room conversations found on Carothers’ computer through the testimony of Special Agent Todd Schoenberger of the Department of Homeland Security. Without introducing transcripts of the conversations, the prosecution offered to have Agent Schoenberger testify as to what he saw in the digital logs stored on Carothers’ hard drive. Carothers objected on three grounds: (1) that the evidence had not been authenticated; (2) that the statements constituted hearsay; and (3) that admission of the testimony would violate the secondary evidence rule (Evid. Code, § 1521).
The trial court overruled Carothers’ objections and admitted the testimony as an admission of a party opponent. The court also instructed the jury in accord with CALCRIM No. 375 (limiting instruction as to evidence of uncharged offense to prove identity, intent, common plan, etc.).
The jury found Carothers guilty as charged. At sentencing, the court granted a five-year term of probation with one year in county jail as a condition of probation. As a further condition of probation, the court ordered Carothers to complete a sex offender management program as mandated by section 1203.067, as well as the conditions of probation previously identified.
The court also imposed probation conditions requiring Carothers: (1) to waive any privilege against self-incrimination and participate in polygraph examinations as part of the sex offender management program under subdivision (b)(3) of section 1203.067 (subdivision (b)(3)); (2) to waive any psychotherapist/patient privilege to enable communication between the sex offender management professional and the probation officer under subdivision (b)(4) of section 1203.067 (subdivision (b)(4)); (3) not to date, socialize with, or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer; (4) not to purchase or possess any pornographic or sexually explicit material as defined by the probation officer; (5) not to enter any social networking sites or post any advertisement, either electronic or written, unless approved by his probation officer; (6) not to frequent, be employed by, or engage in any business where pornographic materials are openly exhibited; and (7) not to possess or use any data encryption technique program.
In his original appeal, Carothers argued the trial court erred by admitting testimony from a prosecution witness recounting the contents of “chat room” discussions found on Carothers’ computer. He also challenged the constitutionality of the above probation conditions. We concluded the trial court erred by admitting testimony recounting the chat room discussions found on Carothers’ computer, but we found the error harmless. As to the probation conditions, we concluded the condition requiring a waiver of the privilege against self-incrimination was prohibited by the Fifth Amendment. We construed the waiver of the psychotherapist-patient privilege as requiring waiver only insofar as necessary to enable communication between the probation officer and the psychotherapist, and we concluded the waiver was constitutional as so construed. Third, we held the condition ordering Carothers not to date, socialize or form any romantic relationship with any person who has physical custody of a minor was unconstitutionally vague and overbroad, and we remanded to the trial court to consider whether to impose an alternative condition consistent with our reasoning below. Finally, we ordered the trial court to insert scienter requirements into the remaining probation conditions.
Both parties sought review. The California Supreme Court granted review and deferred consideration pending a disposition in Garcia, supra, 2 Cal.5th 792. Following its decision in Garcia, the court transferred this case back to us for reconsideration. The parties agree that this appeal is not moot because the five-year probationary period has not yet expired.
II. DISCUSSION
A. Admission of Testimony Regarding the Chat Room Conversations
Carothers contends the trial court erred by admitting Agent Schoenberger’s testimony recounting the contents of the chat room conversations found on Carothers’ computer. Carothers argues that the prosecution failed to establish their authenticity and that their admission violated the secondary evidence rule set forth in Evidence Code section 1521 et seq. The Attorney General contends the evidence was properly authenticated and that the trial court complied with Evidence Code section 1521. We conclude the trial court erred by admitting oral testimony recounting the chat logs, but we conclude the error was harmless.
1. Legal Principles
Evidence Code section 1401 provides, in part: “Authentication of a writing is required before secondary evidence of its content may be received in evidence.” (Evid. Code, § 1401, subd. (b).) “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (Evid. Code, § 1400.) “The means of authenticating a writing are not limited to those specified in the Evidence Code. [Citations.] For example, a writing can be authenticated by circumstantial evidence and by its contents.” (People v. Skiles (2011) 51 Cal.4th 1178, 1187 (Skiles).) On appeal, the trial court’s receipt of the evidence over Carothers’ objection is reviewed for abuse of discretion. (People v. Daugherty (2011) 199 Cal.App.4th Supp. 1, 6.)
“The content of a writing may be proved by an otherwise admissible original.” (Evid. Code, § 1520.) “ ‘Original’ means the writing itself or any counterpart intended to have the same effect by a person executing or issuing it. . . . If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an ‘original.’ ” (Evid. Code, § 255.)
Evidence Code section 1521 provides, in part: “The content of a writing may be proved by otherwise admissible secondary evidence.” (Evid. Code, § 1521, subd. (a).) “Once the proponent of the evidence establishes its authenticity, [Evidence Code] section 1521 requires exclusion of secondary evidence only if the court determines: (1) ‘[a] genuine dispute exists concerning material terms of the writing and justice requires the exclusion’ or (2) ‘[a]dmission of the secondary evidence would be unfair.’ ” (Skiles, supra, 51 Cal.4th at p. 1188 [quoting Evid. Code, § 1521, subd. (a)(1) & (2).) However, Evidence Code section 1523 limits the circumstances in which oral testimony may be used to prove the content of a writing. It provides that, generally, “oral testimony is not admissible to prove the content of a writing.” (Evid. Code, § 1523, subd. (a).) Evidence Code section 1523 sets forth three exceptions under which oral testimony may be admissible to prove the content of a writing. Two of the exceptions require that the proponent of the evidence not have possession or control of the original writing or any copy of it. (Id., subds. (b) & (c).) Under the third exception, the testimony is not inadmissible “if the writing consists of numerous accounts or other writings that cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole.” (Id., subd. (d).) The trial court’s determination of whether the proponent has satisfied these foundational requirements is reviewed for an abuse of discretion. (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1069.)

2. The Trial Court Erred by Admitting Oral Testimony Recounting the Chat Logs
As an initial matter, we consider whether the underlying evidence constituted a “writing” for the purposes of authentication and the secondary evidence rule. “ ‘Writing’ means handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.” (Evid. Code, § 250.) Here, the evidence in its “original” form consisted of chat logs stored on Carothers’ computer—that is, digital files on a hard drive. Such files are analogous to e-mails and constitute a “means of recording upon [a] tangible thing,” as well as a record created of symbols. They are also analogous to computer data stored on magnetic tapes. (See, e.g., Aguimatang v. California State Lottery (1991) 234 Cal.App.3d 769, 798 [data entries on magnetic tapes constituted writings].) Furthermore, because the files constituted “data stored in a computer,” “any printout or other output readable by sight” accurately reflecting the contents of the files would constitute an “ ‘original’ ” writing. (Evid. Code, § 255.) We conclude the chat log files in digital form constituted original writings under the Evidence Code, as would printouts or video displays of them, had the prosecution offered them as exhibits.
We next consider whether the evidence was properly authenticated under Evidence Code section 1401. “The first step is to determine the purpose for which the evidence is being offered. The purpose of the evidence will determine what must be shown for authentication, which may vary from case to case. [Citation.] The foundation requires that there be sufficient evidence for a trier of fact to find that the writing is what it purports to be, i.e., that it is genuine for the purpose offered.” (People v. Goldsmith (2014) 59 Cal.4th 258, 267.) Here, the prosecution offered the chat logs as admissions by a party opponent—i.e. statements by Carothers—as evidence of his sexual predilections. Carothers objected on the ground that the prosecution had not proven he was one of the participants in the chat conversation.
The prosecution presented abundant evidence proving the chat logs were found on the hard drive of Carothers’ computer. Carothers admitted the computer was his, and he provided his password to the agents who seized it. Furthermore, he told agents he had exclusive use of his computers and nobody else was authorized to use them. The participant in one of the chat conversations identified himself as “jameslboluvs,” using Carothers’ first name and a set of characters extremely similar to Carothers’ e-mail address (“james1bo@[provider]”). A participant in another conversation identified himself as “Jim” and revealed certain unusual details about his sexual proclivities. Agents discovered physical evidence in Carothers’ bedroom connecting him to these unusual proclivities. We thus conclude the prosecution presented sufficient circumstantial evidence to show Carothers was a participant in the chat room conversations. The trial court did not abuse its discretion by finding the chat log to be authentic.
Finally, we consider whether the court properly admitted Agent Schoenberger’s oral testimony recounting the logs. As noted above, while the trial court could have properly admitted a printout of the logs, Evidence Code section 1523 generally excludes oral testimony to prove the content of a writing. The statute sets forth three exceptions to this bar. The Attorney General does not identify any exception under which the testimony could have been admitted. The prosecution made no claim that the state did not have possession or control of the original chat log files, so subsections (b) and (c) of Evidence Code section 1523 do not apply. Nor did the prosecution make any showing that the logs consisted of “numerous accounts or other writings that cannot be examined in court without great loss of time” under subsection (d) of Evidence Code section 1523. Accordingly, oral testimony was inadmissible to prove the content of the logs, and the trial court erred by admitting Agent Schoenberger’s testimony recounting them.
However, given the overwhelming evidence of Carothers’ guilt, the error was harmless. Because the trial court erred as a matter of state law only, Carothers must show a reasonable probability of a more favorable outcome in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818 (Watson).) Even if the trial court had excluded the testimony recounting the chat logs, the prosecution presented strong evidence to show Carothers was in possession of child pornography. The most direct evidence consisted of hundreds of pornographic images and a pornographic video recovered from the hard drive of Carothers’ computer. Carothers admitted the computer was his, and he provided his password to the agents who seized it. Furthermore, he told agents he had exclusive use of his computers and nobody else was authorized to use them. The prosecution also presented a large number of e-mails between Carothers and a producer of child pornography. Although Carothers in his testimony denied any connection to the evidence found on his computer, his testimony was not credible. It is not reasonably probable that a jury would have credited his testimony or otherwise would have ignored the substantial evidence of his guilt if Agent Schoenberger’s testimony had been excluded. Accordingly, we conclude the erroneous admission of testimony recounting the chat logs was harmless under Watson, supra, 46 cal.2d 818.
B. Probation Conditions Required Under Section 1203.067
In his initial appeal, Carothers challenged the probation conditions imposed under section 1203.067 on three grounds. First, he contends the condition requiring waiver of any privilege against self-incrimination under subdivision (b)(3) violates the Fifth Amendment. Second, he contends the requirement that he undergo polygraph testing as part of the sex offender management program is overbroad as written. Third, he contends the condition requiring waiver of any psychotherapist-patient privilege under subdivision (b)(4) violates his constitutional right to privacy under both the federal and state constitutions.
The California Supreme Court recently considered these conditions in Garcia, supra, 2 Cal.5th 792. First, as to the waiver of any privilege against self-incrimination, the court in Garcia applied the doctrine of constitutional avoidance to construe this condition narrowly. “Under this construction, a probationer is required to answer the questions posed by the containment team, on pain of probation revocation should the probationer refuse. In turn, the probationer’s compelled responses may not be used against the probationer in a subsequent criminal prosecution.” (Id. at p. 807.) Under Garcia, Carothers will have immunity against the direct and derivative use of any statements compelled under this waiver condition. (Id. at p. 808.) Furthermore, Carothers “must be advised, before treatment begins, that no compelled statement elicited under questioning in the course of the mandatory sex offender management program (or the fruits thereof) may be used against him or her in a subsequent criminal prosecution.” (Ibid.) Given these conditions, the waiver does not violate the Fifth Amendment.
With respect to the waiver of the psychotherapist-patient privilege, the court held: “By its express terms, the waiver is limited to that which is necessary ‘to enable communication between the sex offender management professional and supervising probation officer, pursuant to Section 290.09.’ [Citation.] Consequently, a probationer’s confidential communications may be shared only with the probation officer and the certified polygraph examiner, who is likewise explicitly authorized to receive ‘pertinent information . . . as required’ from the sex offender management professional under subdivision (c) of section 290.09.” (Garcia, supra, 2 Cal.5th at p. 810.) The court added that “[t]he required waiver extends only so far as is reasonably necessary to enable the probation officer and polygraph examiner to understand the challenges defendant presents and to measure the effectiveness of the treatment and monitoring program.” (Id. at p. 811.) The court concluded: “The subdivision (b)(4) condition thus should be read to intrude on the privilege only to a limited extent: the extent specified in the condition itself, which describes what is reasonably necessary to enable communications among the psychotherapist, probation officer, and polygraph examiner; facilitate their understanding of the challenges defendant presents; and allow those containment team members to measure the effectiveness of the sex offender treatment and monitoring program. [Citation.] In all other respects, the privilege remains intact. So construed, the condition is not overbroad.” (Id. at p. 813.) On this basis, the court upheld the psychotherapist-patient waiver.
Finally, the court upheld the requirement of participation in the polygraph examination. The court emphasized that the scope of the polygraph examination “is limited to that which is reasonably necessary to promote the goals of probation.” (Garcia, supra, 2 Cal.5th at p. 809.) The court added that the examination “may also include questions unrelated to the probationer’s treatment and supervision but that are reasonably necessary to establish a baseline physiological response.” (Ibid.) On this basis, the court upheld the condition requiring participation in the polygraph examination.
For the reasons set forth in Garcia, supra, we reject Carothers’ initial challenges to the probations conditions imposed under section 1203.067.
C. Prohibition on Dating, Socializing, or Forming a Romantic Relationship With Any Person Who Has Physical Custody of a Minor
Carothers challenges the condition requiring him not to “date, socialize [with], or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer.” Carothers argues that this condition is unconstitutionally vague and overbroad in violation of his rights to freedom of association and privacy under the Fourteenth Amendment. He also contends the requirement that he not “socialize,” “date,” or “form a romantic relationship” with another person is unconstitutionally vague. The Attorney General concedes that the term “socialize” is vague. He argues we should strike that term and uphold the remaining terms of the condition. We agree with Carothers that the requirement is both overbroad and vague, and we will order the trial court to strike the condition.
“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.” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) In other words, “where an otherwise valid condition of probation impinges on constitutional rights, such conditions must be carefully tailored, ‘ “reasonably related to the compelling state interest in reformation and rehabilitation . . . .” ’ ” (People v. Bauer (1989) 211 Cal.App.3d 937, 942.) All other probation conditions are reviewed for abuse of discretion. “In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) An abuse of discretion does not occurs unless the probation condition “ ‘ “(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.]’ ” (People v. Olguin (2008) 45 Cal.4th 375, 379.)
The United States Supreme Court has long recognized a constitutional right to freedom of association. (Roberts v. United States Jaycees (1984) 468 U.S. 609, 617.) Included in this right is the “freedom of intimate association,” which is exemplified by those personal affiliations that “attend the creation and sustenance of a family—marriage [citation]; childbirth [citation]; the raising and education of children [citation]; and cohabitation with one’s relatives [citation].” (Id. at pp. 618-619; Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594, 624.) By restricting Carothers’ freedom to date and form romantic relationships with other persons, the probation condition implicates his freedom of intimate association. We must therefore consider whether the condition is narrowly “tailored” to the state’s interest in reformation and rehabilitation. (In re Sheena K., supra, 40 Cal.4th at p. 890.)
The Ninth Circuit Court of Appeals considered a similar probation condition in
United States v. Wolf Child (9th Cir. 2012) 699 F.3d 1082 (Wolf Child). Wolf Child pleaded guilty to attempted sexual abuse after attempting to have sex with an intoxicated and unconscious 16-year-old girl. (Id. at p. 1088.) The sentencing court ordered Wolf Child not to “ ‘date or socialize with anybody who has children under the age of 18’ ” without prior approval from his probation officer. (Id. at p. 1089.) The court of appeals concluded that this condition was overbroad in violation of the defendant’s right to freedom of association. (Id. at p. 1100.) In its reasoning, the court observed: “The category of people covered by this condition with whom [the defendant] is prohibited from establishing social relationships is enormous. Probably more than half the people in the United States would be on the ‘do not associate’ list.” (Id. at pp. 1100-1101.) Off-limit persons included coworkers, bosses, family members, friends, spiritual leaders, and neighbors who have children. (Id. at p. 1101.) The court thereby found the scope of this prohibition to be overly broad.
We find the court’s reasoning in Wolf Child persuasive. Like the probation condition in that case, the restriction here prohibits Carothers from socializing with an extremely large category of persons unless he first obtains permission from his probation officer. People who have custody of minors are ubiquitous, and would likely be present among Carothers’ coworkers, friends, family members, neighbors, and fellow church members. The condition prohibits Carothers from socializing with them regardless of whether he has any contact with their children. For example, Carothers would be prohibited from socializing with coworkers—and possibly prevented from even holding a job—even though there may be little or no chance of meeting his coworkers’ children. Furthermore, socialization among coworkers and others is likely to be so frequent that it would be impractical for Carothers to obtain his probation officer’s approval prior to every such incident. The enormous scope of the condition thereby impinges on Carothers’ freedom far more broadly than necessary to serve the state’s interests and the purposes of the condition.
We also agree that the term “socialize” is unconstitutionally vague in this context. “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ ” (In re Sheena K., supra, 40 Cal.4th at p. 890.) “The vagueness doctrine bars enforcement of ‘ “a statute which either forbids or requires the doing of an act in terms so vague that men [or women] of common intelligence must necessarily guess at its meaning and differ as to its application.” [Citation.]’ [Citations.]” (Ibid.) “A probation condition ‘must be sufficiently precise for the probationer to know what is required of him [or her], and for the court to determine whether the condition has been violated,’ if it is to withstand a challenge on the ground of vagueness.” (Ibid.)
We would agree that much incidental contact—such as waving or saying “hello” to a stranger—does not constitute socializing. But that does not sufficiently clarify or narrow the scope of the condition. As relevant here, the dictionary defines “socialize” as “enter into or maintain personal relationships with others.” (Webster’s 3d New Internat. Dict. (1993) p. 2162.) Under this definition, a reasonable person cannot determine with sufficient precision what conduct constitutes “socializing,” i.e., entrance into a personal relationship. If Carothers briefly meets with a group of coworkers while working on a project at his job, is he “socializing” with them? What if he attends the meeting passively, without talking? Or if he talks, but only says a few words? Has he formed a personal relationship with any of his coworkers under these circumstances? The answers to these questions are insufficiently clear for the purposes of enforcing a probation condition. We conclude that the term “socialize” is too ambiguous for a reasonable probationer to know with sufficient precision what conduct is prohibited.
The same is true of the requirement that Carothers not “date” or “form a romantic relationship” with persons having custody of a minor. It is unclear what conduct constitutes a “date.” Furthermore, it is possible for a probationer to engage in these activities without coming into contact with the minors the condition seeks to protect. Thus, these conditions impinge directly on Carothers’ right of association, yet they only indirectly serve the stated interest. Much less restrictive and more narrowly targeted conditions are available for the same purposes, e.g., a requirement that Carothers not be present in the same room with a minor absent adult supervision.
Because the condition is both overbroad and vague, we will reverse and remand to the trial court to consider imposing a probation condition that is more “ ‘sufficiently precise’ ” and “closely tailor[ed]” to the purpose of protecting minors in Carothers’ presence. (In re Sheena K., supra, 40 Cal.4th at p. 890.)
D. Prohibition on Purchasing or Possessing Pornography
Carothers contends the condition that he “shall not purchase or possess any pornographic or sexually explicit material as defined by the probation officer” is unconstitutionally vague, and must therefore be modified. The Attorney General concedes that the condition as written must be modified in accord with the holding of this court in People v. Pirali (2013) 217 Cal.App.4th 1341,1351 (Pirali). We accept the concession.
In Pirali, this court considered a probation condition ordering Pirali “ ‘not to purchase or possess any pornographic or sexually explicit material as defined by the probation officer.’ ” (Pirali, supra, 217 Cal.App.4th at p. 1344.) The court held: “Materials deemed explicit or pornographic, as defined by the probation officer, is an inherently subjective standard that would not Carothers with sufficient notice of what items are prohibited.” (Id. at p. 1353.) Accordingly, the court modified the condition to order Pirali “ ‘not to purchase or possess any pornographic or sexually explicit material, having been informed by the probation officer that such items are pornographic or sexually explicit.’ ” (Ibid.) We agree with the reasoning of Pirali, and we will order the trial court to modify the condition accordingly.
E. The Condition That Carothers Not Enter Any Social Networking Sites or Post Any Advertisement
Carothers challenges the condition requiring him not to enter any social networking sites or post any advertisement, either electronic or written, unless approved by his probation officer. He contends the condition is unconstitutionally
vague in the absence of a scienter requirement because it is possible he could unknowingly enter a social networking site by accidentally clicking on a link taking him to such a site. The Attorney General agrees that a scienter requirement is necessary.
While this matter was pending consideration on review, the California Supreme Court issued its opinion in People v. Hall (2017) 2 Cal.5th 494 (Hall) on the question of scienter requirements in probation conditions. The court noted that “[r]evocation of probation typically requires proof that the probation violation was willful.” (Id. at p. 498.) The court further noted that in the context of conditions barring possession of an item, revocation requires knowledge. (Id. at p. 499.) Analogizing to criminal statutes that prohibit possession of contraband, the court observed that courts validly construe such statutes as containing an implicit knowledge requirement even where the statute is silent. The court then observed that this reasoning is equally applicable to probation conditions. “Just as most criminal statutes—in all their variety—are generally presumed to include some form of mens rea despite their failure to articulate it expressly, so too are probation conditions generally presumed to require some form of willfulness, unless excluded ‘ “ ‘expressly or by necessary implication.’ ” ’ ” (Id. at p. 502, quoting In re Jorge M. (2000) 23 Cal.4th 866, 872.) Accordingly, the court held that no express scienter must be added, as doing so would make no change to the substance of the condition. (Id. at p. 503.)
Neither party advances any distinction between the probation condition at issue here and the conditions at issue in Hall. Accordingly, applying Hall here, we reject Carothers’ claim regarding the necessity for an express scienter.
F. Condition That Carothers Must Not “Frequent” Any Business Where Pornography Is Openly Exhibited
Carothers challenges the condition requiring him not to “frequent, be employed by, or engage in any business where pornographic materials are openly exhibited.” He contends the condition is vague in the absence of a scienter requirement, and that the term “frequent” must be modified to be “visit or remain.” The Attorney General concedes this issue and proposes to modify the condition to include a scienter requirement.
For the reasons set forth above in Section II.E., we reject the request to insert an express scienter requirement. We agree with Carothers, however, that the term “frequent” is unconstitutionally vague, as this court has previously held. (People v. Leon (2010) 181 Cal.App.4th 943, 952 (Leon) [term “frequent” is unconstitutionally vague]; In re H.C. (2009) 175 Cal.App.4th 1067, 1072 [term “frequent” is obscure and susceptible to multiple meanings].) Consistent with this court’s modification of the term in Leon, we substitute the phrase “visit or remain in” for the term “frequent.”
G. Prohibition on Possession or Use of Any Data Encryption Technique Program
Carothers challenges the probation condition prohibiting him from “possess[ing] or [using] any data encryption technique program.” He contends the condition is unconstitutionally vague in the absence of a scienter requirement. For the reasons set forth above in Section II.E., we reject the request to insert an express scienter requirement.
III. DISPOSITION
The judgment is reversed and the matter is remanded to the trial court with the following instructions. First, the trial court shall strike the probation condition ordering Carothers “not to date, socialize or form any romantic relationship with any person who has physical custody of a minor unless approved by the probation officer,” and the court shall consider whether to impose a probation condition consistent with our reasoning above. Second, the trial court shall modify the following probation conditions: (1) the condition prohibiting purchase or possession of pornographic or sexually explicit materials shall be modified to state that Carothers shall not purchase or possess any pornographic or sexually explicit material, having been informed by the probation officer that such items are pornographic or sexually explicit; and (2) the condition that Carothers not frequent, be employed by, or engage in any business where pornographic materials are openly exhibited shall be modified to state that Carothers shall not visit or remain in, be employed by, or engage in, any business where pornographic materials are openly exhibited.



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RUSHING, P.J.






WE CONCUR:






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PREMO, J.






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GROVER, J.










People v. Carothers
H040513