Filed 10/15/10 In re J.J.

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

In re J.J., a Person Coming Under the

Juvenile Court Law.
D055603
THE PEOPLE,

Plaintiff and Respondent, (Super. Ct. No. J213914)

v.

J.J.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Amalia

Meza and Carolyn M. Caietti, Judges. Affirmed as modified.

The court sustained the petition alleging that 15-year-old J.J. unlawfully received a

stolen motorcycle, found the offense to be a felony, and adjudged him a ward of the court.

The court placed J.J. on probation and ordered him to complete a 21-day, in-patient

detoxification program. It also imposed a lengthy set of probation conditions. On appeal,

J.J. argues that the conditions which restrict his computer and Internet use are

unconstitutionally vague and overbroad. We agree and modify the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Deputy Erik Duesler stopped J.J. on the highway in Crest after observing him riding a

50cc Honda off-road motorcycle without a helmet. When asked about the motorcycle's

registration, J.J. told Deputy Duesler that he had purchased it from a guy he knew only as

Skye for $200 three or four days before. J.J. did not have the pink slip. He was also unable

to provide Deputy Duesler with a phone number or address for Skye. An inspection of the

motorcycle showed that it had been modified to operate without a key. Deputy Duesler

arrested J.J. after he determined that the motorcycle was stolen.

At the dispositional hearing, the court reviewed the probation report, which described

J.J.'s extensive drug use. The deputy district attorney reminded the court that J.J. committed

the offense of receiving stolen property less than two weeks after his annual review on a

prior offense of shooting a person with a pellet gun. The court followed the probation

department's recommendation of an in-patient detoxification program and continued

wardship. The parties did not object to any of the conditions of probation. Those conditions

included the following:

"Minor shall not use a computer that contains any encryption, hacking,
cracking, scanning, keystroke monitoring, security testing, steganography,
Trojan or virus software. [¶] . . . [¶]

"The minor is prohibited from participating in chat rooms, using instant

messaging such as ICQ, MySpace, Facebook, or other similar
communication programs.

2
 "The minor shall not have a MySpace page, a Facebook page, or any other
similar page and shall delete any existing page. The minor shall not use
MySpace, Facebook, or any similar program.

"The minor is not to use a computer for any purpose other than school
related assignments. The minor is to be supervised when using a computer
in the common area of his/her residence or in a school setting."

DISCUSSION

I. Applicable Law

Welfare and Institutions Code section 730, subdivision (b) provides that the

juvenile court may impose on the minor "any and all reasonable 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." The juvenile court has broader discretion in

formulating the terms of the minor's probation than that exercised with adult

probationers. (In re Victor L. (2010) 182 Cal.App.4th 902, 910 (Victor L.).) "[E]ven

where there is an invasion of protected freedoms 'the power of the state to control the

conduct of children reaches beyond the scope of its authority over adults . . . .' "

(Ginsberg v. New York (1968) 390 U.S. 629, 638.) "This is because juveniles are deemed

to be 'more in need of guidance and supervision than adults, and because a minor's

constitutional rights are more circumscribed.' [Citation.]" (Victor L., at p. 910.) Thus,

" 'a condition of probation that would be unconstitutional or otherwise improper for an

adult probationer may be permissible for a minor under the supervision of the juvenile

court.' " (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).)

Nonetheless, the constitutional doctrines of vagueness and overbreadth may limit the

scope of conditions of probation imposed on wards of the juvenile court. "[T]he

3
underpinning of a vagueness challenge is the due process concept of 'fair warning.'

[Citation.]" (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 of common intelligence must necessarily guess at its meaning and differ as to

its application." [Citation.]' [Citation.] A vague law 'not only fails to provide adequate

notice to those who must observe its strictures, but also "impermissibly delegates basic

policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective

basis, with the attendant dangers of arbitrary and discriminatory application." [Citation.]'

[Citation.]" (Ibid.)

"Restrictions upon access to the Internet necessarily curtail First Amendment rights."

(In re Stevens (2004) 119 Cal.App.4th 1228, 1235 (Stevens).) " 'Through the use of chat

rooms, any person with a phone line can become a town crier with a voice that resonates

farther than it could from any soapbox. Through the use of Web pages, mail exploders, and

newsgroups, the same individual can become a pamphleteer.' " (Id. at p. 1236, quoting Reno

v. American Civil Liberties Union (1997) 521 U.S. 844, 870.) As the Stevens court observed,

" 'Two hundred years after the framers ratified the Constitution, the Net has taught us what

the First Amendment means.' " (Stevens, at p. 1236, quoting Lessig, Code and Other Laws of

Cyberspace (1999) p. 10.) Given the importance of these First Amendment rights, a

probation condition that imposes limitations on the form of Internet use "must closely tailor

those limitations to the purpose of the condition to avoid being invalidated as

unconstitutionally overbroad." (Sheena K., supra, 40 Cal.4th at p. 890; see also Stevens, at

p. 1237.)

4
 We review facial challenges to probation conditions de novo. (Sheena K., supra,

40 Cal.4th at pp. 885-888.) We may uphold those conditions "even though they restrict a

probationer's exercise of constitutional rights if they are narrowly drawn to serve the

important interests of public safety and rehabilitation [citation] and if they are specifically

tailored to the individual probationer. [Citations.]" (In re Babak S. (1993) 18

Cal.App.4th 1077, 1084 (Babak S.) [successfully challenging a probation condition

banishing him to Iran].) Here, we conclude the challenged conditions fail to satisfy these

requirements.

II. J.J. Did Not Forfeit His Constitutional Claims

We begin by rejecting the People's argument that J.J. forfeited his constitutional

claims by failing to object to the computer and Internet conditions at the dispositional

hearing. In Sheena K., the Supreme Court held that the minor did not forfeit her

challenge to a probation condition on grounds of vagueness and overbreadth by failing to

raise the issue in the juvenile court. (Sheena K., supra, 40 Cal.4th at p. 889.) Her

challenge presented "a pure question of law, easily remediable on appeal by modification

of the condition." (Id. at p. 888.) However, the Supreme Court cautioned that its

conclusion "[did] not apply in every case in which a probation condition is challenged on

a constitutional ground. . . . [W]e do not conclude that 'all constitutional defects in

conditions of probation may be raised for the first time on appeal, since there may be

circumstances that do not present "pure questions of law that can be resolved without

reference to the particular sentencing record developed in the trial court." [Citation.]' "

5
(Id. at p. 889, italics added.) Applying these principles, we conclude that J.J.'s

constitutional claims are properly before us on appeal.

J.J.'s claims present pure questions of law. J.J. directs his overbreadth arguments to

the probation conditions prohibiting: (1) computer use for anything but school-related

purposes; and (2) use of chat rooms, instant messaging, and social networks such as

MySpace and Facebook. Resolution of the overbreadth claims focuses on the language of

the conditions and the nature of the offense giving rise to wardship. To the extent the court

considered J.J.'s juvenile record in imposing the probation conditions, those facts are few and

undisputed. He argues that the condition barring his use of computers contaminated with

viruses or other unwanted software is unconstitutionally vague. That claim can be resolved

by considering the language of the condition and remedied by adding clarifying language.

III. The Challenged Restrictions Are Unconstitutionally

Vague and/or Overbroad

A. Use of Computer for Non-School-Related Purposes

J.J. argues that this limitation on his computer and resulting Internet use is

overbroad because it forecloses access to "countless benign and protected uses, and is

insufficiently narrowly tailored" to serve government interests. We agree.

Both state and federal courts have rejected the total ban on the First Amendment

right to Internet use by a probationer or parolee. (See, e.g., Sheena K., supra, 40 Cal.4th

at p. 890; Stevens, supra, 119 Cal.App.4th at pp. 1234-1235; U.S. v. Holm (7th Cir. 2003)

326 F.3d 872, 877-878 (Holm).) The Holm court observed that "such a ban renders

modern life — in which, for example, the government strongly encourages taxpayers to

6
file their returns electronically, where more and more commerce is conducted on-line,

and where vast amounts of government information are communicated via website —

exceptionally difficult." (Holm, at p. 878.) As we explained, "[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." (Sheena K., supra, 40 Cal.4th at p. 890.)

In Holm, the court rejected as overbroad a blanket ban on Internet access as a

condition of Holm's supervised release. (Holm, supra, 326 F.3d. at pp. 876-877.) Holm was

an information system technologist who pleaded guilty to possessing child pornography on

his home computer. (Id. at pp. 873-874.) He presented undisputed evidence at sentencing

that he had not used workplace computers in committing his crimes. (Id. at p. 878.) On

appeal, the court directed the district court to more carefully tailor the parole condition on

remand, stating: "We are confident that the district court can fashion precise restrictions that

protect the child-victims used in Internet pornography and at the same time reflect the

realities of Holm's rehabilitation prospects." (Id. at p. 879.)

The court in Stevens reached a similar resolution after reviewing both federal and

state cases involving parole conditions limiting a child molester's access to the Internet.

(Stevens, supra, 119 Cal.App.4th at pp. 1231, 1236-1239.) Stevens had befriended the

victim in a youth program. After his arrest, police seized an incriminating photo album and a

video recording. A search of Stevens's home computer showed that he had not used it to

download child pornography, contact the victim, or commit any other crime. Stevens

pleaded guilty to one count of lewd conduct upon a child under the age of 14 and served time

7
in prison. A special condition of his parole stated: " 'You shall not possess or have access to

computer hardware or software including the internet.' " (Id. at p. 1231.) Stevens sought

habeas corpus relief and the Board of Prison Terms (BPT) modified the condition to allow

limited use of the Internet. (Id. at p. 1232.) In the face of BPT's claim that the case was

moot, the court addressed the merits, ruling that the special condition was unconstitutionally

overbroad. (Id. at p. 1240.) It noted that "BPT was legitimately concerned that a released

child molester's unfettered access to a computer might result in criminal conduct. [However,

in contrast with cases upholding bans on Internet use], the broad prohibition on use of the

computer and Internet bore no relation to Stevens's conviction for child molestation and

imposed a greater restriction of his rights than was reasonably necessary to accomplish the

state's legitimate goal." (Id. at p. 1239.)

In this case, the probation condition that prohibits all non-school-related use of

computers — and resulting ban on Internet access — suffers from the same constitutional

defect as the conditions in Holm and Stevens. It is not tailored to J.J.'s conviction for

receiving stolen property, his history of drug abuse, or the juvenile court's dual goals of

rehabilitation and public safety. (Babak S., supra, 18 Cal.App.4th 1077, 1084.) And

absent any connection between J.J.'s criminal history and the blanket Internet ban, there

is no support for the People's claim that it is properly related to future criminality.

Accordingly, we strike the condition as unconstitutionally overbroad.

B. Use of Instant Messaging or Social Networks

We also strike as overbroad the probation condition which prohibits J.J.'s use of chat

rooms, instant messaging, MySpace, Facebook or similar communications programs. There

8
is nothing in the undisputed record to suggest J.J. used instant messaging or social

networking sites to obtain the stolen motorcycle or drugs. Thus, the probation condition

suffers from the same defect as Holm, Stevens and the ban on J.J. using the Internet for non-

school-related purposes.

C. Use of Computers Contaminated with Viruses or Unwanted Software

J.J. contends that the condition prohibiting use of contaminated computers is

unconstitutionally vague as to virus, Trojan and keystroke monitoring programs. He cites

articles suggesting that "[t]ens of millions of computers are infected with this unwanted,

malicious software . . . , almost all against the owner's will and without their knowledge."

He notes that other software listed in the probation condition must be intentionally

installed by the computer user. J.J. asserts that he could use one of these computers and

unwittingly violate the conditions of his probation. The People respond that the

probation condition "is specific in its prohibition on the computers [J.J.] cannot use

because of the programs contained on [them]" and argue that modification to prohibit

only "knowing" use of such computers is unnecessary.

As we explained, the vagueness doctrine is based on the due process concept of

fair warning. (Sheena K., supra, 40 Cal.4th at p. 890.) The People do not dispute that

computers may contain viruses, Trojan, keystroke monitoring and other unwanted

software unknown to the computer's owner. Instead, they argue that we should uphold

the condition by considering it "as a whole rather than in part."

We conclude the condition is unconstitutionally vague because it subjects J.J. to

sanctions for violation of probation in circumstances where he could only guess whether

9
the computer he was using contains the prohibited software. (Sheena K., supra, 40

Cal.4th at p. 890.) Thus, it is possible that J.J.'s unwitting, technical violation of the

probation condition could subject him to penalties at the discretion of his probation

officer or the court. The ability to selectively punish for innocent action based on a

vague condition impermissibly opens the door to arbitrary enforcement in violation of

due process rights. (Ibid.)

Accordingly, we modify the probation condition to read: Minor shall not

knowingly use a computer that contains any encryption, hacking, cracking, scanning,

keystroke monitoring, security testing, or steganography, Trojan or virus software.

DISPOSITION

The judgment is modified to reword the probation condition regarding the use of

computers contaminated with viruses or unwanted software so that it reads: "Minor shall not

knowingly use a computer that contains any encryption, hacking, cracking, scanning,

keystroke monitoring, security testing, or steganography, Trojan or virus software."

The judgment is further modified to strike the probation conditions which read:

(1) "The minor is not to use a computer for any purpose other than school related

assignments. The minor is to be supervised when using a computer in the common area

of his/her residence or in a school setting . . ."; and (2) "The minor is prohibited from

participating in chat rooms, using instant messaging such as ICQ, MySpace, Facebook, or

other similar communication programs. [¶] The minor shall not have a MySpace page, a

Facebook page, or any other similar page and shall delete any existing page. The minor

shall not use MySpace, Facebook, or any similar program."

10
 The judgment is affirmed as modified.

MCINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

MCDONALD, J.

11