Filed 2/18/16




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                      DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                         G050974

        v.                                            (Super. Ct. No. P01259)

ALEX NAVARRO,                                         OPINION

    Defendant and Appellant.



                  Appeal from a postjudgment order of the Superior Court of Orange County,
Dan McNerney, Judge. Reversed.
                  Gene D. Vorobyov, under appointment by the Court of Appeal, for
Defendant and Appellant.
                  Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Teresa Torreblanca, Deputy Attorney Generals, for Plaintiff and Respondent.
              Alex Navarro appeals from a postjudgment order finding him in violation
of a special condition of parole, special condition No. 89 (the Special Condition),
restricting his use of the Internet. On appeal, Navarro asserts the Special Condition does
not reasonably relate to his criminal conduct or to preventing future criminality and is
vague and overbroad. The Attorney General argues the issue is moot because Navarro’s
parole has expired and the Special Condition is valid. While we agree the issue is moot,
we exercise our discretion to decide the case on its merits as it is one of public
importance likely to reoccur. We agree with Navarro the Special Condition is vague and
reverse the postjudgment order.
                                           FACTS
              In January 2009, Navarro pleaded guilty to attempted kidnapping (Pen.
Code, §§ 664, 207, subd. (a); all further statutory references are to the Pen. Code). The
facts of the offense were 19-year-old Navarro grabbed the 13-year-old victim’s arms at a
bus stop and threatened to rape her. Four months later, pursuant to the plea agreement,
the trial court sentenced him to one year in jail and three years of formal probation and he
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agreed to register as a sexual offender pursuant to section 290. The trial court later
found Navarro violated probation, ordered probation revoked, and sentenced Navarro to
30 months in prison.
              Navarro was released on parole in April 2011 subject to various conditions,
including the Special Condition, which provided the following: “You shall not use an
electronic bulletin board system, [I]nternet relay chat channel, instant messaging,
newsgroup, usergroup, peer to peer; i.e., Napster, Gnutella, Freenet, etc. This would
include any site-base; i.e., Hotmail, Gmail, or Yahoo e-mail, etc., which allows the user
to have the ability to surf the [I]nternet undetected.” Navarro was subject to four other

1
               The facts are taken from Navarro’s appeal from the trial court’s denial of
his request to withdraw his guilty plea. (People v. Navarro (June 21, 2010, E048275)
[nonpub. opn.].)

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conditions restricting his computer and electronic media use, including special condition
No. 90, which prohibited him from using a computer for sexual activity, i.e.,
“‘chat[ting],’” e-mail, usergroups, newsgroups, and list servers.
              Between July 2011 and March 2014, Navarro violated parole four times. In
August 2014, Navarro’s parole officer, Millicent Golz, was notified of another possible
parole violation. Golz contacted Navarro and took his cell phone to search its contents.
On the cell phone Golz found several social media accounts, including Facebook and
Instagram, as well as accounts to dating sites where he was communicating with women.
Golz arrested Navarro.
              The parole violation decision making instrument (PVDMI) of the
California Department of Corrections and Rehabilitation, Division of Adult Parole
Operations (the Department) recommended a response level of least to most intensive
with continued parole and remedial sanctions. Golz, however, recommended parole
revocation and 135 days in custody.
              At a hearing in October 2014, Navarro argued the Special Condition was
overbroad because the offense did not involve the Internet. The trial court determined the
Special Condition was valid and it was reasonably related to the attempted kidnapping
because it sought to prevent him from visiting Internet sites where he could engage in
predatory behavior. The trial court denied Navarro’s request to remove or modify the
Special Condition. The court concluded Navarro performed poorly on parole and
sentenced him to 180 days and awarded him 146 days of credit. During the pendency of
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this appeal, Navarro’s parole expired.




2
             In Navarro’s reply brief, filed on June 15, 2015, Navarro’s appellate
counsel represents Navarro was discharged from parole on April 25, 2015.

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                                       DISCUSSION
I. Moot
              The Attorney General requests we dismiss this appeal because Navarro has
been released from parole and any decision would be without practical effect. Navarro
argues his release from parole does not render his appeal moot because this case involves
issues of public importance likely to reoccur. We agree with Navarro.
              People v. Osorio (2015) 235 Cal.App.4th 1408, 1411 (Osorio), is
instructive. In that case, defendant was released on parole with the condition he was not
to have any association with known gang members. (Id. at p. 1410.) During his period
of parole, defendant was arrested while he talked with individuals he knew to be gang
members. (Ibid.) The trial court determined defendant violated parole, revoked parole,
and sentenced him to 73 days in jail. (Id. at p. 1411) While his appeal was pending,
defendant was released from custody and his parole expired. (Ibid.) The Osorio court
agreed with the Attorney General the issue was moot, but the court exercised its
discretion to consider the merits of the appeal because the court has the “discretion to
decide a case that, although moot, poses an issue of broad public interest that is likely to
recur.” (Ibid.) Indeed, “‘Such questions [of general public concern] do not become moot
by reason of the fact that the ensuing judgment may no longer be binding upon a party to
the action.’ [Citation.]” (In re William M. (1970) 3 Cal.3d 16, 23.)
              Navarro’s release from parole eliminated any effect our decision may have
had on him, but the underlying issue relating to the Special Condition is one of broad
public interest that is likely to reoccur. The Special Condition is included on a
pre-printed form issued by the Department. When inmates are to be released on parole,
the Department selects special conditions from the pre-printed form to impose on the
inmate during parole based on the individual inmate and the underlying crime. The
inmate must agree to the conditions and sign the pre-printed form before being released
on parole. Since it is highly probable that another inmate released on parole will be

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subject to the Special Condition and the identical issue could be raised again, we exercise
our discretion to determine this appeal on its merits despite the issue being moot.
II. Reasonably Related
              Relying on In re Stevens (2004) 119 Cal.App.4th 1228 (Stevens), Navarro
contends the Special Condition is invalid because it does not reasonably relate to the
underlying crime or to preventing future criminal conduct. We disagree.
              “Parole conditions, like conditions of probation, must be reasonable since
parolees retain ‘constitutional protection against arbitrary and oppressive official action.’
[Citation.] Conditions of parole must be reasonably related to the compelling state
interest of fostering a law-abiding lifestyle in the parolee. [Citation.] Thus, a condition
that bars lawful activity will be upheld only if the prohibited conduct either 1) has a
relationship to the crime of which the offender was convicted, or 2) is reasonably related
to deter future criminality. [Citation.]” (Stevens, supra, 119 Cal.App.4th at p. 1234.)
We review the imposition of parole conditions for an abuse of discretion. (See People v.
Martinez (2014) 226 Cal.App.4th 759, 764.)
              In Stevens, defendant pleaded guilty to committing a lewd act on a child
under 14 who he met at a youth program. Defendant’s home computer contained no
child pornography or evidence of illicit activity. (Stevens, supra, 119 Cal.App.4th at
p. 1231.) When defendant was released on parole, a special condition of parole stated,
“‘You shall not possess or have access to computer hardware or software including the
[I]nternet.’” (Ibid.) In his habeas corpus petition, defendant contended the restriction
bore no relation to his crime of conviction, did not relate to criminal conduct, and forbade
conduct not reasonably related to preventing future criminality. (Ibid.) The court
recognized the state had a compelling concern that giving a released child molester
“unfettered access to a computer might result in criminal conduct.” (Id. at p. 1239.)
However, the court held the condition invalid because it completely prohibited computer
and Internet use, which bore no relation to the underlying offense and was a greater

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restriction than necessary to accomplish the state’s goal. (Ibid.) The court concluded a
more focused condition, such as unannounced inspections or monitoring software would
be appropriate. (Ibid.)
              Similar to Stevens, Navarro did not use a computer during the underlying
offense and thus the Special Condition does not directly relate to the crime of conviction.
The Special Condition does, however, reasonably relate to preventing future criminality.
And unlike Stevens, the Special Condition did not completely prohibit Navarro from
using a computer or the Internet.
              The Department imposed the Special Condition for the following two
reasons: the nature of the underlying offense (“[s]ubject attempted to kidnap a minor;
during the attack he touched her and threatened to rape he[r]”) created a nexus between
Navarro’s behavior during the underlying offense and the behavior being restricted; and
the restriction controls those behaviors associated with Navarro’s “sexual deviancy and
sex offender profile behavioral characteristics.” The trial court relied on these factors
when it reasoned, “It would appear that the conditions related to making efforts to curtail
or prohibit [Navarro from] engaging in any type of predatory behavior that resulted in his
imprisonment in the first place by denying him access to sites which would [allow him
to] engage in predatory behavior[.]” Therefore, the trial court did not abuse its discretion
by imposing the Special Condition that sought to deter Navarro from using Internet
technologies to prey on young victims.
              Additionally, the trial court’s conclusion is further supported by Navarro’s
unsatisfactory performance on parole, including four parole violations, several of which
related to Internet use. One parole violation was for viewing, possessing, or having
access to pornographic material on his cell phone. Another parole violation was for
changing his name to conceal his registered sexual offender name, “Alex Navarro,” by
using the name “Alex Russell” on Gmail and various social media websites. Thus, the



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Special Condition was valid because it was reasonably related to deter future criminal
conduct.
III. Vague
              Conceding he did not raise the vagueness issue below, Navarro contends
the Special Condition is unconstitutionally vague because it fails to provide fair warning
what conduct is prohibited. We agree.
              Preliminarily, the Attorney General does not assert Navarro forfeited
appellate review of the vagueness issue because he did not raise the issue below. Indeed,
the forfeiture rule does not apply when a parole condition is challenged as
unconstitutionally vague on its face and the claim can be resolved on appeal as a pure
question of law without reference to the particular sentencing record developed below.
(See In re Sheena K. (2007) 40 Cal.4th 875, 887-889 (Sheena K.).)
              “[T]he underpinning of a vagueness challenge is the due process concept of
‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts
of preventing arbitrary law enforcement and providing adequate notice to potential
offenders’ [citation], protections that are ‘embodied in the due process clauses of the
federal and California Constitutions. [Citations.]’ [citation.] 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.] In deciding the adequacy of any notice afforded
those bound by a legal restriction, we are guided by the principles that ‘abstract legal
commands must be applied in a specific context,’ and that, although not admitting of
‘mathematical certainty,’ the language used must have ‘“reasonable specificity.”’

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[Citation.] [¶] A probation condition ‘must be sufficiently precise for the probationer to
know what is required of him, and for the court to determine whether the condition has
been violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.] 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. [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.)
We review vagueness and overbreadth challenges de novo. (Id. at pp. 887-888.)
              Here, the Special Condition consists of two sentences. The first sentence
states, “You shall not use an electronic bulletin board system, [I]nternet relay chat
channel, instant messaging, newsgroup, usergroup, peer to peer; i.e., Napster, Gnutella,
Freenet, etc.” Read plainly, this would restrict a parolee from using any Internet based
communication where the parolee posts content to the Internet, such as instant messaging
or social media. The second sentence provides, “This would include any site-base; i.e.,
Hotmail, Gmail, or Yahoo e-mail, etc., which allows the user to have the ability to surf
the [I]nternet undetected.” The inclusion of specific e-mail providers seems to ban the
use of e-mail providers to surf the Internet undetected. However, the second sentence
relates to the restrictions laid out in the first sentence, as the second sentence begins
“[t]his would include,” and it is unclear how these two sentences work together, resulting
in disagreement between the parties concerning how to interpret the Special Condition.
              Navarro suggests there are two ways to interpret the Special Condition.
First, it prohibits the use of any e-mail or Internet browser that allows Internet searching
in “private” mode. Second, it prohibits the use of instant messaging, peer to peer
communications, or bulletin boards that allow the user to surf the Internet undetected.
The Attorney General interprets the Special Condition as prohibiting parolees from
visiting any platform that allows them to browse the Internet undetected by listing types
of platforms prohibited (electronic bulletin board systems, Internet relay chat channels,
instant messaging, newsgroup, usergroup, and peer-to-peer) and specific platforms

                                               8
prohibited (Napster, Gnutella, Freenet, Hotmail, Gmail, and Yahoo e-mail). The
confusion does not end there.
                First, as Navarro notes, the phrase “‘surf the Internet undetected’” makes it
unclear whether it applies to parolees surfing the Internet undetected by parole authorities
or to parolees interacting with others on the Internet without revealing their identities.
Second, the inclusion of specific e-mail platforms in the second sentence causes
confusion about whether the Special Condition prohibits the parolee from using e-mail
altogether, which would unnecessarily infringe on his right to communicate with
family/friends or find/keep employment, or whether the parolee can use e-mail, just not
to browse the Internet undetected.
                As demonstrated by the many interpretations and resulting confusion, we
conclude the Special Condition is not “sufficiently precise for the [parolee] to know what
is required of him,” which has caused the parties and the court to “‘“guess at its meaning
and differ as to its application.” [Citation.]’” (Sheena K, supra, 40 Cal.4th at p. 890.)
Therefore, due to its imprecise nature, we conclude the Special Condition is
unconstitutionally vague as written.
IV. Overbroad
                Finally, Navarro asserts the Special Condition is unconstitutionally
overbroad because it imposes a far greater burden on his First Amendment rights than
reasonably necessary to achieve any legitimate state interest. We decline Navarro’s
invitation to consider the overbreadth issue in light of our conclusion the Special
Condition is unconstitutionally vague. (Sheena K, supra, 40 Cal.4th at p. 891, fn. 8 [“In
view of [the] conclusion [the probation condition is unconstitutionally vague], it is
unnecessary to decide whether [. . .] the probation condition also is unconstitutionally
overbroad”].)




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                                  DISPOSITION
            The postjudgment order is reversed.




                                              O’LEARY, P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.




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