Filed 4/27/15 P. v. Willis CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B257107

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. 4PH02232)
         v.

TYLER HOLLAND WILLIS,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County,
Donald S. Kennedy, Commissioner. Affirmed.
         Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Blythe J. Leszkay and
Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent.


                                    ______________________________
          Following his convictions on two felony counts of child molestation in 2009,
Tyler Holland Willis was sentenced to state prison and subsequently released on parole,
subject to multiple special conditions. After Willis was found to have violated his parole
conditions, his parole was revoked and restored with an additional special condition
prohibiting him from possessing any device capable of having access to the internet. On
appeal, Willis challenges that condition of parole as overbroad and unreasonable. We
affirm.
                        FACTUAL AND PROCEDURAL BACKGROUND
          1. Plea and Sentence in Underlying Offense
          In April 2009, Willis sold Xanax to a 13-year-old girl. After the girl had ingested
some Xanax, Willis forced her to orally copulate him. He then forcibly digitally
penetrated her vagina. Willis was arrested and charged in a two-count information with
committing a lewd act upon a child under the age of 14 years (Pen. Code, § 288, subd.
(a)) and forcible oral copulation (Pen. Code, § 288a (c)(2)). Willis pleaded not guilty.
          In a negotiated agreement, Willis waived his right to a jury trial on October 27,
2009, pleaded no contest to both counts and was sentenced to concurrent three-year state
prison terms.

          2. Release on Parole and Special Conditions
          Willis was homeless when he was paroled on June 5, 2013. Among the special
conditions of his parole were that Willis submit to continuous electronic monitoring
(Global Positioning System (GPS) technology), refrain from using the computer for any
purpose which might further sexual activity (i.e., accessing or possessing sexually
explicit material electronically or physically) (condition 90), refrain from regularly
entering the property of others, except in certain enumerated circumstances (condition
109) and submit to a search of any electronic device (condition 95).




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       3. Parole Violation Hearings
       Willis waived his right to counsel and represented himself at two separate parole
violation hearings.

              a. First Parole Violation Hearing
       At the conclusion of the hearing on February 20, 2014, the court found Willis had
violated the parole condition he refrain from regularly entering the property of others
(condition 109), when he stayed several nights at an apartment without the permission of
his assigned parole agent Javier Mata in December 2013. The court revoked and restored
Willis’s parole with the added condition that he serve 180 days in county jail.

              b. Second Parole Violation Hearing
       According to the evidence presented at the second parole violation hearing on
May 9, 2014, Willis’s computer was seized when he was arrested in December 2013. In
March 2014, Parole Agent Mata asked Willis for the password to access the computer.
Willis provided a password, but it did not work. After several attempts to access the
computer using that password, Mata asked Willis to enter the password himself. Willis
turned to another parole agent and said, “I do not want Agent Mata looking at my
personal stuff on my computer.” A third parole agent used forensic software to access
the computer without using Willis’s password. That agent discovered the computer had
been used to visit several pornographic websites and contained 12 videos of Willis and an
unknown woman engaged in sexual intercourse.
       At the conclusion of the second hearing, the court found that Willis, by possessing
pornography on his computer, had violated the condition of his parole that he refrain
from using the computer for any purpose which might further sexual activity (condition
90). The court also found by refusing to give parole agents access to his computer, Willis




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had violated the condition that he submit to the search of any electronic device (condition
95) 1.
         Pertinent to the appeal are the following statements by the court, the prosecutor,
Willis’s parole agent, and Willis during the May 9, 2014 hearing:
         “Court: Parole supervision is revoked and restored on the same terms and
conditions as previously ordered. [P] You’re the parole agent. Any additional
conditions?
         “Agent Mata: There is.
         Court: Than what was originally given to him?
         Agent Mata: I’d like to impose a condition that prohibits him from having
possession or access to a laptop computer, or a cell phone with any type of –
         Prosecutor: A condition of no access to a computer or access to the internet.
         Willis: I object, your Honor. It’s unrelated to my commitment offense.
         Court: How is it unrelated? And I ask that only because, according to the petition,
the original offense is lewd and lascivious acts with a child; and as a result of that there
was a restriction on access to pornography, or anything to do with pornography, and it
appears that you have violated that condition.
         Willis: Yes, your Honor. But the original commitment offense has nothing to do
with the computer. This is a violation of parole.
         Court: Okay. I can understand your argument, but I disagree with the logic and
the outcome. And you are not to possess any electronic device with access to the
internet, and that’s as long as parole deems necessary. So I’m making the order, but it’s
up to parole.
         Prosecutor: You Honor, the parole agent is asking if it can be no access to the
internet, as well as no laptop or computer. He can have a phone, but as long as it doesn’t
access –


1      Willis timely filed separate notices of appeal challenging the findings of each
parole violation hearing. We granted Willis’s motion to consolidate the appeals.
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       Court: I said any electronic device.
       Prosecutor: Just specifically computer or laptop, as well, since it was used to
record and create the sexually explicit videos. So no computer, no laptop, or other
computer-like device, and as well as access to the internet. Thank you.
       Court: Any computer, laptop, or other electronic device capable of having access
to the internet.”

                                           DISCUSSION
       1.      The Special Condition Expressed In The Minute Order Prevails Over The
               Court’s Oral Pronouncement
       Relying on the court’s oral pronouncement at the conclusion of the second parole
violation hearing, Willis contends prohibiting him from possessing any electronic device
“capable” of internet access is unreasonable and overbroad. However, the People rely
instead on the internet restriction as it is appears in the minute order, which prohibits
Willis from possessing “any electronic device with access to the internet, computer or
laptop, as long as parole deems necessary.” The People argue this written condition
governing Willis’s parole is neither unreasonable nor overbroad and Willis does not
contend otherwise. The threshold issue then is whether the internet restriction as orally
pronounced or as expressed in the minute order controls in this case.
       While ordinarily an oral pronouncement controls “[w]hen there is a discrepancy
between the minute order and the oral pronouncement of judgment” (People v. Gabriel
(2010) 189 Cal.App.4th 1070, 1073), this is not an inflexible “mechanical rule.” (People
v. Smith (1983) 33 Cal.3d 596, 599. “‘It may be said … as a general rule that when, as in
this case, the record is in conflict it will be harmonized if possible; but where this is not
possible that part of the record will prevail, which, because of its origin and nature or
otherwise, is entitled to greater credence [citation]. Therefore whether the recitals in the
clerk’s minutes should prevail as against contrary statements in the reporter’s transcript,
must depend upon the circumstances of each particular case.’” (Smith at p. 599; see
People v. Cleveland (2004) 32 Cal.4th 704, 768 [minute order prevails over oral

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pronouncement of one-year prior prison term enhancement, which was never charged in
the information]; People v. Harrison (2005) 35 Cal.4th 208, 226 [minute order prevails
over reporter’s transcript, which misspelled defense counsel’s name].)
       Here, we conclude the May 9, 2014 minute order indicating Willis was prohibited
from possessing “any electronic device with access to the internet, computer or laptop, as
long as parole deems necessary” controls in light of what occurred at the May 9, 2014
hearing. After finding Willis in violation of his parole, the court solicited the opinion of
Willis’s parole agent Mata as to any additional conditions that should be imposed. In
light of the violation of previous conditions, Mata and the prosecutor focused on a
condition that would prevent Willis from downloading pornographic videos from internet
websites as well as creating, recording and possibly posting his own pornographic videos.
The use of electronic devices would only serve prohibited purposes if they connected to
the internet; the mere capacity to be connected is not relevant to the conduct to be
prohibited. The court could thus reasonably conclude Willis should be precluded from
possessing any electronic device with internet access. We therefore conclude that the
May 9, 2014 minute order, but not the transcript, accurately sets forth the internet
restriction the court intended to imposed as an additional special condition of parole.
(See People v. Cleveland, supra, 32 Cal.4th at p. 768.)
                                      DISPOSITION
       The order is affirmed.

                                                  ZELON, J.

We concur:




       PERLUSS, P. J.                             FEUER, J.*

*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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