Filed 10/28/15 P. v. Bell CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A144174
v.
JORDAN L. BELL,                                                      (Contra Costa County
                                                                     Super. Ct. No. 51209089)
         Defendant and Appellant.


         Defendant Jordan L. Bell challenges the constitutionality of five probation
conditions that were imposed on him in connection with his conviction for a single count
of possessing child pornography. He argues the conditions are unconstitutionally vague
and overbroad, and requests we modify four of them and strike the fifth. The Attorney
General’s position is that all five conditions should be modified, although for some of the
conditions, the Attorney General’s proposed modifications differ from the modifications
proposed by defendant.
         As we explain in detail below, we will modify each of the five conditions, and
affirm the judgment as modified.
                        FACTUAL AND PROCEDURAL BACKGROUND
         In February 2012, a detective with the Pleasant Hill Police Department detected an
Internet Service Provider (IP) address sharing files suspected of being child pornography.
The detective obtained a search warrant for the IP address to determine the physical
address where it was located. The detective determined the IP address was at a residence




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on Reed Way in Concord. The detective then obtained a search warrant to search
computers located at the residence.
       The search warrant was served on March 14, 2012. The officers performing the
search found a laptop computer under a bed belonging to defendant. The detective
searched the computer and discovered a shared folder containing files that depicted child
pornography. The detective then interviewed defendant at the residence, where
defendant said that the “stuff” on his laptop was “definitely inappropriate.” Defendant
was arrested and taken to the Pleasant Hill police station. There, he told the detective that
the computer was his and that he put pornography on it.
       Defendant was charged with one count of possessing child pornography (Pen.
Code § 311.11, subd. (a)). He pled not guilty. A jury trial commenced on November 20,
2014 and, following trial, defendant was convicted on the single count. The trial court
suspended imposition of defendant’s sentence and placed him on formal probation for
four years. This timely appeal followed.
                                       DISCUSSION
       Defendant argues that condition numbers 6, 8, 14, 18, and 20 of his probation are
unconstitutionally vague and overbroad.1
       “Under the void for vagueness doctrine, based on the due process concept of fair
warning, an order ‘ “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.” ’ (Sheena K., supra, 40 Cal.4th at p. 890.) The doctrine invalidates a
condition of probation ‘ “ ‘so vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application.’ ” ’ (Ibid.) By failing to clearly

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         Defendant did not object to any of the five conditions as being unconstitutionally
vague or overbroad to the trial court. Nevertheless, his arguments may be made for the
first time on appeal “so long as they present pure questions of law based solely on facial
constitutional grounds and do not require a review of the sentencing record, and are
easily remediable on appeal.” (In re Victor L. (2010) 182 Cal.App.4th 902, 907.) Thus,
we will address the merits to the extent that they present “ ‘ “pure question[s] of law,
easily remediable on appeal by modification of the condition[s].” ’ ” (In re Sheena K
(2007) 40 Cal.4th 875, 888 (Sheena K.).)

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define the prohibited conduct, a vague condition of probation allows law enforcement
and the courts to apply the restriction on an ‘ “ ‘ad hoc and subjective basis, with the
attendant dangers of arbitrary and discriminatory application.’ ” ’ (Ibid.)” (In re Victor
L. supra, 182 Cal.App.4th at p. 910.) “In addition, the 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.”
(Ibid.)
Condition 6
          Condition 6 states: “That the defendant not use, possess, or have under his control
any dangerous drug or narcotic paraphernalia.”
          Defendant argues condition 6 is vague because it does not define “dangerous
drug,” a term that defendant argues “could be interpreted to apply to any number of legal,
even over the counter, ‘drugs’[.]” Defendant also argues the condition is vague and
overbroad because “the condition does not specify that the possession or control must be
‘knowingly.’ ”
          The Attorney General argues that the term “dangerous drug[]” is “sufficiently
precise because, as reasonably interpreted . . . it does not include properly-administered
and prescribed prescription or over-the-counter medicine in that category.” However, the
Attorney General agrees that the condition should have a knowledge requirement, and
proposes modifying the condition to state that “defendant not use, possess, or have under
his control any drug that he knows or reasonably should know, is dangerous, or narcotic
paraphernalia.”
          In his reply brief, defendant no longer opposes the term “dangerous drug” and
agrees with the Attorney General’s proposal to add a knowledge requirement.
          We agree that condition 6 should be modified to add a knowledge requirement.
(Sheena K., supra, 40 Cal.4th at p. 892 [adding knowledge requirement to probation
condition was necessary to prevent condition from being unconstitutionally vague].)
Accordingly, this condition is modified to say: “That the defendant not use, possess, or



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have under his control any drug that he knows or reasonably should know is dangerous,
or narcotic paraphernalia.”
Condition 8
       Condition 8 states: “That the defendant have no contact with any minors under the
age of 18, unless and until authorized by the probation officer.”
       Defendant argues condition 8 “is vague and overbroad without a knowledge
requirement as, unless appellant asks the age of every young person he ‘contacts,’ he will
have no way of knowing their exact age.” Defendant also argues that the word “contact”
is vague and overbroad because he “could ‘contact’ a minor while purchasing most
anything from a sales person at a retail outlet, restaurant, or any other business
establishment.” Defendant proposes adding a knowledge requirement to the condition, as
well as the phrase “except during normal daily incidental/commercial activities and
transactions.”
       The Attorney General agrees that the condition should be modified to add a
knowledge requirement. The Attorney General did not address whether the phrase
“except during normal daily incidental/commercial activities and transactions” should
also be added to the condition.
       We agree that condition 8 should include an express knowledge requirement.
(Sheena K., supra, 40 Cal.4th at p. 892.) We also believe that an express knowledge
requirement eliminates defendant’s concern that he can violate condition 8 through
incidental confrontations with minors. If condition 8 contains an express knowledge
requirement, it cannot be reasonably interpreted to extend to the type of incidental contact
with minors described by defendant. (See United States v. Loy (7th Cir. 2001) 237 F.3d
251, 269 [condition prohibiting defendant from unsupervised contact with minors
interpreted as not applying to “accidental or unavoidable contact with minors in public
places”]; People v. Moore (2012) 211 Cal.App.4th 1179, 1185 [express knowledge
requirement may be required for conditions “that are not easily amenable to precise
definition”].) It is not necessary to add the phrase “except during normal daily
incidental/commercial activities and transactions” to condition 8.


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       Accordingly, condition 8 is modified to say: “That the defendant have no contact
with any person he knows or reasonably should know is a minor under the age of 18
unless authorized by the probation officer.”
Condition 14
       Condition 14 states: “That the defendant not possess at any time any type of
pornography, including written pornography, pictures, videotapes, or electronic computer
applications or telecommunications access to such applications and that the defendant not
contact minors or person(s) he believes to be minors via the internet.”
       Defendant argues that the phrase “electronic computer applications or
telecommunications access” makes condition 14 unconstitutionally vague because it can
“possibly be[] read to prohibit the possession of phones, tablets and computers or
software such as an internet browser.” Defendant proposes modifying the condition to
replace the phrase “electronic computer applications or telecommunications access” with
“computer images.” Defendant also proposes the addition of an express knowledge
requirement because without such a requirement, he “could unwittingly violate the
condition as there are situations where he may not know he possesses pornography or
electronic computer applications.”
       The Attorney General responds that condition 14 “does not . . . prohibit the
possession of phones, tablets, or internet browsers themselves[.]” Instead, the Attorney
General argues that “examined in context, the condition simply prohibits electronic
computer applications that are specifically used to access pornography.” The Attorney
General agrees, however, that condition 14 should have an express knowledge
requirement “[w]ith regard to the prohibition on possessing pornography itself.”
       We agree with the Attorney General that, when read in context, condition 14
applies to electronic computer applications specifically used to access pornography and
does not prohibit the possession of phones, tablets, computers, and software. The plain
language of the condition states that it prohibits defendant from possessing pornography;
it does not extend to all uses of electronic computer applications and telecommunications.
This interpretation is buttressed by other conditions of probation which contemplate that


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defendant will be able to use computer applications and telecommunications devices
subject to limitations. For example, Condition 15 states that defendant must make
available to the probation officer all user ID’s and passwords for computers, email,
cameras, smart phones, and cell phones. Condition 17 states that defendant must make
available to the probation officer user ID’s, access codes, and passwords for social
networking sites, email, chat rooms, and the like. Those conditions would have little
meaning if, as defendant suggests, condition 14 prohibits him from possessing phones,
tablets, computers, or software.
       That said, we agree with both parties that condition 14 should contain an express
knowledge requirement. (Sheena K., supra, 40 Cal.4th at p. 892.)
       Accordingly, condition 14 is modified to say: “That the defendant not knowingly
possess at any time any type of pornography, including written pornography, pictures,
videotapes, or electronic computer applications or telecommunications access to such
applications and that the defendant not knowingly contact minors or person(s) he believes
to be minors via the internet.”
Condition 18
       Condition 18 states: “That the defendant have no access to open wireless
network(s). All wireless networks must be closed and locked down, with the password
provided to the probation officer. The defendant cannot possess or use any encrypted
data, files, encrypted whole disk, and encrypted volumes.”
       Defendant makes several terse arguments about condition 18. According to
defendant, condition 18 is “simply impossible to comply with without an express
knowledge requirement” because it is “unclear how a ‘closed and locked down’ network
differs from an ‘open’ network.” Defendant further contends that “open wireless
networks are found everywhere including airports, restaurants, private residences, etc.”
Defendant also challenges the “encrypted data” portion of condition 18, arguing that
“many lawful and essential computer programs and applications contain and/or require
the use of encrypted data, files, encrypted whole disk, and encrypted volumes.”



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Defendant requests we strike condition 18 in its entirety because it is “totally unworkable
and unenforceable.”
       The Attorney General argues condition 18 should not be stricken. The Attorney
General argues that the password protection requirement does not require any
modification (including a knowledge requirement), because defendant “does not
automatically connect to any internet connection he comes across and he has the capacity
to not use the internet in situations where a password-protected network is unavailable.”
The Attorney General argues that the “encrypted data” portion of the condition should be
modified to add an express knowledge requirement, because “a basic knowledge
requirement ensures that [defendant] will not be punished for unwitting incidental
interactions with encrypted data while providing [defendant] sufficient notice.”
       We agree with the Attorney General that the password protection portion of
condition 18 does not require modification. The text of condition 18 makes clear that a
“closed and locked down” network is one that requires the user to provide a password to
access the internet. It states: “All wireless networks must be closed and locked down,
with the password provided to the probation officer.” (Emphasis added.) Defendant is
correct that non-password protected internet networks (i.e., “open” networks) can be
found in a variety of locations. However, defendant’s computers or mobile devices will
not automatically access those networks. Rather, an affirmative act by defendant to
connect to and use the network is required. Defendant will know whether he is required
to enter a password prior to accessing any network. Accordingly, this portion of
condition 18 is “ ‘sufficiently precise for [defendant] to know what is required of him,
and for the court to determine whether the condition has been violated.’ ” (Sheena K.,
supra, 40 Cal.4th at p. 890.)
       Regarding the encrypted data portion of condition 18, we conclude that an express
knowledge requirement should be added so that defendant will not unwittingly violate the
condition. (Sheena K., supra, 40 Cal.4th at p. 892.) We do not believe other
modifications to the encrypted data portion of condition 18 are necessary. This portion of
the probation condition, as modified with a knowledge requirement, is not


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unconstitutionally vague since it will sufficiently notify defendant regarding the types of
data and files he cannot use. (See People v. Pirali (2013) 217 Cal.App.4th 1341, 1351-
1352 [knowledge requirement added to condition prohibiting internet access to prevent it
from being unconstitutionally vague].) We also cannot conclude that the condition is
overbroad, as defendant has not explained how his inability to use encrypted files or data
imposes limitations on any of his constitutional rights. (See Sheena K., supra, 40 Cal.4th
at p. 890 [overbreadth doctrine applies to conditions imposing limitations on a person’s
constitutional rights].)
       Accordingly, condition 18 is modified to say: “That the defendant have no access
to open wireless network(s). All wireless networks must be closed and locked down,
with the password provided to the probation officer. The defendant cannot knowingly
possess or use any encrypted data, files, encrypted whole disk, and encrypted volumes.”
Condition 20
       Condition 20 states: “That the defendant not frequent or visit places that exist
primarily for the enjoyment of minors (i.e. circuses, playgrounds, arcades, amusement
parks, zoos, etc.).”
       Defendant argues this condition is unconstitutionally vague because it lacks a
knowledge requirement. The Attorney General agrees that because the condition “is not
subject to an exclusive list of places or types of places, this term should be modified to
specify that [defendant] may not visit places he knows, or reasonably should know, exist
primarily for the enjoyment of children.” We agree, and modify the condition to state:
“That the defendant not frequent or visit places that he knows or should know exist
primarily for the enjoyment of minors (i.e. circuses, playgrounds, arcades, amusement
parks, zoos, etc.).”
                                      DISPOSITION
       The five probation conditions from which defendant has appealed are modified to
read as follows: (6) “That the defendant not use, possess, or have under his control any
drug that he knows or reasonably should know is dangerous, or narcotic paraphernalia”;
(8) “That the defendant have no contact with any person he knows or reasonably should


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know is a minor unless authorized by the probation officer”; (14) “That the defendant not
knowingly possess at any time any type of pornography, including written pornography,
pictures, videotapes, or electronic computer applications or telecommunications access to
such applications and that the defendant not knowingly contact minors or person(s) he
believes to be minors via the internet.”; (18) “That the defendant have no access to open
wireless network(s). All wireless networks must be closed and locked down, with the
password provided to the probation officer. The defendant cannot knowingly possess or
use any encrypted data, files, encrypted whole disk, and encrypted volumes.”; (20) “That
the defendant not frequent or visit places that he knows or should know exist primarily
for the enjoyment of minors (i.e. circuses, playgrounds, arcades, amusement parks, zoos,
etc.).”
          As so modified, the judgment is affirmed.




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                                 _________________________
                                 Miller, J.


We concur:


_________________________
Kline, P.J.


_________________________
Stewart, J.




A144174, People v. Bell




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