Filed 5/21/14 P. v. Aragon CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039880
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1240122)

             v.

ISMAEL ARISTER ARAGON,

         Defendant and Appellant.



         Ismael Arister Aragon appeals a judgment entered following a guilty plea. He
asserts some of the probation conditions ordered by the court are unconstitutionally vague
and overboard. In addition, defendant asserts the trial court erred in imposing a probation
supervision fee.
                                           STATEMENT OF THE CASE
         In May 2013, defendant pleaded no contest to one count of possessing matter
depicting a person under the age of 18 engaging in or simulating sexual conduct. (Pen.
Code, § 311.11, subd. (a).)1 The court suspended imposition of sentence, and placed
defendant on probation for three years. The court also imposed the following conditions
of probation, among others. “15. The defendant shall not purchase or possess any
pornographic or sexually explicit material as defined by the probation officer. . . .


         1
             All further statutory references are to the Penal Code.
[¶] 17. The defendant shall not access the Internet or any other on-line service through
use of a computer, or other electronic device at any location (including place of
employment) without prior approval of the probation officer. The defendant shall not
possess or use any data encryption technique program. [¶] 18. The defendant shall not
clean or delete Internet browsing activity and must keep a minimum or four weeks of
history.”
       In addition to the probation conditions, the court imposed a probation supervision
fee of $50 per month. Defendant filed a timely notice of appeal.
                                        DISCUSSION
       On appeal, defendant asserts conditions 15 and 17 are unconstitutionally vague
and overbroad. In addition, defendant asserts condition 18 should be modified to
expressly require knowledge. Finally, defendant argues there was insufficient evidence
that he could pay the probation supervision fee ordered by the trial court, and the trial
court failed to comply with the statutory requirements for imposition of such fee.
       Probation Condition 15
       Defendant asserts probation condition 15, which prohibits the possession or
purchase of pornographic or sexually explicit material is vague, because “[r]easonable
minds can differ greatly about what is encompassed by ‘pornography.’ ” (United States
v. Guagliardo (9th Cir. 2002) 278 F.3d 868, 887.)
       It should be noted that although defendant did not challenge this condition in the
trial court, he can raise the issue of whether the condition is constitutionally vague on
appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 885-557.)
       In a case almost identical to the present, this court considered whether a probation
condition prohibiting the possession of pornographic material was vague. In People v.
Pirali (2013) 217 Cal.App.4th 1341 (Pirali), the probation condition at issue ordered the
defendant “ ‘not to purchase or possess any pornographic or sexually explicit material as

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defined by the probation officer.’ ” (Id. at p. 1344.) This court relied on the rationale in
People v. Turner (2007) 155 Cal.App.4th 1432, and modified the condition such that the
defendant was prohibited from purchasing or possessing pornography or sexually explicit
materials, having been informed by the probation officer that such items were
pornographic or sexually explicit. (Pirali, supra, 217 Cal.App.4th at pp. 1352-1353.)
This court determined that as so modified, the probation condition was neither overbroad
nor vague. (Id. at p. 1353.)
       Here, based on the rationale of our Pirali case, the Attorney General concedes the
condition should be modified to read: “The defendant 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.”
       We accept the Attorney General’s concession on this point, and will order
Condition 15 modified accordingly.
       Probation Condition 17
       Defendant asserts that Probation Condition 17, which prohibits him from
accessing the internet is unconstitutionally vague and overbroad, because it does not
contain a knowledge requirement.
       In Pirali, court, this court considered an identical probation condition regarding
internet access as the present case. With the addition of an express knowledge
requirement, this court concluded the condition was not unconstitutionally vague or
overbroad. (Pirali, supra, 217 Cal.App.4th at pp. 1351-1352.)
       The Attorney General concedes, based on Pirali, that Probation Condition 17
should be modified to read: “The defendant shall not knowingly access the Internet or
any other on-line service through use of the computer, or other electronic device at any
location (including place of employment) without prior approval by the probation officer.



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The defendant shall not knowingly possess or use any data encryption technique
program.”
       We accept the Attorney General’s concession on this issue and will order
Probation Condition 17 modified accordingly.
       Probation Condition 18
       Defendant argues Probation Condition 18, which prohibits defendant from
deleting his internet browsing history, requires knowledge.
       A violation of probation requires willful conduct on the part of a probationer.
(People v. Zaring (1992) 8 Cal.App.4th 362, 375-379.) As such, the probationer must act
with knowledge that such conduct is a violation of a probation condition. (Pirali, supra,
217 Cal.App.4th at pp. 1350-1351.)
       The Attorney General concedes the condition should be modified to read: “The
defendant shall not knowingly clean or delete Internet browsing activity and must keep a
minimum of four weeks of history.”
       We accept the Attorney General’s concession on this point, and will order
Probation Condition 18 modified accordingly.
       Probation Supervision Fee
       Defendant asserts there was insufficient evidence that he could pay the $50 per
month probation supervision fee ordered by the trial court. In addition, defendant argues
the trial court did not follow the statutory procedure required to impose the fee.
       Although defendant acknowledges that he did not object to the $50 per month fee
in the trial court, he relies on this court’s opinion in People v. Pacheco (2010) 187
Cal.App.4th 1392 (Pacheco), disapproved by People v. McCullough (2013) 56 Cal.4th
589 (McCullough), to argue that his claim has not been forfeited, and that a hearing on
defendant’s ability to pay was required.



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       Moreover, defendant asserts the court in McCullough only disapproved Pacheco
to the extent Pacheco held that the inability to pay a booking fee, rather than a probation
supervision fee is forfeited by a failure to object in the trial court.2
       In McCullough the court stated, “In contrast to the booking fee statute, many of
these other statutes provide procedural requirements or guidelines for the ability-to-pay
determination. Certain fee payment statutes require defendants to be apprised of their
right to a hearing on the ability to pay and afford them other procedural safeguards.”
(McCullough, supra, 56 Cal.4th at p. 598.) Section 1203.1b, subdivision (a), which states
the procedural requirements for imposition of a probation supervision fee is the type of
statute to which the McCullough court referred. Because imposition of a probation
supervision fee requires procedural safeguards, we find defendant’s failure to object in
the trial court did not forfeit his right on appeal.
       Section 1203.1b, subdivision (a) provides: “The court shall order the defendant to
appear before the probation officer . . . to make an inquiry into the ability of the
defendant to pay all or a portion of these costs. . . . The probation officer shall inform the
defendant that the defendant is entitled to a hearing, that includes the right to counsel, in
which the court shall make a determination of the defendant’s ability to pay and the
payment amount. The defendant must waive the right to a determination by the court of
his or her ability to pay and the payment amount by a knowing and intelligent wavier.”
       Here, the record shows the court did not make a determination of defendant’s
ability to pay, and defendant did not knowingly and intelligently waive his right to a

       2
          After defendant filed his opening brief in this appeal, the California Supreme
Court granted review on the issue of whether failure to object to probation supervision
fees in the trial court, among other issues, constitutes a waiver of the issue on appeal.
(See People v. Aguilar (2013) 219 Cal.App.4th 1094, review granted Nov. 26, 2013,
S213571; People v. Trujillo, review granted Nov. 26, 2013, S213687[nonpub. opn];
People v. Venezuela (2013) 220 Cal.App.4th 159, review granted Jan. 15, 2014, S214485,
briefing deferred.)
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hearing on his ability to pay the fee. Moreover, there was not substantial evidence that
defendant had the ability to pay the fee. Therefore, the fee was improperly imposed, and
should be stricken.
                                      DISPOSITION
       Probation Condition 15 shall be modified to read: “The defendant 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.”
       Probation Condition 17 shall be modified to read: “The defendant shall not
knowingly access the Internet or any other on-line service through use of the computer,
or other electronic device at any location (including place of employment) without prior
approval by the probation officer. The defendant shall not knowingly possessor use any
data encryption technique program.”
       Probation Condition 18 shall be modified to read: “The defendant shall not
knowingly clean or delete Internet browsing activity and must keep a minimum of four
weeks of history.”




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     The probation supervision fee of $50 per month is stricken.
     As so modified, the judgment is affirmed.


                                       ______________________________________
                                                  RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           MÁRQUEZ, J.




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