   IN cLiincsopnei
   oeum;steiOFwwworeM                          This opinion was filed for record
    _
 DATE        I II ?ni« i                                       on

    CtmF JUSTICE


                                                      SUSAN L. CARLSON
                                                    supreme court clerk




         IN THE SUPREME COURT OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                        No. 94605-1


                     Respondent,

                                           En Banc


JAMEEL PADILLA,
                                            Filed     NAY I 0 2018
                     Petitioner.




        Gonzalez, J.—Jameel Padilla was convicted for communicating with a

minor for immoral purposes. At issue here is Padilla's community custody

condition prohibiting him from "possess[ing] or access[ing] pornographic

materials, as directed by his supervising Community Corrections Officer"(CCO).

Clerk's Papers(CP)at 37. Padilla argues that the condition and its accompanying

definition of"pornographic materials" are unconstitutionally vague.
State V. Padilla, No. 94605-1


        Although the condition includes a definition of"pornographic materials,"

the definition itself is vague and overbroad. A condition cannot be saved from a

vagueness challenge merely because it contains a definition when that definition

itself suffers the same weakness. Moreover, an overbroad definition does not

sufficiently put the offender on notice of what materials are prohibited and subjects

him to possible arbitrary enforcement. We therefore reverse the Court of Appeals'

decision upholding the condition and remand to the trial court for further definition

of the term "pornographic materials" following a determination of whether the

restriction is narrowly tailored based on Padilla's conviction.

                                               Facts



        K.M.,' a nine-year-old living in California, received a message on her

Facebook page. At the time, her profile picture showed her at eight-and-a-half

years old. The message, sent from "Jim Wilcox," included sexually explicit texts.

Originally, K.M. thought these messages were from a family friend, but quickly

realized she was mistaken.



        A relevant portion ofthe conversation includes:
               [Wilcox]: "are you alone?"....
               [K.M.]:   "yay?"....
               [Wilcox]: "cause im jerking offto you. what are you wearing." .
               [Wilcox]: "you are so pretty, my cock is still hard for you."....

'We use K.M.'s initials to protect her identity and to maintain consistency with the Court of
 Appeals' opinion and the parties' briefing.
State V. Padilla, No. 94605-1


              [K.M.];   "shut up I am 9!!!!!!!!!!!!"....
              [WiLCOX]: "suck it"
              [K.M,]:   "no u r gross I am 9 so back off ....

CP at 113-14. Concerned and confused, K.M. blocked "Wilcox" and told her

father about the conversation. K.M.'s father reported the messages to California

law enforcement and provided screenshots ofthe conversation. Investigating

officers discovered the Internet protocol (IP) address for the computer used to

access the "Jim Wilcox" Facebook account was associated with Padilla, who lived

in Everett, Washington. At the time, Padilla was 35 years old.


       Everett police seized Padilla's computer pursuant to a valid search warrant.

A search ofthe computer revealed Padilla's various Facebook aliases, including

the account of"Jim Wilcox." Initially, Padilla did not admit or deny that he used

the "Wilcox" account, but he did admit to engaging in similar conversations via

Facebook. A forensic evaluation ofPadilla's computer also revealed that Padilla

was logged on every time K.M. received a message from the "Wilcox" account.

Although officers were not able to find the chats with K.M. on Padilla's computer,

they had enough evidence to link Padilla to the communications, including

identically phrased messages to other minors.
State V. Padilla, No. 94605-1


       Padilla was charged and convicted of communication with a minor for

immoral purposes.^ The court sentenced him to 75 days of confinement and 12

months of community custody, imposing multiple conditions. Here, Padilla

challenges only the condition prohibiting his possession and access to

pornographic materials, as directed by his CCO. The term "pornographic material'

was defined as "images of sexual intercourse, simulated or real, masturbation, or

the display of intimate body parts." CP at 37.


       On appeal, Padilla challenged his conviction and both community custody

conditions. The State disputed Padilla's challenge to the pornography condition.

The court affirmed Padilla's conviction, upheld the pornography condition, and

remanded to strike the other concededly vague condition.^ State v. Padilla, No.

73902-6-1, slip op. at 10(Wash. Ct. App. Apr. 24, 2017)(unpublished),

http://www.courts.wa.gov/opinions/pdf/739026.pdf. Padilla sought review here,

claiming the charging information omitted an essential element of crime and

challenging the "pornographic materials" condition as vague. We granted review

only as to the sentencing condition. State v. Padilla, 189 Wn.2d 1023, 407 P.3d

1134(2017).




^ The State also charged him with multiple counts of possessing child pornography, but the
communication with a minor charge was severed for trial.
^ The condition prohibited Padilla from frequenting areas where minors were known to
congregate. On appeal, the State conceded that this condition was unconstitutionally vague.
                                               4
State V. Padilla, No. 94605-1


                                     Analysis



       Conditions of community custody may be challenged for vagueness for the

first time on appeal, and where the challenge involves a legal question that can be

resolved on the existing record, the challenge may be addressed before any

attempted enforcement of the condition. State v. Bahl, 164 Wn.2d 739, 744, 193

P.3d 678 (2008). This court reviews community custody conditions for abuse of

discretion, and will reverse them only if they are '"manifestly unreasonable.'"

State V. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830(2015)(quoting State v.

Sanchez Valencia, 169 Wn.2d 782, 791-92, 239 P.3d 1059 (2010)). A trial court

abuses its discretion if it imposes an unconstitutional condition. Id. Here, Padilla

raises a preenforcement vagueness challenge to his community custody condition

prohibiting him from possessing or accessing pornography.


       A legal prohibition, such as a community custody condition, is

unconstitutionally vague if(1)it does not sufficiently define the proscribed

conduct so an ordinary person can understand the prohibition or(2)it does not

provide sufficiently ascertainable standards to protect against arbitrary

enforcement. Bahl, 164 Wn.2d at 752-53 (citing City ofSpokane v. Douglass, 115

Wn.2d 17, 178, 795 P.2d 693 (1990)). But'"a community custody condition is not

unconstitutionally vague merely because a person cannot predict with complete
State V. Padilla, No. 94605-1


certainty the exact point at which his actions would be classified as prohibited

conduct.'" Sanchez Valencia, 169 Wn.2d at 793 (internal quotation marks

omitted)(quoting State v. Sanchez-Valencia, 148 Wn. App. 302, 321, 198 P.3d

1065, rev'd, 169 Wn.2d 782(2009)). Furthermore, a vague condition infnnging on

protected First Amendment speech can chill the exercise ofthose protected

freedoms. Grayned v. City ofRoclrford, 408 U.S. 104, 109,92 S. Ct. 2294, 33 L.

Ed. 2d 222(1972); U.S. CONST, amend. 1. A regulation implicating First

Amendment speech must be narrowly tailored to further the State's legitimate

interest. Grayned,408 U.S. at 117."^ Accordingly, a restriction implicating First

Amendment rights demands a greater degree of specificity and must be reasonably

necessary to accomplish the essential needs of the state and public order. State v.

Riley, 121 Wn.2d 22, 37-38, 846 P.2d 1365 (1993)(quoting Malone v. United

States, 502 F.2d 554, 556 (9th Cir. 1974)).


    1. Padilla's community custody condition prohibiting access and possession of
       "pornographic materials" is unconstitutionally vague

       As mentioned earlier, Padilla challenges the condition prohibiting his access

and possession of pornographic materials as unconstitutionally vague. We agree.




 See also Packingham v. North Carolina, 582 U.S. , 137 S. Ct. 1730, 1736, 198 L. Ed. 2d 273
(2017); McCullen v. Coakley, 573 U.S. _,134 S. Ct. 2518, 2534, 189 L. Ed. 2d 502(2014);
Nat'lAss'nfor Advancement ofColored People v. Button, 371 U.S. 415, 438, 83 S. Ct. 328,9 L.
Ed. 2d 405 (1963); Shelton v. Tucker, 364 U.S. 479, 488, 81 S. Ct. 247,5 L. Ed. 2d 231 (1960);
De Jonge v. Oregon, 299 U.S. 353, 364-65, 57 S. Ct. 255, 81 L. Ed. 278 (1937).
State V. Padilla, No. 94605-1


       In Bahl, our court held that a similarly worded condition was

unconstitutionally vague. 164 Wn.2d at 758. There, Eric Bahl was convicted of

second degree rape and first degree burglary. Id. at 743. In addition to prison

time, the court imposed a mandatory life term of community custody on the rape

charge. One ofthe community custody conditions prohibited Bahl from

"'possess[ing] or access[ing] pornographic materials, as directed by the

supervising [CCO].'" Id. Because the condition granted sole authority to Bahl's

CCO in determining what material was prohibited, this court found the condition

did not sufficiently provide Bahl with notice of which materials were prohibited or

provide ascertainable enforcement standards, /t/. at 758.


        Similar to Bahl, the plain language of Padilla's pornography condition is

vague. However, unlike Bahl's, Padilla's condition includes a definition ofthe

term "pornographic materials" as "images of sexual intercourse, simulated or real,

masturbation, or the display of intimate body parts," CP at 37. Whether the

definition of the term "pornographic materials" in a community custody condition

prohibiting the possession or access of such materials is vague is an issue of first

impression.


       There are three overarching instances when a court will declare a legal

provision, such as a community custody condition, unconstitutionally vague. First,
State V. Padilla, No. 94605-1


the statute must "give the person of ordinary intelligence a reasonable opportunity

to know what [behavior] is prohibited." Grayned,408 U.S. at 108. Second, the

law must provide explicit standards to those charged with enforcing the law in

order to prevent "arbitrary and discriminatory" application. Id. Finally, a vague

law that encroaches on "'sensitive areas of basic First Amendment freedoms'"

naturally inhibits the exercise ofthose freedoms because individuals who are

uncertain ofthe meaning of a statute will steer '"far wider'" than necessary in

order to ensure compliance. Id. at 109(quoting Baggett v. Bullitt, 377 U.S. 360,

372, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964)).


       To determine whether a legal provision, such as a community custody

condition, is unconstitutionally vague, we apply a two-pronged analysis. We must

first consider whether the challenged language "fail[s] to provide the kind of notice

that will enable ordinary people to understand what conduct it prohibits." City of

Chicago V. Morales, 527 U.S. 41, 56, 119 S. Ct. 1849, 144 L. Ed. 2d 67(1999)

(plurality opinion). Next, the language will be void if it "may authorize and even

encourage arbitrary and discriminatory enforcement." Id. at 56(citing Kolender v.

Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983)). A

provision is not vague when a person "'exercising ordinary common sense can

sufficiently understand'" it. Gibson v. City ofAuburn, 50 Wn. App. 661, 667, 748

P.2d 673(1988)(quoting           v. Kennedy, 416 U.S. 134, 159, 94 S. Ct. 1633, 40
State V. Padilla, No. 94605-1


L. Ed. 2d 15 (1974), overruled in part on other grounds by Cleveland Bd. ofEduc.

V. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494(1985));        also

Coates V. Cincinnati, 402 U.S. 611, 614, 91 S. Ct. 1686, 29 L. Ed. 2d 214(1971)

(holding that a statute is impermissibly vague when it prohibits "[cjonduct that

annoys some people [but] does not annoy others"). But a statute will be considered

unconstitutionally vague if enforcement depends on a completely subjective

standard. Vill. ofHoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,

498, 102 S. Ct. 1186, 71 L. Ed. 2d 362(1982)("The degree of vagueness that the

Constitution tolerates—as well as the relative importance offair notice and fair

enforcement—depends in part on the nature ofthe enactment.").


       The State argues that the condition in question here is not unconstitutionally

vague because the term "pornographic materials" was defined in a manner that

may be reasonably understood by an ordinary person. The existence of a definition

distinguishes Eadilla's condition from the condition this court struck down in Bahl.

As mentioned previously, in Bahl we determined that because BahTs condition did

not include a definition of"pornography" or rely on any statutory definition ofthe

term, the language did not adequately put Bahl on notice of what specific items he

was prohibited from accessing and encouraged arbitrary enforcement. 164 Wn.2d

at 754-57. Thus, the condition was deemed unconstitutionally vague.
State V. Padilla, No. 94605-1


       In this case, unlike Bahl, the sentencing court provided a definition for the

term "pornographic materials." Yet, Padilla contends that the definition is also

vague as it does not sufficiently put him, as the probationer, on notice of what

specific items he is prohibited from accessing. The presence of a vague definition

does not save the condition fi"om a vagueness challenge if it also encompasses a

broad range of speech protected by the First Amendment. Id. at 756(CCO could

interpret the condition to "include any nude depiction" as including "a photograph

of Michelangelo's sculpture of David." {dding States v. Guagliardo, 278 F.3d 868,

872(9th Cir. 2002)). The vagueness doctrine requires the State to provide citizens

with fair warning of proscribed conduct; thus, the overbroad definition of

"pornographic materials" may similarly cause a "chilling effect on the exercise of

sensitive First Amendment freedoms." Id. at 752-53. When First Amendment

speech is prohibited,"a stricter standard of definiteness applies." Id.', State v.

K.H.-H., 185 Wn.2d 745, 750-54, 374 P.3d 1141 (2016)(acknowledging more

specificity is required when vague conditions implicate First Amendment rights).

Accordingly, the inclusion of a vague definition cannot save the condition from

being unconstitutionally vague.


       Padilla contends the "pornographic materials" definition is

unconstitutionally vague. The condition defines "pornographic materials" as

"images of sexual intercourse, simulated or real, masturbation, or the display of

                                           10
State V. Padilla, No. 94605-1


intimate body parts." CP at 37. Padilla notes that the prohibition against viewing

depictions of simulated sex would unnecessarily encompass movies and television

shows not created for the sole purpose of sexual gratification. Films such as

Titanic and television shows such as Game ofThrones depict acts of simulated

intercourse, but would not ordinarily be considered "pornographic material." We

agree. The prohibition against viewing depictions of intimate body parts

impermissibly extends to a variety of works of arts, books, advertisements, movies,

and television shows. See Jenkins v. Georgia, 418 U.S. 153, 161, 94 S. Ct. 2750,

41 L. Ed. 2d 642(1974)(the depiction of"nudity alone is not enough to make

material legally obscene").


       On its face, the plain language ofthe pornography condition and its relevant

definition is ambiguous. In application, the definition does not provide adequate

notice of what behaviors Padilla is prohibited from committing and also

encompasses the prohibition of constitutionally protected speech. But also,

delegating the authority to determine the prohibition boundaries to an individual

CCO creates "'a real danger that the prohibition on pornography may ultimately

translate to a prohibition on whatever the officer personally finds titillating.'"

Bahl, 164 Wn.2d at 755 (internal quotation marks omitted)(quoting Guagliardo,

278 F.3d at 872). For example, in Farrell v. Burke, the parole officer stated he

would have '"locked [the parolee] up for'" possessing a photograph ofthe statue of

                                           11
State V. Padilla, No. 94605-1


David pursuant to a condition prohibiting the possession of pornography. 449 F.3d

470,479(2d Cir. 2006). There, the defendant was similarly prohibited from

possessing pornographic material. Id. at 476. While the Farrell court determined

that the term "pornographic material" was inherently vague, it refused to strike

down the condition as being void for vagueness because, as applied, the material

possessed "fit[]within any reasonable understanding ofthe term" "pornography."

Id. at 490. In the present case, Padilla's sentencing condition and its definition

similarly fails to adequately put him on notice of which materials are prohibited

and leaves him vulnerable to arbitrary enforcement. Therefore, the condition is

unconstitutionally vague.


    2. We reverse the Court of Appeals' decision upholding the condition and
       remand to the trial court for further definition ofthe term "pornographic
       materials" following a determination of whether the restriction is narrowlv
       tailored based on Padilla's conviction

       In light ofthe considerations discussed above, on remand the trial court must

first determine whether the condition is sufficiently crime-related. As a condition

of community custody, sentencing courts may order offenders to "[cjomply with

any crime-related prohibitions." RCW 9.94A.703(3)(f). A crime-related

prohibition must directly relate to the circumstances of the crime for which the

offender was convicted. RCW 9.94A.030(I0). If necessary, the sentencing court

may restrict the material an offender may access or possess, but such a restrictive

condition "must be reasonably necessary to accomplish essential state needs and
                                          12
State V. Padilla, No. 94605-1


public order." Bahl, 164 Wn.2d at 758. And when the regulation implicates First
 r'



Amendment speech, it must be narrowly tailored to further the State's legitimate

interest. Grayned,408 U.S. at 117.


       To resolve crime-relatedness issues, a court will review the factual basis for

the condition under a '"substantial evidence'" standard. Irwin, 191 Wn. App. at

656(quoting State v. Matter, 139 Wn. App. 797, 801, 162 P.3d 1190 (2007)). The

court will strike the challenged condition if there is no evidence in the record

linking the circumstances ofthe crime to the condition. Id. at 656-57. There is no

requirement that the condition be factually identical to the crime. Id. If there is a

reasonable basis for the condition, the court will uphold it. Id. at 657.


       At oral argument, the State agreed with Padilla that the present record is

inadequate to determine whether the pornography prohibition is sufficiently crime

related. Wash. State Supreme Court oral argument. State v. Padilla, No. 94605-1

(Mar. 20, 2018),^ at 24 min., 44 sec. to 24 min., 51 sec.(no showing of compelling

state interest), 24 min, 56 sec. to 25 min., 3 sec.(no showing all pornographic

material should be restricted), 34 min., 42 sec. to 35 min., 13 sec.("I doubt that

this record is sufficient even to cover the narrowest part ofthis, i.e., the depiction

of—depictions ofsexual intercourse. I doubt that even that is justified on this




^ Washington State's Public Affairs Network, http://www.tvw.org.
                                             13
State V. Padilla, No. 94605-1


record where the sentencing record in this case doesn't provide any real link

between pornography, however defined, and this defendant's offense pattern or the

commission ofthis crime because the courtjust didn't have that kind of

information."). Based on the record before us, the condition is not reasonably

necessary to accomplish the essential needs ofthe state and public order.


       Since the contested condition implicates a First Amendment right, it must be

reasonably necessary to accomplish the essential needs of the state and public

order. Bahl, 164 Wn.2d at 757(quoting Riley, 121 Wn.2d at 37). Padilla was

convicted of communicating with a minor for immoral purposes, but is prohibited

from accessing all pornography with no distinction between child and adult

pornography. See United States v. Loy, 237 F.3d 251, 266(3d Cir. 2001)

("[rjestricting this entire range of material is simple unnecessary to protect the

public, and for this reason the condition is not 'narrowly tailored.'"). Meanwhile,

the included definition ofthe term "pornographic materials" encompasses a broad

range of protected materials. There is currently no connection in the record

between Padilla's inappropriate messaging and imagery of adult nudity or

simulated intercourse. See State v. O'Cain, 144 Wn. App. 772, 775, 184 P.3d 1262

(2008)(striking community custody condition prohibiting offender's access to the

Internet because there was "no evidence" Internet usage contributed in any way to

the crime ofrape); Riley, 121 Wn.2d at 36-38 (condition prohibiting offender from

                                          14
State V. Padilla, No. 94605-1


owning a computer, associating with other computer hackers, or communicating on

online bulletin boards following conviction for computer trespass upheld). The

condition in question is unconstitutionally vague.


       Therefore, we reverse the Court of Appeals' decision upholding the

condition and remand to the trial court for further definition ofthe term

"pornographic materials" following a determination of whether the restriction is

narrowly tailored based on Padilla's conviction.

                                    Conclusion



       A vague definition cannot save the condition from a vagueness challenge.

Bahl, 164 Wn.2d at 756. Here, Padilla's community custody condition prohibiting

access to and possession of pornographic materials is unconstitutionally vague

because the condition fails to define the scope ofthose prohibited materials.

Therefore, we reverse the Court of Appeals' decision upholding the condition and

remand to the trial court to adopt a clear definition and consider whether the

restriction of"pornographic materials" is narrowly tailored based on the crime and

the defendant.




                                         15
State V. Padilla, No. 94605-1




WE CONCUR:




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