People v. Willis CA2/7 ( 2015 )


Menu:
  • Filed 4/27/15 P. v. Willis CA2/7
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    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    conditions, his parole was revoked and restored with an additional special condition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).
    2
    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
    3
    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.
    4
    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
    5
    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.
    6
    

Document Info

Docket Number: B257107

Filed Date: 4/27/2015

Precedential Status: Non-Precedential

Modified Date: 4/17/2021