People v. Gruis ( 2023 )

Filed 8/1/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A165298
v.
MICHAEL GRUIS, (San Mateo County
Super. Ct. No. 19-SF-010290-A)
Defendant and Appellant.
Defendant Michael Gruis pleaded no contest to one count of possession
of child pornography (Pen. Code, § 311.11, subd. (a) (hereafter § 311.11(a))), 1
and the trial court suspended imposition of sentence and placed defendant on
two years’ probation, with one year in county jail. On appeal, defendant
challenges a condition of his probation prohibiting him from possessing
pornographic materials, claiming the term “pornographic” is
unconstitutionally vague. He also contends the condition is overbroad
because it infringes on his First Amendment right to view sexually oriented
materials involving adults. We agree the no-pornography condition is
impermissibly vague as written. Accordingly, we remand the matter with
directions to the trial court to strike or modify the condition in light of this
opinion.
1 Further unspecified section references are to the Penal Code.
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FACTUAL AND PROCEDURAL BACKGROUND
In May 2018, Menlo Park police officers responded to a domestic
disturbance call from M.O., 2 who told the officers she was dating defendant
and had discovered nude pictures of her 13-year-old daughter, C.V., on one of
his electronic devices. Officers obtained a search warrant and seized several
of defendant’s devices, including USB drives and a laptop computer. One of
the USB drives contained 60 images and three video recordings of C.V. in
various states of undress. According to Menlo Park Police Detective Josh
Russell, the laptop’s hard drive contained “over 500 still images and videos of
[C.V.] or [C.V.’s] mother or her sister in their home, in the bedroom, and the
bathroom, throughout the house in various stages of dress or undress.” 3 A
17-minute video found on defendant’s laptop contained explicit depictions of
C.V. in the bathroom of the residence.
Defendant was charged by information with felony possession of child
pornography (§ 311.11(a); count one) and disabling a telephone line (§ 591;
count two). He pleaded no contest to count one in exchange for dismissal of
count two and a maximum sentence of one year in county jail. The trial court
suspended imposition of sentence, placed defendant on two years’ probation,
and ordered him to serve one year in county jail. As one of the conditions of
probation, defendant was ordered as follows: “You may not possess any
pornographic magazines, videos, pictures or written material or images
unless prescribed by a therapist during the course of your treatment.”
Defendant timely appealed.
2 Pursuant to California Rules of Court, rule 8.90, governing “Privacy in
opinions,” we anonymize the names of the victims and witnesses.
3 When asked at the preliminary hearing if there were “images of either
the mother or the younger sister completely naked,” Detective Russell
testified there were not.
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DISCUSSION
In granting probation, the trial court has broad discretion to impose
conditions that foster rehabilitation and protect public safety, but that
discretion is not boundless (People v. Carbajal (1995) 10 Cal.4th 1114, 1120–
1121), and a probation condition may be challenged as unconstitutionally
vague and overbroad (In re Sheena K. (2007) 40 Cal.4th 875, 887 (Sheena
K.)). Constitutional claims raising pure questions of law that can be resolved
without reference to the facts developed in the trial court may be considered
for the first time on appeal. (Id. at p. 889.) “[W]e review constitutional
challenges to a probation condition de novo.” (In re Shaun R. (2010) 188
Cal.App.4th 1129, 1143.)
A. Vagueness
“ ‘ “[T]he underpinning of a vagueness challenge is the due process
concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the
due process concepts of preventing arbitrary law enforcement and providing
adequate notice to potential offenders’ [citation], protections that are
‘embodied in the due process clauses of the federal and California
Constitutions.’ ” ’ ” (In re D.H. (2016) 4 Cal.App.5th 722, 727 (D.H.).) To
withstand a vagueness challenge, a probation condition must be sufficiently
precise for probationers to know what is required of them, and for the court to
determine whether the condition has been violated. (Sheena K., supra, 40
Cal.4th at p. 890.) In making this determination, courts are not limited to
the condition’s text and must consider other sources of applicable law,
including judicial construction of similar provisions. (People v. Hall (2017) 2
Cal.5th 494, 499–501.) A claim of vagueness will be rejected if the language
of the condition is susceptible of any reasonable and practical construction or
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if its terms may be made reasonably certain by reference to other definable
sources. (See People v. Lopez (1998) 66 Cal.App.4th 615, 630.)
In Sheena K., supra, 40 Cal.4th 875, the California Supreme Court
reviewed a vagueness challenge to a probation condition, explaining the
governing principles as follows. “The vagueness doctrine bars enforcement of
‘ “a statute which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at its meaning
and differ as to its application.” [Citation.]’ A vague law ‘not only fails to
provide adequate notice to those who must observe its strictures, but also
“impermissibly delegates basic policy matters to policemen, judges, and juries
for resolution on an ad hoc and subjective basis, with the attendant dangers
of arbitrary and discriminatory application.” [Citation.]’ [Citation.] In
deciding the adequacy of any notice afforded those bound by a legal
restriction, we are guided by the principles that ‘abstract legal commands
must be applied in a specific context,’ and that, although not admitting of
‘mathematical certainty,’ the language used must have ‘ “reasonable
specificity.” ’ ” (Sheena K., at p. 890, italics omitted.) Applying these
principles, the Sheena K. court found unconstitutionally vague a probation
condition that the defendant “ ‘not associate with anyone disapproved of by
probation.’ ” (Sheena K., at p. 878, 891–892.)
There appears a general consensus among courts, including those
upholding no-pornography conditions of probation or supervised release
against constitutional challenges, that the terms “pornographic” and
“pornography,” standing by themselves, are subjective and vague. (See, e.g.,
D.H., supra, 4 Cal.App.5th at pp. 728–729; People v. Pirali (2013) 217
Cal.App.4th 1341, 1353 (Pirali); accord, United States v. Adkins (7th Cir.
2014) 743 F.3d 176, 193–196; Farrell v. Burke (2d Cir. 2006) 449 F.3d 470,
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490 (Farrell); United States v. Simmons (2d Cir. 2003) 343 F.3d 72, 81
(Simmons); United States v. Guagliardo (9th Cir. 2002) 278 F.3d 868, 872;
United States v. Loy (3d Cir. 2001) 237 F.3d 251, 264–265 (Loy).) As one
court observed, the term “pornography” could conceivably encompass many
well-known works of artistic and cultural significance featuring nudity or
sexually explicit material. (Loy, at p. 264.)
Here, the People acknowledge that the language of the instant no-
pornography condition, without more, does not pass constitutional muster.
Nonetheless, the People contend the vagueness problem could be cured by
modifying the condition to prohibit only materials that a probation officer has
informed defendant are pornographic. (See Pirali, supra, 217 Cal.App.4th at
p. 1353 [probation condition modified to prohibit only materials as “informed
by the probation officer”]; People v. Turner (2007) 155 Cal.App.4th 1432, 1436
(Turner).) We disagree. A modification requiring a probationer “to know or
to be informed in advance that materials are ‘pornography’ fails to address
the term’s inherent vagueness.” (D.H., supra, 4 Cal.App.5th at pp. 728–729.)
Moreover, the suggested modification appears to “improperly delegate the
determination of the ‘nature of the prohibition’ to the probation department.”
(People v. Gonsalves (2021) 66 Cal.App.5th 1, 8.)
The People next suggest utilizing the analysis in Simmons, supra, 343
F.3d 72, which involved a challenge to a prohibition against “ ‘any
pornographic material’ ” as a special condition of supervised release.
(Simmons, supra, 343 F.3d at p. 77.) Simmons started by acknowledging
that, for purposes of evaluating artistic or cultural merit, the process for
determining what material constitutes pornography was “subjective” and
“heavily influenced by the individual, social, and cultural experience of the
person making the determination.” (Id. at p. 81.) Simmons, however, found
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the lack of definitional clarity “significantly eliminated in the context of
federal criminal law,” which provides “considerable guidance” as to the
meaning of pornography. (Ibid.)
In Simmons, the defendant had been convicted of child pornography
under 18 United States Code section 2256(8), which features a definition of
“the more general category of pornography” and other separate provisions
narrowing the scope of the statute to child pornography specifically.
(Simmons, supra, 343 F.3d at p. 82.) As Simmons noted, once the statutory
references to minors are omitted, what remains is the following definition of
the broader category of pornography: “ ‘any visual depiction, including any
photograph, film, video, picture, or computer or computer-generated image or
picture, whether made or produced by electronic, mechanical, or other means,
of sexually explicit conduct.’ ” (Ibid.) Further specificity, Simmons observed,
is provided by the statute’s definition of “ ‘sexually explicit conduct.’ ” (Ibid.)
Thus, when viewed in relation to the statutory definition of pornography, the
special condition “avoids reference to subjective standards and is sufficiently
specific to give adequate notice as to what conduct violates a prohibition on
pornographic material.” (Ibid.)
In the case at bar, defendant was convicted under section 311.11(a),
which prohibits the knowing possession or control of any matter,
representation of information, data, or image (e.g., film, photograph,
computer-generated image), “the production of which involves the use of a
person under 18 years of age, knowing that the matter depicts a person under
18 years of age personally engaging in or simulating sexual conduct, as
defined in [section 311.4(d)].” In turn, section 311.4(d) defines the term
“ ‘sexual conduct’ ” as meaning “any of the following, whether actual or
simulated: sexual intercourse, oral copulation, anal intercourse, anal oral
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copulation, masturbation, bestiality, sexual sadism, sexual masochism,
penetration of the vagina or rectum by any object in a lewd or lascivious
manner, exhibition of the genitals or pubic or rectal area for the purpose of
sexual stimulation of the viewer, any lewd or lascivious sexual act as defined
in Section 288, or excretory functions performed in a lewd or lascivious
manner, whether or not any of the above conduct is performed alone or
between members of the same or opposite sex or between humans and
animals. An act is simulated when it gives the appearance of being sexual
conduct.”
Here, the removal of section 311.11(a)’s references to “under 18 years of
age” results in the term “pornographic” being defined as matter “depict[ing] a
person . . . personally engaging in or simulating sexual conduct,” meaning
any of the acts enumerated in section 311.4(d) as quoted above. We accept
that this approach yields a legal definition of the term that mostly “avoids
reference to subjective standards.” (Simmons, supra, 343 F.3d at p. 82.) But
we are not convinced it sufficiently cures the vagueness problems raised in
this case.
First, the probation condition here, as written, does not actually define
pornographic matter by reference to sections 311.11(a) and 311.4(d). Absent
specific reference to the statutory definition, the condition may be viewed as
leaving room for probation officers, prosecutors, or courts to find a violation
“ ‘ “on an ad hoc and subjective basis, with the attendant dangers of arbitrary
and discriminatory application.” ’ ” (Sheena K., supra, 40 Cal.4th at p. 890.)
Second, even if “pornographic” is defined with reference to the statute
of conviction, the term can still be read to encompass works that depict even
a single act of simulated adult sex, “however fleeting or veiled, and regardless
of how insignificant it may be to the overall content of an art exhibit, play, or
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movie.” (United States v. Gnirke (9th Cir. 2015) 775 F.3d 1155, 1163.)
“Applied literally, the language of the condition would prevent [defendant]
from viewing Oscar-winning films like American Beauty and Brokeback
Mountain, television shows like The Wire, or sexually explicit works of art
that appear in museums.” (Id. at p. 1165.) Although this court previously
upheld a probation condition that prohibited possession of materials having
“ ‘a primary purpose of causing sexual arousal’ ” against a vagueness
challenge (e.g., In re David C. (2020) 47 Cal.App.5th 657, 666–667 (David
C.)), the condition in question does not contain “primary purpose” or similar
language. Nor are we persuaded by the People’s assertion that the
condition’s placement of the word “pornographic” before its reference to
“ ‘magazines, videos, pictures or written materials or images’ ” necessarily
implies a “primary purpose” qualifier on the words that follow it.
Although we have the power to modify probation conditions to render
them constitutional (Turner, supra, 155 Cal.App.4th at p. 1436), we decline to
do so here. Instead, we remand the matter with directions to the trial court
to either strike the no-pornography condition or modify it consistent with the
views expressed in this opinion. In doing the latter, the court may consider
utilizing the Simmons approach in order to craft a nonsubjective definition of
“pornographic” based on sections 311.11(a) and 311.4(d), along with the
“primary purpose” or similar phrasing from David C. that would distinguish
the prohibited materials from those depicting sexual conduct but having
primarily literary, artistic, political, or scientific value. 4
4 If the trial court elects to modify the no-pornography condition, the
court may also wish to clarify whether the condition extends not only to
defendant’s possession but also to his control of any of the prohibited matters.
(See Tecklenburg v. Appellate Division (2009) 169 Cal.App.4th 1402, 1419
[upholding conviction under section 311.11(a) for knowingly possessing or
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B. Overbreadth
Defendant additionally contends the no-pornography condition is not
narrowly tailored to achieve the government’s compelling interests in public
safety and rehabilitation because nothing in the instant record “suggests that
sexually explicit material involving only adults contributed to [his] offense.”
In light of our conclusion above that the condition must be vacated or revised
by the trial court on remand, we need not reach the merits of defendant’s
overbreadth claim. 5 However, we offer the following discussion as guidance.
Nonobscene, sexually explicit materials involving adults generally
“receive full First Amendment protection when in the possession of ordinary
adults.” (Farrell, supra, 449 F.3d at p. 497.) As the United States Supreme
Court has long recognized, the First Amendment prohibits a state from
telling people “what books [they] may read or what films [they] may watch”
in the privacy of their own homes. (Stanley v. Georgia (1969) 394 U.S. 557,
565.) But “[i]nherent in the very nature of probation is that probationers ‘do
not enjoy “the absolute liberty to which every citizen is entitled.” ’ ” (United
States v. Knights (2001) 534 U.S. 112, 119.)
controlling child pornography based on evidence that defendant used home
and work computers to find, access, peruse, and manipulate display of
sexually explicit images involving children].)
5 Notably, to the extent defendant’s overbreadth claim requires a review
of the sentencing record developed in the trial court, it appears to be an as-
applied challenge that defendant forfeited by failing to raise it below.
(Sheena K., supra, 40 Cal.4th at p. 887; cf. People v. Patton (2019) 41
Cal.App.5th 934, 946 [facial claim of unconstitutionality means condition
“cannot have any valid application, without relying on any facts in the
sentencing record”].) That said, defendant remains free on remand to raise
any overbreadth objections, facial or as-applied, to any modified version of
the no-pornography condition.
9
Nonetheless, “ ‘[a] probation condition that imposes limitations on a
person’s constitutional rights must closely tailor those limitations to the
purpose of the condition to avoid being invalidated as unconstitutionally
overbroad.’ ” (People v. Olguin (2008) 45 Cal.4th 375, 384 (Olguin); see
Sheena K., supra, 40 Cal.4th at p. 890.) In an overbreadth challenge, the
critical inquiry is “the closeness of the fit between the legitimate purpose of
the restriction and the burden it imposes on the defendant’s constitutional
rights—bearing in mind, of course, that perfection in such matters is
impossible, and that practical necessity will justify some infringement.” (In
re E.O. (2010) 188 Cal.App.4th 1149, 1153 (E.O.).)
In cases involving sex crimes, including child pornography offenses,
courts in California and elsewhere have rejected overbreadth challenges to
conditions prohibiting the possession of sexually oriented or sexually
stimulating materials featuring adults. (See, e.g., Turner, supra, 155
Cal.App.4th at pp. 1435, 1437 [defendant convicted of indecent exposure to
children and possession of child pornography]; United States v. Boston (8th
Cir. 2007) 494 F.3d 660, 663, 667–668 [defendant convicted of producing child
pornography]; United States v. Rearden (9th Cir. 2003) 349 F.3d 608, 611,
619–620 (Rearden) [defendant convicted of shipping child pornography];
United States v. Bee (9th Cir. 1998) 162 F.3d 1232, 1234–1235 (Bee)
[defendant convicted of sexual abuse of minor]; accord In re Carlos C. (2018)
19 Cal.App.5th 997, 1002 [noting, based on Turner and Bee, that conditions
prohibiting possession of sexually arousing materials and similar language
“have been upheld against constitutional overbreadth challenge by other
courts”].) In such cases, the conditions were found to promote the interests of
public safety and rehabilitation. (E.g., Turner, at p. 1437; Rearden, at
pp. 619–620.) Although the overbreadth analyses in these cases are
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somewhat abbreviated, they generally support the facial validity of probation
conditions restricting individuals convicted of sex crimes involving children
from accessing materials that would merely serve to provide sexual
stimulation, thereby removing a potential trigger for arousal and sexually
motivated conduct during the term of probation.
Other courts analyzing the issue, however, have stricken similar
conditions in response to as-applied overbreadth challenges where the record
failed to show a close relationship between the prohibition and the
circumstances of the offender’s crime. For example, in United States v.
Taylor (7th Cir. 2015) 796 F.3d 788, a probation condition prohibited a
defendant convicted of transferring obscene material to a person under 16
years of age from viewing “ ‘any form of pornography which contains adults.’ ”
(Id. at p. 792.) The appellate court vacated that condition because the record
contained no evidence that viewing adult pornography in any way led the
defendant to commit that crime or would make the repeat of that crime or
similar crimes more likely, and no finding by the district court of “any
relationship between [the defendant’s] viewing of adult pornography and the
likelihood of recidivism.” (Id. at p. 793; see also United States v. Voelker (3d
Cir. 2007) 489 F.3d 139, 151 [vacating “unprecedented” lifetime ban on use
and access to sexually explicit materials because “nothing on this record
suggests that sexually explicit material involving only adults contributed in
any way to Voelker’s offense, nor is there any reason to believe that viewing
such material would cause Voelker to reoffend”].)
In the event defendant raises an overbreadth challenge on remand (see
fn. 5, ante), we encourage the trial court to carefully consider whether
prohibiting defendant from possessing sexually stimulating materials
involving adults is closely tailored to the interests of public safety and
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defendant’s rehabilitation. (Olguin, supra, 45 Cal.4th at p. 384; Sheena K.,
supra, 40 Cal.4th at p. 890.) On the one hand, the closeness of the fit may
very well depend on the available facts in the sentencing record developed
below. 6 On the other hand, it is unclear how difficult it may be to craft a no-
pornography condition that attempts to properly prohibit only certain
sexually stimulating material involving adults, for example, pornographic
material depicting “young-looking performers who appear as if they could be
children but might, in fact, be adults” (Free Speech Coal., Inc. v. Attorney
General of the United States (3d Cir. 2020) 974 F.3d 408, 413); pornography
depicting grown adults role-playing in parent-child or teacher-student sexual
relationships; or pornography depicting someone forcing sex upon a
vulnerable target. We do not foreclose the possibility that upon review of the
issue, the trial court may decide that “practical necessity will justify” a total
ban on pornography during the term of probation. (E.O., supra, 188
Cal.App.4th at p. 1153.) At the same time, we express no advance opinion on
whether a total ban might survive an overbreadth challenge.
DISPOSITION
The matter is remanded with directions for the trial court to strike or
modify the no-pornography probation condition in a manner consistent with
the views expressed in this opinion. Further, the trial court shall forward a
copy of the modified order to the probation authorities.
6 For instance, the People’s briefing points out in a footnote that the
materials recovered from defendant’s laptop included photographs of “an
adult,” referring presumably to M.O. Although the People describe these
photographs categorically as “explicit,” the record before us does not contain
the images themselves or otherwise reflect whether or in what manner these
images were sexually explicit so as to suggest defendant’s consumption of
such materials for purposes of sexual arousal. (See fn. 3, ante.)
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_________________________
Fujisaki, Acting P. J.
WE CONCUR:
_________________________
Petrou, J.
_________________________
Rodríguez, J.
People v. Gruis (A165298)
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Trial Court: San Mateo County Superior Court
Trial Judge: Hon. Susan L. Greenberg
Counsel: Jeremy Price, under appointment by the Court of Appeal,
for Defendant and Appellant
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Jeffrey M. Laurence,
Assistant Attorney General, Alice B. Lustre and Lisa
Ashley Ott, Deputy Attorneys General, for Plaintiff and
Respondent
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