Santa Clara County Superior Court, Superior Court No. C1198906, Hon. Jerome M. Brock, Trial Judge.
Attorneys for Plaintiff/Respondent: Kamala D. Harris Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Allan Yannow, Deputy Attorney General The People
Attorneys for Defendant/Appellant: Under appointment by the Court of Appeal Maria T. Rogers, John Pirali
Defendant John Pirali pleaded no contest to a charge of felony possession of child pornography (Pen. Code, § 311.11). On appeal, defendant challenges probation conditions restricting his access to the Internet and forbidding him from possessing or purchasing sexually explicit materials or pornography as overbroad and unconstitutionally vague. For the reasons set forth below, we modify the condition restricting his access to the Internet to include a knowledge requirement, and further modify the condition restricting his purchase and possession of sexually explicit or pornographic materials with the requirement that he is forbidden from possessing and purchasing these items having been told by the probation officer that such items are sexually explicit or pornographic. As modified, we affirm the judgment.
Factual and Procedural Background
In October 2008, defendant was served with a search warrant pursuant to an auto insurance fraud investigation. Defendant’s computer was taken to a computer analyst, who discovered the existence of possible child pornography on one of the seized hard drives. The computer analyst requested that another search warrant be obtained to search for child pornography, as the parameters of the original search warrant only concerned auto insurance fraud. A search warrant was obtained to search for child pornography on the computer.
The district attorney filed an information charging defendant with a count of felony possession of child pornography (§ 311.11) in August 2011. Defendant subsequently entered a plea of nolo contendere on February 16, 2012. As part of his plea, the trial court placed defendant on three years formal probation. The trial court imposed several conditions of probation, among others, that defendant now challenges on appeal during the sentencing hearing.
“You’re not to enter any social networking sites, nor post any ads, either electronic or written, unless approved by probation officer [sic].”
“You’re to report all personal e-mail addresses used and shall report Web sites and passwords to the probation officer within five days.”
“You’re ordered not to purchase or possess any pornographic or sexually explicit material as defined by the probation officer.”
“You are not to have access to the Internet or any other on-line service through use of your computer or other electronic device at any location without prior approval of the probation officer. And shall not possess or use any data encryption technique program.”
No objection was made to the imposed probation conditions. Defendant filed a timely notice of appeal on May 25, 2012, and subsequently filed an ...