Condition of probation forbidding minor from owning, using, or possessing depictions of nudity was unconstitutionally overbroad. A juvenile court found that Carlos (also known as Charley) committed simple battery, misdemeanor sexual battery, and a violation of probation based on evidence that he touched a classmate’s thigh and breast. At the disposition hearing, Charley was continued on probation. One of the probation conditions provided that he shall not own, use, or possess any form of sexually arousing materials or “any material which depicts partial or complete nudity . . . .” Charley appealed, challenging the “partial or complete nudity” portion of the condition as unconstitutionally overbroad. Held: Disposition order modified to strike this language from probation condition. Even though trial courts have greater discretion in formulating the terms of probation for minors than adults, “a 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.” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) No California court has addressed the constitutionality of a probation condition prohibiting a person from possessing depictions of nudity, but several federal courts have done so and have nearly uniformly struck down the conditions as unconstitutionally overbroad. The Court of Appeal here concluded that the overbreadth of this type of condition is both sweeping and obvious. “Restricting a minor’s access to such a wide range of materials with potential artistic, cultural and/or educational value imposes a significant burden on the minor’s constitutional rights with little, if any, discernible impact on the minor’s reformation and rehabilitation, even a minor adjudged to have committed a sex offense.” The appellate court disagreed with the People’s argument that disputed nudity language contained a limitation that the depiction be sexually arousing.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A150737.PDF