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Name: In re D.H.
Case #: A147361
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 10/26/2016

Probation term prohibiting minor who committed misdemeanor indecent exposure from viewing “pornography” is void for vagueness. The minor admitted a misdemeanor charge of indecent exposure, was declared a ward of the court, and placed on probation. On appeal he challenged several of his probation terms including one that prohibited him from viewing “pornography.” Held: Remanded for modification of term. When a juvenile court places a minor on probation it has broad discretion to impose reasonable conditions that will advance the reformation and rehabilitation of the ward (Welf. & Inst. Code, § 730, subd. (b)). The condition must be sufficiently precise for the minor to know what is required of him, in order to withstand vagueness and due process challenges. The term “pornography” is inherently vague and subjective. Thus, merely adding a scienter requirement will not fix the constitutional infirmity because the term itself is unclear. On remand the trial court must clarify the term’s purpose and more precisely conform the probation term to that purpose, defining the material it intends to prohibit.

The attendance condition is sufficiently clear in light of another term that requires the minor to “obey school rules.” The minor claimed the condition requiring him to “attend school regularly” is vague because it is not clear what behavior will result in a violation of probation. Although in a vacuum the command to attend school “regularly” might be vague, it is sufficiently clear in this case in light of another probation term requiring the minor to “obey school rules,” which include the requirements that he attend school when it is in session, stay there during school hours, and which allows for excused absences.

If the clerk’s and reporter’s transcripts cannot be reconciled regarding the controlling probation condition, the part of the record that should prevail is the one that should be given greater credence under the circumstances of the case. The reviewing court first had to determine the controlling probation terms being considered, as the record contained various versions of the challenged terms in the clerk’s and reporter’s transcripts. In locating the controlling conditions, the court stated that although the traditional rule provides that the court’s oral pronouncement governs, “the modern rule” is that if the clerk’s and reporter’s transcripts differ, the part of the record that will prevail is that having greater credence under the circumstances of the case. This is especially true with probation terms as they are often not orally pronounced by the trial court in any degree of detail because they are set forth in the probation order. With respect to the no-pornography and attendance conditions in the present case, the court found the oral pronouncement controlled. Nonetheless, on remand the trial court was directed to provide a written copy of the controlling conditions to the minor and his parents.

The full opinion is available on the court’s website here: