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Name: People v. Gruis (2023) 94 Cal.App.5th 19
Case #: A165298
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 08/01/2023

Probation condition prohibiting defendant from possessing pornographic materials is unconstitutionally vague. Defendant pleaded no contest to one count of possession of child pornography. (Pen. Code, § 311.11(a)). On appeal, defendant challenged a probation condition prohibiting him from possessing pornographic materials, arguing the term “pornographic” is unconstitutionally vague. Held: Remanded with directions for the trial court to strike or modify the condition. There is a general consensus that the terms “pornographic” and “pornography,” standing by themselves, are subjective and vague. In United States v. Simmons (2d Cir. 2003) 343 F.3d 72, the court upheld a probation condition similar to the one here based on the definition of pornography in a federal statute. However, unlike the federal statute in Simmons, once the references to minors in section 311.11(a) are removed, the definition of pornography could still be read to encompass media depicting sexual conduct but having primarily literary, artistic, political, or scientific value. As a result, referring to the definition of pornography in section 311.11(a) does not sufficiently cure vagueness problems. The trial court must either strike or modify the condition. If modifying, the trial court may consider crafting a nonsubjective definition of “pornographic” based on sections 311.11(a) and 311.4(d), and adding that the primary purpose of the materials is causing sexual arousal. [Editor’s Note: The court did not reach the overbreadth challenge because the case was remanded based on the probation condition’s vagueness. However, the court “did 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.” The trial court should “carefully consider whether prohibiting defendant from possessing sexually stimulating materials involving adults is closely tailored to the interests of public safety and defendant’s rehabilitation.”]