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Name: People v. Pirali
Case #: H038349
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 07/17/2013

Probation conditions restricting defendant’s access to Internet and possession of sexually explicit material required modification to add an express knowledge component. Pirali pled no contest to possession of child pornography (Pen. Code, § 311.11). As terms of his probation, Pirali’s Internet access was restricted to that approved by his probation officer. In addition, he was ordered not to purchase or possess sexually explicit material as defined by the probation officer. He challenged the probation conditions on appeal as overbroad and unconstitutionally vague. Held: Affirmed as modified. Probation terms restricting or prohibiting the use of a computer or access to the Internet should be narrowly tailored to avoid being unconstitutionally overbroad. However, limitations on access to Internet use, as opposed to blanket prohibitions, have been approved. Here, Pirali was not subjected to a blanket prohibition against accessing the Internet–his access was restricted to that approved by his probation officer. This type of restriction is not overbroad. However, the condition did not require that Pirali knowingly access the Internet. Thus, it must be modified to add an express scienter requirement, to avoid a vagueness challenge. With respect to the possession or purchase of sexually explicit material, the court also modified this term to provide that such possession/purchase by Pirali was prohibited having been informed by his probation officer the material is pornographic or sexually explicit. The court declined to adopt the Third District’s approach to such questions in People v. Patel (2011) 196 Cal.App.4th 956. In Patel the court stated it would no longer decide such scienter challenges to probation terms, but would construe probation conditions to contain a knowledge requirement. The court held the modification of probation conditions to render them constitutional is required by In re Sheena K. (2007) 40 Cal.4th 875.