[CERTIFIED FOR PARTIAL PUBLICATION * ]
HUMES, P. J. —
D.H. appeals from a juvenile court order declaring him a ward of the court and placing him on probation after he admitted to a misdemeanor count of indecent exposure. Raising mostly constitutional claims of vagueness and overbreadth, he challenges four probation conditions that require him (1) not to access pornography (the no-pornography condition); (2) to submit to warrantless searches of his electronic devices and provide passwords (the electronics search condition); (3) to attend school regularly (the attendance condition); and (4) not to leave home without a parent or the probation officer's permission (the stay-home condition). We conclude in the published part of our opinion that the no-pornography condition is vague, and we remand for the juvenile court to modify it in the first instance. We also affirm the attendance condition. In the nonpublished section of our opinion, we conclude that the electronics search condition is overbroad and remand for the court to modify it in the first instance. We also remand for the court to clarify whether, in light of ambiguity in the record, it intended to impose the stay-home condition.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2015, the victim and her boyfriend's eight-year-old son were riding a bus in San Leandro.
Later that month, the Alameda County District Attorney filed a petition under Welfare and Institutions Code section 602, subdivision (a) seeking to have D.H. declared a ward of the court. The petition alleged misdemeanor accounts of battery against a bus passenger, indecent exposure, and annoyance or molestation of a minor.
A. The Operative Version of Each Challenged Probation Condition.
We begin by sorting out the various versions of the challenged probation conditions that appear in our record to determine which version of each condition controls. This is necessary because there are four different potential sources of the operative language: the dispositional report containing the probation department's proposed conditions, some of which were imposed by the juvenile court at the dispositional hearing; the court's oral pronouncement at that hearing; that hearing's minute order, which was signed by the court and served on D.H. and his parents; and a probation department document entitled "Conditions of Probation and Court Orders" that D.H. and his parents signed. (Some capitalization omitted.)
Although the traditional rule was that a court's oral pronouncement of probation conditions controlled over the written version, "the modern rule is that if the clerk's and reporter's transcripts cannot be reconciled, the part of the record that will prevail is the one that should be given greater credence in the circumstances of the case." (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346 [159 Cal.Rptr.3d 335].) Indeed, the oral pronouncement may well be less inclusive given that "probation conditions `need not be spelled out in great detail in court as long as the [probationer] knows what they are; to require recital in court is unnecessary in view of the fact the probation conditions are spelled out in detail on the probation order.'" (Ibid.)
The no-pornography condition was not proposed in the dispositional report, but the juvenile court orally pronounced it as follows: "You're not to access pornography on any electronic devices or otherwise." The signed probation document uses the same language except it says "other devices" instead of "otherwise." (Capitalization omitted.) The minute order directs, "No pornographic materials, electronic or otherwise." We conclude that the oral pronouncement controls because there is no clear indication that the court intended to impose the version in either the minute order or the signed document.
The dispositional report contains a proposed search term — "Submit person and any vehicle, room[,] or property under your control to search by Probation Officer or Peace Officer with or without a search warrant at any time of day or night" — but does not include language covering electronic devices and passwords. The juvenile court orally pronounced the challenged condition as follows: "[A]ny electronic devices in your possession or control
The attendance condition was expressed in the dispositional report and oral pronouncement as "[a]ttend school regularly." The minute order states, "Attend classes or job on time and regularly; be of good behavior and perform well," and the signed probation document does not contain an attendance-related probation condition. We conclude that the oral pronouncement controls and that the directive to D.H. to "be of good behavior and perform well" was not imposed.
Finally, the stay-home condition was expressed in the dispositional report as "[d]o not stay away from home unless with a parent or legal guardian or without prior permission of the probation officer," and the juvenile court's oral pronouncement directed, "You're not to be away from home without your parent or without prior permission of the probation officer." Neither the minute order nor the signed probation document contains such a condition. We need not determine which version controls because, as we discuss in section II.E., which is part of our nonpublished opinion, it is unclear whether and to what extent the court intended to restrict D.H.'s ability to leave home in light of a narrower curfew condition that was also imposed.
As a final matter, we agree with D.H. that he "should not have to piece together the full terms of his probation" by reviewing the various potential sources of those conditions. Nor can he be expected to engage in the legal
B. The No-pornography Condition Is Unconstitutionally Vague.
D.H. contends that the no-pornography condition is unconstitutionally vague and must be modified to specify that he not access materials that he knows or that the probation officer has informed him are pornographic.
Although a juvenile court thus has broad discretion to fashion probation conditions, "`[a] probation condition "must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated," if it is to withstand a challenge on the ground of vagueness.' [Citation.] `[T]he underpinning of a vagueness challenge is the due process concept of "fair warning." [Citation.] The rule of fair warning consists of "the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders" [citation], protections that are "embodied in the due process clauses of the federal and California Constitutions."' [Citation.] We review vagueness claims de novo." (P.O., supra, 246 Cal.App.4th at p. 299.)
We decline, however, to adopt either of the parties' proposed modifications to address this vagueness, both of which incorporate a requirement that D.H. have advance knowledge that materials are pornographic. In suggesting such a modification, the parties primarily rely on two decisions, one involving a prohibition on sexually explicit material "`as defined by the probation officer'" and the other involving a prohibition on sexually explicit material "`deemed inappropriate by the probation officer.'" (People v. Pirali, supra, 217 Cal.App.4th at p. 1344; People v. Turner (2007) 155 Cal.App.4th 1432, 1434 [66 Cal.Rptr.3d 803].) Both conditions were held to be vague because they left the determination of which materials were prohibited to the probation officer's sole discretion and therefore did not provide advance notice of what behavior was required. (Pirali, at pp. 1352-1353; Turner, at p. 1436.) And both conditions were modified to cover only those materials that the probationer was informed in advance were in the prohibited category of being sexually explicit. (Pirali, at p. 1353; Turner, at p. 1436.)
Pirali and Turner provide little guidance here, however, because both decisions were concerned only with the lack of notice created by leaving the prohibited category's definition to the probation officer. In our view, a modification requiring D.H. to know or to be informed in advance that
Rather than modifying the no-pornography condition ourselves, we direct the juvenile court to modify it to define more precisely the material the court intends to prohibit. We suggest that in doing so the court carefully consider what purpose this condition is intended to serve, as it is far from clear to us how restricting D.H.'s access to any materials that might be considered pornographic will help him avoid the behavior he exhibited in committing his offense or aid more generally in his rehabilitation. D.H. has not challenged the condition on reasonableness or overbreadth grounds, however, and we therefore need not decide whether a blanket prohibition on access to all pornography could be properly imposed at all.
C. The Electronics Search Condition Is Reasonable Under Lent But Unconstitutionally Overbroad.
D. The Attendance Condition Is Sufficiently Clear in Light of Another Condition of D.H.'s Probation Requiring Him to Obey School Rules.
D.H. next contends that the attendance condition is vague because the direction that he "`attend school regularly'" does not make sufficiently clear what behavior will result in a violation of probation.
As stated above, a juvenile court's broad discretion to fashion probation conditions is limited by the principle that "`[a] probation condition "must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated," if it is to withstand a challenge on the ground of vagueness.'" (P.O., supra, 246 Cal.App.4th at p. 299.) Our review is de novo. (Ibid.)
D.H. argues that the attendance condition is vague because it does not "notify [him] how many absences from school ... would give rise to a probation violation ... [and] fails to make clear whether missing one class ... would be enough to constitute a violation." The Attorney General responds that the "common sense" interpretation of the condition is that it requires D.H. "to attend school when [it is] in session and to stay there during school hours" but does not require attendance when he has an excused absence. Although the command to attend "regularly" is arguably vague in a vacuum, we agree that the condition clearly requires the standard of behavior the Attorney General identifies, based on another condition of D.H.'s probation directing him to "[o]bey school rules." (See People v. Forrest (2015) 237 Cal.App.4th 1074, 1080 [188 Cal.Rptr.3d 736] [a "probation condition should be evaluated in its context, and only reasonable specificity is required"].) As a result, the attendance condition does not require modification.
E. On Remand, the Juvenile Court Must Clarify Whether It Intended to Impose the Stay-home Condition.
This matter is remanded with directions for the juvenile court to strike or modify the no-pornography condition, electronics search condition, and, if
Margulies, J., and Dondero, J., concurred.