Filed 4/26/17 P. v. Gunter CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMOND EDWARD GUNTER,
Defendant and Appellant.
H043635
(Santa Clara County
Super. Ct. No. C1524417)
I. INTRODUCTION
Defendant Raymond Edward Gunter pleaded no contest to violating Penal Code
section 311.11, subdivision (b)1
by possessing matter depicting a person under the age
of 18 engaging in or simulating sexual conduct, having previously been convicted of that
offense. Defendant was placed on probation for three years and ordered to serve one year
in jail as a condition of probation. The trial court also imposed a probation condition
barring defendant from knowingly purchasing or possessing “any pornographic or
sexually explicit material as defined by the probation officer.”
On appeal, defendant’s appointed counsel initially filed a brief pursuant to
People v. Wende (1979) 25 Cal.3d 436 that stated the case and facts, but raised no issue.
We notified defendant of his right to submit written argument on his own behalf within

1 All further statutory references are to the Penal Code unless otherwise indicated.
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30 days. That period elapsed without defendant having filed any argument. We then
requested supplemental briefing from the People and from defendant’s appointed counsel
on whether the probation condition barring defendant from purchasing or possessing
“any pornographic or sexually explicit material as defined by the probation officer” was
unconstitutionally vague. The People filed a supplemental letter brief conceding that
“the condition is vague as written” and suggesting we remand the matter to allow the trial
court to modify the condition. Defendant’s appointed counsel filed a supplemental letter
brief requesting we strike or modify the condition.
As we shall explain, the probation condition barring defendant from purchasing or
possessing “any pornographic or sexually explicit material as defined by the probation
officer” is unconstitutionally vague. We will remand the matter to the trial court with
directions to modify the condition.
II. BACKGROUND
The record does not contain a summary of the facts underlying defendant’s
offense. Defendant was charged with violating section 311.11, subdivision (b) by
possessing matter depicting a person under the age of 18 engaging in or simulating
sexual conduct, having previously been convicted of that offense. He pleaded no contest
pursuant to a negotiated disposition.
Prior to sentencing, defendant objected to the sex offender probation conditions
that would be ordered pursuant to section 1203.067, subdivisions (b)(3) and (b)(4). At
the sentencing hearing, the trial court imposed but stayed those conditions pending the
outcome of a case then pending before the California Supreme Court. (See People v.
Garcia (2017) 2 Cal.5th 792.) The trial court also imposed a probation condition barring
defendant from knowingly purchasing or possessing “any pornographic or sexually
explicit material as defined by the probation officer.” Defendant was placed on probation
for three years and ordered to serve one year in jail as a condition of probation.
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III. DISCUSSION
The “underpinning of a vagueness challenge is the due process concept of ‘fair
warning.’ [Citation.]” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) “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.
[Citations.]’ ” (Ibid.) “A probation condition ‘must be sufficiently precise for the
probationer to know what is required of him [or her], and for the court to determine
whether the condition has been violated,’ if it is to withstand a challenge on the ground of
vagueness.” (Ibid.) “[T]he law has no legitimate interest in punishing an innocent citizen
who has no knowledge of the presence of a [prohibited item].” (People v. Freitas (2009)
179 Cal.App.4th 747, 752, disapproved on other grounds by People v. Hall (2017)
2 Cal.5th 494, 504, fn. 2.)
In People v. Pirali (2013) 217 Cal.App.4th 1341 (Pirali), this court modified a
probation condition that prohibited the defendant from purchasing or possessing
pornographic or sexually explicit materials as defined by the probation officer. This
court explained, “The fact that the probation officer may deem material sexually explicit
or pornographic after defendant already possesses the material would produce a situation
where defendant could violate his probation without adequate notice.” (Id. at p. 1352.)
“Materials deemed explicit or pornographic, as defined by the probation officer, is an
inherently subjective standard that would not provide defendant with sufficient notice of
what items are prohibited.” (Id. at p. 1353.) This court modified the condition to state
that the defendant was “prohibited from purchasing or possessing pornography or
sexually explicit materials, having been informed by the probation officer that such items
are pornographic or sexually explicit.” (Ibid.)
Following the rationale of Pirali, we find the probation condition imposed in this
case to be unconstitutionally vague. Pursuant to the Attorney General’s suggestion, we
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will remand this matter to the trial court with directions to impose a more specific
condition that provides defendant with sufficient notice of what items he is prohibited
from purchasing or possessing.
IV. DISPOSITION
The order of probation is reversed. The matter is remanded to the trial court for
modification of the probation condition barring defendant from knowingly purchasing or
possessing “any pornographic or sexually explicit material as defined by the probation
officer.” On remand, the trial court shall modify the condition to provide more specific
notice of the material that defendant is prohibited from purchasing or possessing.
____________________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
_________________________________
ELIA, ACTING P.J.
_________________________________
MIHARA, J.
People v. Gunter
H043635