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C.A. Lifts Probation Condition Barring Internet Access Without Permission
Such a Condition Was Approved in 2013 Opinion; Greenwood Says Internet
Now a Necessity, Defendant in Earlier Case Committed Different Offense
By a MetNews Staff Writer
The Sixth District Court of Appeal has invalidated a condition of probation that bars a sex offender from accessing the Internet without permission of his probation officer, holding that while such a condition was given approval in that district’s 2013 ruling, since then, use of the Internet has become a necessity.
Presiding Justice Mary J. Greenwood authored the opinion, filed Friday. It orders that this condition of probation, imposed on Jomar Hernandez Salvador—who pled no contest to felony false imprisonment and misdemeanor sexual battery—be stricken:
“The defendant shall not knowingly access the Internet or any other on-line service through use of a computer, or other electronic device at any location (including place of employment) without prior approval of the Probation Officer.”
Earlier Case
That condition is close to one to which John Pirali, who pled no contest to felony possession of child pornography, was subjected to by a Santa Clara Superior Court judge in 2012 and parallels the condition as revised by Judge Eugene Premo (now deceased) in a July 17, 2013 opinion.
As originally worded, the condition said, “You are not to have access to the Internet or any other on-line service through use of your computer or other electronic device at any location without prior approval of the probation officer”; Premo changed “not to have access” to “not to knowingly have access.”
In approving the condition, as edited, in Pirali’s case, Premo said:
“[D]efendant is not faced with a blanket prohibition. The probation condition clearly grants defendant the ability to access the Internet on his computer and other electronic devices so long as he obtains prior permission from his parole officer….
“[W]e find that there is no constitutional overbreadth with respect to this restriction.”
Changed Conditions
Greenwood said that since the opinion in People v. Pirali was issued, “the Internet has become even more central and commonplace in the lives of ordinary people; it is now practically unavoidable in daily life.” She continued:
“Many more people today use the Internet to work from home, follow the news, or conduct business and commercial transactions such as banking and paying bills. No valid purpose is served by preventing Salvador from engaging in the kinds of Internet access that have become common and ubiquitous—e.g.. performing work-related tasks, accessing or commenting on news sites, or conducting commercial or business transactions in ways that require engaging in protected speech.”
Greenwood’s opinion falls short of repudiating Pirali, saying that a condition that “might” be justified as to a possessor of child pornography, such as Pirali, is not appropriate as to Salvador, who used social media to contact victims.
No Justification
She wrote:
“We conclude the limitation we relied on in Pirali—that the probationer could still use the Internet by obtaining prior approval from his probation officer—is not adequate here. Access to some part of the Internet is so necessary and frequent as a part of daily life that it may become unduly burdensome to obtain a probation officer’s approval for every use of it. With respect to some offenses—e.g.. possession or distribution of child pornography, as in Pirali—such a burdensome condition might be justified or necessary. But in this case, it is not.”
The presiding justice said that other conditions, which are approved in the opinion—including restrictions on use of social media and authorizing access by law enforcement officers to Salvador’s electronic devices—”are adequate to achieve the legitimate purposes of the conditions.”
The case is People v. Salvador, 2022 S.O.S. 4323.
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