NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
IN cLiincsopnei oeum;steiOFwwworeM This opinion was filed for record _ DATE I II ?ni« i on
CtmF JUSTICE
SUSAN L. CARLSON supreme court clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 94605-1
Respondent,
En Banc
JAMEEL PADILLA, Filed NAY I 0 2018 Petitioner.
Gonzalez, J.—Jameel Padilla was convicted for communicating with a
minor for immoral purposes. At issue here is Padilla's community custody
condition prohibiting him from "possess[ing] or access[ing] pornographic
materials, as directed by his supervising Community Corrections Officer"(CCO).
Clerk's Papers(CP)at 37. Padilla argues that the condition and its accompanying
definition of"pornographic materials" are unconstitutionally vague. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State V. Padilla, No. 94605-1
Although the condition includes a definition of"pornographic materials,"
the definition itself is vague and overbroad. A condition cannot be saved from a
vagueness challenge merely because it contains a definition when that definition
itself suffers the same weakness. Moreover, an overbroad definition does not
sufficiently put the offender on notice of what materials are prohibited and subjects
him to possible arbitrary enforcement. We therefore reverse the Court of Appeals'
decision upholding the condition and remand to the trial court for further definition
of the term "pornographic materials" following a determination of whether the
restriction is narrowly tailored based on Padilla's conviction.
Facts
K.M.,' a nine-year-old living in California, received a message on her
Facebook page. At the time, her profile picture showed her at eight-and-a-half
years old. The message, sent from "Jim Wilcox," included sexually explicit texts.
Originally, K.M. thought these messages were from a family friend, but quickly
realized she was mistaken.
A relevant portion ofthe conversation includes: [Wilcox]: "are you alone?".... [K.M.]: "yay?".... [Wilcox]: "cause im jerking offto you. what are you wearing." . [Wilcox]: "you are so pretty, my cock is still hard for you."....
'We use K.M.'s initials to protect her identity and to maintain consistency with the Court of Appeals' opinion and the parties' briefing. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State V. Padilla, No. 94605-1
[K.M.]; "shut up I am 9!!!!!!!!!!!!".... [WiLCOX]: "suck it" [K.M,]: "no u r gross I am 9 so back off ....
CP at 113-14. Concerned and confused, K.M. blocked "Wilcox" and told her
father about the conversation. K.M.'s father reported the messages to California
law enforcement and provided screenshots ofthe conversation. Investigating
officers discovered the Internet protocol (IP) address for the computer used to
access the "Jim Wilcox" Facebook account was associated with Padilla, who lived
in Everett, Washington. At the time, Padilla was 35 years old.
Everett police seized Padilla's computer pursuant to a valid search warrant.
A search ofthe computer revealed Padilla's various Facebook aliases, including
the account of"Jim Wilcox." Initially, Padilla did not admit or deny that he used
the "Wilcox" account, but he did admit to engaging in similar conversations via
Facebook. A forensic evaluation ofPadilla's computer also revealed that Padilla
was logged on every time K.M. received a message from the "Wilcox" account.
Although officers were not able to find the chats with K.M. on Padilla's computer,
they had enough evidence to link Padilla to the communications, including
identically phrased messages to other minors. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State V. Padilla, No. 94605-1
Padilla was charged and convicted of communication with a minor for
immoral purposes.^ The court sentenced him to 75 days of confinement and 12
months of community custody, imposing multiple conditions. Here, Padilla
challenges only the condition prohibiting his possession and access to
pornographic materials, as directed by his CCO. The term "pornographic material'
was defined as "images of sexual intercourse, simulated or real, masturbation, or
the display of intimate body parts." CP at 37.
On appeal, Padilla challenged his conviction and both community custody
conditions. The State disputed Padilla's challenge to the pornography condition.
The court affirmed Padilla's conviction, upheld the pornography condition, and
remanded to strike the other concededly vague condition.^ State v. Padilla, No.
73902-6-1, slip op. at 10(Wash. Ct. App. Apr. 24, 2017)(unpublished),
http://www.courts.wa.gov/opinions/pdf/739026.pdf. Padilla sought review here,
claiming the charging information omitted an essential element of crime and
challenging the "pornographic materials" condition as vague. We granted review
only as to the sentencing condition. State v. Padilla, 189 Wn.2d 1023, 407 P.3d
1134(2017).
^ The State also charged him with multiple counts of possessing child pornography, but the communication with a minor charge was severed for trial. ^ The condition prohibited Padilla from frequenting areas where minors were known to congregate. On appeal, the State conceded that this condition was unconstitutionally vague. 4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State V. Padilla, No. 94605-1
Analysis
Conditions of community custody may be challenged for vagueness for the
first time on appeal, and where the challenge involves a legal question that can be
resolved on the existing record, the challenge may be addressed before any
attempted enforcement of the condition. State v. Bahl, 164 Wn.2d 739, 744, 193
P.3d 678 (2008). This court reviews community custody conditions for abuse of
discretion, and will reverse them only if they are '"manifestly unreasonable.'"
State V. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830(2015)(quoting State v.
Sanchez Valencia, 169 Wn.2d 782, 791-92, 239 P.3d 1059 (2010)). A trial court
abuses its discretion if it imposes an unconstitutional condition. Id. Here, Padilla
raises a preenforcement vagueness challenge to his community custody condition
prohibiting him from possessing or accessing pornography.
A legal prohibition, such as a community custody condition, is
unconstitutionally vague if(1)it does not sufficiently define the proscribed
conduct so an ordinary person can understand the prohibition or(2)it does not
provide sufficiently ascertainable standards to protect against arbitrary
enforcement. Bahl, 164 Wn.2d at 752-53 (citing City ofSpokane v. Douglass, 115
Wn.2d 17, 178, 795 P.2d 693 (1990)). But'"a community custody condition is not
unconstitutionally vague merely because a person cannot predict with complete For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State V. Padilla, No. 94605-1
certainty the exact point at which his actions would be classified as prohibited
conduct.'" Sanchez Valencia, 169 Wn.2d at 793 (internal quotation marks
omitted)(quoting State v. Sanchez-Valencia, 148 Wn. App. 302, 321, 198 P.3d
1065, rev'd, 169 Wn.2d 782(2009)). Furthermore, a vague condition infnnging on
protected First Amendment speech can chill the exercise ofthose protected
freedoms. Grayned v. City ofRoclrford, 408 U.S. 104, 109,92 S. Ct. 2294, 33 L.
Ed. 2d 222(1972); U.S. CONST, amend. 1. A regulation implicating First
Amendment speech must be narrowly tailored to further the State's legitimate
interest. Grayned,408 U.S. at 117."^ Accordingly, a restriction implicating First
Amendment rights demands a greater degree of specificity and must be reasonably
necessary to accomplish the essential needs of the state and public order. State v.
Riley, 121 Wn.2d 22, 37-38, 846 P.2d 1365 (1993)(quoting Malone v. United
States, 502 F.2d 554, 556 (9th Cir. 1974)).
1. Padilla's community custody condition prohibiting access and possession of "pornographic materials" is unconstitutionally vague
As mentioned earlier, Padilla challenges the condition prohibiting his access
and possession of pornographic materials as unconstitutionally vague. We agree.
See also Packingham v. North Carolina, 582 U.S. , 137 S. Ct. 1730, 1736, 198 L. Ed. 2d 273 (2017); McCullen v. Coakley, 573 U.S. _,134 S. Ct. 2518, 2534, 189 L. Ed. 2d 502(2014); Nat'lAss'nfor Advancement ofColored People v. Button, 371 U.S. 415, 438, 83 S. Ct. 328,9 L. Ed. 2d 405 (1963); Shelton v. Tucker, 364 U.S. 479, 488, 81 S. Ct. 247,5 L. Ed. 2d 231 (1960); De Jonge v. Oregon, 299 U.S. 353, 364-65, 57 S. Ct. 255, 81 L. Ed. 278 (1937). For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State V. Padilla, No. 94605-1
In Bahl, our court held that a similarly worded condition was
unconstitutionally vague. 164 Wn.2d at 758. There, Eric Bahl was convicted of
second degree rape and first degree burglary. Id. at 743. In addition to prison
time, the court imposed a mandatory life term of community custody on the rape
charge. One ofthe community custody conditions prohibited Bahl from
"'possess[ing] or access[ing] pornographic materials, as directed by the
supervising [CCO].'" Id. Because the condition granted sole authority to Bahl's
CCO in determining what material was prohibited, this court found the condition
did not sufficiently provide Bahl with notice of which materials were prohibited or
provide ascertainable enforcement standards, /t/. at 758.
Similar to Bahl, the plain language of Padilla's pornography condition is
vague. However, unlike Bahl's, Padilla's condition includes a definition ofthe
term "pornographic materials" as "images of sexual intercourse, simulated or real,
masturbation, or the display of intimate body parts," CP at 37. Whether the
definition of the term "pornographic materials" in a community custody condition
prohibiting the possession or access of such materials is vague is an issue of first
impression.
There are three overarching instances when a court will declare a legal
provision, such as a community custody condition, unconstitutionally vague. First, For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State V. Padilla, No. 94605-1
the statute must "give the person of ordinary intelligence a reasonable opportunity
to know what [behavior] is prohibited." Grayned,408 U.S. at 108. Second, the
law must provide explicit standards to those charged with enforcing the law in
order to prevent "arbitrary and discriminatory" application. Id. Finally, a vague
law that encroaches on "'sensitive areas of basic First Amendment freedoms'"
naturally inhibits the exercise ofthose freedoms because individuals who are
uncertain ofthe meaning of a statute will steer '"far wider'" than necessary in
order to ensure compliance. Id. at 109(quoting Baggett v. Bullitt, 377 U.S. 360,
372, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964)).
To determine whether a legal provision, such as a community custody
condition, is unconstitutionally vague, we apply a two-pronged analysis. We must
first consider whether the challenged language "fail[s] to provide the kind of notice
that will enable ordinary people to understand what conduct it prohibits." City of
Chicago V. Morales, 527 U.S. 41, 56, 119 S. Ct. 1849, 144 L. Ed. 2d 67(1999)
(plurality opinion). Next, the language will be void if it "may authorize and even
encourage arbitrary and discriminatory enforcement." Id. at 56(citing Kolender v.
Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983)). A
provision is not vague when a person "'exercising ordinary common sense can
sufficiently understand'" it. Gibson v. City ofAuburn, 50 Wn. App. 661, 667, 748
P.2d 673(1988)(quoting v. Kennedy, 416 U.S. 134, 159, 94 S. Ct. 1633, 40 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State V. Padilla, No. 94605-1
L. Ed. 2d 15 (1974), overruled in part on other grounds by Cleveland Bd. ofEduc.
V. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494(1985)); also
Coates V. Cincinnati, 402 U.S. 611, 614, 91 S. Ct. 1686, 29 L. Ed. 2d 214(1971)
(holding that a statute is impermissibly vague when it prohibits "[cjonduct that
annoys some people [but] does not annoy others"). But a statute will be considered
unconstitutionally vague if enforcement depends on a completely subjective
standard. Vill. ofHoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
498, 102 S. Ct. 1186, 71 L. Ed. 2d 362(1982)("The degree of vagueness that the
Constitution tolerates—as well as the relative importance offair notice and fair
enforcement—depends in part on the nature ofthe enactment.").
The State argues that the condition in question here is not unconstitutionally
vague because the term "pornographic materials" was defined in a manner that
may be reasonably understood by an ordinary person. The existence of a definition
distinguishes Eadilla's condition from the condition this court struck down in Bahl.
As mentioned previously, in Bahl we determined that because BahTs condition did
not include a definition of"pornography" or rely on any statutory definition ofthe
term, the language did not adequately put Bahl on notice of what specific items he
was prohibited from accessing and encouraged arbitrary enforcement. 164 Wn.2d
at 754-57. Thus, the condition was deemed unconstitutionally vague. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State V. Padilla, No. 94605-1
In this case, unlike Bahl, the sentencing court provided a definition for the
term "pornographic materials." Yet, Padilla contends that the definition is also
vague as it does not sufficiently put him, as the probationer, on notice of what
specific items he is prohibited from accessing. The presence of a vague definition
does not save the condition fi"om a vagueness challenge if it also encompasses a
broad range of speech protected by the First Amendment. Id. at 756(CCO could
interpret the condition to "include any nude depiction" as including "a photograph
of Michelangelo's sculpture of David." {dding States v. Guagliardo, 278 F.3d 868,
872(9th Cir. 2002)). The vagueness doctrine requires the State to provide citizens
with fair warning of proscribed conduct; thus, the overbroad definition of
"pornographic materials" may similarly cause a "chilling effect on the exercise of
sensitive First Amendment freedoms." Id. at 752-53. When First Amendment
speech is prohibited,"a stricter standard of definiteness applies." Id.', State v.
K.H.-H., 185 Wn.2d 745, 750-54, 374 P.3d 1141 (2016)(acknowledging more
specificity is required when vague conditions implicate First Amendment rights).
Accordingly, the inclusion of a vague definition cannot save the condition from
being unconstitutionally vague.
Padilla contends the "pornographic materials" definition is
unconstitutionally vague. The condition defines "pornographic materials" as
"images of sexual intercourse, simulated or real, masturbation, or the display of
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State V. Padilla, No. 94605-1
intimate body parts." CP at 37. Padilla notes that the prohibition against viewing
depictions of simulated sex would unnecessarily encompass movies and television
shows not created for the sole purpose of sexual gratification. Films such as
Titanic and television shows such as Game ofThrones depict acts of simulated
intercourse, but would not ordinarily be considered "pornographic material." We
agree. The prohibition against viewing depictions of intimate body parts
impermissibly extends to a variety of works of arts, books, advertisements, movies,
and television shows. See Jenkins v. Georgia, 418 U.S. 153, 161, 94 S. Ct. 2750,
41 L. Ed. 2d 642(1974)(the depiction of"nudity alone is not enough to make
material legally obscene").
On its face, the plain language ofthe pornography condition and its relevant
definition is ambiguous. In application, the definition does not provide adequate
notice of what behaviors Padilla is prohibited from committing and also
encompasses the prohibition of constitutionally protected speech. But also,
delegating the authority to determine the prohibition boundaries to an individual
CCO creates "'a real danger that the prohibition on pornography may ultimately
translate to a prohibition on whatever the officer personally finds titillating.'"
Bahl, 164 Wn.2d at 755 (internal quotation marks omitted)(quoting Guagliardo,
278 F.3d at 872). For example, in Farrell v. Burke, the parole officer stated he
would have '"locked [the parolee] up for'" possessing a photograph ofthe statue of
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State V. Padilla, No. 94605-1
David pursuant to a condition prohibiting the possession of pornography. 449 F.3d
470,479(2d Cir. 2006). There, the defendant was similarly prohibited from
possessing pornographic material. Id. at 476. While the Farrell court determined
that the term "pornographic material" was inherently vague, it refused to strike
down the condition as being void for vagueness because, as applied, the material
possessed "fit[]within any reasonable understanding ofthe term" "pornography."
Id. at 490. In the present case, Padilla's sentencing condition and its definition
similarly fails to adequately put him on notice of which materials are prohibited
and leaves him vulnerable to arbitrary enforcement. Therefore, the condition is
unconstitutionally vague.
2. We reverse the Court of Appeals' decision upholding the condition and remand to the trial court for further definition ofthe term "pornographic materials" following a determination of whether the restriction is narrowlv tailored based on Padilla's conviction
In light ofthe considerations discussed above, on remand the trial court must
first determine whether the condition is sufficiently crime-related. As a condition
of community custody, sentencing courts may order offenders to "[cjomply with
any crime-related prohibitions." RCW 9.94A.703(3)(f). A crime-related
prohibition must directly relate to the circumstances of the crime for which the
offender was convicted. RCW 9.94A.030(I0). If necessary, the sentencing court
may restrict the material an offender may access or possess, but such a restrictive
condition "must be reasonably necessary to accomplish essential state needs and 12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State V. Padilla, No. 94605-1
public order." Bahl, 164 Wn.2d at 758. And when the regulation implicates First r'
Amendment speech, it must be narrowly tailored to further the State's legitimate
interest. Grayned,408 U.S. at 117.
To resolve crime-relatedness issues, a court will review the factual basis for
the condition under a '"substantial evidence'" standard. Irwin, 191 Wn. App. at
656(quoting State v. Matter, 139 Wn. App. 797, 801, 162 P.3d 1190 (2007)). The
court will strike the challenged condition if there is no evidence in the record
linking the circumstances ofthe crime to the condition. Id. at 656-57. There is no
requirement that the condition be factually identical to the crime. Id. If there is a
reasonable basis for the condition, the court will uphold it. Id. at 657.
At oral argument, the State agreed with Padilla that the present record is
inadequate to determine whether the pornography prohibition is sufficiently crime
related. Wash. State Supreme Court oral argument. State v. Padilla, No. 94605-1
(Mar. 20, 2018),^ at 24 min., 44 sec. to 24 min., 51 sec.(no showing of compelling
state interest), 24 min, 56 sec. to 25 min., 3 sec.(no showing all pornographic
material should be restricted), 34 min., 42 sec. to 35 min., 13 sec.("I doubt that
this record is sufficient even to cover the narrowest part ofthis, i.e., the depiction
of—depictions ofsexual intercourse. I doubt that even that is justified on this
^ Washington State's Public Affairs Network, http://www.tvw.org. 13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State V. Padilla, No. 94605-1
record where the sentencing record in this case doesn't provide any real link
between pornography, however defined, and this defendant's offense pattern or the
commission ofthis crime because the courtjust didn't have that kind of
information."). Based on the record before us, the condition is not reasonably
necessary to accomplish the essential needs ofthe state and public order.
Since the contested condition implicates a First Amendment right, it must be
reasonably necessary to accomplish the essential needs of the state and public
order. Bahl, 164 Wn.2d at 757(quoting Riley, 121 Wn.2d at 37). Padilla was
convicted of communicating with a minor for immoral purposes, but is prohibited
from accessing all pornography with no distinction between child and adult
pornography. See United States v. Loy, 237 F.3d 251, 266(3d Cir. 2001)
("[rjestricting this entire range of material is simple unnecessary to protect the
public, and for this reason the condition is not 'narrowly tailored.'"). Meanwhile,
the included definition ofthe term "pornographic materials" encompasses a broad
range of protected materials. There is currently no connection in the record
between Padilla's inappropriate messaging and imagery of adult nudity or
simulated intercourse. See State v. O'Cain, 144 Wn. App. 772, 775, 184 P.3d 1262
(2008)(striking community custody condition prohibiting offender's access to the
Internet because there was "no evidence" Internet usage contributed in any way to
the crime ofrape); Riley, 121 Wn.2d at 36-38 (condition prohibiting offender from
14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State V. Padilla, No. 94605-1
owning a computer, associating with other computer hackers, or communicating on
online bulletin boards following conviction for computer trespass upheld). The
condition in question is unconstitutionally vague.
Therefore, we reverse the Court of Appeals' decision upholding the
condition and remand to the trial court for further definition ofthe term
"pornographic materials" following a determination of whether the restriction is
narrowly tailored based on Padilla's conviction.
Conclusion
A vague definition cannot save the condition from a vagueness challenge.
Bahl, 164 Wn.2d at 756. Here, Padilla's community custody condition prohibiting
access to and possession of pornographic materials is unconstitutionally vague
because the condition fails to define the scope ofthose prohibited materials.
Therefore, we reverse the Court of Appeals' decision upholding the condition and
remand to the trial court to adopt a clear definition and consider whether the
restriction of"pornographic materials" is narrowly tailored based on the crime and
the defendant.
15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State V. Padilla, No. 94605-1
WE CONCUR:
Iauaaa{ , CL
-J-