P. v. Tucker

Filed 8/13/09 P. v. Tucker CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

After defendant entered a no contest plea to failure to annually update his sex offender registration (Pen. Code,  290, subd. (a)(1)(D)),[1] he was placed on probation on the condition, among others, that he not be in the presence of children without the supervision of another adult. In this appeal, he claims that the probation condition is invalid and impermissibly vague. We conclude that the probation condition is reasonably related to deterring criminality, but is vague for failure to include a knowledge requirement. We therefore modify the condition to correct vagueness elements in it, and otherwise affirm the judgment.

STATEMENT OF FACTS

In November of 1993, defendant was convicted of an attempt to commit lewd acts on a child in violation of Penal Code sections 664 and 288, subdivision (c). As a result of the conviction he was subject to the sex offender registration requirements of section 290, one of which is to register annually within five days of his birthday. ( 290, subd. (a)(1)(D); People v. Hofsheier (2006) 37 Cal.4th 1185, 1196; People v. Carmony (2005) 127 Cal.App.4th 1066, 1077.) His birthday is November 4th, and he last filed an annual registration on November 7, 2006.

On April 17, 2008, defendant filed a waiver of rights and change of plea form, and formally entered a no contest plea to a violation of section 290, subdivision (a)(1)(D). His sentencing hearing was scheduled for May 15, 2008. The probation report prepared for the sentencing hearing revealed that defendant initially stated that he was not employed at the time of his arrest, but later stated that he was working approximately twenty-five hours per week as a babysitter, for approximately two months prior to his arrest on April 7, 2008.

At the scheduled sentencing hearing on May 15, 2008, the court asked defendant to provide the name and address of the person hes been doing babysitting for, and directed the probation officer to contact that person and file a supplement to the report. The court indicated its inclination to include an order that defendant not be engaged in babysitting activities. The court expressed concern that defendant failed to inform the mother of the children he was babysitting that hes a 290 registrant. The sentencing hearing was continued.

The following day the probation officer learned from the mother of the children that she was not aware of defendants status as a registered sex offender, but she also insisted that defendant has never touched her children and she would continue to allow him to babysit them. In addition, the grandmother of the children expressed that the children adore the defendant.

At the continued sentencing hearing on June 4, 2008, the court imposed a probation condition, over defense objection, that defendant not engage in any babysitting activities or be around children unsupervised by another adult for the period of his probation.

DISCUSSION

I. The Validity of the Probation Condition.

Defendant argues that the probation condition which prohibits him from babysitting or associating with children without the supervision of an adult is invalid. He maintains that the condition is neither reasonably related to his past crimes nor designed to prevent future criminality. He points out that the present conviction has nothing to do with children, and his prior conviction is 15 years old, with no indication of criminal acts on his part since 1993 until he was arrested for this offense.

We examine the validity of the probation condition in accordance with established principles.  When granting probation, courts have broad discretion to impose restrictive conditions to foster rehabilitation and to protect public safety. Penal Code section 1203.1 [permits] the court to impose . . . reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, . . . and specifically for the reformation and rehabilitation of the probationer. . . . [Citation.] (People v. Mason (1971) 5 Cal.3d 759, 764.) A probation condition will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . . [Citation.] (People v. Lent (1975) 15 Cal.3d 481, 486; People v. Rugamas (2001) 93 Cal.App.4th 518, 522.) Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality. (People v. Lent, supra, at p. 486; see also In re Corona (2008) 160 Cal.App.4th 315, 321; People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240; People v. Zaring (1992) 8 Cal.App.4th 362, 370.)

 [A] reviewing court should not disturb the exercise of a trial courts discretion unless it appears that there has been a miscarriage of justice. . . . It is fairly deducible from the cases that one of the essential attributes of abuse of discretion is that it must clearly appear to effect injustice. [Citations.] Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power. [Citations.] [Citation.] (People v. Brown (2001) 96 Cal.App.4th Supp. 1, 42; see also People v. Balestra (1999) 76 Cal.App.4th 57, 63; People v. Whisenand (1995) 37 Cal.App.4th 1383, 1391.)

We have little difficulty in concluding that the probation condition at issue here is reasonably related to deterring future criminality. Defendant claims that the current conviction for failure to comply with sex offender registration requirements did not at all involve children. He further points out that the record demonstrates he never behaved inappropriately with the children for whom he was babysitting, and he continued to have the confidence of their mother.

While we agree with defendant that the current registration offense has no direct connection with children, defendant offers an unduly constrained review of the record to determine the validity of the condition. We must apply a  totality of the circumstances  test to determine the reasonableness of the probation condition, not merely the facts related to the present sex offender registration offense. (In re Jaime P. (2006) 40 Cal.4th 128, 136; People v. Sanders (2003) 31 Cal.4th 318, 333; People v. Hill (2004) 118 Cal.App.4th 1344, 13501351.) Also, a probation condition need not be directly related to the underlying conviction. If a probation condition serves the statutory purpose of  reformation and rehabilitation of the probationer,  such condition is  reasonably related to future criminality  and will be upheld even if it has no  relationship to the crime of which the offender was convicted.  [Citation.] (People v. Brewer (2001) 87 Cal.App.4th 1298, 1311.)

Here, we know that defendants prior conviction was for an offense that involved an attempt to commit lewd acts on a child.[2] The prior conviction, although it is now somewhat remote in time, gave the trial court justifiable concern with the need to remove defendant from circumstances that may tend to offer the potential for him to reoffend. Of further serious consequence is the present failure of defendant to both satisfy his duties to register or to inform the mother of the children of his sex offender registration status. The purpose of the registration statute is to promote the states interest in preventing recidivism by sex offenders. (Wright v. Superior Court (1997) 15 Cal.4th 521, 527.) Defendants violation of the registration requirements brings into question his potential for future criminality as a sex offender. His failure to notify his babysitting employer of the prior offense with children and status as a sex offender provides an additional reason to impose a condition designed to prevent him from reoffending with children. We find that the imposition of the probation condition is reasonably related to future criminality and serves the interests of public safety and the rehabilitation of defendant.

II. The Probation Condition as an Overbroad Restriction on Defendants Rights.

Defendant also offers the argument that the probation condition is overbroad, particularly in the limitations imposed upon his constitutionally protected conduct of choice of occupation. His primary complaint is that the condition is not narrowly drawn to achieve the goal of protecting minors from future crimes. He further claims that the condition violates his constitutional right to freedom of association with children.

A probation condition may be overbroad if it unduly restricts the exercise of a constitutional right. [C]onditions of probation that impinge on constitutional rights must be tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation . . . . [Citation.] (People v. Delvalle (1994) 26 Cal.App.4th 869, 879 [31 Cal.Rptr.2d 725], quoting People v. Mason (1971) 5 Cal.3d 759, 768 [97 Cal.Rptr. 302, 488 P.2d 630] [dis. opn. of Peters, J.].) (In re Byron B. (2004) 119 Cal.App.4th 1013, 1016.) Probation conditions that infringe upon recognized fundamental constitutional rights to travel, association and expression must also   be narrowly drawn; to the extent it is overbroad it is not reasonably related to the compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights.   (People v. Pointer (1984) 151 Cal.App.3d 1128, 1139, citations omitted; see also People v. Hackler (1993) 13 Cal.App.4th 1049, 1058; In re Frank V. (1991) 233 Cal.App.3d 1232, 1242; People v. Watkins (1987) 193 Cal.App.3d 1686, 1688.)   If available alternative means exist which are less violative of a constitutional right and are narrowly drawn so as to correlate more closely with the purpose contemplated, those alternatives should be used [citations]. [Citations.] [Citation.] (People v. Zaring, supra, 8 Cal.App.4th 362, 371.) Probation conditions are valid, however, even though they restrict a probationers exercise of constitutional rights if they are narrowly drawn to serve the important interests of public safety and rehabilitation [citation] and if they are specifically tailored to the individual probationer. (In re Babak S. (1993) 18 Cal.App.4th 1077, 1084; see also In re Tyrell J. (1994) 8 Cal.4th 68, 82; People v. Bianco (2001) 93 Cal.App.4th 748, 754755.)

Defendant maintains that the sweeping ban on his babysitting employment activities and association with children was invalid where less restrictive measures could have achieved the objective of protecting children. He suggests that instead of proscribing his employment as a babysitter, the court had other alternatives: require him to seek probation officer approval before taking . . . any job that brought him into contact with children; or, order him to disclose his sex offender status to parents before he could take any babysitting job.

We agree with defendant that the condition requiring him to refrain from associating with children or babysitting them impinges on his constitutional rights, and thus must be narrowly drawn. (See People v. Garcia (1993) 19 Cal.App.4th 97, 102; People v. Hackler, supra, 13 Cal.App.4th 1049, 1058.) Defendant refers us to the case of People v. Burden (1988) 205 Cal.App.3d 1277, 12801281, to support his claim of an overbroad occupational restriction. In Burden the court found no relationship between the crime of drawing checks on insufficient funds which was not perpetrated in the course of his business, and the probation condition prohibiting Burdens future employment as a salesperson. (Ibid; see also In re Stevens (2004) 119 Cal.App.4th 1228, 1239.) Here, in contrast to Burden, defendants sex offender history and current conviction, along with his failure to notify his employer of his status as a sex offender registrant, indicates that a more specific condition may not have equally or even adequately served the dual objectives of rehabilitation and public safety. (See People v. Peck (1996) 52 Cal.App.4th 351, 363.) We find no abuse of discretion in the trial courts decision to entirely prohibit defendant from engaging in babysitting duties or unsupervised association with minors. Under the facts presented, the probation condition was narrowly tailored to the legitimate goal of deterring future criminality by defendant.

III. The Vagueness of the Probation Condition.

We turn to defendants contention that the probation condition is at least in part unconstitutionally vague. He complains that the proscription against contact with children does not contain a knowledge element, and therefore fails to reasonably inform him of the conduct he must avoid. He asks us to modify the condition to specify that he cannot associate with anyone he actually knows or reasonably should know is an individual under the age of 18.

[T]he 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 concept of unconstitutional vagueness is related to the concept of unconstitutional overbreadth, but there are important differences. A clear and precise enactment may nevertheless be overbroad if in its reach it prohibits constitutionally protected conduct. The underlying concern of the vagueness doctrine is the core due process requirement of adequate notice: [] No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. The operative corollary is that a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. [] . . . Thus, a law that is void for vagueness not only fails to provide adequate notice to those who must observe its strictures, but also impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. (People v. Lopez (1998) 66 Cal.App.4th 615, 630, citations and internal quotation marks, other than those denoting emphasis, omitted.) 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. (Id., at p. 634, quoting from People v. Reinertson (1986) 178 Cal.App.3d 320, 324325.)

 Two principles guide the evaluation  of a constitutional claim of vagueness.  First, abstract legal commands must be applied in a specific context. A contextual application of otherwise unqualified legal language may supply the clue to a laws meaning, giving facially standardless language a constitutionally sufficient concreteness. [Citation.] Second, only reasonable specificity is required. . . . [Citation.] (People v. North (2003) 112 Cal.App.4th 621, 628.) Vagueness will not be found    if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources.  [Citation.] [Citation.] (Ibid.)  [I]f an accused can reasonably understand by the terms  used  that his conduct is prohibited,  the language is not vague. (People v. Sangani (1994) 22 Cal.App.4th 1120, 1143; People v. Serrata (1976) 62 Cal.App.3d 9, 22.)

As the Attorney General concedes, the condition that forbids contact with children is impermissibly vague. In In re Sheena K., supra, 40 Cal.4th 875, 891892, the California Supreme Court found a probation condition that ordered the probationer not to associate with anyone disapproved of by a probation officer in violation of vagueness standards. The Court explained that in the absence of an express requirement of knowledge, the probation condition imposed upon defendant is unconstitutionally vague. (Id. at p. 891.) Similarly, in the present case, the vagueness of the probation condition lies in the possibility that defendant may be found in violation of his probation by associating with someone who, unbeknownst to him, is under 18 years of age. (See In re Jorge G. (2004) 117 Cal.App.4th 931, 939; In re Justin S. (2001) 93 Cal.App.4th 811, 816; People v. Lopez, supra, 66 Cal.App.4th 615, 628629; People v. Garcia, supra, 19 Cal.App.4th 97, 102.) A person may reasonably not know whether he or she is associating with someone under the age of 18. Fair notice, as described in Sheena K., is not possible unless the probation condition is modified to require that defendant must either know or reasonably should know that persons are under 18 before he is prohibited from associating with them. (People v. Turner (2007) 155 Cal.App.4th 1432, 1436.) Accordingly, we will further define and limit the probation condition in controversy by adding a knowledge requirement.[3]

We also note a lack of consistency in the trial courts order as announced at the sentencing hearing and the judgment as reflected in the minute order. According to the reporters transcript of the hearing, the trial court used the terms left alone with children and not to be around children unsupervised by another adult when describing the probation condition. The minute order states that defendant is ordered to not be in presence of children unsupervised by another adult, and does not include any reference to an order forbidding defendant to engage in babysitting duties as specified by the court at the hearing. To harmonize the clerks minutes and the reporters transcript, and to ameliorate any vagueness problems, we modify the judgment to include the articulated prohibition against babysitting duties and to use the phrase in the presence of rather than be around or left alone with children. (See People v. Smith (1983) 33 Cal.3d 596, 599; In re Byron B., supra, 119 Cal.App.4th 1013, 1018.)

DISPOSITION

The condition of probation is modified to read: Defendant is not to engage in any babysitting activities and is not to be in the presence of any person he knows or reasonably should know is under the age of 18 who is not accompanied by a responsible supervising adult. As so modified, the judgment is affirmed.

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[1] All further statutory references are to the Penal Code unless otherwise indicated. Former section 290, subdivision (a)(1)(D), is now section 290.012, subdivision (a).

[2] The record does not tell us any of the details of the offense.

[3] We have the power to modify a probation condition to render the condition constitutional. (See Sheena K., supra, 40 Cal.4th at p. 892; In re Justin S. (2001) 93 Cal.App.4th 811, 816 [113 Cal.Rptr.2d 466].) (People v. Turner, supra, 155 Cal.App.4th 1432, 1436.)

* Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.