P. v. Braeger
Filed 1/8/13 P.
v. Braeger CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
KESAVA
BRAEGER,
Defendant and Appellant.
F064333
(Fresno Super. Ct. No. F10904655)
THE COURT
APPEAL
from a judgment of the Superior Court of
County. John F. Vogt,
Judge.
J.
Wilder Lee, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
On
October 7,
2011, appellant Kesava Braeger pleaded no
contest to one count of unlawful sexual intercourse with a person under age 16
(Pen. Code,
title="">[1] § 261.5, subd.
(d)). In exchange for the plea, the
court dismissed three other counts of sexual offenses (§§ 261, subd.
(a)(2), 288a, subd. (c)(2), 288, subd. (c)(1)) on motion of the district
attorney. The written change of plea
form signed by appellant indicated that appellant could be sentenced to a
maximum term of four years in state prison.
On
November 7,
2011, the court suspended imposition of
judgment and sentence for three years and placed appellant on three years of
formal probation on condition that he serve 360 days in county jail. The court ordered appellant to register as a
sex offender (§ 290), instructed him not to “possess or control any
dangerous or deadly weapons, including firearms,†and further instructed him
not to “view, purchase or possess sexually explicit pictures, magazines, video
tapes, or movies or computer pornography including those depicting minors
engaged in sexual activity or actors representing themselves to be under the
age of 18 engaged in sexual activity.â€
The court also
ordered appellant not to “initiate, establish or maintain contact with any
minor child or reside with any children without prior [c]ourt order. [¶]
[F]requent places where children congregate, such as parks, playgrounds,
schools, video arcades, without the prior approval of the [c]ourt or the
Probation Officer. [¶] [O]btain employment which would allow
unsupervised contact with minors, [or] reside within a 2000 foot radius [of]
any school attended by minors.†The
court imposed a $200 probation revocation restitution fine (§ 1202.44),
among other fines and penalties.
On December 5, 2011, appellant submitted a combined notice of appeal and request for
the superior court granted the request for certificate of probable cause.
STATEMENT OF FACTS
Because
appellant pleaded no contest to unlawful sexual intercourse with a person under
age 16, the following facts are taken from November 7, 2011,
report of the probation officer.
In
early 2008, the 15-year-old Confidential Victim (CV1) visited her friend,
13-year-old Confidential Victim (CV2), while the latter lived with her older
sister and the sister’s boyfriend, the appellant. CV1 lived in the Sacramento area at
the time, and she frequently visited CV2.
CV1 had problems with her mother, and appellant befriended CV1 over
time. He took CV1 shopping for clothes
and took her out to eat. When CV1 moved
to Fresno, she stayed in contact with appellant by text messaging.
On
December 5,
2008, appellant traveled from Sacramento to Fresno and took CV1
out to eat at a restaurant in the River Park shopping
center. He invited her to go to the movies
but she declined and asked him to take her home. Appellant instead drove CV1 to a Fresno hotel and
refused her further request to take her home.
Appellant told CV1 he wanted to have sex with her, but she
declined. Appellant then threatened to
“destroy her family†if she did not have sex with him. Appellant told CV1 he would call CPS on her
mother and have her taken away. At that
point, CV1 agreed to go to the hotel with him.
Appellant checked them into a room on the top floor, saying “no one would
be above them.â€
Inside
the room, Braeger fondled CV1’s breasts and told her to orally copulate
him. He undressed CV1 and then undressed
himself. He told CV1 that their
intercourse would have rules, i.e., that she would have to act as though she
liked sex and that she would have to call out his name. Appellant then got on top of CV1 and
penetrated her. He had sexual
intercourse with her for some time, turned her over, and then engaged in
intercourse “from behind.†He slapped
her posterior, causing red marks and swelling.
He also made her stand up against a wall and again engaged in sex “from
behind.†The intercourse was “rough,â€
and appellant slammed CV1’s body against the wall. He next took her back to the bed, placed her
on her hands and knees, and engaged in intercourse “from behind.†Appellant wore a condom during the incident
and then removed it and ejaculated into his hand. After the sexual conduct, appellant told CV1
to dress while he went into the shower.
After the shower, he dropped CV1 at home.
Several
days after the incident, appellant sent CV1 some text messages, and she told
him to leave her alone. CV1 did not see
appellant for some time after the incident.
On December
25, 2008, CV1 went to the home of CV2 for a
visit and felt uncomfortable when appellant arrived with his girlfriend. While CV1 was at the house, appellant told
her he wanted to grab her posterior. CV1
eventually left the premises because she did not want to be in appellant’s
presence. CV1 did not tell anyone about
the incident at the hotel and started to “withdraw†from her mother and other
family members.
On
January 5, 2009, CV1’s mother contacted the Clovis Police Department and
reported that appellant was threatening CV1.
CV1’s mother said appellant made cell phone contact with her daughter,
and the mother suspected “sex.†She
confiscated CV1’s cell phone and read appellant’s threatening text
message. At this point in time, CV1 denied
any sexual relationship with appellant.
Clovis police officers contacted appellant, and he denied any sexual
relationship or wrongdoing. He advised
officers that CV1 was depressed and said he was concerned for her. He also indicated that he would leave CV1
alone.
CV1’s
mother contacted officers again and reported that appellant was continuing to
contact her daughter. CV1 was also
receiving random text messages from someone named “Adam Polson.†Polson claimed he knew CV1’s friends. CV1 had been in contact with Polson through
cell phone texting, and they exchanged photos.
CV1 believed that Polson was a school acquaintance, and she exchanged
e-mail addresses and photographs with him.
On January 8, 2009, CV1 agreed to meet with Polson at a restaurant in
the Sierra Vista Mall in Clovis. When
she entered the restaurant, appellant approached and attempted to speak with
her. She became frightened, ran away,
went home, and told her mother about the encounter.
Officers
contacted appellant, and he denied seeing CV1 at the Clovis restaurant. He claimed he had not been in the Fresno area
since Christmas of 2008. He later
admitted that he was in Clovis and went to the restaurant, but claimed his
encounter with CV1was a coincidence.
Appellant later admitted he created a false e-mail account under the
name of Adam Polson in order to secretly stay in contact with CV1. After the officers spoke to appellant, CV1
received a text message from him stating:
“ ‘Well, I guess I’m going to jail.’ †Appellant continued his attempts to contact
CV1 by sending her text messages and calling her home. The text messages asked CV1 to “ ‘meet
him’ †or to “ ‘spend the night with him.’ †CV1 received one text messaged demanding that
she engage in sex with appellant, or he would file a report with Child
Protective Services (CPS) falsely claiming that CV1’s mother had abused her.
On
January 12, 2009, CPS received an anonymous call that CV1 was being abused by
her mother, and that CV1 was sneaking out at night, doing drugs, and getting
“ ‘gang-banged.’ †The caller
claimed that CV1’s older brother, age 19, was engaged in a relationship with an
underage female and that the minor girlfriend lived at the brother’s home. A CPS worker went to CV1’s home and
interviewed CV1 and her mother but did not find any evidence of abuse.
Sacramento
police officers went to appellant’s residence in that city and contacted him
about the incidents alleged by CV1.
Appellant denied attempted contacts with CV1. Officers looked at the list of appellant’s
recent phone calls and determined that he had made the calls to CPS and had
been calling CV1’shome. Officers
confiscated appellant’s computers and located pornographic videos depicting
children as young as seven years of age engaging in sexual intercourse. One computer file consisted of a video of CV2
taking a shower and changing into clothes.
Officers determined the videos were recorded with a hidden camera and
depicted appellant’s bathroom and a room in the house where CV2 stayed when she
visited her older sister and appellant.
Officers arrested appellant and took him to Sacramento County Jail for
having child pornography in his computer and for recording CV2 while she was
fully nude.
In
May 2009, CV1 contemplated suicide, owing to emotional problems arising from
the incident with appellant. On May 11,
2009, she was admitted to the Fresno County Health PAC Unit for an evaluation
under Welfare and Institutions Code section 5150. She told staff psychologists that she had
been raped and had been using crystal methamphetamine. CV1 wrote her mother a letter stating,
“ ‘I was raped,’ †and expressing an intent to commit suicide. CV1 then told her mother about appellant
raping her in December 2008. Officers
contacted CV1, and she said she did not report the 2008 incident because she
was afraid of appellant. She decided to
report the incident after learning that he had been incarcerated in Sacramento
County on child pornography charges.
CONDITIONS OF PROBATION
Appellant
contends the trial court erred by imposing certain conditions of probation at
sentencing. We address each challenged
condition in turn.
Possession and Viewing of Sexually Explicit Materials
Condition 38 of
appellant’s probation stated:
“38 Do not view, purchase
or possess sexually explicit pictures, magazines, video tapes, or movies, or
computer pornography including those depicting minors engaged in sexual
activity or actors representing themselves to be under the age of 18 engaged in
sexual activity.â€
Appellant
contends: “Because the phrase ‘sexually
explicit’ has no set meaning, and [has] several conflicting definitions within
the law, the term of probation imposed upon Braeger infringes his First
Amendment rights because it is impermissibly vague and overbroad.†He specifically contends the First Amendment
protects sexually explicit materials that have societal value, the prohibition
against possession of such materials is overbroad and vague, the prohibition
against such possession of materials depicting adults is vague, and the
probation condition lacks a necessary knowledge element.
“Section 1203.1
gives trial courts broad discretion to impose conditions of probation to foster
rehabilitation of the defendant, protect the public and the victim, and ensure
that justice is done. [Citations.] ‘A condition of probation 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.] 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.’
[Citation.] As with any exercise
of discretion, the court violates this standard when it imposes a condition of
probation that is arbitrary, capricious or exceeds the bounds of reason under
the circumstances. [Citation.]†(People
v. Jungers (2005) 127 Cal.App.4th 698, 702.)
Conditions of
probation must be narrowly drawn, and must also be sufficiently precise for the
probationer to know what is required of him or her. The courts must be able to determine whether
the condition has been violated. (
890 (Sheena K.).) A trial court has “broad discretion†to
prescribe probation conditions in order to foster rehabilitation and protect
public safety. (People v. Freitas (2009) 179 Cal.App.4th 747, 750.) However, such conditions may be challenged
for being unconstitutionally overbroad and vague. (Ibid.) A probation condition may be overbroad “if in
its reach it prohibits constitutionally protected conduct. [Citation.]â€
(Ibid.) “[T]he underpinning of a vagueness challenge
is the due process concept of ‘fair warning.’
[Citation.]†(
“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 [constitutional] challenge on the ground of
vagueness. [Citation.] A probation condition that imposes
limitations on a person’s constitutional rights must closely tailor those
limitations to the purpose of the condition to avoid being invalidated as
constitutionally overbroad.
[Citation.]†(
890.) A reviewing court is authorized to
modify conditions of probation when necessary to correct such
at p. 892; People v. Turner (2007)
155 Cal.App.4th 1432, 1436.)
In
People v. Turner,
arising from a judgment of conviction of felony indecent exposure with a prior
(§ 314, subd. (1)), the defendant argued that two of the conditions of his
probation were unconstitutionally vague and overbroad. One of the conditions prohibited him from
possessing sexually stimulating materials or patronizing places where the
materials were available. The Third
District Court of Appeal held that the prevention of possession of sexually
oriented materials by persons such as the defendant promoted the public safety
and the defendant’s rehabilitation. The
appellate court nevertheless found the probation condition inherently imprecise
and subjective and modified it to read:
“ ‘Not possess any sexually stimulating/oriented material having
been informed by the probation officer that such material is inappropriate
and/or patronize any places where such material or entertainment in the style
of said material are known to be available.’ †(Id. at
p. 1436).
Applying
the principles of Turner in this
case, we modify probation condition No. 38 to read: “38 Do
not view, purchase or possess sexually explicit pictures, magazines, video
tapes, or movies, or computer pornography, having been informed by the
probation officer that such material is inappropriate, or pictures,
magazines, video tapes, or movies, or computer pornography depicting minors
engaged in sexual activity or actors representing themselves to be under the
age of 18 engaged in sexual activity.â€
To
the extent appellant claims a violation of his First Amendment rights, we note
the Ninth Circuit Court of Appeals has held with respect to a similar First
Amendment claim: “ ‘[P]robationers,
like parolees and prisoners, properly are subject to limitations from which
ordinary persons are free.’ (
Cir. 1975) 521 F.2d 259, 265] … [¶] … [¶] The district court did not abuse its
discretion in prohibiting [the defendant] from possessing sexually stimulating
material as a condition of supervised release .… Prohibiting a [probationer who was convicted
of engaging in abusive sexual contact with a child under 12 years of age] from
possessing sexually stimulating material is therefore sufficiently related to
the goal of ‘protect[ing] the public from further crimes of the
defendant.’ 18 U.S.C. § 3553(a)(2)(C).†(United
States v. Bee (9th Cir. 1998) 162 F.3d 1232, 1235-1236.)
Possession of Any Dangerous or Deadly Weapon
Condition No. 31
states: “31 Do not possess or control any dangerous or
deadly weapons including firearms.â€
Appellant contends this condition is vague and overbroad because objects
that are not deadly per se may be used, under certain circumstances, in a
manner likely to produce death or great bodily injury. Appellant also contends this probation
condition is deficient because it lacks a knowledge requirement.
In
continuing him as a ward of the state based upon a finding that he committed
second degree robbery (§ 211). The
order imposed a probation condition prohibiting the defendant from possessing
any “ ‘dangerous or deadly weapon.’ â€
The defendant contended the condition was unconstitutionally vague
because “any object can be used as a deadly weapon,†and thus the condition
gave no fair warning as to what might result in a violation. (R.P.,
supra, at p. 565.) The Second Appellate District disagreed,
finding the condition sufficiently precise for the probationer to know what was
required of him. The appellate court
held a condition is sufficiently precise if its terms have a plain, commonsense
meaning, which is well-settled. The
court examined legal definitions of “deadly or dangerous weapon,†“dangerous
weapon,†“deadly weapon,†and use in a “dangerous or deadly†manner, as found
in statutes, case law, jury instructions, and Black’s Law Dictionary. The court reviewed the relevant legal
definitions in those authorities and found they consistently included the
harmful capability of the item and the intent of the user to inflict, or
threaten to inflict, great bodily injury.
As a result of those well-defined terms, the court concluded the phrase
“dangerous or deadly weapon†was clearly established in the law and the
“no-dangerous-or-deadly-weapon†probation condition was sufficiently precise
for the defendant to know what was required of him. (R.P.,
supra, 176 Cal.App.4th at pp.
566-568.)
The defendant in
R.P. nevertheless argued that the
probation condition could not stand because peace officers might attempt to
enforce the condition as a strict liability offense. The appellate court noted a similar argument
was raised and rejected by the Supreme Court in People v. Rubalcava (2000) 23 Cal.4th 322, in which a defendant
claimed section 12020 was unconstitutional because it did not explicitly make
an individual’s intended use of the object an element of the crime. The appellate court acknowledged the
probation condition relating to weapons did raise a concern that it might
capture some innocent conduct in the future.
However, the court concluded such a concern did not rise to the level of
a constitutional violation. The court
specifically observed: “Like any other
probationer, if R.P. is later charged with violating the
‘no-dangerous-or-deadly-weapon’ probation condition, he is free to contend the
item is not a deadly or dangerous weapon under the specific circumstances of
the alleged violation.†(
The appellate
court ultimately concluded that “dangerous or deadly weapon†has a plain
common-sense meaning sufficient to put defendant on notice of the conduct
prohibited by the probation condition at issue.
The court further observed: “The
only reasonable reading of the condition is that it prohibits R.P. from possessing
any item specifically designed as a weapon.
The condition also limits R.P.’s possession of any item not specifically
designed as a weapon – R.P. is barred from possessing any item belonging to
this latter category if he intends to use the item to inflict or threaten to
inflict death or great bodily injury.†(
p. 570.)
Appellant’s
probation condition No. 31 is virtually identical to that in
appellant’s condition specifically refers to the possession of “firearms,†a
term that appellant does not contest or question. In view of the reasoning of the court in
the probation condition in this case is sufficiently precise to inform
appellant of the prohibited conduct. As
to the allegedly missing “knowledge†requirement, the Sixth Appellate District
has thoughtfully held in an appeal arising from a judgment of conviction of
felony battery causing great bodily injury (§§ 242, 243, subd. (d),
1192.7): “Implicit in the crime of possession of a firearm is that a person is
aware both that the item is in his or her possession and that it is a
firearm. We believe the same is true of
a probation condition prohibiting possession of a firearm, and, by logical
extension, possession of ammunition.†(
836, 846.)
The superior
court was not required to add a knowledge requirement to condition No. 31 in
this case.
C.
Knowledge Requirement in Condition Nos. 35, 36, 37
Condition Nos.
35, 36, and 37 stated:
“35 Do not initiate,
establish or maintain contact with any minor child or reside with any children
without prior Court order.
“36 Do not frequent places
where children congregate, such as parks, playgrounds, schools video arcades,
without the prior approval of the Court or the Probation Officer.
“37 Do not obtain
employment which would allow unsupervised contact with minors, and do not
reside within a 2000 foot radius o[f] any school attended by minors.†!(CT 196)!
Respondent
concedes that condition No. 35 should be modified to include a knowledge
requirement and agrees with appellant that the condition should read: “Do not knowingly initiate, establish
or maintain contact with any minor child or knowingly reside with any
children without prior court order.â€
As
to condition No. 36, the Second Appellate District has provided guidance in
869 (Delvalle). In Delvalle,
the defendant appealed an order granting probation following his conviction
of two counts of attempting to buy a person (§ 181). The superior court granted probation subject
to a number of conditions, including the condition that defendant “ ‘stay
away from the victim in this case and also stay away from any places where
minor children congregate. [¶] The obvious places that come to mind are
elementary schools, day care, parks.
[¶] Stay away from places where
young children are around.’ †(
appeal, defendant argued the condition should be stricken because it forbade
noncriminal conduct and violated his rights to free association and due process
of law in that it was vague and ambiguous.
The appellate court held the condition was directly related to the crime
alleged against defendant in that his multiple attempts to purchase a child
centered on her presence at school. The
condition was reasonably related to future criminality in that places where
minor children congregate constituted a probable situs at which defendant might
duplicate his offenses. (
The appellate
court further acknowledged that conditions of probation impinging on
constitutional rights must be tailored carefully and reasonably related to the
compelling state interest in reformation and rehabilitation. The court held: “Here … the state has a compelling interest
in the protection of children which justifies the restriction on Delvalle’s
freedom of association. Nor is the
condition overbroad as the trial court indicated by example the restriction
applied to such places as elementary schools, day-care centers and parks. As no overbreadth or ambiguity appears, the
condition properly was imposed.†(
p. 879.)
Condition No. 36
is sufficiently precise for appellant, as a probationer, to know what is
required of him and for the court to determine whether or the not the condition
has been violated. (Sheena K., supra, 40 Cal.4th at p. 890.) The condition need not be modified by adding
a knowledge requirement.
As to condition
No. 37, respondent acknowledges that it conceded a similar argument in
748, 761, footnote 10 (Barajas). Respondent nevertheless submits that this
court need not add a knowledge requirement to condition No. 37. In Barajas,
the defendant pleaded no contest to assault with a deadly weapon with
personal use of a dangerous and deadly weapon and personal infliction of great
bodily injury (§§ 245, subd. (a)(1), 667, 1192.7, 12022.7). He was placed on probation subject to a
number of conditions, including one that stated: “You’re not to be adjacent to any school
campus during school hours unless you’re enrolled in or with prior permission
of the school administrator or probation officer .…†(Barajas,
supra, at p. 760.) The defendant challenged this condition on
appeal as impermissibly vague and constitutionally overbroad. The Attorney General suggested, and the Sixth
District Court of Appeal agreed, that the condition should be modified to
state: “Do not knowingly be on or within
50 feet of a school campus during school hours unless enrolled or with prior
administrative permission or prior permission of the probation officer.†(Id. at
pp. 761-762, fn. omitted.)
In
this case, respondent maintains that condition No. 37 is not overbroad because
it does not unreasonably infringe on a constitutional right. Respondent explains: “[A]ppellant cannot
obtain employment as a school teacher or a daycare provider because these jobs
would put him in a place where everyone knows minors congregate and would
therefore pose the same safety concerns as allowing him to frequent schools and
parks. These conditions do not need
scienter requirements because it is highly unlikely – maybe even impossible –
for appellant to violate them unknowingly.â€
To
ensure consistency with the rule of Barajas,
clarity in the conditions of appellant’s probation, and a firm constitutional
standard for his compliance in the future, we will direct the modification of
condition No. 37 to read: “37 Do not knowingly obtain employment
which would allow unsupervised contact with minors, and do not knowingly
reside within a 2000 foot radius on any school attended by minors.â€
DISPOSITION
The
judgment of conviction is affirmed. The
superior court is directed to modify the following conditions of probation to
incorporate the underscored language:
“37 Do not knowingly obtain employment
which would allow unsupervised contact with minors, and do not knowingly
reside within a 2000 foot radius on any school attended by minors.â€
“38 Do not view, purchase or possess sexually
explicit pictures, magazines, video tapes, or movies, or computer pornography, having
been informed by the probation officer that such material is inappropriate,
or pictures, magazines, video tapes, or movies, or computer pornography
depicting minors engaged in sexual activity or actors representing themselves
to be under the age of 18 engaged in sexual activity.â€
The superior
court is further directed to amend its order granting probation accordingly and
to transmit certified copies of the amended order to all appropriate parties
and entities. The order granting
probation is affirmed in all other respects.
Kane, J.
references are to the Penal Code unless otherwise stated.
