P. v. Villalpando

Filed 12/5/08 P. v. Villalpando CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge. Affirmed as modified.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Robin Derman, Deputy Attorney General, for Plaintiff and Respondent.

* * *

THE COURT:*

In a court trial, defendant was found guilty of two counts of lewd acts on a child under the age of 14 pursuant to Penal Code section 288, subdivision (a)[1] with a further finding that in committing the lewd acts, defendant did not use force or violence within the meaning of section 1203.066, subdivision (a)(1), (2).) He was also found guilty of misdemeanor child abuse.

On appeal defendant challenges the imposition of his probation condition he not be in the presence of any person under the age of 18 whether with or without supervision. He contends the probation condition is unconstitutionally vague, and overbroad. Since his contentions have merit, we shall modify the condition, and otherwise affirm the judgment.

I

Facts and Proceedings

In February of 2006, an information charged defendant with two counts of forcible lewd acts on a child under 14, under section 288, subdivision (b)(1); and one misdemeanor count of child abuse. It was further alleged defendant committed the lewd acts by means or force or violence within section 1203.066, subdivision (a)(1), (2).)

In January 2007, after he waived his right to a jury trial, the court found him guilty of two counts of lewd acts on a child as lesser offenses of committing forcible lewd acts, and child abuse as charged.

The trial court suspended defendants sentence, and placed him on five years felony probation with a variety of conditions, including that he serve 365 days in local custody, and that he not be in the presence of any person under the age of 18 whether with or without supervision.

Facts

The victim is defendants grandchild. In 2005, when she was seven years old, he babysat for her five times a week while her mother was at work. On January 23, 2005, the victims mother dropped her off in the morning at defendants home wearing a bathing suit and a short-sleeved shirt. As the victim sat on the couch watching television, defendant lifted up her shirt and bathing suit top, and began to suck on her breasts. The victim told him to stop, and he refused to do so, instead holding onto her wrists so that she could not escape. When he was finished, defendant told the victim not to tell anyone.

That night when the victim was showering, her mother noticed bruising on her nipples. DNA tests confirmed the presence of defendants saliva on the inside of the victims swimming suit top.

II

Discussion

The Probation Condition Prohibiting Defendant from being in the Presence of any Person Under the Age of 18 is Vague and Overbroad and must be so Modified.

Defendant argues the challenged condition he not be in the presence of any person under the age of 18 is unconstitutionally vague, and overbroad, and restricts his right to freedom of association, because: (1) it contains no requirement that he have knowledge of the individuals status as a minor; and (2) it prohibits simple physical proximity to minors. We agree defendants contentions have merit. We thus modify the condition of probation to add a knowledge requirement. And, to avoid unreasonable limitations on defendants benign contact with minors, we modify the condition to reflect that he shall not associate with them.

The sentencing court has broad discretion to determine the conditions of probation. (People v. Welch (1993) 5 Cal.4th 228, 233.) 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.] [Citation.] (People v. Bianco (2001) 93 Cal.App.4th 748, 752.) Conditions regulating conduct not in itself criminal are valid if they relate either to the offense of which defendant was convicted, or to future criminality. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) However, a condition of probation affecting the exercise of constitutional rights must be narrowly drawn. (People v. Garcia (1993) 19 Cal.App.4th 97, 101-102 (Garcia).)

Defendant argues that the challenged condition is overbroad because it has no knowledge requirement, thus creating a situation where he could unknowingly violate his probation by being in the presence of a person whom he does not know to be under 18 years of age. We agree.

In support of his contention, defendant relies on Garcia. In Garcia the defendant was granted probation on the condition that he not associate with any felons, ex-felons or users or sellers of narcotics. (Garcia, supra, 19 Cal.App.4th. at p. 100.) Moreover, in People v. Lopez (1998) 66 Cal.App.4th 615, 621, 628-629, the defendant was granted probation on the condition that, he not associate with any gang members. In both cases, the probation conditions were found to be improper because they failed to contain a knowledge requirement on the part of the defendants.

So, while it might be easier to identify a minor than a gang member, a drug user, or even a convicted felon, in reality, it is often quite difficult to ascertain a persons status as a minor, particularly in the case of a physically mature person under the age of 18. Thus, including the requirement that defendant refrain from being in the presence of a person under the age of 18 he knows, or reasonably should know is under the age of 18, strikes the correct balance between defendants right of association, and societys right to protect its minors, as well as to further minimalize the future risk that defendant will reoffend in the same, or similar manner.

Defendant further contends the challenged condition is overbroad because it prohibits his simple proximity to minors. Defendant contends that he could be found to be in violation of probation while in a doctors office; out shopping; stopping for gas; or picking up one of his many prescriptions in a pharmacy, simply because he was in the presence of a stock boy or girl, checkout clerk, or child of another customer under the age of 18. We agree.

The People contend this contention should fail based on People v. Delvalle (1994) 26 Cal.App.4th 869, 878, where the court upheld a probation condition requiring the defendant, who had been convicted of attempting to buy a four-year old child, to stay away from any places where minor children congregate. In rejecting defendants over-breadth challenge, the court in Delvalle concluded the condition was proper because it was reasonably related to future criminality, in that the defendant would be more likely to repeat the offense in a place where minor children congregate.

We acknowledge the validity of the Peoples contention that a broad-based restriction on defendants access to children is clearly necessary because it will decrease the chances he will commit the same, or a similar offense during his probationary period. But we also conclude however, that the challenged wording defendant not be in the presence of any person under the age of 18, severely restricts his ability to function in public places, where minors are now working, and are frequenting in increasing numbers. Thus, for that reason we modify the challenged wording to read Defendant shall not associate . . .

For example, in In re Kacy S. (1998) 68 Cal.App.4th 704, 712-713, the court concluded that a probation condition prohibiting the defendant from associating with any persons not approved by [the] probation officer was improper, because the condition restricted benign contact with persons such as clerks, mail carriers, and health care providers (particularly relevant in defendants case because of his myriad medical conditions).

Accordingly, based on the circumstances and the competing interests which present themselves here, the most reasonable solution compels a modification of the challenged condition to clarify that defendant is to not associate with a person under the age of 18, that he knows or reasonably should know, is under the age of 18.

Disposition

Thus, the challenged condition is modified as follows: Defendant shall not associate with any person under the age of 18, that he knows or reasonably should know, is under the age of 18 whether with or without supervision.

The judgment, so modified, is affirmed.

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* Before Rylaarsdam, Acting P.J., Fybel, J., and Ikola. J.

[1] All references are to the Penal Code unless otherwise noted.