P. v. Zarco
Filed 3/1/13 P. v. Zarco CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
SANTOS GOMEZ
ZARCO,
Defendant
and Appellant.
E056201
(Super.Ct.No.
FSB1105072)
OPINION
APPEAL
from the Superior Court
of
County. Harold T.
Wilson, Jr., Judge. Affirmed.
Melanie
K. Dorian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, A. Natasha Cortina and Ronald A. Jakob,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Santos Gomez Zarco appeals from the revocation of probation
stemming from his felony conviction for indecent
exposure. (Pen. Code, § 314.)
violation of probation condition No. 20 and sentenced to three years in state
prison. He contends that condition No.
20 is constitutionally overbroad and, in any case, there was insufficient
evidence to support the finding that he willfully violated it.
We
conclude that his first contention has been forfeited, and reject the second contention. Accordingly, we affirm the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
Defendant
was charged with felony indecent exposure as a result of an incident on November 5, 2011, when he was “caught
masturbating in the bushes at an El Pollo Loco and blowing kisses to those
exiting the restaurant.†Defendant had
four prior indecent exposure convictions, received two prior probation grants,
and had served a prison term for two of the prior incidents.
Pursuant
to a negotiated agreement, defendant
entered a plea of no contest to the indecent exposure charge as a felony, and
was subsequently placed on three years’ felony probation with various
additional terms and conditions.
The
probation department later petitioned the court to revoke defendant’s probation
alleging he had violated four of its conditions, as follows:
No.
5: Cooperate with the probation officer
in a plan of rehabilitation and follow
all reasonable directives of the probation officer.
No.
20: Not associate with persons under the
age of 18 outside the presence of a responsible adult who is aware of his
background and current offense and who has been approved by the probation
officer.
No.
36: Do not associate with minors or
frequent places where minors congregate, including but not limited to: schoolyards, parks amusement parks, concerts,
playgrounds, swimming pools, and arcades, unless in the company of a responsible
adult over the age of 21 who is approved by the probation officer or court, who
is aware of your offense and who is willing to monitor your behavior.
No.
47: Not to use or possess children’s
clothes or any illustrated materials depicting unclothed children.
Upon
his release from county jail, where he served time pursuant to probation
condition No. 1, defendant met with his probation officer Shelby Gross. Defendant was accompanied by his two adult
daughters, and Gross testified at the revocation hearing that she went over
every term and condition of the probation with defendant and his daughter
Lizbeth. She read the terms to defendant
in English and had Lizbeth translate them to defendant in Spanish. Gross testified that Lizbeth confirmed,
specifically with regard to condition No. 20, that she had translated the exact
language to defendant in Spanish and that he understood the term.
Gross
followed the same procedure for conveying condition Nos. 5, 36, and 47 to
defendant. Gross designated both adult
daughters as approved adults, and both agreed to supervise defendant. According to Lizbeth, she was unable to
translate condition No. 20 because Gross interrupted her and began explaining
the terms in English. She also denied
that Gross designated any adult supervisors, but indicated that any adult with
knowledge of defendant’s offense would be acceptable. Gross admitted she did not know what Lizbeth
had told defendant about the adults who had been approved by the department.
On
February 24, 2012, Gross
conducted a compliance check at defendant’s residence with the assistance of
Probation Officer Jennifer Villa.
Lizbeth answered the front door and led the officers to a shed-like
structure in the backyard, from where defendant, a woman and a five-year-old
girl emerged.
Lizbeth
identified the child as her niece and the woman as her mother. When Gross asked why the defendant was in the
company of a child without adult supervision, Lizbeth responded that she
believed her mother to be a person approved by probation to supervise
defendant. Gross reminded her that she
and her sister were the only two adults who had been authorized to supervise
the defendant, but Lizbeth denied that she made this statement.
Lizbeth
indicated that because there was not enough room in the front trailer for everyone,
her niece stayed in the back with the defendant and her mother and slept in the
bed between the two. She said that the
defendant was often left alone with the child, although when Lizbeth testified,
she denied making this statement. She
claimed that she was told that anyone who was aware of the defendant’s
conviction could supervise him. During a
subsequent interview, defendant told Gross he did not realize his wife could
not supervise him.
The
court found that the prosecution had met its burden of proof only with respect
to showing a violation of condition No. 20.
It commented that Officer Gross testified that she had Lizbeth translate
or actually talk to her father regarding the terms of probation, and that the
latter stated that she had talked to him and that he understood the terms of
probation.
DISCUSSION
I.
Forfeiture of
Challenge to Probation Condition No. 20.
Defendant
contends that probation condition No. 20 prohibiting his association with
minors unless supervised by an approved adult is unconstitutionally overbroad,
because it prohibits conduct that has no reasonable relation to the offense of
indecent exposure. Because it restricts
his right of free association without
justification, it must be stricken.
The
People argue that defendant has forfeited any right to challenge the probation
conditions because he did not object at the sentencing hearing. Defendant acknowledges that no objection was
made, but he maintains there is no forfeiture because the rule of forfeiture
does not apply to pure questions of law capable of being resolved without
reference to the sentencing record developed in the court.
We
agree with the People and conclude that defendant has forfeited his challenge.
While
adult probationers, in preference to incarceration, validly may consent to
limitations upon their constitutional rights, 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
unconstitutionally overbroad. (
384.) Not every term that requires a
defendant to give up a constitutional right is per se unconstitutional. (People
v. Mason (1971) 5 Cal.3d 759, 764-765, overruled on a different point as
stated in People v. Lent (1975) 15
Cal.3d 481, 486, fn. 1.) Probation
conditions may place limits on constitutional rights if they are reasonably
necessary to meet the twin goals of rehabilitation of the defendant and
protection of the public. (
937, 940-941.)
Generally
speaking, a defendant forfeits a challenge to the reasonableness of a probation
condition by failing to raise that challenge in the trial court. (People
v. Welch (1993) 5 Cal.4th 228.)
However, a challenge to a term of probation on the ground of
unconstitutional vagueness or overbreadth that is capable of correction without
reference to the particular sentencing record developed in the trial court can
be raised for the first time on appeal; it is not forfeited by failure to raise
it below. (In re Sheena K. (2007) 40 Cal.4th 875, 887.) On the other hand, traditional principles of
forfeiture apply to probation conditions that do not present a pure question of
law. (Id. at p. 889.) For the
exception to apply, an appellate court must only concern itself with abstract
and generalized legal concepts and not with the individual facts and
circumstances of the case. (
claims involving discretionary sentencing choices or unreasonable probation
conditions is appropriate, because characteristically the trial court is in a
considerably better position than the Court of Appeal to review and modify a
sentence option or probation condition that is premised upon the facts and
circumstances of the individual case.†(
Defendant
argues the indecent exposure statute is not a sex offense involving minors, and
it does not even appear in the chapter of the Penal Code that specifically
references children as victims. Although
minors may be particularly vulnerable as victims of this crime, we assume
is not on its face a sufficient basis to justify imposition of a probation
condition restricting a defendant’s freedom of association with minors. However, we agree with the People that
imposition of such a condition may be warranted based on the facts and
circumstances underlying a particular case.
Indeed, defendant himself contends that a determination of the
constitutionality of condition No. 20 is not dependent on the facts and
circumstances disclosed in the record for the very reason that the sentencing
record does not disclose that his
current or past offenses involved minor victims. In so arguing, defendant is essentially
recasting a claim that the probation condition is unreasonable in his
case. This would require us to look past
the law as it relates to this condition and give consideration to the
reasonableness of the condition in light of the particular facts of defendant’s
case. There can be no exception to the
rule of forfeiture under these circumstances and we decline to review the
challenged terms of probation on this basis.
II.
Substantial
Evidence
Defendant
next argues that there was insufficient evidence to support the finding that he
violated probation condition No. 20. The
standard of proof for establishing a basis for revocation of probation is a
preponderance of the evidence, and the evidence must support a conclusion that
the probationer’s conduct constituted a willful violation of the terms and
conditions of probation. (
978, 981-982.)
As
an appellate court, we will not disturb a decision to revoke a defendant’s
probation unless we find the trial court abused its discretion. (People
v. Kelly (2007) 154 Cal.App.4th 961, 965.)
“[W]here the trial court was required to resolve conflicting evidence
[to determine whether a defendant violated the conditions of his probation],
review on appeal is based on the substantial evidence test. Under that standard, our review is limited to
the determination of whether, upon review of the entire record, there is
substantial evidence of solid value, contradicted or uncontradicted, which will
support the trial court’s decision. In
that regard, we give great deference to the trial court and resolve all
inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be
resolved in favor of the decision.†(
840, 848-849, fns. omitted.)
Here,
we must presume the trial court credited Officer Gross’s testimony that
defendant was aware of and understood the terms of probation condition No. 20,
and that defendant’s two adult daughters were the only adults whom the
probation department had approved to supervise him. The terms required that any adults who
supervised his contact with minors be approved by the probation office. Therefore, he could not assume that he could
comply with the probation condition by simply having any adult supervise
him—even one who was aware of his criminal
conviction. In addition, Gross
testified that Lizbeth told her that defendant was often alone with this
five-year-old child. There was no
objection to this testimony and the trial court could properly rely on it to
support its finding. (
Cal.App.4th 61 [hearsay evidence consisting of a spontaneous declaration was
properly admitted and used to support the finding of a probation
violation].)
In
sum, resolving all inferences, intendments, and conflicts in the evidence in
favor of the judgment, we conclude there was substantial evidence to support
the trial court’s finding that defendant violated probation condition No. 20.
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
KING
J.
We concur:
RICHLI
Acting
P. J.
MILLER
J.
Penal Code unless otherwise specified.
