Filed 10/6/17 P. v. Ibarravasquez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Luis Alberto Ibarravasquez pleaded no contest to two misdemeanor counts of annoying or molesting a child (Pen. Code, § 647.6, subd. (a))^[1] and one felony count of oral copulation of a minor (§ 288a, subd. (b)(1)). The court granted him probation with numerous conditions. On appeal, he challenges the trial court’s imposition of probation conditions required by section 1203.067, subdivision (b)(3) and (b)(4) and two other probation conditions. We uphold the section 1203.067 probation conditions, but we modify the two other probation conditions that defendant challenges to remediate vagueness concerns.

I. Background

In 2009, defendant orally copulated a 16-year-old boy’s penis. In 2012, defendant asked an eight-year-old boy and an 11-year-old boy to show him their penises. Defendant was charged by information with two counts of lewd act on a child (§ 288, subd. (a)), two counts of annoying or molesting a child, and one count of oral copulation of a minor. He entered into a plea agreement under which he pleaded no contest to the annoying or molesting and oral copulation counts in exchange for dismissal of the other counts and a grant of probation. The court suspended imposition of sentence and granted probation conditioned on a 365-day jail term, which defendant had already satisfied. Although defendant objected to imposition of probation conditions mandated by section 1203.067, subdivision (b)(3) and (b)(4), the court overruled his objections and imposed these conditions. The court also imposed several other probation conditions, including that defendant not (1) “date, socialize or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer;” and (2) “knowingly frequent, be employed by, or engage in, any business where pornographic materials are openly exhibited.” Defendant timely filed a notice of appeal.

II. Discussion

A. Section 1203.067 Probation Conditions

Defendant challenges the validity of the probation conditions mandated by section 1203.067, subdivision (b)(3) and (b)(4). After defendant briefed these issues on appeal, the California Supreme Court rejected challenges to the validity of these probation conditions in People v. Garcia (2017) 2 Cal.5th 792 (Garcia). In post-Garcia supplemental briefing, defendant makes no attempt to argue that Garcia does not dispose of his challenges to these probation conditions. Based on Garcia, we reject his challenges. (Garcia, at pp. 807-814.)

B. “Socialize”

Defendant challenges the probation condition requiring that he not “date, socialize or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer.” He claims that the word “socialize” is unconstitutionally vague and overbroad. The Attorney General concedes as much and suggests that we strike the word “socialize” from the condition.

We agree with the parties that the inclusion of the word “socialize” in this condition renders it unconstitutionally vague and overbroad. (See United States v. Wolf Child (9th Cir. 2012) 699 F.3d 1082, 1100-1101.) A restriction on socializing with anybody who has a child or children under the age of 18, even though defendant may never come into contact with those children, is not carefully tailored to the purpose of the condition because it burdens activity that does not raise a sufficiently high probability of harm to governmental interests to justify the interference. Consequently, we will modify this condition to remove the word “socialize,” thereby rendering it constitutional.

C. “Frequent”

Defendant also challenges the probation condition requiring that he not “frequent, be employed by, or engage in, any business where pornographic materials are openly exhibited.” He contends that the word “frequent” is unconstitutionally vague. The Attorney General concedes that the word “frequent” is unconstitutionally vague and suggests a modification that replaces “frequent” with “visit or remain in.” In People v. Leon (2010) 181 Cal.App.4th 943, this court held that a probation condition’s use of “ ‘frequent’ ” was unconstitutionally vague, and we modified the condition to replace “ ‘frequent’ ” with “ ‘visit or remain in . . . .’ ” (Id. at p. 952.) We do the same here.

III. Disposition

The order is modified in the following respects: (1) in the condition requiring that defendant not “date, socialize or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer” the word “socialize” shall be deleted, and (2) in the condition requiring that defendant not “frequent, be employed by, or engage in, any business where pornographic materials are openly exhibited” the word “frequent” shall be replaced with “visit or remain in.” As modified, the order is affirmed.

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Mihara, J.

WE CONCUR:

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Elia, Acting P. J.

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Bamattre-Manoukian, J.