Opinion
H041950
09-26-2017
THE PEOPLE, Plaintiff and Respondent, v. LOREN SILVERFOX CODY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1359948)
Defendant Loren Silverfox Cody pleaded no contest to possessing child pornography (Pen. Code, § 311.11, subd. (a)) and was granted probation. On appeal, he challenges the trial court's imposition of the probation conditions required by section 1203.067, subdivisions (b)(3) and (b)(4), and he contends that the use of the word "frequent" in another probation condition rendered that condition unconstitutionally vague. He also asserts that the trial court erred in failing to specify the statutory bases for the $900 in penalty assessments it imposed in association with the $300 section 290.3 fine. We reject his challenges to the statutorily mandated probation conditions, but we modify the other challenged probation condition to replace "frequent" with "visit or remain in." We also modify the court's order to specify the statutory bases for the $900 in penalty assessments associated with the section 290.3 fine.
Subsequent statutory references are to the Penal Code unless otherwise specified.
I. Background
Defendant was charged by complaint with possession of child pornography in June 2011. He pleaded no contest in response to an indicated sentence of probation conditioned on a six-month jail sentence to be served "w/ankle monitor." The court suspended imposition of sentence, granted probation conditioned on a six-month jail term, and ruled that defendant was eligible for electronic monitoring with an "ankle bracelet." Although defendant objected to imposition of probation conditions mandated by section 1203.067, subdivisions (b)(3) and (b)(4), the court overruled his objections and imposed these conditions. The court also imposed as a condition of probation over defendant's objection that defendant "not knowingly frequent, be employed by, or engage in, any business where pornographic materials are openly exhibited." The court imposed a $300 section 290.3 fine plus penalty assessments of $900. Defendant timely filed a notice of appeal. His request for a certificate of probable cause was denied.
The appellate record does not reflect the facts of defendant's offense. --------
II. Discussion
A. Section 1203.067 Probation Conditions
Defendant challenges the validity of the probation conditions mandated by section 1203.067, subdivisions (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. "Frequent"
Defendant also challenges the probation condition requiring that he not "knowingly 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 at . . . ." 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.
C. Penalty Assessments on Section 290.3 Fine
Defendant challenges the trial court's failure to specify the statutory bases for the $900 in penalty assessments it imposed in connection with the $300 section 290.3 fine. In People v. Hamed (2013) 221 Cal.App.4th 928 (Hamed), the trial court had failed to specify the statutory bases for the penalty assessments associated with a $300 section 290.3 fine. This court remedied the trial court's error by modifying the judgment to specify the specific statutory bases for each of the penalty assessments that added up to $900 and were properly associated with the $300 section 290.3 fine. (Hamed, at pp. 938-941.) We will modify the trial court's minute order to do the same here.
III. Disposition
The trial court's order is hereby modified in the following respects: (1) the word "frequent" shall be replaced with "visit or remain in" in the probation condition concerning "any business where pornographic materials are openly exhibited;" and (2) the trial court's minute order shall be modified to specify the following statutory bases for the penalty assessments associated with the section 290.3 fine: "(1) a 100 percent state penalty assessment (§ 1464, subd. (a)(1)) equal to $300; (2) a 70 percent additional penalty (Gov. Code, § 76000, subd. (a)(1)) equal to $210; (3) a 20 percent state surcharge (§ 1465.7) equal to $60; (4) a 50 percent state court construction penalty (Gov. Code, § 70372) equal to $150; (5) a 20 percent additional penalty for emergency medical services (Gov. Code, § 76000.5) equal to $60; (6) a 10 percent additional DNA penalty (Gov. Code, § 76104.6, subd. (a)(1)) equal to $30; and (7) a 30 percent additional state-only DNA penalty (Gov. Code, § 76104.7) equal to $90." (Hamed, supra, 221 Cal.App.4th at pp. 940-941, fns. omitted.) As modified, the order is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.