Opinion
H041328
07-31-2017
THE PEOPLE, Plaintiff and Respondent, v. WILBER LOVATO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F1451232)
I. INTRODUCTION
Defendant Wilber Lovato pleaded no contest to felony charges of unlawful sexual intercourse by a person age 21 or older with a minor under age 16 (Pen. Code, § 261.5, subd. (d)) and possession of matter depicting a person under age 18 engaging in or simulating sexual conduct (§ 311.11, subd. (a)). He was placed on probation for three years.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant's conditions of probation included a condition requiring that he "enter and participate in and complete an approved sex offender management program" (§ 1203.067, subd. (b)(2)); a condition requiring that he "waive [the] privilege against self-incrimination and participate in polygraph examination[s]" (id., subd. (b)(3)); and a condition requiring that he "waive any psychotherapist patient therapist privilege" (id., subd. (b)(4)).
Defendant's conditions of probation also included a condition requiring he "not date, socialize or form a romantic relationship with anyone who has physical custody of a minor, unless approved by the probation department" (the socialization condition) and conditions requiring he "not possess or purchase sexually explicit or pornographic material as defined by the probation department" and "not frequent or be employed by or engage in business where pornographic materials are openly exhibited" (the pornography conditions).
On appeal, defendant challenges the probation conditions identified above. As we shall explain, we will modify the socialization and pornography conditions and affirm the order of probation as modified.
II. DISCUSSION
The record on appeal contains no background information about the facts underlying defendant's convictions.
A. Probation Conditions Mandated by Section 1203 .067
In the trial court, defendant objected to the probation conditions imposed pursuant to section 1203.067, subdivisions (b)(3) and (b)(4), and he challenges the same conditions on appeal. Defendant argues that the probation condition requiring him to waive the privilege against self-incrimination and submit to polygraph tests (the § 1203.067, subd. (b)(3) condition) must be modified because it is unconstitutionally overbroad and violates the Fifth Amendment. Defendant contends that the probation condition requiring him to waive the psychotherapist/patent privilege (the § 1203.067, subd. (b)(4) condition) must be stricken or modified because it is unconstitutionally overbroad and violates his right to privacy.
Our Supreme Court recently rejected similar challenges to the probation conditions required by section 1203.067, subdivisions (b)(3) and (b)(4). (People v. Garcia (2017) 2 Cal.5th 792 (Garcia).) In Garcia, the section 1203.067, subdivision (b)(3) probation condition required the defendant to " 'waive any privilege against self-incrimination and participate in polygraph examinations, which shall be part of the sex offender management program' " (Garcia, supra, at p. 799) and the section 1203.067, subdivision (b)(4) condition required the defendant to " 'waive any psychotherapist-patient privilege to enable communication between the sex offender management professional and the Probation Officer' " (Garcia, supra, at p. 799).
As to the condition required by section 1203.067, subdivision (b)(3) (requiring probationers to "waive any privilege against self-incrimination" and participate in polygraph examinations), the California Supreme Court rejected the defendant's claim that the condition required him to waive his Fifth Amendment privilege. (Garcia, supra, 2 Cal.5th at p. 802-803.) The court construed the condition as requiring probationers to "answer all questions posed by the containment team fully and truthfully, with the knowledge that these compelled responses could not be used against them in a subsequent criminal proceeding." (Id. at p. 803.) The court explained that, so construed, the condition did not violate a probationer's Fifth Amendment rights, since "the Fifth Amendment does not establish a privilege against the compelled disclosure of information; rather, it 'precludes the use of such evidence in a criminal prosecution against the person from whom it was compelled.' [Citation.]" (Garcia, supra, at p. 807.)
The California Supreme Court rejected the defendant's claim that the section 1203.067, subdivision (b)(3) condition was overbroad because the scope of the required polygraph examinations was "not limited to prior or potential sex offenses but would permit a polygraph examiner to ask 'anything at all, without limitation.' " (Garcia, supra, 2 Cal.5th at p. 809.) The court explained that the condition was "expressly linked to the purposes and needs of the sex offender management program" and thus was "limited to that which is reasonably necessary to promote the goals of probation," i.e., "criminal conduct related to the sex offender management program." (Ibid.)
As to the condition required by section 1203.067, subdivision (b)(4) (requiring probationers to waive "any psychotherapist-patient privilege"), the California Supreme Court found that the condition did not violate the defendant's right to privacy and that the condition was not unconstitutionally overbroad. (Garcia, supra, 2 Cal.5th at pp. 809-813.) The court first addressed the privacy issue, finding that the intrusion on the psychotherapist-patient privilege was "quite narrow," in that "a probationer's confidential communications may be shared only with the probation officer and the certified polygraph examiner." (Id. at p. 810.) The court noted that "[t]he waiver does not relieve the psychotherapist, probation officer, or polygraph examiner of their duty to otherwise maintain the confidentiality of this information." (Ibid.) With respect to the overbreadth issue, the court similarly noted that "[t]he required waiver [of the psychotherapist-patient privilege] extends only so far as is reasonably necessary to enable the probation officer and polygraph examiner to understand the challenges defendant presents and to measure the effectiveness of the treatment and monitoring program. [Citation.]" (Id. at pp. 811-812.)
As defendant acknowledges in a supplemental letter brief, Garcia resolves defendant's challenges to the probation conditions imposed pursuant to section 1203.067, subdivisions (b)(3) and (b)(4). In light of that California Supreme Court precedent, we decline to strike or modify those conditions. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales).)
B. Socialization Condition
Defendant challenges the probation condition that requires him not to "date, socialize or form a romantic relationship with anyone who has physical custody of a minor, unless approved by the probation department." He contends the condition is unconstitutionally overbroad and unconstitutionally vague. He asserts the condition must be rewritten to be more precise and to include a knowledge requirement.
The Attorney General concedes the probation condition is overbroad and vague to the extent it uses the term "socialize" and suggests the term "socialize" be stricken but the condition affirmed as modified.
We agree with defendant that this particular condition is overbroad because it imposes significant restrictions on defendant's constitutional right to free association. Similar conditions were found overbroad in People v. O'Neil (2008) 165 Cal.App.4th 1351 (O'Neil) and U.S. v. Wolf Child (9th Cir. 2012) 699 F.3d 1082, 1101 (Wolf Child).
In O'Neil, the trial court imposed the following condition of the defendant's probation: " 'You shall not associate socially [i.e. socialize], nor be present at any time, at any place, public or private, with any person, as designated by your probation officer.' " (O'Neil, supra, 165 Cal.App.4th at p. 1354.) The reviewing court observed that, "[a]s written, there are no limits on those persons whom the probation officer may prohibit defendant from associating with." (Id. at p. 1357.) The O'Neil court noted that the condition failed to "identify the class of persons with whom defendant may not associate" or "provide any guideline as to those with whom the probation department may forbid association." (Id. at pp. 1357-1358.) The O'Neil court explained that while a trial court "may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation," "the court's order cannot be entirely open-ended." (Id. at pp. 1358-1359.) It concluded that "[w]ithout a meaningful standard, the order is too broad and it is not saved by permitting the probation department to provide the necessary specificity." (Id. at p. 1358, fn. omitted.)
In Wolf Child, one of the conditions of the defendant's supervised release was that he not " 'date or socialize with anybody who has children under the age of 18' without prior written approval from his probation officer." (Wolf Child, supra, 699 F.3d at p. 1100, fn. omitted.) In determining that the condition suffered from constitutional overbreadth because it infringed on Wolf Child's right to free association (id. at p. 1100), the Ninth Circuit Court of Appeals noted, "[t]he prohibited group includes people close to Wolf Child, such as family members, friends, and neighbors who might have children. It would also include a boss or coworker, a sponsor in a support group, or a spiritual leader. The number of people with whom Wolf Child might socialize, knowing them to have children under the age of 18, is indeed vast. For the 10 years of his supervised release, Wolf Child would be required to obtain prior written approval from his probation officer before, for instance, having dinner with [the mother of his oldest child] on a special occasion, or meeting a close family member or friend for coffee, or going to an AA meeting or a tribal function with others seeking to improve their own lives or their tribe's social conditions generally; he might even find himself prohibited from joining his coworkers in the lunch-room or at a social activity sponsored by his employer." (Id. at p. 1101.) The Wolf Child court went on to say, "It is hard to imagine how Wolf Child would be able to develop friendships, maintain meaningful relationships with others, remain employed, or in any way lead a normal life during the 10 years of his supervised release were he to abide" by the condition that he not date or socialize with anybody who has children under the age of 18. (Ibid.) The Wolf Child court found the condition "overbroad and thus not sufficiently limited to achieving the goals of deterrence, protection of the public or rehabilitation." (Id. at p. 1100.)
The condition imposed here is designed to prevent defendant having contact with children. However, the condition prohibits defendant from socializing with people such as family, friends and coworkers, even though he may never come into contact with their children. 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. Simply put, it burdens activity that does not raise a sufficiently high probability of harm to governmental interests to justify the interference. Thus, we agree that the term "socialize" should be stricken from the condition.
On the other hand, the terms "date" and "form a romantic relationship" do not suffer from similar overbreadth problems. The number of individuals who defendant might seek to date or form a romantic relationship with is not nearly as large as the number of individuals defendant might socialize with. Further, although it is possible for a probationer to date or form a romantic relationship without coming into contact with the minors the condition seeks to protect, the condition is sufficiently restrictive in light of its purpose, which is to reduce defendant's opportunities for contact with minors.
Nor do we believe the terms "date" and "romantic relationship" are unconstitutionally vague, as both terms "have a 'plain commonsense meaning, which is well settled . . . .' [Citations.]" (In re R.P. (2009) 176 Cal.App.4th 562, 566-567.) The verb "date," in this context, is commonly understood to mean to engage in activities with another person with the intent of forming a romantic relationship. A romantic relationship is commonly understood to mean a relationship in which two people have feelings of love or affection for one another. Thus, the terms "date" and "romantic relationship" are " 'sufficiently precise for the probationer to know what is required of him [or her]. . . .' " (In re Sheena K. (2007) 40 Cal.4th 875, 890.)
One meaning of the noun "date" is "a social engagement between two persons that often has a romantic character," and the verb "date" can mean "to make or have a date with" or "to go out on usu. romantic dates." (Merriam-Webster's Collegiate Dict. (10th ed. 1993) p. 294.)
One meaning of "romantic" is "marked by expressions of love or affection." (Merriam-Webster's Collegiate Dict. (10th ed. 1993) p. 1016.)
With respect to defendant's claim that the condition requires an express knowledge requirement, we note that the California Supreme Court recently held that the qualifier "knowingly" need not be "expressly articulated" in a probation condition in order to provide a defendant with "fair warning" of what the condition requires. (People v. Hall (2017) 2 Cal.5th 494, 500 (Hall).) The Hall court explained, "California case law already articulates not only a general presumption that a violation of a probation condition must be willful, but also specifically provides that probation conditions barring possession of contraband should be construed to require knowledge of its presence and its restricted nature. [Citation.] The requisite scienter for these probation conditions is thus easily ascertainable by reference to ' "other definable sources" ' that make sufficiently clear the conditions' scope. [Citation.]" (Id. at p. 501.)
Following Hall, we decline to modify the socialization condition to include the term "knowingly." (See Auto Equity Sales, supra, 57 Cal.2d at p. 455.) However, we will order the socialization condition modified to provide: "You may not date or form a romantic relationship with anyone who has physical custody of a minor, unless approved by the probation department."
C. Pornography Conditions
Defendant challenges, as unconstitutionally vague, the probation condition ordering him not to "possess or purchase sexually explicit or pornographic material as defined by the probation department" and the probation condition ordering him not to "frequent or be employed by or engage in business where pornographic materials are openly exhibited." Defendant requests that both of these conditions be modified to include knowledge elements, and he contends that the word "frequent" is "not sufficiently precise."
As noted above, the California Supreme Court's recent decision in Hall resolves defendant's first challenge to the pornography conditions. Because Hall establishes that the qualifier "knowingly" need not be "expressly articulated" in a probation condition in order to provide a defendant with "fair warning" of what the condition requires (Hall, supra, 2 Cal.5th at p. 500), the probation conditions here are not unconstitutionally vague due to their failure to expressly include the qualifier "knowingly." Hall clarifies that a defendant cannot be found in violation of a probation condition prohibiting the possession of particular items—including an item that is not "criminal in itself"—without knowledge of the item's presence "and its restricted nature," even if the condition does not expressly include the qualifier "knowingly." (Id. at p. 499.) Under Hall, if defendant possessed something that he did not know to be sexually explicit or pornographic, he could not be found in violation of his probation, despite the absence of an express knowledge requirement in the condition.
As to defendant's second challenge to the pornography conditions, this court has previously held that the term "frequent" is unconstitutionally vague. (People v. Leon (2010) 181 Cal.App.4th 943, 952; In re H.C. (2009) 175 Cal.App.4th 1067, 1072.) Thus, we will modify the condition that defendant "not frequent or be employed by or engage in business where pornographic materials are openly exhibited" to provide: "You shall not visit or remain in or be employed by or engage in business where pornographic materials are openly exhibited."
III. DISPOSITION
The probation condition providing: "You may not date, socialize or form a romantic relationship with anyone who has physical custody of a minor, unless approved by the probation department," is modified to read as follows: "You may not date or form a romantic relationship with anyone who has physical custody of a minor, unless approved by the probation department."
The probation condition providing: "You shall not frequent or be employed by or engage in business where pornographic materials are openly exhibited," is modified to read as follows: "You shall not visit or remain in or be employed by or engage in business where pornographic materials are openly exhibited."
As modified, the order of probation is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.