Opinion
H042082
09-26-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES MUNOZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C1485888)
Defendant James Munoz 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 probation conditions required by section 1203.067, subdivisions (b)(3) and (b)(4) and several other probation conditions. We uphold the section 1203.067 probation conditions, but we modify two of the other probation conditions that defendant challenges to remediate vagueness concerns.
Subsequent statutory references are to the Penal Code.
I. Background
Defendant was charged by complaint with possessing child pornography. He pleaded no contest in exchange for probation conditioned on a six-month jail term. The court suspended imposition of sentence and granted probation conditioned on a six-month jail term. 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 over defendant's objections 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;" (2) "purchase or possess any pornographic or sexually explicit material as defined by the probation officer;" and (3) "frequent, be employed by, or engage in, any business where pornographic materials are openly exhibited." Defendant timely filed a notice of appeal.
The appellate record does not reflect the facts of the offense.
When the court stated these three conditions orally at the sentencing hearing, it omitted the word "knowingly" from each condition, but the written probation conditions attached to the court's minute order each included the word "knowingly." --------
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. "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. Absence of Knowledge Requirement
Defendant argues that the probation condition barring him from possessing pornographic or sexually explicit materials is unconstitutionally vague because it lacks a knowledge requirement. The Attorney General points out that the written condition includes a knowledge requirement, and he suggests that we modify the oral condition to render it consistent with the written condition and thereby resolve defendant's challenge.
Defendant does not claim that the terms "pornography" and "sexually explicit" are vague. His contention is that the condition "is unconstitutionally vague because it does not require him to know that he possesses such materials. For example, someone could ask him to carry a backpack with pornographic material in it. He could borrow a car with such materials in the trunk or the glove compartment or even in the back seat or on the floor, unbeknownst to him." (Italics added.) This contention is foreclosed by the California Supreme Court's recent decision in People v. Hall (2017) 2 Cal.5th 494 (Hall). In Hall, the court held that it was not necessary to include an express knowledge requirement in probation conditions barring possession of contraband because such probation conditions are "generally presumed to require some form of willfulness" and "should be construed to require knowledge of its presence and its restricted nature." (Hall, at pp. 501, 502.) Under Hall, the absence of an express knowledge requirement in the oral condition did not render the condition unconstitutionally vague because the condition was presumed to require knowledge. No modification is necessary.
D. "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.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.