Opinion
D057518 Super. Ct. No. SCS233342
08-15-2011
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY EDWARD VALDIVIA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of San Diego County, Esteban Hernandez, Judge. Reversed in part, and affirmed as modified.
Defendant Anthony Edward Valdivia pleaded guilty to unlawful intercourse with a minor under the age of 16. (Pen. Code, § 261.5, subd. (d).) The court stayed execution of the two-year sentence and placed him on five years' probation, subject to certain terms and conditions. Valdivia contends the court's imposition of the following probation conditions are unreasonable because they regulate conduct not criminal and do not relate to the underlying crime or future criminality. Those conditions are to: (1) not consume alcohol, submit to alcohol testing, not enter places where alcohol is the chief item of sale, and attend "self-help" meetings; (2) not possess or purchase a camera or any photographic equipment; (3) not possess or have in his residence any toys, video games, or similar items; (4) not possess or use a computer unless approved by the probation officer; and (5) not participate in computer chat rooms or contact minors through a computer. Valdivia further contends the latter three conditions are unconstitutional because they are overbroad and void for vagueness.
All statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Valdivia pleaded guilty to unlawful intercourse with C.J., a minor under 16. (§ 261.5, subd. (d).) Before sentencing, the case was referred to the county probation department for investigation and a recommendation. The probation officer recommended Valdivia be committed to the California Department of Corrections and Rehabilitation for the term of two years, register as a sex offender, not associate with C.J., and pay victim restitution.
At the sentencing hearing, the court reviewed the probation report and Valdivia's statement in mitigation. Further, it adopted the findings that Valdivia does not present a danger to the community, his rehabilitation is feasible, and he is amenable to treatment. The court rejected the probation officer's recommendation of incarceration. Instead, the court stayed the execution of the two-year sentence and imposed a five-year probation, subject to probation conditions. Valdivia did not object to any of the probation conditions at the sentencing hearing. Valdivia told the judge he understood the conditions and he acknowledged they placed him on a "short leash," meaning zero tolerance.
DISCUSSION
I
Reasonableness of Probation Conditions
A probation condition that regulates conduct not itself criminal must reasonably relate to the underlying conviction or to future criminality. (People v. Welch (1993) 5 Cal.4th 228, 233-234.) To challenge the reasonableness of a probation condition on appeal, a defendant must first raise the issue in the trial court. (Id. at p. 237.)
Valdivia contends the following probation conditions are unreasonable: (1) that Valdivia shall neither consume alcohol nor enter places where alcohol is the chief item of sale, and he shall submit to alcohol testing and attend "self-help" meetings; (2) that he shall not possess or purchase a camera or any photographic equipment; (3) that he shall not possess or have in his residence any toys, video games, or similar items; (4) that he shall not possess or use a computer unless approved by the probation officer; and (5) that he shall not participate in computer chat rooms or contact minors through a computer.
Valdivia argues the forfeiture rule does not apply here because his claims allege the evidence was insufficient to support the trial court's order. He cites People v. Pacheco (2010) 187 Cal.App.4th 1392 in support of his argument. Valdivia's reliance on Pacheco is misplaced. Although there are circumstances in which unreasonable probation conditions can be raised for the first time on appeal, those circumstances are generally limited to cases involving pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court. Pacheco, which permitted the reasonableness of a probation condition to be raised for the first time on appeal, involved a pure question of law concerning payment of a statutorily mandated court security fee. Reference to the sentencing record was not required. (Pacheco, at p. 1403.)
E.g., In re Ricky H. (1981) 30 Cal.3d 176, 190-193 [failure to characterize offense and apply permissible term of confinement]; In re Sandel (1966) 64 Cal.2d 412, 418 [violation of statute mandating consecutive terms for escape]; People v. Irvin (1991) 230 Cal.App.3d 180, 192-193 [failure to strike or impose enhancement]; People v. Skeirik (1991) 229 Cal.App.3d 444, 468 [erroneous imposition of determinate terms]; People v. Baylor (1989) 207 Cal.App.3d 232, 235-236 [erroneous stay of sentence]; People v. Levell (1988) 201 Cal.App.3d 749, 751 [applicability of enhancement]; People v. White (1981) 117 Cal.App.3d 270, 278-279 [alleged dual use of aggravating fact and nonuse of mitigating fact]; People v. Salazar (1980) 108 Cal.App.3d 992, 1000-1001 [failure to state reasons for prison term].
Here, in contrast, whether the probation conditions imposed were reasonable is a factual determination based on Valdivia's particular circumstances. Reference to the sentencing record developed in the trial court is required. As a matter of fairness to the trial court and the People, it is inappropriate to permit a party to allege on appeal errors that the trial court was given no opportunity to correct by timely objection or exception. Otherwise, the court would be deprived of the opportunity to remedy the situation (People v. Spinks (1961) 190 Cal.App.2d 366, 368), and the People would be deprived of the opportunity to cure the defect by presenting additional information to the trial court in support of the probation condition. (People v. Welch (1993) 5 Cal.4th 228, 235.) "The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had." (People v. Melton (1990) 218 Cal.App.3d 1406, 1409.) Here, Valdivia did not object to the reasonableness of the probation conditions at the sentencing hearing. He cannot do so for the first time on appeal.
Valdivia argues that if he is precluded from challenging the reasonableness of probation conditions on appeal, then he received ineffective assistance of counsel because his trial attorney did not object to the conditions at the sentencing hearing. To establish ineffective assistance of counsel, the evidence must show counsel performed incompetently and this incompetence prejudiced defendant. (People v. Pope (1979) 23 Cal.3d 412, 424.) Valdivia must show "trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates. In addition, [he] must establish that counsel's acts or omissions resulted in the withdrawal of a potentially meritorious defense." (Id. at p. 425.) Here, the court rejected the probation officer's recommendation for a two-year sentence and, instead, imposed probation as a more lenient alternative to incarceration. The court's imposition of probation conditions favored Valdivia and was consistent with his preferred remedy. Therefore, it appears an objection to the reasonableness of probation conditions by Valdivia's counsel would have been futile. An attorney has no obligation to make futile objections. (In re Lower (1979) 100 Cal.App.3d 144, 149, fn. 3.)
Assuming arguendo Valdivia's counsel was legally ineffective for not objecting to the court's imposition of probation conditions, we conclude any objection made by counsel at trial would have been properly denied by the court. Trial courts have broad discretion in determining appropriate probation conditions. (People v. Lent (1975) 15 Cal.3d 481, 486.) The sentencing court violates this standard when its determination is arbitrary or capricious or "exceeds the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72.) A condition of probation is invalid as unreasonable if it: (1) has no relationship to the crime of which the defendant was convicted; (2) relates to conduct itself not criminal; and (3) requires or forbids conduct not reasonably related to future criminality. (Lent, at p. 486.)
Although the consumption of alcohol was not connected to the crime here, smoking marijuana was, and the nexus between alcohol consumption and drug use is incontrovertible. Furthermore, although Valdivia was not charged with, or convicted of, child pornography, he pleaded guilty to having sexual intercourse with a minor under 16. (§ 261.5, subd. (d).) There is no doubt that sexual intercourse with minors bears a strong connection to child pornography. The condition of probation prohibiting Valdivia from using or possessing photographic equipment, toys, video games, or other similar items is reasonably related to the prevention of both future pornographic criminality and unlawful intercourse with minors. Moreover, although Valdivia did not lure C.J. into his residence by way of the computer, his undisputed sexual relationship with a 13-year-old child suggests a manifest sexual attraction to minors that may be exacerbated by access to unregulated online communication with minors. Thus, permitting Valdivia to anonymously contact and engage with minors via the Internet would undermine rehabilitation efforts and only facilitate future criminality. We conclude the probation conditions are reasonably related to future criminality and, therefore, Valdivia suffered no prejudice as a result of his failure to object at sentencing.
II
Vagueness and Overbreadth of Probation Conditions
Valdivia did not forfeit his claim alleging the probation conditions were unconstitutional by not objecting to the reasonableness of the probation conditions at the sentencing hearing. He contends the following probation conditions are unconstitutionally overbroad and vague: (1) that he shall not possess or have in his residence any toys, video games, or similar items; (2) that he shall not possess or use a computer unless approved by the probation officer; and (3) that he shall not participate in computer chat rooms or contact minors through a computer.
The forfeiture rule does not apply when the claim can be resolved on appeal as a pure question of law without reference to the sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.).) Here, Valdivia's constitutional claims present pure questions of law and are properly before us on appeal. We review facial challenges to probation conditions de novo. (Id. at pp. 885-888.) We may uphold those conditions, even though they restrict a defendant's exercise of constitutional rights, if they are carefully tailored and reasonably related to the compelling public interests of rehabilitation and protection of the public. (People v. Jungers (2005) 127 Cal.App.4th 698, 704.)
A. Possession of Any Toys, Video Games, or Similar Items
Valdivia contends the probation condition prohibiting him from possessing any "toys, video games, or similar items" is vague and overbroad because it does not provide the required fair warning to him of what is prohibited and is not sufficiently precise to identify what he must avoid possessing. He asserts that the definition of the word "toy" can include a multitude of items, "such as cars, television, books, sports equipment, or any other item that provides more entertainment than utilitarian value." Moreover, Valdivia argues the phrase "similar items" does not provide any certainty of meaning or guidance as to application.
The People respond that the condition is not vague and need not be modified. They argue the word "toy" only has two meanings applicable to the instant case: (1) an object for a child to play with or (2) a gadget or machine regarding as providing amusement for an adult. Further, the People assert that the condition of probation prohibiting possession of any "toys, video games, or similar items" must be read with consideration to the nature of the offense in general and to the context of the heading "VIOLENCE AND SEX CONDITIONS" in particular. They argue the probation condition effectuates the clear purpose of precluding Valdivia "from having at his residence items which could be used to create pornography or to lure minors to his residence and ingratiate them as he did with C.G."
The underpinning of a vagueness challenge is the due process concept of "fair warning." (People v. Castenada (2000) 23 Cal.4th 743, 751.) The rule of fair warning consists of "the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders." (Ibid.) The vagueness doctrine bars enforcement of "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." (People ex. rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115.) "[A]bstract legal commands must be applied in a specific context," and, although not admitting of "mathematical certainty," the language used must have " 'reasonable specificity.' " (Id. at pp. 1116-1117.)
We conclude the probation condition prohibiting Valdivia from possessing any "toys, video games, or similar items" is unconstitutionally vague. The condition does not adequately identify the items within the possession prohibition. A certain item may be an indication of Valdivia's intent to lure minors to his residence in one context but not in another. The language of the probation condition does not provide reasonable specificity as to the prohibited items in any given context. To provide fair warning to Valdivia of the items prohibited and to prevent arbitrary enforcement, we determine that the probation condition is invalid.
Valdivia also contends the probation condition prohibiting possession of any "toys, video games, or similar items" is unconstitutionally vague because it lacks a knowledge requirement. He complains that the probation condition does not contain a requirement that he "know of the items' presence in his home." Valdivia asserts that he could "unwittingly violate the condition if someone he lives with, or someone who just stops by for a visit, placed the prohibited items in his home."
The purpose of an express knowledge requirement is to ensure the condition of probation is " 'sufficiently precise' " for the probationer to know what is required of him or her and for the court to know whether the condition has been violated. (Sheena K., supra, 40 Cal.4th at p. 890.) To be sufficiently precise for the defendant to know what is required of him or her, conditions prohibiting the possession of specified items must include a knowledge requirement. (People v. Freitas (2009) 179 Cal.App.4th 747, 751-752; see also People v. Garcia (1993) 19 Cal.App.4th 97, 102 [the knowledge factor in probation conditions "should not be left to implication"].) "[T]he law has no legitimate interest in punishing an innocent citizen who has no knowledge of the presence of [the prohibited items]." (Freitas, at p. 752.)
The People argue that the probation condition prohibiting Valdivia's possession of any "toys, video games, or similar items" contains an implicit knowledge requirement and no modification is necessary. Specifically, they assert that "not all probation conditions have a knowledge requirement," and an explicit knowledge requirement is not needed in the probation condition at issue in this case. They cite People v. Kim (2011) 193 Cal.App.4th 836.
In Kim, a condition of probation prohibited defendant from owning, possessing, or having within his custody or control any firearm or ammunition under sections 12021 and 12316, subdivision (b)(1). (People v. Kim, supra, 193 Cal.App.4th at p. 840.) On appeal, the defendant contended the probation condition lacked a scienter requirement. The court concluded "where a probation condition implements statutory provisions that apply to the probationer independent of the condition and does not infringe on a constitutional right, it is not necessary to include in the condition an express scienter requirement which is necessarily implied in the statute." (Id. at p. 843.)
In contrast to Kim, the probation condition at issue here does not explicitly reference statutory provisions that contain a scienter requirement. However, because we concluded the probation condition prohibiting Valdivia's possession of any "toys, video games, or similar items" is unconstitutionally vague, we do not address Valdivia's contention that the probation condition should include an explicit knowledge requirement.
B. Possession and Use of a Computer
Valdivia contends the condition of probation prohibiting his possession and use of "a computer . . . unless approved by the probation officer" is unconstitutionally overbroad. The People contend the condition of probation is not overbroad because "[Valdivia] can access the Internet by using any number of devices such as televisions with Internet capability . . . [and he] can obtain or use a computer or the Internet by getting permission from his parole officer."
A 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. However, the court's order cannot be entirely open-ended." (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1358-1359.) Here, the probation condition that prohibits all possession and use of computers by Valdivia absent parole officer approval is open-ended. Although the condition does not expressly prohibit Internet use, it is a blanket ban that triggers First Amendment concerns. Possession and use of a computer are inextricably linked to access and use of the Internet.
Furthermore, the broad prohibition on possession and use of the computer bears no relation to Valdivia's crime for unlawful intercourse with a minor. Valdivia had no history of impermissible computer possession or use and the computer was not an instrumentality of the offense. Further, the trial court adopted Dr. Mitchell's findings that Valdivia does not present a danger to the community, rehabilitation of him is feasible, and he is amenable to treatment. The open-ended ban of all computer possession and use is a greater deprivation of Valdivia's liberty than is reasonably necessary for his rehabilitation. The prohibition of all computer possession and use neither targets the compelling state interest in the protection of children, nor reflects the realities of Valdivia's rehabilitation prospects. Considering the increasing importance of the possession and use of the computer, and the availability of advanced technology to monitor computer use, a less restrictive condition could be fashioned to ensure that Valdivia does not use the computer improperly. The condition of probation that forbids Valdivia from possessing or using a computer unless approved by his parole officer is unconstitutionally overbroad and therefore is stricken.
C. Participation in Chat Rooms/Computer Contact with Minors
Valdivia contends the probation condition prohibiting him from participating in computer chat rooms is unconstitutionally overbroad. "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." (Sheena K., supra, 40 Cal.4th at p. 890.) Although computer chat rooms did not play a role in the sexual misconduct of the underlying offense here, the nature of the crime and the high rate of recidivism among sexual offenders must be considered. "[T]he state has a compelling interest in the protection of children [that] justifies the restriction on [defendant's] freedom of association." (People v. Delvalle (1994) 26 Cal.App.4th 869, 879.)
Here, the condition of probation did not prohibit Internet access or usage in general. Rather, the prohibition against participation in chat rooms is a precise restriction narrowly tailored to protect the public while maintaining Valdivia's First Amendment rights. The trial court's probation condition serves as a targeted limitation on Internet use that permits legitimate uses of the Internet while preventing Valdivia, a convicted sex offender, from using the Internet to continue a pattern of inappropriate behavior towards minors. There is no doubt that participation in computer chat rooms provides Valdivia a venue for online, unregulated, anonymous communication that may exacerbate his documented sexual attraction to young girls. As a convicted sex offender, Valdivia cannot use computer chat rooms to hide behind the Internet's veil of anonymity. The probation condition has a direct relationship to the crime of unlawful intercourse with a minor and, while it relates to conduct itself not criminal, it nonetheless forbids conduct reasonably related to the prevention of Valdivia's future criminality.
Valdivia also contends that the probation condition forbidding him from contacting minors through a computer is void for vagueness because it lacks a knowledge requirement. The vagueness doctrine is based on the due process concept of fair warning. (Sheena K., supra, 40 Cal.4th at p. 890.) On appeal, a probation condition deemed vague can be revised to include a knowledge requirement. (People v. Garcia (1993) 19 Cal.App.4th 97, 102-103.)
Here, the probation condition forbidding Valdivia from using a computer to contact minors does not include a knowledge requirement. Absent a knowledge requirement, the condition renders Valdivia vulnerable to unintentionally violating probation. However, modifying the probation condition to expressly reflect the knowledge requirement cures the vagueness concern. Accordingly, we modify the probation condition to read: "Valdivia shall not participate in computer chat rooms and shall not knowingly use a computer to contact minors." A condition of probation that prevents Valdivia from associating with minors via the computer withstands constitutional scrutiny.
DISPOSITION
The condition of probation prohibiting Valdivia from possessing any "toys, video games, or similar items" and the condition of probation prohibiting Valdivia from possessing or using a computer are stricken. The condition of probation prohibiting Valdivia from participating in computer chat rooms or using the computer to contact minors is modified to provide: "Valdivia shall not participate in computer chat rooms and shall not knowingly use a computer to contact minors." The judgment is modified as set forth in this opinion and otherwise affirmed.
McDONALD, J. WE CONCUR:
HUFFMAN, Acting P. J.
McINTYRE, J.