People v. Endicott CA3

Filed 8/7/15 P. v. Endicott CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba) ----

THE PEOPLE, C077746

Plaintiff and Respondent, (Super. Ct. No. CRF14575)

v.

TIMOTHY EUGENE ENDICOTT, JR.,

Defendant and Appellant.

Defendant Timothy Eugene Endicott, Jr., pleaded no contest to unlawful sexual intercourse with a minor more than three years younger than himself (Pen. Code, § 261.5, subd. (c); unless otherwise stated, statutory references that follow are to the Penal Code) and furnishing marijuana to a minor (Health & Saf. Code, § 11361, subd. (b)), and was sentenced to three years’ formal probation with certain conditions. On appeal, defendant challenges a probation condition barring him from purchasing or possessing sexually explicit materials as unconstitutionally vague. Defendant urges us to reconsider our

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opinion in People v. Patel (2011) 196 Cal.App.4th 956 (Patel) and modify the condition to include a scienter requirement. We decline to do so and affirm the judgment.

FACTS AND PROCEEDINGS

On September 23, 2014, a complaint was filed charging defendant, then 19 years old, with two counts of unlawful sexual intercourse with a minor more than three years younger than himself (§ 261.5, subd. (c)), and two counts of furnishing marijuana to a minor (Health & Saf. Code, § 11361, subd. (b)). On October 1, 2014, defendant pleaded no contest to one count of unlawful sexual intercourse with a minor (§ 261.5, subd. (c)) and one count of furnishing marijuana to a minor (Health & Saf. Code, § 11361, subd. (b)), in exchange for three years’ probation and dismissal of the other counts. As part of defendant’s plea agreement, the parties also agreed that he would not be required to register as a sex offender (§ 290) and the prosecution would not file new charges relating to another alleged victim. On October 27, 2014, the trial court accepted defendant’s plea and placed him on formal probation for a period of three years subject to a number of terms and conditions. One of these conditions, condition 17, states: “Do not own, use, or possess any form of sexually explicit movies, videos, materials, or devices unless recommended by a therapist or approved by the probation officer. Do not visit or remain in any establishment where such items are the primary items viewed, or sold at such establishment, and do not utilize any sexually oriented telephone service.” Defendant did not object to condition 17 or any of the other conditions of probation.