California Court of Appeal Jun 15, 2016 No. E063762Unpublished
Filed 6/15/16 P. v. Andrade CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063762
v. (Super.Ct.No. FSB1204004)
RENE ANDRADE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael M. Dest,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with
directions.
William Paul Melcher under appointment by the Court of Appeal, for Defendant
and Appellant.
1
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, and Elizabeth
M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION1
Defendant Rene Andrade was the pastor of a Los Angeles church where his 15-
year-old victim was a member. After being charged with three offenses, defendant
eventually pleaded no contest to one count of contact with a minor for the purposes of
committing a sexual offense (count 3; § 288.3, subd. (a).) On appeal, defendant
challenges 12 of his probation conditions. We uphold in part and reverse in part.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Offense
In May 2012, defendant was 43 years old2 and a pastor at El Shaddai Church in
Los Angeles. Defendant met Jane Doe at her quinceañera ceremony, celebrating her 15th
birthday. After the ceremony, defendant communicated with Jane Doe using Facebook,
text messaging, and cell phones. The two would often speak to each other on the
telephone for hours at a time.
1 All statutory references are to the Penal Code unless stated otherwise.
2 According to the probation reports, defendant was born in January 1969.
2
On August 21, 2012, Jane Doe reported to San Bernardino Police Officer Gerardo
Orozco that she and defendant had a relationship in which they were seeing one another
and exchanging messages and phone calls. Officer Orozco reviewed several text
messages from defendant asking to see Jane Doe.
Jane Doe reported that defendant asked her to send him a naked picture and Jane
Doe sent him a photo of her breasts. When Jane Doe confirmed that it was a genuine
photo, defendant replied that he was masturbating and Jane Doe could hear him moaning
and breathing heavily on the phone.
Defendant later asked Jane Doe if she would have sex with him. On August 14,
2012, he picked her up from school and they hugged and kissed in his car for about 20
minutes. Defendant also touched her thighs, pulled her bra down, and sucked on her
breasts.
When Jane Doe’s mother discovered that her daughter and defendant were
communicating with one another and planning to have sex, she confiscated Jane Doe’s
cell phone. Defendant supplied Jane Doe with a new cell phone so that the two could
stay in contact.
In September, 2012, officers arranged for Jane Doe to make a pretext telephone
call to defendant. During the call, defendant agreed to come to Jane Doe’s residence for
a sexual encounter when her parents were not home. Defendant came to the residence
but drove away without entering because he was aware he was being watched. Police
stopped defendant and took him into custody. Defendant admitted to police that he had
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intended to meet Jane Doe at her home for sex but he denied he had ever kissed her or
touched her inappropriately.
B. The Criminal Charges
Defendant was initially charged with two counts of committing a lewd and
lascivious act upon a minor 10 years or younger than defendant (counts 1 and 2; § 288,
subd. (c)(1)) and one count of contact with a minor for the purposes of committing a
sexual offense (count 3; § 288.3, subd. (a).) After various interim proceedings, defendant
pleaded no contest to count 3 pursuant to a plea agreement. In exchange for his plea, the
court sentenced defendant to 135 days in jail and placed him on five years of formal
probation.
III
WAIVER OF PRIVILEGE AGAINST SELF-INCRIMINATION AND
PARTICIPATION IN POLYGRAPH EXAMINATION
Three of defendant’s probation conditions, Nos. 25, 26, and 34, read together
require him to register as a sex offender (§ 290) and to participate in a treatment program,
including polygraph testing. (§ 1203.067, subd. (b)(2).) Section 1203.067, subdivision
(b)(3), requires “[w]aiver of any privilege against self-incrimination and participation in
polygraph examinations, which shall be part of the sex offender management program.”
When defendant raises a “facial constitutional defect in the relevant probation
condition,” (In re Sheena K. (2007) 40 Cal.4th 875, 887) this court reviews such
questions of law de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) The
4
Fifth Amendment to the United States Constitution provides that no person shall be
compelled to incriminate himself at trial or in future criminal proceedings. (Minnesota v.
Murphy (1984) 465 U.S. 420, 426.)
Defendant contends the statutory waiver of the privilege against self-incrimination
violates the Fifth Amendment and is constitutionally 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.” (In re Sheena K., supra, 40 Cal.4th at p. 890.) Defendant contends the
waiver is overly broad because it is not limited to statements concerning the subject
offenses and because it applies in any criminal proceeding, including a future offense
committed after his probation expires. Accordingly, defendant contends the blanket
waiver of privilege is unconstitutional under the Fifth Amendment.
The People counter that it does not violate the Fifth Amendment to require
defendant to provide truthful disclosures while participating in the sex offender treatment
program as a term of his probation. The People argue that trial courts have broad
discretion to set reasonable conditions of probation in order to foster rehabilitation and to
protect public safety pursuant to section 1203.1. (People v. Carbajal (1995) 10 Cal.4th
1114, 1120; People v. Olguin (2008) 45 Cal.4th 375, 379.) Therefore, the waiver
requirement is narrowly tailored for purposes of probation supervision and treatment.
5
Additionally, the People assert that sex-offender probationers are protected in criminal
proceedings regardless of any waiver of the privilege against self-incrimination.3
Based on a quartet of published cases which we discuss below, we conclude that,
although defendant’s statements generally would be inadmissible in criminal
prosecutions, the blanket waiver is too broad and should be framed more narrowly.
Defendant’s statements, made in compliance with probation condition Nos. 25 and 34,
are compelled, and therefore are inadmissible in a criminal trial under the Fifth
Amendment privilege against self-incrimination. Defendant is also privileged not to
answer official questions in any other proceeding, civil or criminal, formal or informal,
where he reasonably believes the answers might incriminate him in a criminal case.
Defendant’s compelled statements can be used in a probation revocation proceeding
because it is not a criminal proceeding. (Minnesota v. Murphy, supra, 465 U.S. at p. 435,
fn. 7.) However, defendant cannot be forced to waive his constitutional right against self-
incrimination for any crime other than the present offenses.
3 This issue is presently pending before the California Supreme Court in numerous cases, including People v. Friday (2014) 225 Cal.App.4th 8, review granted July 16, 2014, S218288; People v. Garcia (2014) 224 Cal.App.4th 1283, review granted July 16, 2014, S218197; People v. Klatt (2014) 225 Cal.App.4th 906, review granted July 16, 2014, S218755; People v. Rebulloza (2015) 234 Cal.App.4th 1065, review granted June 10, 2015, S225503.)
6
Murphy
In Murphy, the United States Supreme Court addressed the admissibility in a
criminal trial of statements the defendant, a sex offender, made during questioning by his
probation officer. When Murphy’s probation officer learned from Murphy’s counselor
that he had abandoned his treatment program and had admitted to previously committing
rape and murder seven years before, the probation officer called Murphy into the office,
with the intent of reporting to the police any incriminating statements. (Minnesota v.
Murphy, supra, 465 U.S. at p. 422.)
The court in Murphy held that the Fifth and Fourteenth Amendments did not
prohibit the introduction into evidence of Murphy’s admissions made to the probation
officer. The court stated: “We conclude, in summary, that since Murphy revealed
incriminating information instead of timely asserting his Fifth Amendment privilege, his
disclosures were not compelled incriminations. Because he had not been compelled to
incriminate himself, Murphy could not successfully invoke the privilege to prevent the
information he volunteered to his probation officer from being used against him in a
criminal prosecution.” (Minnesota v. Murphy, supra, 465 U.S. at p. 440.)
The Murphy court explained: “The Fifth Amendment, in relevant part, provides
that no person ‘shall be compelled in any criminal case to be a witness against himself.’
It has long been held that this prohibition not only permits a person to refuse to testify
against himself at a criminal trial in which he is a defendant, but also ‘privileges him not
to answer official questions put to him in any other proceeding, civil or criminal, formal
7
or informal, where the answers might incriminate him in future criminal proceedings.’
[Citation.] In all such proceedings, [¶] ‘a witness protected by the privilege may
rightfully refuse to answer unless and until he is protected at least against the use of his
compelled answers and evidence derived therefrom in any subsequent criminal case in
which he is a defendant. . . . Absent such protection, if he is nevertheless compelled to
answer, his answers are inadmissible against him in a later criminal prosecution.’
[Citation.]” (Minnesota v. Murphy, supra, 465 U.S. at p. 426.)
The Murphy court further noted: “A defendant does not lose this protection by
reason of his conviction of a crime; notwithstanding that a defendant is imprisoned or on
probation at the time he makes incriminating statements, if those statements are
compelled they are inadmissible in a subsequent trial for a crime other than that for which
he has been convicted. [Citation.]” (Minnesota v. Murphy, supra, 465 U.S. at p. 426.)
The issue in the instant case is not the admissibility of compelled statements made
in compliance with probation condition Nos. 25 and 34. Unlike in Murphy, the issue here
is whether compelling waiver of defendant’s self-incrimination privilege is constitutional.
Murphy supports the proposition that a defendant on probation retains the privilege
against self-incrimination and cannot be compelled to waive it.
Maldonado
In Maldonado v. Superior Court (2012) 53 Cal.4th 1112, 1127, the California
Supreme Court held the Fifth Amendment bars, not mere disclosure, but actual use of a
declarant’s compelled utterances to convict or criminally punish that person: “[T]he Fifth
8
Amendment does not provide a privilege against the compelled ‘disclosure’ of self-
incriminating materials or information, but only precludes the use of such evidence in a
criminal prosecution against the person from whom it was compelled.” (Id. at pp. 1134.)
Thus, a defendant’s Fifth Amendment rights are adequately safeguarded by the immunity
against use, either direct or derivative, of defendant’s statements against him. The
Maldonado court stated: “As we have seen, the Fifth Amendment does not provide a
privilege against the compelled ‘disclosure’ of self-incriminating materials or
information, but only precludes the use of such evidence in a criminal prosecution against
the person from whom it was compelled.” (Id. at pp. 1122, 1129, 1134, 1137.)
Again it is undisputed here that defendant’s statements made in compliance with
probation condition Nos. 25 and 34 are compelled and therefore are inadmissible in a
criminal trial under the Fifth Amendment privilege against self-incrimination. The issue
here is whether a probation condition can compel defendant to waive his privilege against
self-incrimination.
Spielbauer
The Spielbauer court rejected a forced waiver of self-incrimination: “[t]he
constitutional guarantee against compelled self-incrimination protects an individual from
being forced to testify against himself or herself in a pending criminal proceeding, but it
does more than that. It also privileges a person not to answer official questions in any
other proceeding, ‘civil or criminal, formal or informal,’ where he or she reasonably
believes the answers might incriminate him or her in a criminal case. [Citations.] One
9
cannot be forced to choose between forfeiting the privilege, on the one hand, or asserting
it and suffering a penalty for doing so on the other. [Citation.]” (Spielbauer v. County of
Santa Clara (2009) 45 Cal.4th 704, 714; see Minnesota v. Murphy, supra, 465 U.S. at p.
426.)
We recognize “it is necessary or highly desirable to procure citizens’ answers to
official questions, including their formal testimony under oath. In such circumstances, an
individual’s invocation of the privilege against self-incrimination would frustrate
legitimate governmental objectives. In light of the competing interests, it is well
established that incriminating answers may be officially compelled, without violating the
privilege, when the person to be examined receives immunity ‘coextensive with the scope
of the privilege’ — i.e., immunity against both direct and ‘derivative’ criminal use of the
statements. [Citations.] In such cases, refusals to answer are unjustified, ‘for the grant of
immunity has removed the dangers against which the privilege protects. [Citation.]’
[Citation.]” (Spielbauer v. County of Santa Clara, supra, 45 Cal.4th at pp. 714-715.)
In the instant case, however, defendant is required under the section 1203.067,
subdivision (b)(3), probation condition, not only to respond to questions during
polygraph testing, but also to waive his privilege against self-incrimination. By requiring
such waiver, defendant loses the Fifth Amendment safeguards of use immunity in a
criminal trial.
In Spielbauer v. County of Santa Clara, supra, 45 Cal.4th 704, the plaintiff, who
was a deputy public defender, refused to answer questions by a supervising attorney who
10
was investigating allegations the plaintiff had made deceptive statements to the court
while representing a defendant. The plaintiff was told refusal to answer the questions
would be deemed insubordination warranting discipline up to and including dismissal.
The plaintiff was also told his responses could not be used in a criminal proceeding. The
plaintiff declined to answer the questions, invoking his privilege against self-
incrimination. The plaintiff was terminated on the grounds of deceptive court conduct
and refusal to answer his employer’s questions. (Id. at p. 709.)
The California Supreme Court in Spielbauer concluded that “a public employee
may be compelled, by threat of job discipline, to answer questions about the employee’s
job performance, so long as the employee is not required, on pain of dismissal, to waive
the constitutional protection against criminal use of those answers.” (Spielbauer v.
County of Santa Clara, supra, 45 Cal.4th at p. 710.) The Spielbauer court added that
“the constitutional privilege against compelled self-incrimination in a criminal case or
cause (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15) does not protect against the
nonpenal adverse use of officially compelled answers. [Citations.]” (Id. at p. 715.) This
would include probation revocation proceedings. “Although a revocation proceeding
must comport with the requirements of due process, it is not a criminal proceeding.
[Citations.]” (Minnesota v. Murphy, supra, 465 U.S. at p. 435, fn. 7.)
Therefore, under Spielbauer, probation may be revoked for refusing to answer
officially compelled questions in probation proceedings, so long as the defendant is not
required to surrender his or her right against criminal use of the statements thus obtained.
11
(Spielbauer v. County of Santa Clara, supra, 45 Cal.4th at p. 725.) In addition, under
Spielbauer, a formal guarantee of immunity is not required before defendant is required
to submit to polygraph testing in compliance with probation condition No. 25 and 26,
assuming questioning is tailored specifically, directly, and narrowly to compliance with
probation conditions and participation in a sex offender management program. (Id. at pp.
718, 725.)
Although Spielbauer is distinguishable in that the plaintiff was not required to
waive the privilege against self-incrimination, as was defendant in the instant case,
Spielbauer supports the proposition that a probation condition can compel a defendant to
answer questions by threat of revocation of probation but cannot require waiver of the
privilege against self-incrimination. A defendant cannot be forced to forego the
constitutional protection against criminal use of officially compelled statements in a
criminal trial. (Spielbauer v. County of Santa Clara, supra, 45 Cal.4th at p. 710.) Thus,
in the instant case, defendant can be compelled under section 1203.067, subdivision
(b)(3), to submit to polygraph testing, but cannot be forced to waive his constitutional
privilege against self-incrimination.
Miller
In People v. Miller (1989) 208 Cal.App.3d 1311, the court held that “[t]he trial
court did not abuse its discretion by including the polygraph requirement as a condition
of probation for the limited use as an investigative tool.” (Id. at p. 1316.) The defendant
in Miller, who pleaded guilty to committing a lewd and lascivious act upon a child
12
(§ 288, subd. (a)), was placed on probation, conditional upon the defendant submitting to
polygraph testing at the direction of his probation officer. The Miller court concluded the
polygraph probation condition was reasonable and valid because it assisted in monitoring
probation compliance. The Miller court noted that “[t]he polygraph condition is designed
to help evaluate the truthfulness of defendant’s reports and ‘[t]he purpose and objectives
of probation would be frustrated if a convicted defendant could maintain . . . a right of
silence at the time of his . . . report to the probation officer . . . .’” (Miller, at p. 1316.)
The Miller court further stated the polygraph condition was “aimed at deterring and
discovering criminal conduct most likely to occur during unsupervised contact with
young females,” and therefore was reasonably related to future criminality. (Id. at p.
1314.)
The court in Miller concluded the polygraph condition was not overbroad because
it was limited to questions relating to compliance with probation conditions. Even
though there were no specific limitations on the questions to be asked during polygraph
testing, the Miller court construed the condition as imposed to monitor the defendant’s
compliance with the probation condition prohibiting unsupervised contact with young
females and therefore any polygraph test administered to the defendant at the direction of
his probation officer “necessarily will be limited to questions relevant to compliance with
that condition.” (People v. Miller, supra, 208 Cal.App.3d at p. 1315.) The Miller court
held the polygraph probation condition did not violate the defendant’s privilege against
13
self-incrimination unless the defendant showed a realistic threat of self-incrimination.
(Ibid.)
The court in Miller explained: “Although defendant has a duty to answer the
polygraph examiner’s questions truthfully, unless he invokes the privilege, shows a
realistic threat of self-incrimination and nevertheless is required to answer, no violation
of his right against self-incrimination is suffered. [Citation.] The mere requirement of
taking the test in itself is insufficient to constitute an infringement of the privilege.”
(Ibid.)
Miller, decided in 1989, does not address the constitutionality of the section
1203.067, subdivision (3)(b), probation condition requiring waiver of the self-
incrimination privilege because the statute was not enacted until after Miller was decided.
We nevertheless conclude, based on Murphy, Maldonado, Spielbauer, and Miller, that
the probation conditions, premised on section 1203.067, subdivision (b)(3), are
unconstitutional to the extent they mandate defendant waive his privilege against self-
incrimination. Such mandated waiver violates defendant’s Fifth Amendment privilege
against self-incrimination.
On the other hand, the probation condition compelling defendant to submit to
polygraph testing at the direction of his probation officer, which is narrowly tailored to
monitoring compliance with defendant’s probation conditions and participation in his sex
offender management program, is constitutional and valid when appropriately modified,
as proposed by the People, to read as follows: “The questions shall be limited to those
14
relating to the successful completion of probation and the crime for which you were
convicted.” (In re Sheena K., supra, 40 Cal.4th at p. 888; Brown v. Superior Court
(2002) 101 Cal.App.4th 313, 316-317, 322.)
III
PROBATION CONDITION NO. 17, FIELD INTERROGATION
Probation condition No. 17 requires defendant to “Submit to and cooperate in a
field interrogation by any peace officer at any time of the day or night.” A field
interrogation condition is meant as a correctional tool used to determine whether the
probationer is complying with the terms of his probation or disobeying the law. (People
v. Reyes (1998) 19 Cal.4th 743, 752; In re Anthony S. (1992) 4 Cal.App.4th 1000, 1006.)
An otherwise valid probation condition that impinges upon constitutional rights “must be
carefully tailored, ‘reasonably related to the compelling state interest in reformation and
rehabilitation . . . .’” (People v. Bauer (1989) 211 Cal.App.3d 937, 942, quoting In re
White (1979) 97 Cal.App.3d 141, 146.) A probation condition cannot be vague; it
“‘“must be sufficiently precise for the probationer to know what is required of him, and
for the court to determine whether the condition has been violated.” . . .’” (People v.
Barajas (2011) 198 Cal.App.4th 748, 753, quoting In re Sheena K., supra, 40 Cal.4th at
p. 890.) A state may not “constitutionally carry out a threat to revoke probation for the
legitimate exercise of the Fifth Amendment privilege.” (Minnesota v. Murphy, supra,
465 U.S. at p. 438.)
15
Defendant contends the condition is unconstitutionally vague and overbroad and
impairs his Fifth Amendment right because “it would be inherently uncooperative for
[defendant] to assert his constitutional privilege during a field investigation.” Defendant
also asserts probation condition No. 17 would allow him to be interrogated on any matter,
rather than his crime of conviction and compliance with probation, whether related or
unrelated to his conduct.
We disagree the condition is vague because it expressly describes that defendant is
required to submit to a field interrogation at any time. The probation condition is not
overbroad because it aids the probation department in monitoring defendant’s probation
compliance and future criminality. (People v. Olguin, supra, 45 Cal.4th at p. 380; People
v. Bravo (1987) 43 Cal.3d 600, 610; People v. Lent (1975) 15 Cal.3d 481, 486.) The
Fifth Amendment claim also fails because defendant’s incriminating statements can only
be used against him to revoke his probation, not in a criminal proceeding. (Minnesota v.
Murphy, supra, 465 U.S. at 435, fn. 7; Maldonado v. County of Santa Clara, supra, 53
Cal.4th at p. 1134; People v. Brown, supra, 101 Cal.App.4th at p. 320.)
IV
PROBATION CONDITION NOS. 13, 16, 24, AND 30
Probation condition No. 13 prohibits defendant’s association “with females under
the age of eighteen (18), unless in the presence of a responsible adult, who is aware of the
nature of your background and current offense, and who has been approved by the
probation officer.” Probation condition No. 16 prohibits defendant from approaching
16
“minor female motorists or pedestrians not previously known to you or engag[ing] same
in conversation in a public place or street.” Probation condition No. 24 states, “Do not
utilize any form of social media via the internet or access social media. Submit all
internet devices including smart phones and tablets for examination upon request by any
law enforcement agency.” Probation condition No. 30 states, “Do not associate with
minors or frequent places where minors congregate, including but not limited to:
schoolyards, parks, amusement parks, concerts, playgrounds, swimming pools, and
arcades, unless in the company of a responsible adult over the age of 21 who is approved
by the Probation Officer or court, . . .”
The parties generally agree these probation conditions must contain a scienter
requirement and must be modified to prohibit only knowing conduct. (People v.
Contreras (2015) 237 Cal.App.4th 868, 886.) Where a probationer could unknowingly
engage in activity prohibited by probation conditions, Courts of Appeal have modified
those conditions to incorporate a scienter requirement. (See, e.g., People v. Lopez (1998)
66 Cal.App.4th 615, 629; In re Kacy S. (1998) 68 Cal.App.4th 704, 713 [association with
approved persons]; People v. Turner (2007) 155 Cal.App.4th 1432, 1435-1436 [persons
under 18]; In re Victor L. (2010) 182 Cal.App.4th 902, 912-913; People v. Moses (2011)
199 Cal.App.4th 374, 377 [minors]; People v. Moore (2012) 211 Cal.App.4th 1179,
1185.) Because defendant may act unknowingly the conditions must be modified to
incorporate an express scienter requirement. (People v. Patel (2011) 196 Cal.App.4th
956, 960; People v. Pirali (2013) 217 Cal.App.4th 1341, 1350 [with addition of an
17
express knowledge requirement, probation condition regarding internet access is not
unconstitutionally vague or overbroad].)
V
PROBATION CONDITION NOS. 14, 27, 28, and 30
Defendant objected to probation condition Nos. 14, 27, and 28. Probation
condition No. 14 states, “Neither possess nor have under your control any ‘obscene
matter,’ as defined in PC311.” Probate condition No. 27 states, “Do not own, use, or
possess any form of sexually explicit movies, videos, material, or devices unless
recommended by a therapist and approved by the probation officer. Do not frequent any
establishment where such items are the primary items viewed, sold at such establishment,
and do not utilize any sexually oriented telephone services.” Probation condition No. 28
states, “Do not frequent massage parlors, live nude shows or conventions where erotic
materials and/or devices are the primary items sold.”
We conclude these probation conditions are not overbroad because they are
relevant to defendant’s present and future criminality. A condition of probation will not
be held invalid unless it (1) has no relationship to the crime of which the offender was
convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids
conduct which is not reasonably related to future criminality. (People v. Lent, supra, 15
Cal.3d at p. 486; People v. Olguin, supra, 45 Cal.4th at pp. 379-380; People v. Carbajal,
supra, 10 Cal.4th at p. 1121.)
18
Here the prohibited conduct is not in itself criminal. However, the conduct
reasonably relates to defendant’s present crimes and future criminality. Defendant
encouraged his victim to share nude photos of herself and he used those photos for sexual
gratification. The probation conditions could help prevent future crime by defendant.
The challenged probation conditions are valid under two prongs of Lent. The trial court
did not abuse its broad discretion imposing the conditions. (People v. Contreras (2015)
237 Cal.App.4th 868, 881.)
Defendant also objects to the term “frequent” as used to mean visit in probation
conditions Nos. 27, 28, and 30. Probation condition No. 30 forbids appellant to
“associate” with minors or “frequent” places where minors congregate. Defendant relies
on two cases: “We also agree with defendant that the word ‘frequent’ renders the
condition unconstitutionally vague, because it is both obscure and has multiple meanings.
(In re H.C. (2009) 175 Cal.App.4th 1067, 1072.) Accordingly, we will order the gang-
area condition to read as follows: ‘You are not to visit or remain in any specific location
which you know to be or which the probation officer informs you is an area of criminal-
street-gang-related activity.’” (People v. Leon (2010) 181 Cal.App.4th 943, 952.) We
disagree that “frequent” is too archaic to be commonly understood. Its meaning is the
equivalent of “visit.” No modification of the word is necessary to uphold the validity of
the probation conditions using it.
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VI
DISPOSITION
The parties agree probation condition Nos. 11, 25, and 26 must be modified to
strike the portion of each condition requiring defendant to be responsible for paying costs
or fees. (See People v. Brown, supra, 101 Cal.App.4th at pp. 321-322.) We also remand
to modify probation condition Nos. 13, 16, 24, 25, 26, 30, 34 as explained in this opinion.
Probation condition Nos. 13, 16, 24, and 30 should include the requirement of scienter.
Subject to these modifications, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
McKINSTER J.
20
AI Brief
AI-generated · verify before citing
Holding. The court held that probation conditions requiring a waiver of the Fifth Amendment privilege against self-incrimination are unconstitutional, but that conditions requiring polygraph testing are valid if limited to questions regarding probation compliance and the underlying offense. Additionally, the court held that probation conditions restricting association and internet use must include an express knowledge (scienter) requirement to avoid being unconstitutionally vague.
Issues
Whether a probation condition requiring a waiver of the privilege against self-incrimination is unconstitutional.
Whether probation conditions restricting association and internet use are unconstitutionally vague without a knowledge requirement.
Whether a field interrogation probation condition is unconstitutionally vague or overbroad.
Disposition. Affirmed in part; reversed in part with directions.
Quotations verified verbatim against the opinion
“the parties generally agree these probation conditions must contain a scienter requirement and must be modified to prohibit only knowing conduct.”