California Court of Appeal Mar 13, 2013 No. E055138Unpublished
Filed 3/13/13 P. v. Stafford 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E055138
v. (Super.Ct.No. FSB1102672)
DAVID MICHAEL STAFFORD, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Kenneth Barr,
Judge. Affirmed as modified.
Cynthia A. Grimm, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney
General, and Barry Carlton and Garrett Beaumont, Deputy Attorneys General, for
Plaintiff and Respondent.
1
On September 20, 2011, defendant and appellant David Michael Stafford pled
guilty to possessing child pornography (Pen. Code, § 311.11, subd. (a)) in exchange for a
grant of probation. Defendant agreed to destroy his computers and storage devices and
attend sex offender treatment. On October 21, defendant was placed on formal probation
for three years. Over defense counsel’s objection, the trial court imposed several terms
and conditions regarding controlled substances, polygraph testing, possession of sexually
explicit items, frequenting places where minors congregate, and possession of contact
magazines, restraint equipment and identify concealing items. Defendant appeals,
renewing his claims that the objected-to terms were improperly imposed.
I. FACTS
On September 28, 2010, defendant turned himself in and admitted downloading
and possessing child pornography for the past 10 years. Defendant directed an officer to
a computer located in his home office and informed the officer that he had given a second
computer to a neighbor. The computer and a flash drive were taken from the residence.
After contacting the neighbor, a second computer was located. The computers and flash
drive were submitted into evidence. On February 2, 2011, the computers were analyzed,
and 91 images of children under the age of 18 were found.
II. PROBATION CONDITIONS
Defendant challenges several of his conditions of probation.
Penal Code section 1203.1 specifically states that in granting probation, the court
is to determine what conditions are “fitting and proper to the end that justice may be
done, that amends may be made to society for the breach of the law, for any injury done
2
to any person resulting from that breach, and generally and specifically for the
reformation and rehabilitation of the probationer . . . .” (Pen. Code, § 1203.1, subd. (j).)
The trial court has broad discretion to select appropriate probation conditions in an
individual case, those aimed at promoting rehabilitation and the protection of public
safety, as expressed in Penal Code section 1203.1. (People v. Carbajal (1995) 10 Cal.4th
1114, 1120 (Carbajal).)
“The trial court’s discretion, although broad, nevertheless is not without limits: a
condition of probation must serve a purpose specified in the statute. In addition, we have
interpreted Penal Code section 1203.1 to require that probation conditions which regulate
conduct ‘not itself criminal’ be ‘reasonably related to the crime of which the defendant
was convicted or to future criminality.’ [Citation.]” (Carbajal, supra, 10 Cal. 4th at p.
1121.) Accordingly, a probation condition “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 . . . .’ [Citation.]” (People v. Lent (1975) 15 Cal.3d 481, 486
(Lent), fn. omitted.) “This test is conjunctive—all three prongs must be satisfied before a
reviewing court will invalidate a probation term. [Citations.] As such, even if a
condition of probation has no relationship to the crime of which a defendant was
convicted and involves conduct that is not itself criminal, the condition is valid as long as
the condition is reasonably related to preventing future criminality. [Citation.]” (People
v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin).)
3
A. Drug Conditions
The trial court imposed the following drug conditions:
“11) Neither use nor possess any controlled substance without medical
prescription. A physician’s written notice is to be given to the probation officer.
“12) Submit to a controlled substance test at direction of probation officer. Each
test is subject to an $11.00 fee, to be collected by Central Collections[.]
“13) Not possess any type of drug paraphernalia, as defined in [Health and Safety
Code section] 11364.5(d)[.]
[¶] . . . [¶]
“16) Not associate with persons known to defendant to be illegal users or sellers
of controlled substances, except for those involved in your recovery.
[¶] . . . .[¶]
“37) Attend NA/AA [Narcotics Anonymous/Alcoholics Anonymous] meetings as
directed by the Probation Officer and show proof of attendance to the Probation
Department.”
According to the probation report, defendant first used marijuana at the age of 18
and continued using until age 24. During those years, he used marijuana daily and used
Ecstasy one time when he was 19.1 Defendant denied the use or experimentation with
any other illegal drugs and denied drinking alcohol. In objecting to condition Nos. 11,
1While the first page of the probation officer’s report states that defendant used marijuana and cocaine, defendant’s statement identifies only marijuana and Ecstasy.
4
12, 13, and 37 (requiring attendance at NA/AA meetings),2 defense counsel argued that
such conditions were not related to the crime and defendant was 55 years old and had not
used illegal drugs for 31 years. The prosecution argued that due to the nature of the
offense and defendant’s admitted use of drugs, it was important for probation to ensure
he was not using drugs that might limit his inhibition. Although the prosecution included
cocaine in the list of drugs used, such inclusion contradicts defendant’s statement to the
probation officer.
Defendant contends the probation drug conditions constitute an abuse of that
discretion. He further claims they are unreasonable and unconstitutional. Defense
counsel failed to object to condition No. 16 (formerly condition No. 17), and the People
argue error has therefore been forfeited. (In re Sheena K. (2007) 40 Cal.4th 875, 885,
889 (Sheena K.).) Defendant nonetheless argues ineffective assistance of counsel. The
People have addressed the issue on the merits and, thus, we will do the same.
In this case, the record contains no indication that any controlled substance was
involved in defendant’s offenses. However, condition Nos. 11 and 13 relate to conduct
that is in itself criminal, and thus, may be imposed in the court’s discretion. Condition
Nos. 12, 16, and 37 are more problematic. These conditions do not involve conduct that
is in itself criminal, and there is no evidence that any controlled substance was involved
or that defendant was associating with other illegal users or sellers of controlled
substances during the commission of the offenses. The only issue, therefore, is whether
2 Initially, these conditions were numbered 12, 13, 14 and 44. After some conditions were stricken, they were renumbered.
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the probation drug conditions forbid conduct that is not reasonably related to future
criminality. The analysis is highly fact specific. (People v. Lindsay (1992) 10
Cal.App.4th 1642, 1644 (Lindsay).)
While an argument may be made that condition Nos. 16 and 37 require or forbid
conduct related to future criminality, given the facts of this case, these conditions are not
reasonably related to the offenses committed by defendant. Defendant’s admission was
that he committed the offenses in the privacy of his own home, not with others. There is
no evidence that he was under the influence of any controlled substance when
committing the offenses. And more importantly, he recognized that what he was doing
was wrong and took responsibility for his action by turning himself in to the police. In
People v. Kiddoo (1990) 225 Cal.App.3d 922 (Fourth Dist., Div. Two), overruled on
another ground in People v. Welch (1993) 5 Cal.4th 228, 237, this court invalidated a
condition prohibiting the defendant from possessing or consuming alcohol following his
guilty plea to possession of methamphetamine. The defendant had been selling drugs to
support a gambling habit; he had been using drugs and alcohol since he was 14, but he
was only “a social drinker” who used methamphetamine “sporadically.” (People v.
Kiddoo, supra, at p. 927.) This court found no facts to support the conclusion that the
prohibited conduct was reasonably related to future criminality, and it struck the
condition.
Here, the facts are more compelling to strike the conditions. Condition Nos. 12,
16 and 37 focus on controlled substances and making sure that defendant is removed
from illegal users or sellers of controlled substances, or circumstances, which could
6
hinder his rehabilitation. However, there is no evidence that using controlled substances
had any connection whatsoever to defendant’s crime. Defendant admitted he watched
child pornography in the privacy of his own home while sober. Likewise, there is no
need for defendant to attend an NA/AA program in order to own an addiction to any
controlled substance. Like the fact that there was no issue involving the use of controlled
substances, failing to admit what he did was wrong was also not an issue in this case.
Defendant turned himself in to the police. His addiction was not for controlled
substances. Rather, he was addicted to child pornography. An NA/AA program would
not benefit him.
For the above reasons, condition Nos. 12, 16, and 37 violate the Lent criteria and
are ordered stricken.
B. Submitting to Random Polygraph Testing
Over defendant’s objection, the trial court imposed condition No. 24, which
included a requirement that defendant “submit to random polygraph testing by a
Probation department approved polygraph examiner at the direction of the Probation
Officer, as part of the sex offender surveillance program and be responsible for all costs
associated with examinations. Tool—admissibility.” On appeal, defendant contends this
probation condition “implicates [his] Fifth and Fourteenth Amendment right against self-
incrimination and therefore, it must be carefully scrutinized to determine if it is narrowly
drawn and reasonably related to a compelling state interest in reformation and
rehabilitation.”
7
A condition that requires a probationer to submit to polygraph testing as part of a
sex offender surveillance program does not in and of itself violate the privilege against
self-incrimination. (Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321 (Brown).)
Such condition helps monitor defendant’s compliance with probation and is therefore
reasonably related to defendant’s crime of possessing child pornography. (Id. at pp. 319-
321; People v. Miller (1989) 208 Cal.App.3d 1311, 1314.) Here, while the trial court
recognized that the polygraph condition is an appropriate tool which allows probation to
ensure that defendant complies with his probation, the court also acknowledged the test is
not admissible in court.
Notwithstanding the above, condition No. 24 is unconstitutionally overbroad. In
Brown, the defendant pled guilty to stalking his former girlfriend while a domestic
violence temporary restraining order was in effect. (Brown, supra, 101 Cal.App.4th at p.
317.) He was placed on probation, and one of his conditions required him to successfully
complete a stalking treatment program. (Ibid.) In pleading guilty, the defendant
stipulated to the facts contained in the police report and preliminary hearing transcript but
denied he had engaged in the behavior. He also told the psychologist in charge of the
treatment program that he did not belong in the program because he was not a stalker.
(Id. at p. 318.) The psychologist recommended that the defendant’s probation include a
polygraph testing condition for purposes of treatment, noting the defendant had attempted
to falsify a drug test, denied the major facts of the case, had a psychopathic personality,
and had several “‘stalking recidivism predictors’ . . . .” (Ibid.) The trial court then
imposed the condition that the defendant “‘undergo periodic polygraph examinations at
8
[his] expense, at the direction of the probation officer,’” to further the defendant’s
successful completion of the stalking therapy program. (Id. at p. 321.) The trial court
declined to place any restrictions on the questions that could be asked during the testing.
(Ibid.) The Court of Appeal found the polygraph testing to be a valid condition since it
was reasonably related to the defendant’s crime and to possible future criminality. (Ibid.)
However, the court found the condition to be “broadly worded.” (Ibid.) It held that the
condition “must limit the questions allowed to those relating to the successful completion
of the stalking therapy program and the crime of which [the defendant] was convicted.”
(Ibid.)
Here, the text of condition No. 24 is similar to the one in Brown, except that
defendant is ordered to complete a sex offender surveillance program rather than a
stalking therapy program. Like the condition in Brown, condition No. 24 does not limit
the types of questions that can be asked during the examination and thus is overbroad. It
should be rewritten to limit the questions allowed to those relating to the successful
completion of the court-mandated sex offender surveillance program and the crime of
which defendant was convicted. Additionally, the People concede that the requirement
that defendant pay the costs of polygraph testing cannot be included in the probation
conditions and should therefore be stricken. (Brown, supra, 101 Cal.App.4th at p. 321.)
We agree.
Condition No. 24 is modified to read as follows: “You shall submit to random
polygraph testing by a Probation Department approved polygraph examiner at the
direction of the Probation Officer, as part of the sex offender surveillance program. The
9
questions shall be limited to those relating to the successful completion of the sex
offender surveillance program and the crime of which you were convicted.”
C. Possession of Sexually Explicit Items, Frequenting Establishments that
Sell Such Items, and Using Sexually Oriented Telephone Services
Condition No. 27 requires that defendant “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 primary items viewed, sold at such establishment, and do not utilize any
sexually oriented telephone services.” At sentencing, defense counsel objected on the
grounds that the crime involved children, not adults, and that possession of sexually
explicit materials involving adults would be legal and should be acceptable. In response,
the prosecution pointed out that, based on the nature of the offense, the condition was an
appropriate tool for probation to ensure compliance. The court imposed the condition as
“valid and appropriate.”
On appeal defendant contends condition No. 27 “is unconstitutionally vague as it
does not define the terms ‘frequent,’ ‘sexually explicit,’ and ‘primary items’ and it does
not include a knowledge requirement.” Furthermore, defendant claims he has no
“advance notice of the establishments he is prohibited from frequenting.” Defendant also
faults the condition for being overbroad in that it “could prevent [him] from entering all
movie theaters or video stores . . . depending on the definition of sexually explicit.”
“[T]he void for vagueness doctrine applies to conditions of probation.
[Citations.]” (People v. Reinertson (1986) 178 Cal.App.3d 320, 324.) A vagueness
10
challenge is based on the “due process concept of ‘fair warning.’ [Citation.]”
(Sheena K., supra, 40 Cal.4th at p. 890.) Therefore, a probation condition “‘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’ . . . .” (Ibid.) In this case, we
agree that condition No. 27 is vague because it does not include a definition of “sexually
explicit material.” The record is void of any advisement as to what the trial court
considered sexually explicit material. The condition itself fails to inform subsequent trial
courts or probation officers of precisely what constitutes a violation. Nonetheless,
defendant’s challenged probation condition can easily be remedied on appeal by
modification of the condition. (See, e.g., Sheena K., supra, at p. 888.) The following
language should be added to condition No. 27: “‘Sexually explicit’ is defined as X-rated
movies and items classified as pornography.”
Regarding defendant’s claim that condition No. 27 is also unconstitutionally
overbroad, we disagree. “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. [Citation.]” (Sheena K.,
supra, 40 Cal.4th at p. 890.) Possession of obscene material is protected by the First and
Fourteenth Amendments. (Stanley v. Georgia (1969) 394 U.S. 557, 568.) We believe the
condition as modified above is not overbroad. To provide more clarification by including
all of the exclusions to the above condition would present an onerous task. The condition
as modified is sufficiently precise for defendant to know what is required of him, is
sufficient for future trial courts to determine whether the condition has been violated, and
11
is closely tailored to those limitations on pornography to meet the purpose of the
condition. To the extent that it does not, defendant can seek approval from the probation
department for such other materials or venues.
Finally, we reject the challenge that condition No. 27 unnecessarily impinges on
defendant’s First Amendment rights by “unreasonably prohibiting conduct which is legal
and normal [by including] any form of sexually explicit movies, videos, materials, or
devices unless recommended by a therapist and approved by the probation officer.” We
note federal case authority that invalidated a similar condition upon a defendant who had
been convicted of possessing child pornography. (United States v. Voelker (3rd Cir.
2007) 489 F.3d 139, 150-151 [the appellate court found no “nexus” between viewing
adult pornography and the goals of supervised release and no evidence that the viewing
of adult pornography, a legal activity, had contributed to the defendant’s crime, the
possession of child pornography].) However, we are not bound by Voelker. In any
event, we find the case to be factually inapplicable to the circumstances before this court.
According to defendant himself, shortly after purchasing a home computer, he began
looking at legal pornography and the child pornography would come up. He then started
looking at child pornography and continued to do so for 10 years. Clearly, a “nexus”
exists between defendant viewing adult pornography and defendant possessing child
pornography.
D. Association with Minors or Frequenting Places Where Minors Congregate
Condition No. 28 prohibits defendant from “associate[ing] with minors or
frequent[ing] places where minors congregate, including but not limited to schoolyards,
12
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, knows of [defendant’s] offense(s) and is willing to monitor [his]
behavior.”
Defendant contends the condition is unconstitutionally vague and overbroad
because it infringes on his constitutional freedom to travel, and his constitutional rights of
privacy, religion, association and assembly, to a greater degree than is necessary to serve
its purpose. The People urge us to reject the contention as meritless because the
condition “is tailored to the purpose of the condition, to wit: the compelling state interest
of protecting children from [defendant].” We conclude there is merit to both sides of the
argument.
Although vagueness and overbreadth are related, they are not identical. The basis
of a vagueness challenge is the due process concept of fair warning. (People v.
Castenada (2000) 23 Cal.4th 743, 751.) “‘Vagueness may invalidate a criminal law for
either of two independent reasons. First, it may fail to provide the kind of notice that will
enable ordinary people to understand what conduct it prohibits; second, it may authorize
and even encourage arbitrary and discriminatory enforcement.’ [Citation.]” (Ibid.) The
overbreadth doctrine requires that, “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. [Citation.]”
(Sheena K., supra, 40 Cal. 4th at p. 890.) However, “[a] statute may not be found
constitutionally invalid on overbreadth grounds simply because it is possible to conceive
13
of one or a few impermissible applications . . . .” (People v. Toledo (2001) 26 Cal.4th
221, 234-235.)
Here, although condition No. 28 is overbroad and vague, it serves the dual purpose
of rehabilitation and public safety by attempting to prevent defendant from engaging in
misconduct which could escalate into criminal conduct. Thus, the best solution is to
modify the language in condition No. 28 so that it reads as follows: “Do not knowingly
contact or associate with minors and stay away from places where you know minors
congregate, such as locations especially designated for use by minors, including
schoolyards, parks, amusement parks, playgrounds, swimming pools, and arcades, unless
accompanied by an informed, responsible adult over the age of 21 who knows of your
offense(s) and is willing to monitor your behavior or is approved by the probation officer
or court.”
E. Possession of Personal Contact Magazines, Identity Concealing Items, and
Items for Sadomasochistic Purposes
Over defendant’s objection, the following conditions were imposed:
“33) Not possess or have access to handcuffs, restraint equipment, or other items
that could be used for sadomasochistic purposes.
“34) Not possess personal contact magazines, nor place any ads, nor respond to
any ads in such publications unless approved by the probation officer.
“35) Not possess or have access to costumes, masks, or other identity-concealing
items unless approved by the probation officer.”
14
Defendant contends these conditions (1) have no relationship to the crime of
which he was convicted; (2) relate to conduct that is not in itself criminal; and (3) require
or forbid conduct that is not reasonably related to future criminality. Moreover, he argues
they are unconstitutionally vague and overbroad. The People note the prosecution’s
argument that these conditions “are specific to the class of crime committed by
[defendant] and keep [him] away from items that might tempt [him].” Further, the
People argue these conditions “foster [defendant’s] rehabilitation and public safety by
lessening the likelihood that [he] will be tempted to act out the sexual offenses he
previously observed when he possessed child pornography.” We agree with defendant.
The record lacks any evidence that defendant’s offense involved any of the items
identified in condition Nos. 33, 34, and 35. There is no evidence that defendant used any
restraint equipment, identity-concealing items, or magazines and ads in violation of Penal
pornography on the internet. He did not admit to using magazines, ads or identity-
concealing items to lure children into his home where he restrained them in order to
watch them perform sexual acts. Again, we note that our Supreme Court has repeatedly
stated the relevant test for the propriety of a probation condition is “reasonableness.”
(Olguin, supra, 45 Cal.4th at pp. 383-384.) Because condition Nos. 33, 34, and 35 are
15
not reasonable given the facts of this case, they violate the Lent criteria and are ordered
stricken.3
F. Submit to Field Interrogation
Condition No. 17 requires defendant to “[s]ubmit to and cooperate in a field
interrogation by any peace officer at any time of the day or night.” On appeal, defendant
contends this condition is unconstitutional because it implicates his right against self-
incrimination. Alternatively, he argues it is overbroad and should be modified to read:
“Probationer should submit to and cooperate in a reasonable field interrogation by any
peace officer. However, when questioned by a peace officer under this condition,
probationer is always permitted to invoke his Fifth Amendment right by refusing to
answer any question that might be self-incriminating.”
Regarding defendant’s concern that condition No. 17 implicates his right against
self-incrimination, a probation condition is valid under the Fifth Amendment unless there
is a reasonable basis for concluding an impermissible penalty has been attached to the
exercise of the privilege. (Minnesota v. Murphy (1984) 465 U.S. 420, 436-437
(Murphy).) Murphy sets forth the rule that the Fifth Amendment privilege is not lost
when a person is granted probation: A state cannot “constitutionally carry out a threat to
revoke probation for the legitimate exercise of the Fifth Amendment privilege.”
(Murphy, supra, at p. 438.)
3Having found these conditions violate the Lent criteria, we need not address defendant’s claim that they are also unconstitutionally vague and overbroad.
16
In light of this well-settled rule, there is no reasonable basis for concluding that the
field interrogation probation condition places an impermissible penalty on defendant’s
Fifth Amendment privilege. The condition does not compel him to make incriminating
disclosures. The condition merely requires him to “[s]ubmit to and cooperate in a field
interrogation by any peace officer . . . .” While probationers have long been required to
“cooperate” with their probation officers, a probationer is not foreclosed from asserting
his Fifth Amendment privilege, and it would not be inherently uncooperative for him to
assert that privilege. (See United States v. Davis (1st Cir. 2001) 242 F.3d 49, 52 [finding
no realistic threat of having the defendant’s probation revoked in a requirement to
“cooperate” with the probation officer].) Thus, although defendant must cooperate with
the police and not walk away, he retains the right to assert the Fifth Amendment, and his
probation cannot be revoked based on a valid exercise of that right. (Murphy, supra, 465
U.S. at p. 434.) Accordingly, we conclude defendant’s Fifth Amendment privilege has
not been infringed by the field interrogation probation condition.
Regarding the claim that condition No. 17 is overbroad, under the facts of this
case, we agree. Although the general propriety of such a term has been recognized,
(Murphy, supra, 465 U.S. at p. 438) it must nonetheless be tailored, so that it is
reasonably related to the crime of which defendant was convicted, or to defendant’s
future criminality. (Carbajal, supra, 10 Cal.4th at p. 1121; Brown, supra, 101
Cal.App.4th at p. 321.) Here, defendant is not the typical convicted felon, who in his
fifties, has an extensive criminal record. Rather, this is defendant’s only conviction.
More importantly, defendant was not caught by the police; rather, he turned himself in.
17
While this court has repeatedly held that the language in condition No. 17 is not
overbroad, we find the facts currently before us warrant a different holding. A field
interrogation probation condition is a correctional tool which can be used to determine
whether the defendant is complying with the terms of his or her probation or disobeying
the law. (See People v. Reyes (1998) 19 Cal.4th 743, 752 [purpose of an unexpected
search is to determine not only whether parolee disobeys the law, a basic condition of
parole, but also whether he or she obeys the law; the condition helps measure the
effectiveness of parole supervision]; In re Anthony S. (1992) 4 Cal.App.4th 1000, 1006
[probation is an alternative form of punishment, carrying with it certain burdens, such as
a search term, which can be used as a correctional tool].) However, by its current
provision, the term allows for defendant to be interrogated as to any subject matter,
whether related or unrelated to his conduct. Again, given the facts of this case, we
conclude that condition No. 17 should be limited to allow field interrogation of defendant
only as it relates to his criminality and compliance with the other terms and conditions of
probation. Thus, condition No. 17 is modified to read: “Submit to and cooperate in a
reasonable field interrogation by any peace officer, at any time of the day or night, as
such interrogation relates to your criminality and compliance with the other terms and
conditions of your probation.”
III. DISPOSITION
The judgment is modified, as follows:
(1) Probation condition Nos. 12, 16, 33, 34, 35, and 37 are stricken.
18
(2) Probation condition No. 24 is modified to read as follows: “You shall submit
to random polygraph testing by a Probation Department approved polygraph examiner at
the direction of the Probation Officer, as part of the sex offender surveillance program.
The questions shall be limited to those relating to the successful completion of the sex
offender surveillance program and the crime of which you were convicted.”
(3) Probation condition No. 27 is modified to add the following language:
“‘Sexually explicit’ is defined as X-rated movies and items classified as pornography.”
(4) Probation condition No. 28 is modified to read as follows: “Do not knowingly
contact or associate with minors and stay away from places where you know minors
congregate, such as locations especially designated for use by minors, including
schoolyards, parks, amusement parks, playgrounds, swimming pools, and arcades, unless
accompanied by an informed, responsible adult over the age of 21 who knows of your
offense(s) and is willing to monitor your behavior or is approved by the probation officer
or court.”
(5) Probation condition No. 17 is modified to read as follows: “Submit to and
cooperate in a reasonable field interrogation by any peace officer, at any time of the day
or night, as such interrogation relates to your criminality and compliance with the other
terms and conditions of your probation.”
19
The trial court is ordered to correct its records to reflect these modifications. As
so modified, the judgment is affirmed. (See People v. Burden (1988) 205 Cal.App.3d
1277, 1281.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST Acting P. J. We concur:
MCKINSTER J.
CODRINGTON J.
20
AI Brief
AI-generated · verify before citing
Holding. The court struck several probation conditions as unreasonable under the Lent criteria because they lacked a nexus to the defendant's child pornography offense, while modifying other conditions to cure vagueness and overbreadth issues.
Issues
Whether probation conditions regarding controlled substances and NA/AA meetings were reasonably related to the defendant's crime or future criminality.
Whether the polygraph testing condition was unconstitutionally overbroad.
Whether conditions prohibiting possession of specific items like restraint equipment and contact magazines were reasonably related to the offense.
Whether the field interrogation condition violated the defendant's Fifth Amendment rights or was overbroad.
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“For the above reasons, condition Nos. 12, 16, and 37 violate the Lent criteria and are ordered stricken.”