Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F15028
Bamattre-Manoukian, J.
Defendant Tranquilino Puebla Gutierrez appeals from an order revoking and reinstating his probation as modified. He contends that there was insufficient evidence to support the trial court’s finding that he had violated his probation. He further contends that he was denied due process as the probation condition he was found to violate was vague and overbroad as applied. We disagree with defendant’s contentions and, therefore, will affirm the trial court’s order.
BACKGROUND
Defendant was convicted of one count of violating Penal Code section 243.4, subdivision (a) [sexual battery], after he rubbed his nine-year-old foster child’s vagina under her clothes. On December 6, 2007, the trial court suspended imposition of sentence and granted defendant supervised probation for three years with various terms and conditions, including a stayed 180-day jail term. Additional conditions of probation included: “Have no contact with minors under the age of 18 without an adult supervisor who has been approved by the probation officer.” “Do not live in a residence where there are female children under the age of 18 residing.” “Do not enter places where female children congregate, i.e., schools, playgrounds, video arcades.” Defendant accepted these terms and conditions of probation.
On February 29, 2008, Probation Officer Linda Perez filed a request to modify the terms and conditions of defendant’s probation, alleging that defendant had violated probation by having “contact with minor females.” Perez sought to have defendant “begin serving the prior 180-day jail sentence and serve an additional 90 days for the current violation.” The court summarily revoked defendant’s probation on March 3, 2008, and on March 12, 2008, set the matter for a probation violation hearing.
Perez was the sole witness at the probation violation hearing on April 11, 2008. She testified as follows. She has been a probation officer for 12 years, and is currently responsible for a sex-crimes caseload in Santa Cruz County. Her duties include giving directives to probationers to enforce the conditions of probation set by the court and to ensure that the community is protected. “If there’s some ambiguity, I do clarify that and make sure that they understand it.”
Defendant was convicted of sexual battery. The victim was his nine-year-old female foster child, the improper touching occurred in defendant’s home, defendant’s stepson Noe had also sexually abused the child, and defendant was aware of Noe’s abuse of the child. Defendant’s wife was also aware of Noe’s abuse of the child and defendant’s improper touching of the child, but did nothing to protect the child.
Defendant was placed on probation on December 6, 2007, and is under Perez’s supervision. On February 21, 2008, Dorina, the mother of Noe’s two children, called Perez. Dorina told Perez that they were planning a children’s birthday party for Dorina’s two- or three-year-old niece in the home defendant shares with his wife, Noe, and another stepson. In Perez’s opinion, defendant’s probation conditions did not allow him to have such a party; his probation conditions prohibited contact with female children and prohibited him from being in places where female children congregate.
Because of defendant’s wife’s past behavior of not protecting a child in danger, Perez did not trust defendant’s wife to enforce the probation department’s directives. In addition, Perez was concerned about defendant’s home being a gathering place for children whose parents might think it is a safe place for the children to return in the future. “[T]he community members don’t necessarily know that the defendant’s on probation and what he’s on probation for and would not be in a position to knowingly supervise their children appropriately or make an informed decision about whether or not the child should be at the home.” On February 22, 2008, Perez spoke with defendant on the phone. She told him that she knew there was going to be a party at his house, and that he was not to have female children’s birthday parties at his house, whether or not he was going to be present at the party. Defendant responded, “ ‘Okay.’ ”
That same day, after Perez spoke to defendant on the phone, Dorina came to Perez’s office and asked to be designated as “a responsible adult” for defendant. In order to become “a responsible adult,” Dorina was made aware of the offense for which defendant is on probation, she agreed to supervise defendant in the presence of her niece, and she agreed to the rules outlined by probation. Perez agreed that Dorina could become a responsible adult for her niece. Perez did not give Dorina permission to be a responsible adult for any other children who might be in defendant’s home. Perez also told Dorina that there were not to be any female children’s birthday parties in defendant’s home. Perez was “led to believe” that there was an alternative plan to have the party at a pizza parlor. Such a plan would have been appropriate because “it’s more in an open space and not somewhere I would assume that [defendant] would be.”
Defendant met with Perez in her office on February 25, 2008. She asked him about the birthday party. Defendant responded that a party may have occurred, that he saw a birthday cake on the table. Perez visited defendant’s home on February 28, 2008, and saw indications that a child’s birthday party had been held at the home. She saw a number of balloons, including birthday balloons, a broken piñata, what appeared to be birthday presents, empty alcoholic beverage containers, and numerous folding chairs. She said to defendant, “Looks like there had been a party.” Defendant responded, “ ‘I know.’ ” Perez asked defendant why there had been a party at the home when he was forbidden from having one. Defendant responded that he was not present at the party. Perez arrested defendant and filed the petition to revoke his probation. “I believe that he had been in a place where children are congregating and that he may have violated the condition of having contact with children.” Defendant also violated her directive to him to not have the party. “[I]t was reasonable, and it was clarifying a condition of no contact and not being in places where children congregate, to prevent a violation.”
The court found that defendant had violated the terms of his probation as follows. “So Mr. Gutierrez had a condition that he specifically agreed to, separate and apart from the standard conditions that he not enter places where female children congregate, with some examples – schools, playgrounds, video arcades – but one place that small female children congregate is at birthday parties for other small female children. [¶] The interpretation of the probation officer of this condition, that she attempted to make extremely clear to Mr. Gutierrez and he agreed he understood, was very clear and appropriate. He violated that condition, or her interpretation of that condition, and admitted that he did. [¶] If he didn’t like her interpretation, he has the right to come back to court and contest it, but given the nature of the offense that he’s already been convicted of and hadn’t yet started serving his sentence on, I find that [the probation officer’s] conduct was appropriate and that her interpretation of that condition was appropriate, and that Mr. Gutierrez violated the terms of his probation by, essentially, allowing in his own home a – the reason stated, about, you know, making his home a place where young girls and their parents feel comfortable to bring them, given the nature of his offense and the fact that his offense hasn’t necessarily been broadcast to all those parents of young female children, I think it’s entirely appropriate that probation take a prosthetic approach to this type of situation – or prophylactic approach, rather, and I don’t have any problem with it.”
The court reinstated defendant’s probation, modifying the terms and conditions by imposing an additional jail term of 90 days to be served consecutive to the 180 days that defendant was then serving.
DISCUSSION
Defendant contends that there was insufficient evidence that he violated an express or implied condition of his probation. “In the present case, [defendant] was deemed to have violated a condition of his probation without engaging in any proscribed conduct and without any indication that he even knew about the conduct of others that formulated the basis for the charge. Moreover, even if [defendant] had knowledge of, or had participated in the underlying activity that was established at the hearing, that activity was not proscribed under the express or implied terms of [defendant’s] probation.” “The probation officer rationalized, and the court apparently accepted, the notion that the occurrence of the party at the residence in conjunction with the condition of probation that [defendant] not enter places where female children congregate amounted to ‘implied contact.’ ”
“Pursuant to Penal Code section 1203.2, subdivision (a), . . . a court is authorized to revoke probation ‘if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his or her probation . . . .’ ” (People v. Rodriguez (1990) 51 Cal.3d 437, 440 (Rodriguez).) “It has long been recognized that the Legislature, through this language, intended to give trial courts very broad discretion in determining whether a probationer has violated probation.” (Id. at p. 443.) The statute thus “confer[s] great flexibility upon judges making the probation revocation determination.” (Ibid.) A preponderance of the evidence standard is appropriate because revocation “ ‘deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special . . . restrictions.’ ” (People v. Coleman (1975) 13 Cal.3d 867, 877, fn. 8, quoting Morrissey v. Brewer (1972) 408 U.S. 471, 480; see also, Rodriguez, supra, 51 Cal.3d at p. 442.)
“In placing a criminal on probation, an act of clemency and grace [citation], the state takes a risk that the probationer may commit additional antisocial acts. Where probation fails as a rehabilitative device, as evidenced by the probationer’s failure to abide by the probation conditions, the state has a great interest in being able to imprison the probationer without the burden of a new adversary criminal trial. [Citation.]” (Rodriguez, supra, 51 Cal.3d at p. 445.) Consequently, “[t]he role of the trial court at a probation revocation hearing is not to determine whether the probationer is guilty or innocent of a crime but whether he [or she] can be safely allowed to remain in society. [Citation.]” (People v. Monette (1994) 25 Cal.App.4th 1572, 1575.)
There must, of course, be a factual basis to support an order revoking probation. (In re Stallings (1970) 5 Cal.App.3d 322, 334, disapproved on another point in People v. Cookson (1991) 54 Cal.3d 1091, 1098-1100.) Yet, “ ‘[r]evocation rests in the sound discretion of the court. Although that discretion is very broad, the court may not act arbitrarily or capriciously; its determination must be based on the facts before it.’ ” (People v. Zaring (1992) 8 Cal.App.4th 362, 378, quoting People v. Buford (1974) 42 Cal.App.3d 975, 985.) “[A] grant of probation is not a matter of right but an act of clemency, and a decision to revoke probation when the defendant fails to comply with its terms rests within the broad discretion of the trial court.” (People v. Covington (2000) 82 Cal.App.4th 1263, 1267.) “ ‘[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation. . . .’ ” (Rodriguez, supra, 51 Cal.3d at p. 443.)
“ ‘ “Judicial discretion is that power of decision exercised to the necessary end of awarding justice based upon reason and law but for which decision there is no special governing statute or rule. Discretion implies that in the absence of positive law or fixed rule the judge is to decide a question by his [or her] view of expediency or the demand of equity and justice. [Citation.] The term implies absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason.” [Citations.] A decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” [Citations.] In the absence of a clear showing that its decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate objectives and, accordingly, its discretionary determinations ought not be set aside on review. [Citations.] “Further, to be entitled to relief on appeal from an alleged abuse of discretion, it must clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.]” ’ [Citation.]” (People v. Zaring, supra, 8 Cal.App.4th at p. 378.)
In this case, one of the conditions of probation defendant agreed to was that he would not enter places where female children congregate. His probation officer specifically told defendant that this meant that a birthday party for a female child could not be held at his home, even if he did not plan to be present for the party. The probation officer directed this because the parents of female children attending a birthday party at defendant’s home would think that defendant’s home was a safe place for the children to be or to congregate then and in the future. The probation officer could not trust defendant’s wife to enforce the probation department’s directives because of her past behavior in not protecting the foster child. Defendant acknowledged his probation officer’s directive, responding, “okay.” Defendant’s probation officer also told a member of defendant’s family that a female child’s birthday party could not be held in defendant’s home. Nevertheless, a few days later, when his probation officer told defendant that it looked to her as though a female child’s birthday party had been held in his home, defendant responded simply, “I know.” There is no evidence that defendant denied knowing that a birthday party was planned for his home, denied that a birthday party had been held at his home, or denied that female children other than the birthday child actually attended the party. On this record, we find that substantial evidence supports the court’s finding that defendant violated an express or implied term of his probation. Accordingly, the court did not abuse its discretion in revoking defendant’s probation.
Defendant further contends that he was denied due process as the probation condition he was found to violate was vague and overbroad as applied. “If applied properly,” the probation condition that defendant not enter places where female children congregate “would not be a vague or overbroad condition, as it provides express examples of public places, ‘schools, playgrounds, video arcades.’ But, as applied in this case to [defendant’s] own home, whether or not he knew that female children had frequented his home while he was away . . ., the condition is vague and overbroad.”
A probation condition is subject to the “ ‘void for vagueness’ ” doctrine. (People v. Lopez (1998) 66 Cal.App.4th 615, 630 (Lopez); People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325.) The “underlying concern” of the void for vagueness doctrine “is the core due process requirement of adequate notice,” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115), or “ ‘fair warning.’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) “The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders’ [citation], protections that are ‘embodied in the due process clauses of the federal and California Constitutions. [Citations.]’ ” (Ibid.) “In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that ‘abstract legal commands must be applied in a specific context,’ and that, although not admitting of ‘mathematical certainty,’ the language used must have ‘ “reasonable specificity.” ’ [Citation.]” (Ibid.)
“A probation condition ‘must be sufficiently precise for the probationer to know what is required of him [or her], and for the court to determine whether the condition has been violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.] 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.) “ ‘[A] law that is “void for vagueness” not only fails to provide adequate notice to those who must observe its strictures, but also “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” [Citation.]’ [Citation.]” (Lopez, supra, 66 Cal.App.4th at p. 630, quoting People ex rel Gallo v. Acuna, supra, 14 Cal.4th at pp. 1115-1116.)
The probation condition at issue here, that defendant not enter places where female children congregate, is directly related to the offense defendant committed and is related to future criminality, and is not vague or overbroad on its face. (See People v. Delvalle (1994) 26 Cal.App.4th 869, 878-879.) In addition, the condition is not vague as applied here, because it provides adequate notice or fair warning to defendant and his family that female children are not allowed to congregate in defendant’s home. A female child’s birthday party is an activity where female children congregate, so it is exactly the type of activity that would not be allowed at defendant’s home. The probation condition is also not overbroad as applied here, as it is closely tailored to the purpose of the condition. Defendant’s offense of sexual battery on his nine-year-old female foster child occurred in his home and other residents of the home were involved in the offense, so it is appropriate to not allow female children to congregate there. Because the probation condition is “ ‘sufficiently precise for [defendant] to know what is required of him,’ ” and is “closely tailor[ed] . . . to the purpose of the condition” (Sheena K., supra, 40 Cal.4th at p. 890), no due process violation has been shown.
DISPOSITION
The order revoking and reinstating probation as modified is affirmed.
WE CONCUR: RUSHING, P.J., ELIA, J.