Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F06902168-4, W. Kent Levis, Judge.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HARRIS, Acting P.J.
INTRODUCTION
Appellant Daniel Hester was charged with multiple felonies arising from an incident where he exposed himself and tried to pull a teenage girl into his car. He was convicted of the misdemeanor offenses of false imprisonment, indecent exposure, and child molesting, and placed on probation. On appeal, he contends the court had a sua sponte duty to instruct on misdemeanor battery as a lesser-included crime of the charged offense of felony attempted kidnapping, and that a no-contact order issued as a condition of probation is vague and overbroad. We will affirm.
STATEMENT OF THE CASE
On May 22, 2006, an information was filed in the Superior Court of Fresno County charging appellant with count I, assault with intent to commit rape (Pen. Code, § 220); count II, attempted kidnapping with intent to commit rape (§§ 664/209, subd. (b)(1)); count III, attempted kidnapping (§§ 664/207, subd. (a)); count IV, false imprisonment by violence (§ 236); count V, misdemeanor indecent exposure (§ 314.1); and count VI, misdemeanor child molesting (§ 647.6, subd. (a)). Appellant pleaded not guilty.
All further statutory citations are to the Penal Code unless otherwise indicated.
On January 18, 2007, the court granted the People’s motion to amend the information by interlineation. Thereafter, appellant’s jury trial began. On January 22, 2007, the court granted the People’s motion to dismiss counts II and IV. On January 26, 2007, the court granted the People’s motion to dismiss count I. The matter went to the jury on count III, felony attempted kidnapping, count V, misdemeanor indecent exposure, and count VI, misdemeanor child molesting.
On January 29, 2007, the jury found appellant not guilty of count III, but guilty of the lesser-included offense of misdemeanor false imprisonment (§ 236), and guilty as charged of misdemeanor counts V and VI. On March 26, 2007, the court placed appellant on probation for three years subject to specific terms and conditions.
On March 27, 2007, appellant filed a timely notice of appeal.
FACTS
Around 1:00 p.m. on February 6, 2006, 17-year-old J. was walking to a relative’s apartment in Coalinga. It was very quiet in the residential neighborhood and she did not notice anyone else on the streets as she walked along. As J. crossed the street, she noticed a silver Dodge Neon drive by. She recognized the make and model of the vehicle because one of her friend’s parents had the same kind of car. She also noticed the vehicle was going slow and the driver was staring at her, and she thought the vehicle belonged to her former driving instructor. She was able to see the driver’s face and realized he was not her driving instructor. The silver Dodge continued on and she kept walking. About a minute later, she was on the corner and she saw the same car as it traveled across the street. It continued past her, and she kept walking and did not pay attention to the car’s location.
J. testified she was walking on the sidewalk when the silver Dodge appeared for the third time. She turned around and realized it was the same car and driver. J. kept walking but the car pulled up to her location and stopped toward the side of the street. J. testified the driver asked her for directions to the hospital. J. stepped off the curb and stood in the street, on the passenger side of the car, gave directions to the driver, and gestured with her hand. The driver said he did not understand and asked if she could get in his car and show him. J. remained outside the car and again gave him directions, and noticed he was looking at a map spread across his lap. The driver again said he did not understand and said, “you think I can take you any where [sic]? Do you need a ride anywhere?” J. said no.
J. testified the driver asked if she could help him find the hospital on the map. J. walked up to the open passenger-side window, bent down to look at the map, and “got a really good look” at the driver. J. felt really strange about the situation and thought it was unusual for someone to drive around the residential side of Coalinga to look for the hospital.
J. testified she had an odd feeling about the situation and did not want to make eye contact with the driver, but looked around the inside of the car. She noticed a “really old” model black Motorola cell phone on the passenger seat. There was a receipt and a plastic cup from a fast food restaurant near the front seat’s cup holder, and other trash scattered on the floor. She also saw a “[n]oticeable amount” of grass on the front passenger-side floorboard.
J. looked at the map on the driver’s lap, realized it was for Porterville, and told the driver that he was not going to find anything in Coalinga on that map. The driver did not say anything and J. turned to walk away. J. testified the driver reached through the open front passenger window with his right hand, grabbed her left arm at her wrist, and tried to pull her into the car. The driver was wearing a white T-shirt. He tossed the map behind him, revealing he was naked from the waist down, and used his left hand to grab his exposed penis. J. testified: “He pulled my arm kind of down and when he did that, he took the map off of his lap and grabbed himself and he was naked.” J. testified the driver did not actually pull her into the car, but her left arm and shoulder were pulled into the open window. J. testified she was shocked and frightened. She jerked back her arm and ran away.
J. testified she ran down the sidewalk and heard the car speed up behind her. J. thought the car was “kind of close” to her, “like he was following me.” She ran into an apartment complex and looked back, and saw the car “speeding down the block” and turn on another street. J. kept running and noticed a man standing at the window of one of the apartments. She was hysterical and asked the resident, Jack Collins, for help. Collins calmed her down and gave her the telephone. J. called her sister, who called the police.
Jack Collins testified he was sitting near the window of his apartment when J. ran up to the door, “hollering that somebody was trying to abduct her.” J. was crying and in great distress, and asked for help. J. told Collins that someone asked for directions, he had a map on his lap, and he was sitting in his car. J. said the man exposed himself to her, grabbed her, and tried to pull her into the car. J. said the suspect was a White male, medium height, brown hair, and possibly had facial hair and a mustache.
Around 1:11 p.m., Coalinga Police Officer Alex Barton-Sabo responded to Collins’s apartment and contacted J., who was visibly upset and crying. J. stated that a White man, about 25 years old and slightly overweight, repeatedly drove past her in a silver Dodge Neon. J. said the car pulled up and stopped, and the driver asked for directions to the hospital and offered her a ride. J said she spoke to the driver through the open passenger-side window. J. said a map was spread across the driver’s lap. J. said the driver used his right hand to pull her into the car, used his left hand to throw the map off his lap, and he was naked from the waist-down. J. said the driver pulled her by the arm “up until her shoulder was inside the car.” J. thought he was trying to pull her hand to touch his penis. J. broke free and ran away. J. said there were cloth seats in the car, a cell phone on the seat, and grass on the passenger-side floorboards. The hospital was about three or four minutes away from the location where the driver accosted J.
Around 1:30 p.m., Officer Henry Van Gemert of the California Highway Patrol was monitoring traffic on Highway 198 when he heard the dispatch about an attempted kidnapping suspect driving a silver Dodge Neon. At 1:43 p.m., he saw a silver Dodge Neon traveling eastbound on Highway 198, about 15 miles outside of Coalinga.
Officer Van Gemert conducted a traffic stop and appellant was the driver and only occupant. The officer asked for his license and registration and appellant complied. The Dodge was a rental car. Appellant was wearing a red long-sleeve shirt, a gray undershirt, blue jeans, black shoes, and had a goatee. Officer Van Gemert asked appellant where he was going. Appellant said he had been in Coalinga for a job interview at the hospital, he left Coalinga about an hour earlier, and he was driving to Porterville. Officer Van Gemert asked appellant if he had a cell phone or map in his car, and appellant said no and did not produce any maps.
Officer Van Gemert testified it would have taken appellant about 20 to 30 minutes to drive from Coalinga to the traffic stop location, and appellant only could have been traveling for one hour if he had stopped somewhere, such as a fast food restaurant or the Harris Ranch area. Officer Barton-Sabo testified that based on J.’s report of the assault around 1:11 p.m., and Officer Van Gemert’s observations of the silver Dodge around 1:43 p.m., such a time period would have been consistent with appellant driving directly from Coalinga to the location of the traffic stop in about 28 to 30 minutes.
Officer Barton-Sabo transported J. to the traffic stop location for an in-field showup. J. was advised that she would be looking at someone who may or may not be the person that committed the crime, and she just needed to look at the person and tell them whether the person was the subject. J. was calm during the drive. J. stayed inside the patrol car and looked at appellant, who was surrounded by other officers. Officer Barton-Sabo testified that J. immediately identified appellant. She became flustered and emotional, started to cry again, and said “that was definitely him,” she was “100 percent” sure, and “she wouldn’t forget his face.”
J. testified that the police asked her to look at a suspect because they were “pretty sure” that they had someone who matched the description. J. testified that when she arrived at the location, she immediately recognized the silver Dodge Neon. A man was standing with some officers, and J. immediately recognized him as the driver of the Dodge. J. testified: “I knew it was him the second I saw him. The same feeling came back to me. I knew exactly that it was him.” J. testified her identification had nothing to do with anything the police said to her about the suspect. J. testified the suspect was wearing a burgundy or red button-up shirt over a white T-shirt when she identified him.
Officer Barton-Sabo testified he examined appellant’s vehicle and it had a cloth interior, grass on the front passenger floorboard, and a fast food cup in the cup holder, consistent with J.’s description. Under the driver’s seat, he found a black Motorola cell phone and a map of the Tulare/Visalia/Porterville area that was crumpled into a large ball. Appellant’s fingerprints were on the Visalia/Porterville side of the map. Officer Barton-Sabo escorted J. to the silver Dodge so she could identify the vehicle. J. looked inside the car and said she was sure it was the same vehicle, and noticed the grass was still on the front floorboard. She also identified the crumpled map and Motorola cell phone as the same items she previously saw in the car.
At trial, J. identified appellant as the driver of the silver Dodge. She had never seen appellant before the incident.
Defense Evidence
Appellant was 33 years old and lived in Porterville with his wife and two young children. He was a respiratory therapist, but at the time of trial he was disabled and not working. Appellant had a prior misdemeanor conviction for driving on a suspended license when he lost his license for medical reasons. Appellant testified he had never seen J., he never drove past her or asked for directions, and denied committing the charged offenses in this case.
Appellant testified that on February 2, 2006, he had been hired by Coalinga Regional Medical Center as a respiratory therapist. His car broke down during that trip and he rented the silver Dodge. The family had used the rental car to drive to the country on the weekend before he was arrested. Appellant testified the grass and trash in the car were from that trip. Appellant used a map during that trip.
Appellant testified that on February 6, 2006, he drove to the hospital in the silver Dodge. He was wearing a red long-sleeve shirt and a grey undershirt. He arrived around 10:00 a.m. to complete his employee physical and meet with various hospital officials. Around noon, appellant ate lunch at the hospital cafeteria with Tom Lowry, the director of respiratory therapy. They had lunch for about 20 minutes, and then appellant had another meeting with Lowry about his new job, and they took his photograph for his hospital identification card. Appellant testified he completed his meetings around 1:15 or 1:20 p.m., and he left the hospital at that time.
Appellant introduced his hospital identification card as evidence, and he was wearing a red shirt in the photograph. He also introduced an enlargement from the hospital’s security camera, which showed him walking through the entrance. He was wearing a red shirt and blue jeans. Appellant testified he only wore that red shirt when he was at the hospital on February 6, 2006.
Appellant testified he drove out of Coalinga on Highway 198 and headed toward Harris Ranch. He stopped at a convenience store and bought some food, and stayed there for about 20 minutes. He was driving toward Porterville when the officer conducted the traffic stop.
Appellant said the officer advised him that a crime had just occurred in Coalinga and his car matched the description. Appellant consented to a search. The officer asked if he owned a black cell phone and appellant said no. He did not realize his wife’s old black cell phone was in the car. The officer also asked about maps. Appellant testified he opened the glove box and handed over some maps to the officer. Appellant testified he did not know there was another map in the car of the Visalia/Hanford area, and realized the children had put it under the back seat during their recent drive in the country. Appellant knew the police later brought a witness to look at him, but he did not see her at that time.
Kimberly Tanner, appellant’s wife, testified they rented the Dodge about a week before appellant was arrested because their own car was being repaired. Their family had traveled to Springville in that car, and their two young children were in the backseat. Appellant used a map during that trip and gave it to the children in the backseat. Ms. Tanner testified she heard the children crinkling up the map. Ms. Tanner testified the old Motorola cell phone belonged to her, and she put it in the car for emergencies.
Appellant was initially charged with multiple felonies but the case ultimately went to the jury on count III, felony attempted kidnapping, count V, misdemeanor indecent exposure, and count VI, misdemeanor child molesting. The jury found appellant not guilty of count III as charged, but guilty of the lesser included offense of misdemeanor false imprisonment, and guilty of misdemeanor counts V and VI. He was placed on probation for three years.
On appeal, appellant contends the court had a sua sponte duty to instruct on misdemeanor battery as a lesser included offense of count III, felony attempted kidnapping. He also contends the court improperly issued a no-contact order with minors as a condition of probation, and the order was vague and overbroad.
DISCUSSION
I.
BATTERY WAS NOT A LESSER INCLUDED OFFENSE
In count III, appellant was charged with felony attempted kidnapping (§§ 664/207, subd. (a)), the jury was instructed on felony and misdemeanor false imprisonment as lesser included offenses, and he was convicted of misdemeanor false imprisonment. Appellant contends the court had a sua sponte duty to instruct on misdemeanor battery as a lesser included offense of count III.
“‘“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. [Citation.]’ [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 154-155.)
A lesser offense is necessarily included in the charged offense only if it meets either the “elements test” or the “accusatory pleading test.” (People v. Lopez (1998) 19 Cal.4th 282, 288.)
“… The elements test is satisfied when ‘“all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.” [Citation.]’ [Citations.] Stated differently, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.] [¶] Under the accusatory pleading test, a lesser offense is included within the greater charged offense ‘“if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.” [Citation.]’ [Citations.]” (People v. Lopez, supra, 19 Cal.4th at pp. 288-289.)
Appellant contends the trial court should have instructed on misdemeanor battery, in violation of section 242, as a lesser included offense of felony attempted kidnapping. We must review the elements of these offenses and the pleadings herein to resolve this issue.
Section 207, subdivision (a) defines the felony of “simple” kidnapping. (See, e.g., People v. Martinez (1999) 20 Cal.4th 225, 232.) It states:
“Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.” (§ 207, subd. (a), italics added.)
The elements of simple kidnapping are: “(1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person’s consent; and (3) the movement of the person was for a substantial distance. [Citation.]” (People v. Jones (2003) 108 Cal.App.4th 455, 462, fn. omitted, italics added.) “‘[T]he gravamen of the offense of kidnapping is some form of compulsion, and ... the requisite force or compulsion need not consist of the use of actual physical force or express threats. The essence of the crime is that the victim feels compelled to obey because he fears harm or injury from the accused, and his apprehension is not unreasonable under the circumstances. [Citations].’” (People v. Martinez (1984) 150 Cal.App.3d 579, 599-600, italics added, disapproved on other grounds in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10.) “[F]or simple kidnapping asportation the movement must be ‘substantial in character’ [citation], but ... the trier of fact may consider more than actual distance.” (People v. Martinez, supra, 20 Cal.4th at p. 235.) The victim’s movements must be more than slight or trivial. (Id. at p. 237.) The jury may consider the “totality of the circumstances” and consider the scope and nature of the movement, including the increased risk of harm to the victim, the decreased likelihood of detection, the increased danger in the victim’s foreseeable attempts to escape and the perpetrator’s opportunity to commit additional crimes. (Id. at pp. 236-237.)
“‘An attempt to commit a crime consists of a specific intent to commit the crime, and a direct but ineffectual act done towards its commission. [Citations.] Commission of an element of the underlying crime other than formation of intent to do it is not necessary. [Citation.] Although mere preparation such as planning or mere intention to commit a crime is insufficient to constitute an attempt, acts which indicate a certain, unambiguous intent to commit that specific crime, and, in themselves, are an immediate step in the present execution of the criminal design will be sufficient. [Citations.]’ [Citation.]” (People v. Jones (1999) 75 Cal.App.4th 616, 627, fn. omitted.) “The act must not be mere preparation but must be a direct movement after the preparation that would have accomplished the crime if not frustrated by extraneous circumstances. [Citation.]” (People v. Carpenter (1997) 15 Cal.4th 312, 387.) Thus, for the offense of attempted simple kidnapping, the prosecution need not prove asportation, but only that the defendant attempted to move the victim. (People v. Cole (1985) 165 Cal.App.3d 41, 50.)
Section 242 defines battery as “any willful and unlawful use of force or violence upon the person of another.” A battery is a “consummated assault.” (People v. Duchon (1958) 165 Cal.App.2d 690, 693.) “[A] battery cannot be accomplished without a touching of the victim.” (People v. Marshall (1997) 15 Cal.4th 1, 38; People v. Jackson (2000) 77 Cal.App.4th 574, 578.)
Battery in violation of section 242 is punishable as a misdemeanor. (§ 243, subd. (a).) A battery is punishable as a felony or a misdemeanor when serious bodily injury is inflicted. (§ 243, subd. (d).)
A battery is a general intent crime, such that the defendant must actually intend to commit a “‘willful and unlawful use of force or violence upon the person of another.’” (People v. Lara (1996) 44 Cal.App.4th 102, 107.) “However, ‘[t]he word “violence” has no real significance.... “It has long been established ... that ‘the least touching’ may constitute battery. In other words, force against the person is enough; it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.’” [Citations.]” (People v. Longoria (1995) 34 Cal.App.4th 12, 16, italics in original; see also People v. Cox (2000) 23 Cal.4th 665, 674 [“the slightest touching may constitute a battery”].) Nevertheless, the touching must be “harmful” or at least “offensive.” (People v. Martinez (1970) 3 Cal.App.3d 886, 889.) To put it another way, battery can be committed by “any invasion of the legally protected interest in bodily security. [Citation.]” (People v. Smith (1997) 57 Cal.App.4th 1470, 1487, fn. 11.) Thus, any harmful or offensive touching constitutes an unlawful use of force or violence. (People v. Martinez, supra, 3 Cal.App.3d at p. 889.)
In the instant case, appellant did not request instructions on misdemeanor battery, and instead asserts the court had a sua sponte duty to instruct on the offense. However, misdemeanor battery is not a lesser included offense of felony attempted simple kidnapping under either the elements test or accusatory pleading test. Under the elements test, a misdemeanor battery cannot be committed unless the defendant touches the victim. An attempt to commit a crime occurs when there is an effort to commit the crime that fails, or is prevented or intercepted in its perpetration. (§664.) Simple kidnapping occurs when a person is unlawfully moved by the use of physical force or fear, the movement occurs without the person’s consent, and the movement is for a substantial distance. (People v. Jones, supra, 108 Cal.App.4th at p. 462.) Thus, an attempted simple kidnapping is an unsuccessful effort directed towards accomplishing the unlawful movement of another by the use of physical force or fear. Such an attempt could occur without a touching. (See, e.g., People v. Marshall, supra, 15 Cal.4th at p. 39.) Moreover, a defendant can commit an attempted simple kidnapping by the attempt to unlawfully move the person by force or fear, such that touching the victim is not required. Therefore, attempted simple kidnapping does not include any of the elements of misdemeanor battery, and a violation of section 242 cannot be a lesser included offense of attempted simple kidnapping under the elements test.
As for the accusatory pleading test, the information herein did not allege the attempted simple kidnapping charge in such a way that if committed as specified, a violation of section 242 would have also necessarily been committed. The information alleged in count III:
“On or about February 6, 2006, ... the crime of ATTEMPTED KIDNAPPING, in violation of PENAL CODE SECTION 664/207(a), a felony, was committed by [appellant], who did unlawfully, attempt to forcibly or by instilling fear, steal, take, hold, detain or arrest [J.] in Fresno County, California, and did take the said [J.] into another country, state, county and another part of Fresno County.”
There was no allegation that appellant physically touched the victim in the attempt to kidnap her, even though that is what happened in fact. Instead, the information used the statutory language that appellant did unlawfully “attempt to forcibly or by instilling fear” (italics added), commit the offense, such that battery is not a lesser included offense of attempted simple kidnapping under the accusatory pleading test.
Appellant asserts that misdemeanor battery is a lesser included offense under the accusatory pleading test based on the following interpretation of the allegations in the information:
“… The information alleges that appellant ‘did unlawfully, attempt to forcibly or by instilling fear, steal, take, hold, detain or arrest [J.] ... and did take [her] into ... another part of Fresno County.’ The language alleging appellant ‘attempted to forcibly ... take ... and did take’ [J.] necessarily includes an unlawful touching described by simple battery.” (Italics in original.)
Appellant’s use of italics ignores the information’s use of the statutory definition of attempted simple kidnapping—that appellant attempted to take J. “forcibly or by instilling fear”—not that he actually took or detained her.
Appellant also contends that battery is a lesser included offense based upon dicta in People v. Castro (2006) 138 Cal.App.4th 137 (Castro). In Castro, a 16-year-old girl was walking to a bus stop to go to school. The defendant drove by the girl and offered to pay her if she let him “‘lick [her] thing.’” (Id. at p. 139.) The girl told the defendant, “‘How could you say that? You’re a dirty man,’” and continued walking. (Ibid.) The defendant then grabbed the girl’s forearm and pulled her toward him a couple of steps. (Id. at pp. 141-142.) She pulled away and started running. (Id. at p. 142.) The defendant was charged with attempted kidnapping, and the jury also received instructions on other offenses. (Id. at p. 139.) As phrased by Castro:
“Prior to submission of the case to the jury, the trial court agreed to provide requested instructions on what it termed the ‘lesser included’ offenses of felony false imprisonment, assault and battery.” (Castro, supra, 138 Cal.App.4th at p. 139, italics added.)
The defendant was convicted of the lesser offense of felony false imprisonment. (Castro, supra, at p. 139.) On appeal, he argued that the evidence was insufficient to support felony false imprisonment, and the court should have instructed the jury on the lesser offense of misdemeanor false imprisonment.
Castro addressed the substantial evidence argument by explaining that if the defendant merely grabbed the victim and turned her around, such conduct would not have constituted felony false imprisonment and would have amounted only to misdemeanor false imprisonment. (Castro, supra, 138 Cal.App.4th at p. 143.) However, the defendant “pulled her toward his car, an act more than what was required to stop her and keep her where she was located.” (Ibid.) Castro held the use of such force was above that required for misdemeanor false imprisonment and, therefore, sufficient to support the conviction for felony false imprisonment. (Ibid.)
As for the instructional argument, Castro noted that it requested additional briefing from the parties on appeal:
“During oral argument we inquired of counsel whether the allegations of the information were sufficient to bring misdemeanor false imprisonment within the scope of lesser included offenses to the offense charged, attempted kidnapping. [The defendant’s] counsel pointed out that the information alleges that [the defendant] ‘did unlawfully, attempt to forcibly and by instilling fear, steal, take, hold, detain and arrest DIANA [N.] ... and did take the said DIANA [N.] into ... another part of Los Angeles County.’ (Italics added.) He argued this was sufficient to trigger the court’s sua sponte duty to instruct on misdemeanor false imprisonment as well as the other lesser offenses for which instructions were given. We requested that the parties file supplemental briefs on this issue. They have done so.” (Castro, supra, 138 Cal.App.4th at p. 144.)
Castro noted the People conceded that under the language in the accusatory pleading, the defendant, if found guilty, necessarily also committed misdemeanor false imprisonment. (Castro, supra, 138 Cal.App.4th at p. 144.) Castro accepted the concession and held the trial court committed prejudicial error in failing to instruct as to misdemeanor false imprisonment. “We have previously concluded there is sufficient evidence to support the conviction for felony false imprisonment. But the facts contained within the sterile record are not so strong as to permit us to conclude the error was not prejudicial. The facts are sufficiently ambiguous that a conviction for misdemeanor false imprisonment might also have been justified, depending on the actual force appellant used in drawing the victim toward himself. Thus we cannot say that the instructional error in this case is harmless.” (Ibid.)
Appellant asserts that Castro supports his claim that the trial court herein had a sua sponte duty to instruct on battery as a lesser included offense of attempted kidnapping. Appellant notes that in Castro, the trial court therein instructed on false imprisonment, assault, and battery as lesser included offenses of attempted kidnapping. Appellant further asserts the phrase “did take” was used in both the instant case and the information in Castro, to trigger the accusatory pleadings test in this case.
Appellant’s reliance on Castro is misplaced. In describing the instructions given in the case, Castro carefully explained the trial court therein “agreed to provide requested instructions on what it termed the ‘lesser included’ offenses of felony false imprisonment, assault and battery.” (Castro, supra, 138 Cal.App.4th at p. 139, italics added.) It is clear one or both parties requested the battery instructions in Castro, which is why Castro stated that the trial court “termed” the instructions as those for “the ‘lesser included’ offenses,” indicating that Castro did not necessarily agree that battery was truly a lesser included offense of attempted kidnapping in that case. (Ibid.) Moreover, the information in Castro alleged the defendant “‘did unlawfully, attempt to forcibly and by instilling fear” kidnap the victim. (Id. at p. 144, italics added.) In contrast, the information in the instant case alleged that appellant “did unlawfully, attempt to forcibly or by instilling fear” take or move the victim. (Italics added.)
“The determination of whether an offense is lesser included is made from either the wording of the information or the statutory language, and not from the evidence adduced at trial. [Citations.] ‘It is of no consequence that the evidence at trial might also establish guilt of another and lesser crime than that charged. To constitute a lesser and necessarily included offense it must be of such a nature that as a matter of law and considered in the abstract the greater crime cannot be committed without necessarily committing the other offense. [Citations.]’” (People v. Steele (2000) 83 Cal.App.4th 212, 217-218, first italics added, second italics in original.) Based on the facts of this case, misdemeanor battery might have been a lesser related offense to count III, that is, an offense not necessarily included but which merely bears “some conceptual and evidentiary ‘relationship’ thereto.” (People v. Birks (1998) 19 Cal.4th 108, 112.) While a court is required to instruct, sua sponte, on lesser included offenses that are supported by substantial evidence, it is not required to instruct on lesser related offenses. Indeed, it may not instruct on an uncharged lesser related offense without the consent of the prosecution. (Id. at pp. 112-113, 136 & fn. 19; People v. Valentine (2006) 143 Cal.App.4th 1383, 1387.)
The trial court herein did not have a sua sponte duty to instruct on battery as a lesser included offense of count III, appellant did not request battery instructions, and there is no indication in the record that the prosecution would have consented to such instructions.
II.
THE NO-CONTACT ORDER
Appellant next contends the court improperly imposed, as a condition of probation, a no-contact order as to all minors, and the order was overbroad and unconstitutional. Respondent asserts appellant waived any challenge to the order because he failed to object below.
A. Background
As noted ante, appellant testified he was a respiratory therapist, but on disability at the time of trial. The record infers that during the pendency of trial, appellant was subject to a no-contact order, that he not treat minors as part of his profession as a respiratory therapist.
At the sentencing hearing, the prosecutor requested the court to impose a no-contact order as to the victim, “and that the order not to treat minors while he was going through jury trial, we would ask that that order continue through his period of probation, just because of the nature of the offenses and the fact that minors may be at risk.” Defense counsel did not object to the no-contact order, but requested the court craft it so “it not apply to his own children.” Defense counsel also stated appellant was going through individual counseling with a marriage and family therapist, “although he is not acknowledging culpability.”
The court placed appellant on probation for three years, on condition of serving 365 days in jail, but suspended that term with the exception of 81 days, and granted custody credits of 81 days. The court also ordered appellant to continue attending counseling sessions until the therapist determined that counseling was no longer needed.
The court imposed the no-contact order as follows:
“I will order that the defendant not have contact with any minor children other than his own children, which he certainly may have contact with. And for the record, the reason, although this offense did not involve minors with the kind of offense that was committed, minors are very v[u]lnerable. And just as a precaution, I will grant the order that he have contact—not have contact during the period of probation with minors outside the family unit.
“Now, I will state for the record, also, that if Mr. Hester goes to a place where children are present, that he is not precluded from that. And if he goes to church and there are kids at the church, you can’t say you can’t go to church, that would be silly. But if he goes to a school function for one of his children, he can do that. However, we’re talking about things such as in his profession. If he maintains his profession, he would not be treating children. He would not be, for instance, a children’s coach of some type of team, that kind of involvement.”
The court also ordered appellant to register as a sex offender pursuant to section 290. The prosecutor asked the court about its remark that the offense did not involve a minor, and reminded the court that J. was under the age of 18 years when appellant committed the offenses in this case. The court acknowledged J.’s age but explained it was referring to the fact that the victim was not under the age of 14 years.
B. Analysis
Appellant contends the no-contact order is vague, overbroad, and violates his state and federal constitutional rights. Respondent contends appellant waived any challenge to the no-contact order because he failed to object below. As a general rule, the failure to object at the time that probationary conditions are imposed waives a claim of error on appeal. (People v. Welch (1993) 5 Cal.4th 228, 237.) This rule does not extend to a facial challenge to a probation condition on constitutional grounds of vagueness and over breadth where the issue presents a pure question of law that can be corrected without reference to the particular sentencing record developed in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 886-887 (Sheena K.).) We will thus consider appellant’s constitutional challenges to the no-contact order.
Probation is a privilege and not a right. (In re York (1995) 9 Cal.4th 1133, 1150; People v. Jungers (2005) 127 Cal.App.4th 698, 703.) “Trial courts have broad discretion to set conditions of probation in order to ‘foster rehabilitation and to protect public safety pursuant to ... section 1203.1.’ [Citations.] If it serves these dual purposes, a probation condition may impinge upon a constitutional right otherwise enjoyed by the probationer, who is ‘not entitled to the same degree of constitutional protection as other citizens.’ [Citation.] [¶] However, the trial court’s discretion in setting the conditions of probation is not unbounded. A term of probation is invalid if 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.] Conversely, ‘... a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.’ [Citation.]” (People v. Lopez (1998) 66 Cal.App.4th 615, 624, fn. omitted.) “As with any exercise of discretion, 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. [Citation.]” (People v. Smith (2007) 152 Cal.App.4th 1245, 1250.)
“Probation conditions restricting a probationer’s exercise of his constitutional rights are upheld only if narrowly drawn to serve the important interests of public safety and rehabilitation, and if they are ‘specifically tailored to the individual probationer.’ [Citation.]” (People v. Smith, supra, 152 Cal.App.4th at p. 1250.) “A probation condition is constitutionally overbroad when it substantially limits a person’s rights and those limitations are not closely tailored to the purpose of the condition. [Citation.] It is not enough to show the government’s ends are compelling; the means must be carefully tailored to achieve those ends. A state may restrict a constitutional right, but only when the restriction is narrowly drawn to serve a compelling state interest.” (People v. Harrisson (2005) 134 Cal.App.4th 637, 641.) “Consequently, restrictions on a probationer’s right of association are permissible if reasonably required to accomplish the needs of the state. [Citations.] However, probation conditions that restrict constitutional rights must be carefully tailored and ‘reasonably related to the compelling state interest’ in reforming and rehabilitating the defendant. [Citations.]” (People v. Jungers, supra, 127 Cal.App.4th at pp. 703-704.)
“[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] 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.]’ [Citation.] 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.” [Citations.]’ [Citation.] A vague law ‘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.] 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.]” (Sheena K., supra, 40 Cal.4th at p. 890.)
“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,’ 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.)
In the instant case, appellant was convicted of three misdemeanor offenses for indecent exposure, false imprisonment, and child molest of a 17-year-old girl. The court had statutory authority to place appellant on probation subject to a no-contact order. (§ 1203.1, subds. (i)(2), (j).) In imposing the order, the court explained that while the victim was not under the age of 14 years, appellant committed “the kind of offense” in which “minors are very v[u]lnerable.” The court clarified the order did not extend to appellant’s own minor children, but only to minors “outside the family unit.” The court did not stop there, but narrowly tailored the no-contact order to the specific circumstances of the case: appellant could still go to a church or school function with his own children, where other children were present, without violating the order. “However, we’re talking about things such as in his profession. If he maintains his profession, he would not be treating children. He would not be, for instance, a children’s coach of some type of team, that kind of involvement.”
Appellant contends the court’s no-contact order “is fatally vague and overbroad” because he was only convicted of “exposing himself and grabbing the arm of a seventeen-year-old victim” who was “merely months away from adulthood.” However, the no-contact order in this case was directly related to appellant’s convictions for false imprisonment, indecent exposure, and child molest. While appellant was only convicted of misdemeanor offenses, he was still required to register as a sex offender pursuant to section 290. (See, e.g., People v. Noriega (2004) 124 Cal.App.4th 1334, 1337.) The no-contact order was related to conduct that was not in itself criminal, that is, associating with children. It was reasonably related to appellant’s future criminality, since the underlying offenses occurred when appellant accosted a teenage girl on a public street in a quiet residential area, in a town where he did not live and had traveled to for a new job. While appellant and the victim did not know each other, appellant clearly singled her out by driving by her three times, pulling up to her location, and luring her to the car by asking for directions. “Under these circumstances, the probation condition is reasonably related to the goals of enhancing rehabilitative and deterrence objectives and protecting the victim. [Citation.]” (People v. Jungers, supra, 127 Cal.App.4th at p. 703.)
Moreover, the no-contact order is narrowly tailored and reasonably related to the compelling state interest of deterring future such offenses, and is not vague or overbroad given the court’s clarity at the sentencing hearing. The court carefully explained that appellant could still attend events with his own children, in which other children were present, without violating the no-contact order, but that he could not otherwise interact with children in either his profession as a respiratory therapist, as a coach, or in another capacity in which he would directly interact with other children.
There is no evidence the court’s order infringed upon appellant’s ability to earn a living. At trial, appellant testified he was a respiratory therapist but he was disabled and not working.
The record herein is silent as to whether the court’s detailed explanation of the no-contact order was contained in the probationary conditions. We note that should there be any subsequent dispute as to whether appellant has violated the no-contact order, “the oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes. [Citation.]” (People v. Price (2004) 120 Cal.App.4th 224, 242.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, J., LEVY, J.