Opinion
A130550
12-08-2011
THE PEOPLE, Plaintiff and Respondent, v. RAY LEE KINLEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. SCR560573)
I.
INTRODUCTION
Appellant Ray Lee Kinley appeals from a grant of probation, with conditions, following his plea of no contest to one count of possession of child pornography (Pen. Code, § 311.11, subd. (a)). On appeal he challenges the imposition of five conditions of probation. We agree that several of the challenged provisions are either unconstitutionally vague or overbroad, and require modification. Otherwise, the judgment is affirmed.
II.
FACTUAL AND PROCEDURAL HISTORIES
A criminal information was filed by the Sonoma County District Attorney on November 24, 2009, charging appellant with one count of possession of child pornography (Pen. Code, § 311.11, subd. (a)). Initially appellant entered a plea of not guilty.
The facts underlying the filing of the information are as follows:
The brief factual narrative is taken from the testimony given at the combined preliminary hearing and hearing on the defense motion to suppress evidence (Pen. Code, § 1538.5) held on November 10, 2009. The motion to suppress was later denied, although that ruling is not contested on appeal.
A Santa Rosa police officer was dispatched to a nearby Staples store where contact was made with a store employee . The responding officer was told that in the course of performing maintenance on appellant's computer, the employee found a screen saver of child pornography images. The officer confirmed that the screen saver slide show depicted nude boys approximately 10 to 15 years old engaging in sexual activities with other children and adults.
Subsequently, the officer went to appellant's home and was invited in. While there questioning appellant about the computer, the officer observed several DVDs, the covers of which depicted shirtless teenage boys. Thereafter, the officers obtained a search warrant for appellant's residence. The search conducted pursuant to the warrant yielded the DVDs, several VHS videotapes, and indicia that the residence belonged to appellant.
Before trial, on October 22, 2010, appellant changed his plea, and pled no contest to the information. In return for the plea, the prosecution agreed to recommend a suspended sentence and a grant of formal probation with conditions, including that appellant serve 60 days in county jail.
At sentencing, the trial court accepted the plea, suspended sentence, and granted appellant probation in accordance with the no contest plea agreement. Material to this appeal, the court also imposed the following conditions of probation, which appellant now contests:
The first three challenged terms are taken from the written "Conditions of Formal (Supervised) Probation Sex Offender Caseload Conditions" commonly used in Sonoma County, which appellant signed at sentencing. The last two conditions were orally pronounced at sentencing and appear to be different from each other yet cover the same subject matter.
1. "Do not reside near, visit or be in or about parks, schools, day care centers, swimming pools, beaches, theaters, arcades or other places where children congregate without prior approval of your Probation Officer. Any incidental contact with children shall be reported to the Probation Officer within 24 hrs."
2. "Do not possess children's clothing, toys, games, stuffed animals or other such lures that attract or interest children, without written permission of the Probation Officer."
3. "Do not establish an intimate/romantic relationship or cohabit with a person, whether or not that person is responsible for the care of minor children, without having fully disclosed to that person the nature of your conviction, probation status and necessity for their written informed consent."
4. "[Appellant] shall not use a computer that is connected to any computer or computer device capable of being connected to a computer."
5. "[Appellant] shall not use a computer that is connected to any computer connected to the Internet or any other computer network except for schooling and employment."
Another orally imposed condition of probation was that he "seek and maintain regular employment." The minute order for sentencing states that appellant must "[s]eek/maintain employment or enroll in education program."
When he was sentenced, appellant did not object to any of the imposed conditions of probation.
III.
ANALYSIS
A. Standard of Review
Trial courts possess broad discretion to devise reasonable conditions of probation in order to foster the reformation and rehabilitation of the probationer and to protect public safety. (Pen. Code, § 1203.1, subd. (j); In re Luis F. (2009) 177 Cal.App.4th 176, 188; People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355.) "A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .' [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." (People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted.)
An otherwise valid probation condition may infringe on the constitutional rights of the probationer, who is "not entitled to the same degree of constitutional protection as other citizens." (People v. Peck (1996) 52 Cal.App.4th 351, 362; People v. Jungers (2005) 127 Cal.App.4th 698, 703.) However, such probation conditions must be reasonably related to the compelling public interests of rehabilitation and protection of the public. (People v. O'Neil, supra, 165 Cal.App.4th at p. 1356.)
Furthermore, where probation conditions are imposed that restrict the probationer's exercise of constitutional rights, the conditions must be narrowly tailored and sufficiently precise to avoid unconstitutional overbreadth and vagueness. The "void for vagueness" doctrine applies to conditions of probation, and is concerned with constitutionally adequate notice. (People v. Lopez (1998) 66 Cal.App.4th 615, 630; People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325.) 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. [Citation.]" (People v. Reinertson, at pp. 324-325; accord, People v. Lopez, at p. 630.)
Respondent urges that appellant has waived his objections to the challenged conditions because he failed to object below. Earlier cases have held that a defendant's failure to object to a probation condition as unreasonable at the time it is imposed ordinarily waives a challenge to the term on appeal. (People v. Welch (1993) 5 Cal.4th 228, 230; see also People v. Tillman (2000) 22 Cal.4th 300, 302-303; People v. Woods (1999) 21 Cal.4th 668, 678, fn. 5.) The waiver doctrine has been applied, not only when the defendant claims the term is unreasonable, but also when it is asserted to be unconstitutionally vague or overbroad. (People v. Gardineer (2000) 79 Cal.App.4th 148, 151.)
The rationale for this rule is that a timely objection to a term of probation allows the court the opportunity to modify or delete an allegedly unreasonable condition, or to explain why it is necessary in the particular case. (People v. Welch, supra, 5 Cal.4th at pp. 235-236.) Additionally, "[a] rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce[s] the number of costly appeals brought on that basis. [Citations.]" (Id. at p. 235.)
More recently, our Supreme Court has concluded that "a challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law," and therefore is not waived by failure to object in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 887, italics omitted.)
While it certainly is arguable that most, if not all, of appellant's claims are waived, in light of the facial challenges made to several of the challenged terms, and in the interests of justice, we reach the merits of appellant's appeal. (In re Sheena K., supra, 40 Cal.4th at p. 887; People v. Welch, supra, 5 Cal.App.4th at p. 241 (conc. opn. of Arabian, J.) [in limited circumstances where imposition of probation conditions implicates fundamental principles of policy and constitutional guarantees, "the prerequisite of an objection to appellate review would frustrate rather than subserve the interests of justice; and I do not understand the majority rule to impose such a formalistic impediment"].)
Turning to the merits of appellant's claims, respondent agrees that we have the power to modify a condition of probation to clarify it, or to remove an unconstitutional aspect. (In re Vincent G. (2008) 162 Cal.App.4th 238, 247-248; People v. Lopez, supra, 66 Cal.App.4th at p. 638 [appellate court modified gang condition to include prohibition against insignia, monikers "or other markings of gang significance]".)
B. The Challenged Conditions of Probation
1. Prohibition of Residing or Visiting "Near" Where Children Congregate
The first challenged provision of probation commands that appellant "not reside near, visit or be in or about parks, schools, day care centers, swimming pools, beaches, theaters, arcades or other places where children congregate . . . ." Appellant argues that this condition is unconstitutionally vague for two reasons. "First, this condition is problematic because 'residing near,' and being 'in or about' are obscure and vague. Second, a blanket prohibition on being in or about beaches, parks, swimming pools, and theaters is overbroad . . . ."
As we noted earlier, the law requires that 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. [Citation.]" (People v. Reinertson, supra, 178 Cal.App.3d at pp. 324-325; accord, People v. Lopez, supra, 66 Cal.App.4th at p. 630; In re Sheena K., supra, 40 Cal.4th at p. 890.) The use of terminology similar to that used in the condition challenged here has been found to be unconstitutionally vague. For example, in People v. Barajas (2011) 198 Cal.App.4th 748, the challenged condition prohibited the defendant from being "adjacent to any school campus during school hours unless you're enrolled in or with prior permission of the school administrator or probation officer." (Id. at p. 752.)
In modifying this condition, the appellate court noted that "the meanings of 'adjacent' and 'adjacent to' are clear enough as an abstract concept. They describe when two objects are relatively close to each other. The difficulty with this phrase in a probation condition is that it is a general concept that is sometimes difficult to apply. At a sufficient distance, most reasonable people would agree that items are no longer adjacent, but where to draw the line in the continuum from adjacent to distant is subject to the interpretation of every individual probation officer charged with enforcing this condition." (People v. Barajas, supra, 198 Cal.App.4th at p. 761.)
The court then ordered the condition modified to require that appellant ordinarily maintain a distance of more than 50 feet from school campuses. (Id. at p. 763.)
This same logic and reasoning apply equally here. What is "near?" Surely there is a measured distance between two objects within which most reasonable persons would conclude they are "near" each other. But, as the distance increases, the interpretation of whether appellant is near where children congregate (or simply resides "near" them) is left to the determination of "every individual probation officer charged with enforcing this condition." (People v. Barajas, supra, 198 Cal.App.4th at p. 761.)
Appellant urges that we modify this provision by replacing the current language with the following: "Appellant shall refrain from 'loitering within 100 feet of schools, parks, arcades, or places that he knows or should reasonably know children regularly congregate, without the prior permission of his probation officer.' "
Respondent correctly notes that appellant's solution does not give sufficient attention to the "residency" restriction, and urges that we adopt a 2,000 feet restriction similar to that contained in Penal Code section 3003.5, subdivision (b) for appellant's residence, and extend the loitering limitation from the 100 feet suggested by appellant to at least 200 yards.
Penal Code section 3003.5 imposes restrictions on sex offender parolees subject to the state's mandatory sex registration. Subdivision (b) of that section provides: "Notwithstanding any other provision of law, it is unlawful for any person for whom registration is required pursuant to Section 290 to reside within 2000 feet of any public or private school, or park where children regularly gather."
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We note that the 100 feet "loitering" limitation has some case authority approving its use. (U.S. v. Bee (9th Cir. 1998) 162 F.3d 1232, 1235.) We conclude that this limitation appears reasonable here as well. As to the residence restriction, respondent's solution of conforming the residency restriction to the 2,000 feet standard set out in Penal Code section 3003.5, subdivision (b), is equally reasonable. Accordingly, we modify this term of appellant's probation to read as follows:
"Appellant shall not reside within 2,000 feet of any parks, schools, day care centers, swimming pools, beaches, theaters, arcades or other places where children regularly congregate, and he shall refrain from loitering within 100 feet of schools, parks, arcades, or places that he knows or should reasonably know children regularly congregate, without prior permission of his probation officer."
2. Prohibition on Possession of Toys, Stuffed Animals, Games, etc
Appellant next challenges the probation condition that he "not possess children's clothing, toys, games, stuffed animals or other such lures that attract or interest children, without written permission of the Probation Officer."
"Generally, '[a] condition of probation will not be held invalid unless it "(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . ." [Citation.]' ([People v.] Lent, supra, 15 Cal.3d at p. 486 . . . .) This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. (Id. at p. 486, fn. 1; see also People v. Balestra (1999) 76 Cal.App.4th 57, 68-69 . . . .) 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.)
Here the condition clearly satisfies the first and third prongs of the Lent analysis. Banning the unauthorized possession of objects that are attractive to children is certainly related to the crime of possession of child pornography. Restricting appellant from having unfettered access to "lures" which can easily be used to entice children into close contact with him is also surely aimed at avoiding future criminality involving sex crimes with children.
Similarly, we find nothing unconstitutionally overbroad or vague about this provision. We note that there is no outright ban on the possession of items. It is not unreasonable to require written approval from the probation department in the unusual event that this 60-year-old single, childless male can demonstrate a need to have children's clothing, a stuffed animal, or toy. Of course, while appellant hypothesizes how a ban on such items could infringe upon his social liberties, the record is void of any showing that, as applied, the term actually will infringe on his way of life.
3. Disclosures to Romantic Partners
Appellant next attacks the condition that he "not establish an intimate/romantic relationship or cohabit with a person, whether or not that person is responsible for the care of minor children, without having fully disclosed to that person the nature of your conviction, probation status and necessity for their written informed consent." As to this term, he again argues this constitutes an unconstitutional abridgement of his rights to privacy and to association, in that the term is overbroad and is not related to his criminal conduct or imposed to avoid future criminality.
Both sides agree that this provision implicates appellant's right to privacy, protected by the due process clause of the Fourteenth Amendment. (Lawrence v. Texas (2003) 539 U.S. 558.) We agree with appellant that requiring him to make disclosures about the details of his criminal past to persons who either have no children or who have no regular contact with minors is overbroad. This term is not narrowly tailored to further the rehabilitative purposes of probation, nor to curtail future criminal conduct. (In re Luis F., supra, 177 Cal.App.4th at p. 188; People v. O'Neil, supra, 165 Cal.App.4th at p. 1355.)
The objection on appeal is met by respondent positing a number of tenuous hypotheticals under which appellant's future partner might unwittingly allow appellant to come into contact with a minor, including appellant's "mate might babysit for other people's children, or visit with minor relatives such as nieces, nephews, grandchildren, or the children of close friends . . . ." This short string of hypotheticals is pure speculation. Moreover, respondent fails to cite any court decisions where an analogous term has been upheld. Indeed, to the extent any such circumstance arises, another term of probation is applicable. That term prohibits appellant from having any contact with a minor unless a responsible adult, approved by the probation department, is present and the contact has also been approved by the department. This additional provision advances the legitimate goals of probation, while respecting appellant's right of privacy without imposing overbroad restrictions on that right.
4. & 5. Prohibiting Computer Use
For reasons not explained, in pronouncing the conditions of probation, the trial court articulated two, conflicting terms:
"[Appellant] shall not use a computer that is connected to any computer or computer device capable of being connected to a computer."
"[Appellant] shall not use a computer that is connected to any computer connected to the Internet or any other computer network except for schooling and employment."
Appellant urges that we strike the first articulated prohibition which constitutes a complete ban on the use of computers, and allow appellant to use computer equipment needed for employment or educational purposes. Respondent essentially concedes that these two conditions of probation are in conflict, and urges that we retain the complete ban and strike the conditional prohibition.
There is no doubt that, given the circumstances of the crime, limiting appellant's access to computer equipment is "reasonably related to the crime of which the defendant was convicted or to future criminality." (People v. Lent, supra, 15 Cal.3d at p. 486.) However, in light of the further condition of probation requiring appellant to seek and maintain employment or participate in educational programs, we agree with appellant that prohibiting his use of computers and the internet for purposes other than employment or education is more consistent with the object of the court's plan for probation.
Therefore, the first articulated provision concerning computer usage is stricken.
IV.
DISPOSITION
The first challenged condition of probation identified above is modified as follows:
"Appellant shall not reside within 2,000 feet of any parks, schools, day care centers, swimming pools, beaches, theaters, arcades or other places where children regularly congregate, and he shall refrain from loitering within 100 feet of schools, parks, arcades, or places that he knows or should reasonably know children regularly congregate, without prior permission of his probation officer."
The third challenged condition of probation identified above is modified as follows:
"Appellant is not to establish an intimate/romantic relationship or cohabit with a person who has regular contact with minors without having fully disclosed to that person the nature of your conviction, probation status and necessity for their written informed consent."
The fourth challenged condition of probation identified above is stricken. The second and fifth challenged conditions of probation identified above shall remain unchanged.
In all other respects the judgment is affirmed.
RUVOLO, P. J.
We concur:
REARDON, J.
RIVERA, J.