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People v. Miller

Court of Appeal of California
Sep 19, 2008
No. E044405 (Cal. Ct. App. Sep. 19, 2008)

Opinion

E044405

9-19-2008

THE PEOPLE, Plaintiff and Respondent, v. WAYNE PAUL MILLER, Defendant and Appellant.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published


INTRODUCTION

Defendant Wayne Paul Miller (defendant) challenges his probation conditions as both invalid under California law and unconstitutionally vague. We disagree and will affirm.

FACTS AND PROCEDURAL HISTORY

The facts are taken from the probation report filed in October 2007.

In May 1998, defendant was sentenced to the midterm of two years in state prison after being convicted of engaging in a lewd and lascivious act with a child of 14 or 15 years and at least 10 years younger than himself. (Pen. Code, § 288, subd. (c)(1).) On September 19, 2007, he was arrested for failure to register as a sex offender. (§ 290.) Defendant had not registered since September 2005.

In defendants case, since his birth date is August 1, 1957, the victim would have been about 25 years younger than he.

All further statutory references are to the Penal Code unless otherwise indicated.

All references to section 290 will be to the provisions and subdivisions of the statute as it stood in 2007.

On September 27, 2007, defendant pled guilty to the felony of having failed to register as a sex offender within five working days of changing his place of residence. (§ 290, subd. (g)(2).) In a probation interview conducted on October 2, defendant said that he had not registered because he wanted a stable residence. He had been evicted from a previous residence after the landlord discovered he was a registered sex offender and he had stopped registering after he moved to his current address. He also admitted that he currently smokes marijuana on a daily basis and that after his parole ended in 1999, he began using methamphetamine—although he said he had not used the latter for the past two years.

At the sentencing hearing on October 25, 2007, the court placed defendant on three years formal probation and imposed 12 conditions to which defense counsel objected. The objected-to conditions included: (term 17) report all motor vehicles registered to you to the probation officer within seven days of acquisition; (term 21) not possess obscene material as defined in section 311; (term 22) not accept a ride from or be parked in a vehicle with male or female persons unknown to him; (term 24) not own, use, or possess sexually explicit materials or frequent places where such items are used or sold and not use sexually oriented telephone services; (term 25) not frequent massage parlors or nude shows; (term 26) not associate with minors or frequent places where minors congregate unless accompanied by a responsible adult approved by the probation officer or the court; (term 27) not engage in volunteer work without permission by the probation officer or the court; (term 28) not work in any modeling agency, escort service, massage parlors, sauna, or any acupuncture or "outcall" business; (term 30) not possess or place ads in any personal contact publications unless approved by the probation officer; (term 31) not possess costumes or identity-concealing items unless approved by the probation officer; (term 32) not have access to a post office box unless approved by the probation officer; and (term 33) not use or possess childrens clothing or illustrated material depicting unclothed children.

DISCUSSION

Defendant argues on appeal that the trial court abused its discretion in imposing all of the disputed probation conditions because they are unrelated to what he characterizes as his current "administrative offense" of failing to register as a sex offender. Defendant particularly objects to terms 17, 27, and 32. We are not persuaded.

Probation Conditions and the Standard of Review:

"In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Our review of a trial courts decision to impose specific probation conditions is deferential; a condition will not be invalidated unless it satisfies each of the following criteria: (1) it has no relationship to the crime of which the offender was convicted; (2) it relates to conduct, which is not itself criminal; and (3) it requires or forbids conduct, which is not reasonably related to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).) A trial court abuses its discretion only when the probation conditions imposed are arbitrary, capricious, or exceed the bounds of reason. (People v. Welch (1993) 5 Cal.4th 228, 233-234.)

Probation conditions may place limits on constitutional rights if reasonably necessary to meet the goals of probation. (People v. Bauer (1989) 211 Cal.App.3d 937, 940-941.) "In evaluating the validity of a condition of probation the issue is not the impact of the condition on the defendants constitutional rights but its ability to meet the standard set forth in [Lent ]." (Gilliam v. Municipal Court (1979) 97 Cal.App.3d 704, 708.)

Finally, "`[p]robation is not a right, but a privilege." (In re York (1995) 9 Cal.4th 1133, 1150, quoting People v. Bravo (1987) 43 Cal.3d 600, 608.) "`[If] the defendant feels that the terms of probation are harsher than the sentence for the substantive offense[,] he is free to refuse probation." (People v. Rubics (2006) 136 Cal.App.4th 452, 459, quoting People v. Miller (1967) 256 Cal.App.2d 348, 356.)

Section 290:

Section 290 requires persons who have been convicted of certain crimes to register with local law enforcement agencies according to specified time frames and conditions. Among other things, an offender who changes his address must reregister within five working days of moving to the new address. (§ 290, subd. (f)(1).) As our Supreme Court has said repeatedly, "`The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.]" (Wright v. Superior Court (1997) 15 Cal.4th 521, 527 (Wright), quoting Barrows v. Municipal Court (1970) 1 Cal.3d 821, 825-826.) The requirement protects public safety, "[b]y providing for the collection of information about the identity and whereabouts of convicted sex offenders, [and making] it harder for such persons to reoffend without getting caught." (In re Alva (2004) 33 Cal.4th 254, 288.)

A person required to register who willfully violates any requirement of the statute is subject to a state prison sentence of "16 months, or two or three years." (§ 290, subd. (g)(2).)

Analysis:

Defendant is able to view the disputed probation conditions as unrelated to his current crime of failing to register as a sex offender only by ignoring the purpose of the registration statute and its relationship to his original crime.

Defendant complains that most of his probation conditions, especially the sexually specific conditions, are unreasonable and invalid under Lent because his underlying crime "was nearly ten years old" and "[n]othing in the record indicates [defendant] is likely to reoffend." Defendants argument misses the point. The California Legislature has already determined that the risk of reoffense by persons in his category is high. As the court said in Wright, the People of the State of California through their Legislature have deemed convicted sex offenders a category of persons who are likely to "`commit similar offenses in the future." (Wright, supra, 15 Cal.4th at p. 527.) They "pose a `continuing threat to society" and society must keep track of them through police surveillance. (Ibid.)

Terms 17, 27, and 32 are all designed to prevent the possibility of future criminality by helping the police fulfill this mission. Prompt reporting of motor vehicle acquisitions (term 17) and the requirement that defendant have permission before obtaining a post office box (term 32) will clearly help police, and the probation department, keep track of defendant and his activities and will help them locate him should he again fail to register or violate any of the other conditions of his present grant of probation. Similarly, term 27, requiring defendant to get permission from a probation officer or the court before engaging in volunteer activities, is designed to protect particularly vulnerable people, like school children, from exposure to the possibility that they might fall victim to a reoffense by defendant. (See, e.g., Ed. Code, § 35021, subd. (a).)

In addition, all of the sexually specific conditions in defendants probation agreement satisfy the first and third prongs of Lent, even though they forbid conduct which is not otherwise criminal. They are directly related to the original crime of which he was convicted, which in turn is inextricably related to his most recent crime because the registration requirement he violated is designed to prevent a reoffense. And these probation conditions are related to the likelihood of future criminality of the same kind. We do not here decide whether any of the forbidden activities—possessing sexually explicit materials, attending nude shows, parking alone in cars with strangers, making telephone calls to phone-sex services, or working in a massage parlor or sauna facility will in fact increase the likelihood that defendant will commit another sex offense or will fail to register under section 290 to avoid detection if he does so. We do note, however, that by his most recent offense defendant has demonstrated his unwillingness to comply with the law when it becomes inconvenient or when he imagines that it is unnecessary for him to do so. There is no reason to believe his attitude will be different regarding other crimes (like the use of illicit drugs, for example) or even his original crime. The disputed conditions forbid conduct, which is reasonably related to the possibility of future criminal conduct and as such, do not constitute an abuse of discretion. They are not arbitrary or capricious; nor do they exceed the bounds of reason. (People v. Welch, supra, 5 Cal.4th at pp. 233-234.)

Constitutionality of the Sexually Specific Probation Conditions:

Defendant also argues that these probation conditions are overly broad and vague and unnecessarily impinge on his First Amendment rights. He urges us to adopt the position expounded in United States v. Voelker (3rd. Cir. 2007) 489 F.3d 139 (Voelker). The Voelker defendant was convicted of possessing child pornography. His sentence included postincarceration lifetime supervised release under a condition, among others, that he was not to possess any textual or visual materials depicting sexually explicit conduct. (Id. at pp. 142-143.) The appellate court invalidated the condition on the basis that it was overbroad. The court could find 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 defendants crime, the possession of child pornography. (Id. at pp. 150-151.)

As the People point out, we are not bound by Voelker. In any event, we find it factually inapplicable to the circumstances of our case. The Voelker defendant had exposed the buttocks of his three-year-old daughter to an online "chat" companion via a webcam attached to his computer and had apparently offered to make the child available for sex. (Id. at p. 142.) Our defendant was convicted of actually having sex with a person between the ages of 14 and 15. The physical and physiological differences between a three-year-old victim and a 14- or 15-year-old victim are too obvious to require recitation here, as are the differences between posting an image on the internet and actually having sex with an adolescent minor. As one of our sister courts recently put it, "[p]reventing the possession of sexually oriented materials by persons such as defendant promotes public safety and his rehabilitation and therefore is not overbroad." (People v. Turner (2007) 155 Cal.App.4th 1432, 1437, citing United States v. Bee (9th Cir. 1998) 162 F.3d 1232, 1234-1235.)

Conduct Credits:

Defendants final argument is that at the sentencing hearing the court failed to award him the four days of conduct credit to which he was entitled under section 4019. He asks us to remand the matter to the trial court for award of these credit and correction of the minute order. Defendant points out that it is the trial courts duty to award custody credits through the day of sentencing. Defendant is correct. (People v. Fugate (1990) 219 Cal.App.3d 1408, 1414.) The People reply that the minute order does not need to be corrected so long as the abstract of judgment is correct. The People would be correct if there was an abstract of judgment. But not only was an abstract of judgment not included in the appellate record, from our investigation it appears that there is none because defendant was sentenced to county jail not state prison. On this point only, therefore, we will remand the matter to the trial court.

DISPOSITION

The superior court is directed to determine defendants conduct credits through the day of sentencing and to amend the minute order to reflect the correct number. In all other respects, the judgment is affirmed.

We concur:

HOLLENHORST, J.

GAUT, J.


Summaries of

People v. Miller

Court of Appeal of California
Sep 19, 2008
No. E044405 (Cal. Ct. App. Sep. 19, 2008)
Case details for

People v. Miller

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. WAYNE PAUL MILLER, Defendant and…

Court:Court of Appeal of California

Date published: Sep 19, 2008

Citations

No. E044405 (Cal. Ct. App. Sep. 19, 2008)