Opinion
C086395
11-08-2019
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LEE VAUGHN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17F0001588)
Defendant Michael Lee Vaughn was seen by an employee with his penis exposed in a Sportsman's Warehouse store. A jury found him guilty of felony indecent exposure with a prior conviction sustained in 1984 for a lewd or lascivious act on a minor. (Pen. Code, §§ 314, subd. (1); 288.) He admitted the prior conviction.
Further undesignated statutory references are to the Penal Code.
The trial court granted defendant probation with various conditions, including restrictions on his contact with children and on his presence in or near locations common to children. He also was ordered to pay a variety of fines and fees.
On appeal defendant contends there is insufficient evidence of indecent exposure because there is insufficient evidence he intended to direct public attention to his exposed genitals. He adds that the terms of probation relating to children are invalid because they are not related to his crime, infringe on his liberty interests, and are unreasonable because they were based on an undated Static-99R report. In a supplemental brief, defendant contends it was error to impose the various fines, fees, and assessments without determining his ability to pay.
We find merit only in the second contention. We find the extreme remoteness of the prior, followed by 32 years free of any issues with children, including the facts of the current offense, is insufficient basis to support the challenged probation conditions, given the conditions' breadth and potential to greatly affect defendant's ability to successfully comply with the probationary period that he was granted. We strike the challenged probation conditions and otherwise affirm, without prejudice to the People to seek narrower and factually supported conditions in the trial court.
FACTS
K.P., the manager of clothing and footwear at a Sportsman's Warehouse, was in the clothing department on August 6, 2016, when she saw defendant coming from the hunting department. When he was 20 feet away, K.P. approached him to greet him. She noticed something under his untucked shirt. She looked closer and it appeared his penis was erect and his shirt was resting on top of it. As defendant walked, his shirt and penis bounced. K.P. saw the shaft and head of defendant's penis. She believed she made eye contact with defendant when he was 10 feet away, but defendant did not look like he had seen her. She saw him adjust his pants when he reached the shoe department.
K.P. was shocked by what she saw and headed straight to the loss prevention office. A police officer happened to be there, following up on an earlier theft case. K.P. told him she had definitely seen defendant's penis. The officer went up to defendant and told him what he was investigating. Defendant was cooperative and said it did not happen. He began to show the officer his belt and said K.P. saw his belt, not his penis. Defendant did not appear surprised and the officer did not see an erection. Defendant was wearing loose fitting clothes.
Sportsman's Warehouse has surveillance video with 64 cameras. There was no camera coverage of the alleged exposure. There was a 34-second gap between the coverage of defendant in video 1 and video 3. Video 1 shows defendant near the clothing department. Two women walk past him and as a woman with a dog approaches, defendant crouches down and is hidden from the camera's view. As K.P. enters the frame to hang some clothes the video ends at 4:45:12. Video 3 begins at 4:45:46. It shows defendant walking towards the shoe department. K.P., still carrying clothes, comes near him and turns abruptly and heads to the loss prevention office. Moments later, K.P. comes out and points out defendant to the officer. The officer approaches defendant in the shoe department.
By stipulation, the defense offered two nude photographs of defendant from the waist down. The defense claimed there was a "mistake of perception." The defense argued, based on the photographs, that defendant's penis was not large enough to have protruded from under his shirt.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends there is insufficient evidence of indecent exposure. Specifically, he contends there is insufficient evidence he intended to direct public attention to his exposed genitals.
Section 314, subdivision (1) states in pertinent part: "[E]very person who willfully and lewdly [¶] . . . [¶.] [e]xposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby," is guilty of indecent exposure. The crime is a misdemeanor, unless the defendant has a prior conviction for the same crime or under section 288. (§ 314.)
"Generally, a conviction for indecent exposure requires proof of two elements: '(1) the defendant must willfully and lewdly expose the private parts of his person; and (2) such exposure must be committed in a public place or in a place where there are present others to be offended or annoyed thereby.' " (People v. Carbajal (2003) 114 Cal.App.4th 978, 982.) "[A] person does not expose his private parts 'lewdly' within the meaning of section 314 unless his conduct is sexually motivated. Accordingly, a conviction of that offense requires proof beyond a reasonable doubt that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront." (In re Smith (1972) 7 Cal.3d 362, 366, fn. omitted.)
The defendant "does not have to act for purposes of either sexual arousal or sexual gratification." (People v. Archer (2002) 98 Cal.App.4th 402, 406.) Rather, "it is enough if the defendant exposed himself for purposes of 'sexual affront.' " (Ibid.) Such an affront exists when a defendant "intentionally exposes 'his person, or the private parts thereof' to another for the purposes of sexually insulting or offending the other person." (Ibid.)
"To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Kipp (2001) 26 Cal.4th 1100, 1128.)
Defendant disputes only the sufficiency of the proof that his exposure was willful and lewd. But we see ample evidence that defendant acted with a lewd intent, either for his own sexual gratification or for sexual affront, or both. When viewed in the light most favorable to the prosecution, the evidence shows that defendant willfully exposed his erect penis in a store open to the public, with shoppers and store clerks present and at least one clerk walking nearby. Indeed, it is difficult to imagine what alternative intent he could have had. There was no evidence to support a conclusion that the exposure was accidental. At trial, defendant denied the exposure occurred at all.
This is not a case like In re Smith, supra, 7 Cal.3d 362, where the defendant fell asleep while sunbathing nude on an isolated beach. The court concluded Smith's nude sunbathing did not violate the statute because he had only been sleeping on the beach. "Absent additional conduct intentionally directing attention to his genitals for sexual purposes, a person, as here, who simply sunbathes in the nude on an isolated beach does not 'lewdly' expose his private parts within the meaning of section 314." (Id. at p. 366.)
A teenage boy's "mooning" traffic was found not to be indecent exposure in In re Dallas (2000) 85 Cal.App.4th 937. The juvenile court found the boy exposed his buttocks with the intent to annoy and affront people, but not with any sexual intent. (Id. at p. 938.) The appellate court concluded this finding was insufficient to sustain the petition, as the affront must be a sexual affront. (Id. at p. 939.) Here, the sexual intent of defendant's act was apparent because his penis was erect. (In re Paul C. (1990) 221 Cal.App.3d 43, 54 [erection is substantial evidence of lewd or lascivious intent].)
Substantial evidence supports the conviction for indecent exposure.
II
Probation Conditions
Defendant contends the trial court erred in imposing certain probation conditions that are unrelated to his crime, unreasonable and overbroad, and were unnecessary restrictions on otherwise lawful conduct. We agree that under these facts the conditions at issue were overbroad and inadequately supported by either the facts of the current case or defendant's personal history.
A. Background
The probation report recommended a grant of probation. The report discussed a Static-99R report that found defendant had an above average risk of reoffending. The report recommended 22 conditions of probation, including a jail term of 210 days and various fines and fees discussed post. Two of the probation conditions were required by section 1203.067, subdivision (b)(2) and (3), that defendant participate in a sex offender management program, waive his privilege against self-incrimination, and participate in polygraph exams.
The date of preparation of the Static-99R report and the reason for its preparation is not clear from the record. The report itself is not in the record.
The constitutionality of these conditions was upheld in People v. Garcia (2017) 2 Cal.5th 792. Originally, defendant challenged these conditions on appeal, to preserve the issue for federal review. After his opening brief was filed, defendant withdrew the argument.
The report also recommended the following conditions:
"13. The defendant shall not knowingly possess, view or listen to any pornographic material as defined by a sex offender treatment program or the Probation Officer;
"14. That he not contact, attempt to contact, or be in the company of any child he knows or reasonably should know is under the age of eighteen years unless accompanied by a responsible adult who is approved by the Probation Officer;
"15. That he shall not knowingly be on any school campus or within a 200 yard radius of any school campus unless enrolled or with prior administrative permission from school authorities;
"16. That he is not to be in places where he knows or reasonably should know minors congregate, or schools and other locations especially designated for use by minors unless approved by the Probation Officer;
"17. That he shall not be at any location where he knows or reasonably should know is a school campus or within a 200 yard radius of any location where he knows or should reasonably know is a school campus unless enrolled or with prior administrative permission from school authorities and the probation officer."
Both parties number the conditions 13 through 17. The probation report, however, numbers them 14 through 18. We use the parties' numbering.
Defendant objected to the conditions relating to minors as irrelevant and having no nexus to his crime. The court indicated it was relying on the Static-99R report, which it found took into account both defendant's current offense and his prior, and its finding of his above average risk of reoffending, to support the conditions. The court imposed all the recommended probation conditions, except it decreased the jail time from 210 to 120 days.
B. Analysis
Defendant challenges probation conditions 13 through 17, but he makes no argument about condition 13, possession of pornography. As the district attorney observed, this condition is likely part of the sex offender management program. We limit our consideration to conditions 14 through 17, which are the conditions related to presence of children that we have set forth ante.
Upon granting probation, the court may impose any "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer." (§ 1203.1, subd. (j).)
"The trial court's discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, we have interpreted [§ 1203.1] to require that probation conditions which regulate conduct 'not itself criminal' be 'reasonably related to the crime of which the defendant was convicted or to future criminality.' [Citation.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1121, quoting People v. Lent (1975) 15 Cal.3d 481, 486.)
The Lent court adopted the three-part test of People v. Dominguez (1967) 256 Cal.App.2d 623: "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 . . . .' " (People v. Lent, supra, 15 Cal.3d at p. 486.) "The Lent test is conjunctive--all three prongs must be satisfied before a reviewing court will invalidate a condition of probation." (People v. Contreras (2015) 237 Cal.App.4th 868, 879.)
Here, conditions 14 through 17 meet the first and second Lent prongs; defendant's current crime does not involve children and contact with children or where they congregate is not illegal. The question is whether the third prong is met, whether these conditions reasonably relate to future criminality.
Our Supreme Court recently addressed the third prong of Lent in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), in the context of an electronic device search condition imposed on a juvenile. (See also In re Alonso M. (2019) 40 Cal.App.5th 156.) The court stressed there must be a connection between the burdens imposed by the condition and the probationer's criminal conduct or personal history. (Ricardo P., at p. 1120.) "Lent's third prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality." (Id. at p. 1121.) A nexus between the condition and the underlying crime is not required and "courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense." (Id. at p. 1122.) Finally, the third prong of Lent "contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Ibid.)
The Ricardo P. court was skeptical of the connection between the electronics search condition and the juvenile's future criminality, but even if it accepted the connection articulated by the juvenile court, it found the necessary proportionality lacking. (Ricardo P., supra, 7 Cal.5th at pp. 1120, 1122.) There was no evidence the juvenile had ever used an electronic device in connection with criminal activity and the search condition imposed a significant burden on privacy interests due to scope and magnitude of information that could be revealed. (Id. at pp. 1123-1124.) In invalidating the electronics search condition, the court concluded it "imposes a very heavy burden on privacy with a very limited justification." (Id. at p. 1124.)
We find the challenged probation conditions fail the test set forth in Ricardo P. because the connection to defendant's personal history is weak and the burden imposed is disproportionate to the legitimate interests served by the conditions.
Here the connection between the conditions at issue and defendant's history is his 1984 conviction under section 288, subdivision (a). That conviction, however, was 32 years before his current offense and he had no reported misconduct, related to children or otherwise, in the interim. Defendant argues the prior is too remote to be a legitimate consideration. We agree that, "the degree of remoteness of the prior conviction is inversely proportional to its probative value." (Holley v. J & S Sweeping Co. (1983) 143 Cal.App.3d 588, 594-595 [finding no abuse of discretion in admission of 13-year-old prior in civil case].)
Here the prior is very remote, defendant did not reoffend for over 30 years, and defendant has never offended again against a child. The prosecutor found both "the age of the prior and the lack of criminal conduct in those three intervening decades," significant in arguing for 90 days jail time and agreeing to a turn-in date instead of remand. We also place great significance on these facts. They greatly weaken the connection between the probation conditions and defendant's criminal history. Nothing else in the probation report "raises concerns about future criminality" (Ricardo P., supra, 7 Cal.5th at p. 1122), related to children. We also find it noteworthy that the prosecutor did not argue in favor of the challenged probation conditions.
The trial court relied on the Static-99R assessment summarized in the probation report and its finding that defendant had an above average risk of reoffending. This assessment, however, applied to all sexual offenses, not specifically to offenses against children. The Static-99R assesses the risk of reoffending not for an individual, but for groups. It "has been shown to be a moderate predictor of sexual re-offense potential," having an accuracy rate of 77 percent. Here, the assessment's predictive accuracy is contradicted by the undisputed fact that for over 30 years defendant has not been arrested or convicted of offenses against children. Further, his limited risk of re-offending is addressed the probation conditions requiring participation in a sex offender management program.
Since the probation report does not indicate the date of the Static-99R assessment, defendant presumes it was completed at the time of defendant's prior offense (1984) and is therefore outdated. The court assumed it was current. --------
Although the connection between the challenged probation conditions and defendant's past is very weak, it does exist, so we consider the proportionality test of Ricardo P. It is unclear how burdensome the challenged probation conditions are specifically to defendant. But the conditions are burdensome in general, as they broadly prohibit contact or attempted contact of any kind with children under 18 without an approved adult escort as well as being within a 200 yard radius of any school campus or any places where children under 18 "congregate" or for whom the places are "designated" without approval by multiple entities. The 200 yard restriction not only keeps defendant from frequenting places where children are present, but also places nearby where defendant may have legitimate business and there may be no children. These restrictions are certainly not minimal or incidental, even if their effect on defendant's ability to travel is not pronounced. (Cf. People v. Moran (2016) 1 Cal.5th 398, 406 ["Although criminal offenders placed on probation retain their constitutional right to travel, reasonable and incidental restrictions on their movement are permissible"].)
The trial court was concerned that the current offense occurred in a very public place where minors could be present. But there is no evidence any minors were present. The court's hypothetical reasoning could apply to almost any crime. In this case, the weak connection between the challenged probation conditions and the disproportionate burden imposed does not signal that the broad conditions challenged here are reasonably related to defendant's future criminality as required by Lent.
The challenged probation conditions are stricken. This modification of the probation order is made without prejudice to the People's moving the court for modification of the conditions of probation to add a condition conforming to Lent and Ricardo P., should they choose to do so.
III
Ability to Pay Fines, Fees, and Assessments
In a supplemental brief, defendant contends the trial court violated his due process rights by imposing fines, fees, and assessments without determining his ability to pay. Defendant relies on People v. Dueñas (2019) 30 Cal.App.5th 1157.
In accordance with the probation report, the trial court ordered defendant to pay a $300 restitution fine pursuant to section 1202.4, subdivision (b) plus an administrative fee of 10 percent and stayed a $300 probation revocation fine (§ 1204.44). The court imposed a sex offender fine of $1,170 composed of: $300 pursuant to section 290.3; $300 penalty assessment pursuant to section 1464; an additional penalty of $30 pursuant to Government Code, section 76104.6 (Prop. 69); an additional penalty of $120 pursuant to Government Code, section 76104.7 (DNA identification fund); $150 state court construction penalty pursuant to Government Code, section 70372, subdivision (a)(1); an additional county penalty of $210 pursuant to Government Code, section 76000, subdivision (a)(1); and a $60 state surcharge pursuant to Penal Code section 1465.7. In addition, the court ordered defendant to pay, not as a condition of probation and according to his ability to pay, a court operations fee of $40 (§ 1465.8, subd. (a)(1); a $30 criminal conviction assessment fee (Gov. Code, § 70373), the cost of probation services not to exceed $75 a month; a booking fee of $151, and a $250 fee to the Shasta County Probation department for the preparation of the presentence investigation report (§ 1203.1b, subd. (a)).
The trial court indicated it would assess public defender fees and asked the public defender for an estimate of his time on the case. He responded a conservative estimate was 40 hours, but argued defendant's income situation suggested he did not have the ability to pay. The probation report stated defendant had a monthly income of $2,000, but at sentencing defendant claimed only $1,000. In light of this information and defendant's jail sentence, the court found defendant did not have the ability to pay the public defender fees.
Defendant contends this case must be remanded for a hearing on his ability to pay the fines and fees pursuant to People v. Dueñas, supra, 30 Cal.App.5th 1157. Dueñas held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes" these fees and "the execution of any restitution fine imposed under [§ 1202.4] must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.)
The People contend defendant has forfeited this argument. We agree.
We agree that an objection based on the due process argument accepted in Dueñas would be "based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial," and the failure to object on that basis is not forfeiture. (People v. Castellano (2019) 33 Cal.App.5th 485, 489; see contra, People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 ; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-1155.) However, under the law at the time of sentencing, the sex offender fine was subject to defendant's ability to pay. (§ 290.3, subd. (a).) Defendant did not object that he could not pay the fine and the accompanying penalties and surcharge. Moreover, defendant did successfully object to his inability to pay the cost of his public defender. The additional fees imposed not as conditions of probation were conditioned on defendant's ability to pay.
The record shows defendant made a decision to object to only some of the costs imposed on him. As he was in the best position to know his ability to pay, it was incumbent on him to raise the issue. (See People v. Avila (2009) 46 Cal.4th 680, 729.) Because he failed to raise the issue to the extent he could have under the law at the time of sentencing, we find he has forfeited further challenges to the various fines, fees, and other charges based on his ability to pay.
DISPOSITION
The judgment is modified to strike the challenged probation conditions numbered 14 through 17, as set forth ante. In all other respects the judgment is affirmed. The trial court is directed to amend the probation order accordingly and distribute the amended order as necessary.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Krause, J.