People v. Tucker, A121976 (Cal. App. 8/13/2009)

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THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY TUCKER, Defendant and Appellant.

A121976

Court of Appeals of California, First Appellate District, Division One

August 13, 2009

Not to be Published in Official Reports

Appeal from the Alameda County, Super. Ct. No. 158268.

GRAHAM, J.^*

After defendant entered a no contest plea to failure to annually update his sex offender registration (Pen. Code, § 290, subd. (a)(1)(D)),¹ he was placed on probation on the condition, among others, that he not be in the presence of children without the supervision of another adult. In this appeal, he claims that the probation condition is invalid and impermissibly vague. We conclude that the probation condition is reasonably related to deterring criminality, but is vague for failure to include a knowledge requirement. We therefore modify the condition to correct vagueness elements in it, and otherwise affirm the judgment.

STATEMENT OF FACTS

In November of 1993, defendant was convicted of an attempt to commit lewd acts on a child in violation of Penal Code sections 664 and 288, subdivision (c). As a result of the conviction he was subject to the sex offender registration requirements of section 290, one of which is to register annually within five days of his birthday. (§ 290, subd. (a)(1)(D); People v. Hofsheier (2006) 37 Cal.4th 1185, 1196; People v. Carmony (2005) 127 Cal.App.4th 1066, 1077.) His birthday is November 4th, and he last filed an annual registration on November 7, 2006.

On April 17, 2008, defendant filed a waiver of rights and change of plea form, and formally entered a no contest plea to a violation of section 290, subdivision (a)(1)(D). His sentencing hearing was scheduled for May 15, 2008. The probation report prepared for the sentencing hearing revealed that defendant "initially stated that he was not employed at the time of his arrest," but "later stated that he was working approximately twenty-five hours per week as a babysitter, for approximately two months prior to his arrest" on April 7, 2008.

At the scheduled sentencing hearing on May 15, 2008, the court asked defendant to provide the name and address "of the person he's been doing babysitting for," and directed the probation officer to "contact that person" and file a supplement to the report. The court indicated its inclination to include an order that defendant "not be engaged in babysitting activities." The court expressed concern that defendant failed to inform the mother of the children he was babysitting that "he's a 290 registrant." The sentencing hearing was continued.

The following day the probation officer learned from the mother of the children that she was not aware of defendant's status as a registered sex offender, but she also "insisted that defendant has never touched her children" and she would continue to allow him to babysit them. In addition, the grandmother of the children expressed that the children "adore the defendant."

At the continued sentencing hearing on June 4, 2008, the court imposed a probation condition, over defense objection, that defendant not "engage in any babysitting activities" or "be around children unsupervised by another adult" for the period of his probation.

DISCUSSION

I. The Validity of the Probation Condition.

Defendant argues that the probation condition which prohibits him from babysitting or associating with children without the supervision of an adult is invalid. He maintains that the condition is neither reasonably related to his past crimes nor designed to prevent future criminality. He points out that the present conviction "has nothing to do with children," and his prior "conviction is 15 years old," with no indication of criminal acts on his part "since 1993 until he was arrested for this offense."

We examine the validity of the probation condition in accordance with established principles. "`When granting probation, courts have broad discretion to impose restrictive conditions to foster rehabilitation and to protect public safety. Penal Code section 1203.1 [permits] the court to impose . . . "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, . . . and specifically for the reformation and rehabilitation of the probationer." . . .' [Citation.]" (People v. Mason (1971) 5 Cal.3d 759, 764.) A probation condition "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 (1975) 15 Cal.3d 481, 486; People v. Rugamas (2001) 93 Cal.App.4th 518, 522.) "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, supra, at p. 486; see also In re Corona (2008) 160 Cal.App.4th 315, 321; People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240; People v. Zaring (1992) 8 Cal.App.4th 362, 370.)

"`[A] reviewing court should not disturb the exercise of a trial court's discretion unless it appears that there has been a miscarriage of justice. . . . "It is fairly deducible from the cases that one of the essential attributes of abuse of discretion is that it must clearly appear to effect injustice. [Citations.] Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power." [Citations.]' [Citation.]" (People v. Brown (2001) 96 Cal.App.4th Supp. 1, 42; see also People v. Balestra (1999) 76 Cal.App.4th 57, 63; People v. Whisenand (1995) 37 Cal.App.4th 1383, 1391.)

We have little difficulty in concluding that the probation condition at issue here is reasonably related to deterring future criminality. Defendant claims that the current conviction for failure to comply with sex offender registration requirements "did not at all involve children." He further points out that the record demonstrates he "never behaved inappropriately" with the children for whom he was babysitting, and he continued to have the confidence of their mother.

While we agree with defendant that the current registration offense has no direct connection with children, defendant offers an unduly constrained review of the record to determine the validity of the condition. We must apply a "`totality of the circumstances'" test to determine the reasonableness of the probation condition, not merely the facts related to the present sex offender registration offense. (In re Jaime P. (2006) 40 Cal.4th 128, 136; People v. Sanders (2003) 31 Cal.4th 318, 333; People v. Hill (2004) 118 Cal.App.4th 1344, 1350-1351.) Also, a probation condition need not be directly related to the underlying conviction. "If a probation condition serves the statutory purpose of ` "reformation and rehabilitation of the probationer,"' such condition is `"reasonably related to future criminality"' and will be upheld even if it has no ` "relationship to the crime of which the offender was convicted."' [Citation.]" (People v. Brewer (2001) 87 Cal.App.4th 1298, 1311.)

Here, we know that defendant's prior conviction was for an offense that involved an attempt to commit lewd acts on a child.² The prior conviction, although it is now somewhat remote in time, gave the trial court justifiable concern with the need to remove defendant from circumstances that may tend to offer the potential for him to reoffend. Of further serious consequence is the present failure of defendant to both satisfy his duties to register or to inform the mother of the children of his sex offender registration status. The purpose of the registration statute is to promote the state's interest in preventing recidivism by sex offenders. (Wright v. Superior Court (1997) 15 Cal.4th 521, 527.) Defendant's violation of the registration requirements brings into question his potential for future criminality as a sex offender. His failure to notify his babysitting employer of the prior offense with children and status as a sex offender provides an additional reason to impose a condition designed to prevent him from reoffending with children. We find that the imposition of the probation condition is reasonably related to future criminality and serves the interests of public safety and the rehabilitation of defendant.

II. The Probation Condition as an Overbroad Restriction on Defendant's Rights.

Defendant also offers the argument that the probation condition is "overbroad," particularly in the limitations imposed upon his "constitutionally protected conduct" of "choice of occupation." His primary complaint is that the condition is not "narrowly drawn to achieve" the goal of "protecting minors from future crimes." He further claims that the condition violates his "constitutional right to freedom of association" with children.

A probation condition may be overbroad if it "unduly restricts the exercise of a constitutional right. `[C]onditions of probation that impinge on constitutional rights must be tailored carefully and "reasonably related to the compelling state interest in reformation and rehabilitation . . . ." [Citation.]' (People v. Delvalle (1994) 26 Cal.App.4th 869, 879 [31 Cal.Rptr.2d 725], quoting People v. Mason (1971) 5 Cal.3d 759, 768 [97 Cal.Rptr. 302, 488 P.2d 630] [dis. opn. of Peters, J.].)" (In re Byron B. (2004) 119 Cal.App.4th 1013, 1016.) Probation conditions that infringe upon recognized fundamental constitutional rights to travel, association and expression must also "`"be...