People v. Jordan CA4/2 ( 2016 )

Filed 8/1/16 P. v. Jordan CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063488
v. (Super.Ct.No. FWV1404550)
YADIRA MENDIOLA JORDAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Bridgid M.
McCann, Judge. Affirmed as modified.
Michelle C. Zehner, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alastair J.
Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.
1
Appellant and defendant Yadira Mendiola Jordan pled no contest to distributing
pornography to a minor. (Pen. Code, § 288.2, subd. (a)(2), count 1.)1 In accordance with
the plea agreement, the trial court placed her on probation for a period of three years,
under specified probation conditions.
On appeal, defendant contends that: (1) several of her probation conditions are
unconstitutionally vague and must be modified to include an express knowledge
requirement; (2) the probation condition prohibiting her from possessing “sexually
explicit” movies or videos or “frequenting” places where such materials are sold is
unconstitutionally vague; and (3) several of her probation conditions are
unconstitutionally broad. The People concede, and we agree, that one of the conditions
should be stricken and that one of them should be modified. We also agree with
defendant that certain probation conditions should include a knowledge requirement. In
all other respects, we affirm the judgment.
FACTUAL BACKGROUND2
Defendant sent several text messages containing nude photographs of herself to a
14-year-old male (the victim). Defendant was a 34-year-old mother with six children,
aged 4, 8, 11, 13, 15, and 17. The victim was friends with defendant’s son. Defendant
claimed that she sent the first photograph by accident, when she was trying to send it to
1 All further statutory references will be to the Penal Code, unless otherwise
noted.
2The factual background is taken from the police report, since defendant pled no
contest pursuant to a plea agreement. The parties stipulated to the facts in the police
report as a factual basis for the plea.
2
her boyfriend. However, the victim asked for more photographs, and she sent him
several other photographs of herself, both clothed and unclothed. She admitted to flirting
with the victim over the phone and through text messages. Defendant said she only saw
the victim twice and that on one of those occasions, the victim tried to kiss her in her
bedroom.
ANALYSIS
I. Condition Nos. 6, 10, 12, 14, and 26 Should Be Modified to Include a Knowledge
Requirement
Defendant contends that six of her probation conditions, as currently worded, are
unconstitutionally vague. She complains that condition Nos. 6, 10, 12, 14, and 26 have
no knowledge requirement and, thus, must be modified. She also argues that condition
No. 26 contains unconstitutionally vague terms. We conclude that a knowledge
requirement should be added to these conditions. We also agree that condition No. 26
should be further modified.
A. Standard of Review
In general, the courts are given broad discretion in fashioning terms of probation
or supervised release, in order to foster the reformation and rehabilitation of the offender,
while protecting public safety. (People v. Carbajal (1995) 10 Cal. 4th 1114, 1120; People
v. Urke (2011) 197 Cal. App. 4th 766, 774.) Thus, the imposition of a particular condition
of probation is subject to review for abuse of that discretion. “As with any exercise of
discretion, the court violates this standard when it imposes a condition of probation that is
arbitrary, capricious or exceeds the bounds of reason under the circumstances.” (People
3
v. Jungers (2005) 127 Cal. App. 4th 698, 702.) However, constitutional challenges are
reviewed under a different standard. Whether a term of probation or supervised release is
unconstitutionally vague or overbroad presents a question of law, which we review de
novo. (In re J.H. (2007) 158 Cal. App. 4th 174, 183; In re Shaun R. (2010) 188
Cal. App. 4th 1129, 1143.) The failure to object below that a condition of supervised
release is unconstitutionally overbroad does not forfeit review of the issue on appeal, as it
is a pure issue of law. (See In re Sheena K. (2007) 40 Cal. 4th 875, 889 (Sheena K.).)
B. Probation Conditions at Issue
Among others, the court imposed the following conditions:
No. 6: “Not leave the State of California without first obtaining written
permission of the probation officer.”
No. 10: “Neither possess nor have under your control any dangerous or deadly
weapons or explosive devices or materials to make explosive devices.”
No. 12: “Neither use nor possess any controlled substance without medical
prescription. A physician’s written notice is to be given to the probation officer.”
No. 14: “Not possess any type of drug paraphernalia, as defined in [Health &
Safety Code section] 11364.5[, subdivision] (d).”
No. 26: “Do not own, use, or possess any form of sexually explicit movies,
videos, material, or devices unless recommended by a therapist and approved by the
probation officer. Do not frequent any establishment where such items are the primary
items viewed, sold at such establishment, and do not utilize any sexually oriented
telephone services.”
4
C. The Challenged Probation Conditions Should Be Modified
“[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.’” (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.]” (Ibid.) “[O]nly reasonable specificity is required.
[Citation.] Thus, a statute ‘will not be held void for vagueness “if any reasonable and
practical construction can be given its language or if its terms may be made reasonably
certain by reference to other definable sources.”’” (People v. Lopez (1998) 66
Cal. App. 4th 615, 630.)
Defendant contends that condition Nos. 6, 10, 12, 14, and 26 are
unconstitutionally vague because they do not contain an express knowledge
requirement.3 She specifically claims that she could unwittingly violate her probation
since: (1) one of the items prohibited by these conditions could be brought into her home
without her knowledge; (2) she could possess common household items without knowing
they could be used to make explosive devices; or (3) she could be a passenger in a
vehicle that drives on a road outside the State of California.
3 Defendant includes condition No. 37 in this argument, as well. However,
because she also argues that part of condition No. 37 should be stricken on other grounds,
we will address condition No. 37 separately. (See post, § III.)
5
The People suggest we adopt the Third Appellate District’s approach in People v.
Patel (2011) 196 Cal. App. 4th 956 (Patel). In that case, the Third District considered a
probation condition forbidding the defendant from drinking or possessing alcohol, or
being in a place where alcohol is the chief item of sale, invalid because the condition
lacked an express knowledge requirement. (Id. at p. 959.) The Patel court expressed its
frustration with the “dismaying regularity” with which it had to revisit the issue of a lack
of an express scienter requirement in orders of probation. (Id. at p. 960.) The court noted
that since there existed a substantial uncontradicted body of case law establishing that a
“probationer cannot be punished for presence, possession, association, or other actions
absent proof of scienter,” it would no longer entertain the issue on appeal. (Ibid.) The
court stated that going forward, it would construe every such probation condition
proscribing restrictions on presence, possession, association, or other actions, to require
that the action be undertaken knowingly. (Id. at pp. 960-961.) Thus, it would no longer
be necessary to seek a modification of a probation order that failed to include a scienter
requirement. (Ibid.)
We note that a number of the Courts of Appeal have declined to follow the
rationale of Patel, including the Fourth Appellate District in People v. Moses (2011) 199
Cal. App. 4th 374, 381 (Moses), where the court chose to modify the probation conditions
to include a knowledge requirement. We too decline to follow the Third Appellate
District’s approach in Patel. As noted in People v. Pirali (2013) 217 Cal. App. 4th 1341,
“[o]ur Supreme Court faced the issue of the lack of a knowledge requirement in a
probation condition and concluded that ‘modification to impose an explicit knowledge
6
requirement is necessary to render the condition constitutional.’ [Citation.] Until our
Supreme Court rules differently, we will follow its lead on this point.” (Id. at p. 1351;
see Sheena K., supra, 40 Cal.4th at p. 892.)
Therefore, probation condition No. 6 should be modified to read: “Not knowingly
leave the State of California without first obtaining written permission of the probation
officer.”
Probation condition No. 10 should be modified to read: “Neither knowingly
possess nor have under your control any dangerous or deadly weapons or explosive
devices or materials to make explosive devices.”
Probation condition No. 12 should be modified to read: “Neither knowingly use
nor possess any controlled substance without medical prescription. A physician’s written
notice is to be given to the probation officer.”
Probation condition No. 14 should be modified to read: “Not knowingly possess
any type of drug paraphernalia, as defined in Health and Safety Code section 11364.5,
subdivision (d).”
D. Condition No. 26 Should Be Further Modified
Condition No. 26 provides: “Do not own, use, or possess any form of sexually
explicit movies, videos, material, or devices unless recommended by a therapist and
approved by the probation officer. Do not frequent any establishment where such items
are the primary items viewed [or] sold at such establishment, and do not utilize any
sexually oriented telephone services.”
7
Defendant argues that the term “sexually explicit” is so uncertain that it does not
provide her with notice of what she is to avoid. Since we have already determined that
the condition must be modified to include a knowledge requirement, we will also modify
the condition to provide more specificity with regard to the term “sexually explicit.”
Under federal law, the term “sexually explicit conduct” refers to: (1) sexual intercourse,
including genital-genital, oral-genital, anal-genital, or oral-anal; (2) bestiality;
(3) masturbation; (4) sadistic or masochistic abuse; or (5) lascivious exhibition of the
genitals, breast or pubic area. (18 U.S.C. § 2256.) By referring to this definition in
defendant’s probation condition, she will know more precisely which movies and
materials she must stay away from. Therefore, we will modify this condition to reference
this federal provision. We note defendant’s complaint that she could be barred from
entering stores such as Target and Walmart, since they sell DVD’s of popular movies and
television shows that have explicit sexual content. However, we agree with the People
that such limitations were part of the bargain she struck in accepting probation over
incarceration. (See People v. Olguin (2008) 45 Cal. 4th 375, 384 [“probation is a
privilege and not a right”].)
Defendant also contends that the word “frequent” renders condition No. 26
unconstitutionally vague. We agree. (See People v. Leon (2010) 181 Cal. App. 4th 943,
952 [“the word ‘frequent’ renders the condition unconstitutionally vague, because it is
both obscure and has multiple meanings”].) Thus, the word “ ‘visit or remain in’ ”
should be used instead of “frequent.” (Ibid.)
8
Therefore, probation condition No. 26 should be modified to read: “Do not
knowingly own, use, or possess movies, videos, material, or devices that depict sexually
explicit conduct, unless recommended by a therapist and approved by the probation
officer. The term sexually explicit conduct refers to conduct as defined in title 18 United
States Code section 2256. Do not visit or remain in any establishment where you know
or reasonably should know that such items are the primary items viewed, sold at such
establishment, and do not utilize any sexually oriented telephone services.”
II. The Polygraph Condition (No. 25) Should Be Modified
Condition No. 25 states: “You shall submit to random polygraph testing by a
probation department approved polygraph examiner at the direction of the probation
officer.” Defendant concedes that polygraph testing may be an appropriate condition of
probation, where it is used to ensure compliance with other conditions of probation (see
People v. Miller (1989) 208 Cal. App. 3d 1311, 1314), but argues that polygraph testing
without limits or restrictions on the kinds of questions which may be asked is overbroad
(see Brown v. Superior Court (2002) 101 Cal. App. 4th 313, 321 (Brown)).
The People agree that the scope of the polygraph questions should be limited to
questions relating to defendant’s successful completion of the sex offender treatment
program or as to defendant’s conviction.
Condition No. 25 should thus be modified to state: “You shall submit to random
polygraph testing by a probation department approved polygraph examiner at the
direction of the probation officer. The questions shall be limited to those relating to the
9
successful completion of the sex offender treatment program and to the crime of which
you were convicted.” (See Brown, supra, 101 Cal.App.4th at p. 323.)
III. Probation Condition No. 37 Should Be Modified
Condition No. 37 states: “Not use or possess children’s clothes or any illustrated
materials depicting unclothed children.” Defendant contends that the portion of the
condition prohibiting her from possessing children’s clothing is unconstitutionally
overbroad and should be stricken, since it impairs her ability to care for her own children.
She also argues that the condition should contain a knowledge requirement. The People
concede, and we agree, that the portion restricting her from possessing children’s clothing
should be stricken.
Defendant specifically argues that condition No. 37 should be modified to contain
a knowledge requirement, since she could unwittingly possess a magazine containing
depictions of unclothed children without being aware that the models are under 18 years
of age. For the reasons explained ante, we agree that the condition should be modified.
(See ante, § I.) Furthermore, because defendant is the mother of small children, the
restriction against possessing children’s clothing is not reasonable and should be stricken.
Therefore, probation condition No. 37 should be modified to prohibit defendant
from knowingly possessing illustrations depicting unclothed children.
DISPOSITION
The probation conditions should be modified as follows:
Probation condition No. 6 should read: “Not knowingly leave the State of
California without first obtaining written permission of the probation officer.”
10
Probation condition No. 10 should read: “Neither knowingly possess nor have
under your control any dangerous or deadly weapons or explosive devices or materials to
make explosive devices.”
Probation condition No. 12 should read: “Neither knowingly use nor possess any
controlled substance without medical prescription. A physician’s written notice is to be
given to the probation officer.”
Probation condition No. 14 should read: “Not knowingly possess any type of drug
paraphernalia, as defined in Health and Safety Code section 11364.5, subdivision (d).”
Condition No. 25 should read: “You shall submit to random polygraph testing by
a probation department approved polygraph examiner at the direction of the probation
officer. The questions shall be limited to those relating to the successful completion of
the sex offender treatment program and to the crime of which you were convicted.”
Probation condition No. 26 should read: “Do not knowingly own, use, or possess
movies, videos, material, or devices that depict sexually explicit conduct, unless
recommended by a therapist and approved by the probation officer. The term sexually
explicit conduct refers to conduct as defined in title 18 United States Code section 2256.
Do not visit or remain in any establishment where you know or reasonably should know
that such items are the primary items viewed, sold at such establishment, and do not
utilize any sexually oriented telephone services.”
Condition No. 37 should read: “Not knowingly possess any illustrated materials
depicting unclothed children.”
11
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
CODRINGTON
J.
SLOUGH
J.
12