In re K.C.

Filed 1/23/23
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re K.C., a Person Coming 2d Crim. No. B319819
Under the Juvenile Court Law. (Super. Ct. No. PJ53869)
(Los Angeles County)
THE PEOPLE,
Plaintiff and Respondent,
v.
K.C.,
Defendant and Appellant.
A juvenile court order imposes a condition of probation
prohibiting unconsented sexual touching of another person. We
conclude the probation condition is not unconstitutionally vague.
Minor K.C. appeals the order imposing this condition of
probation. We affirm. [[We also order correction of the
*Pursuant to California Rules of Court, rule 8.1110, this opinion
is certified for partial publication. The portions of this opinion to
be deleted from publication are identified as those portions
between double brackets, e.g., [[/]].
disposition minute order to conform to the oral pronouncement of
judgment.]]
FACTUAL AND PROCEDURAL HISTORY
On February 11, 2021, the Los Angeles District Attorney
filed a petition charging 17-year-old K.C. with felony forcible rape
of a child under the age of 14 years, and felony forcible sexual
penetration of a child under the age of 14 years. (Pen. Code,
§§ 261, subd. (a)(2), 289, subd. (a)(1)(B); Welf. & Inst. Code,
§ 602.)
At the adjudication hearing, 13-year-old N.M. testified that
she and her siblings visited their cousin K.C. and his siblings
during the weekend of May 11, 2020. Following viewing of
several movies, the minors went to bed. N.M. was sharing her
female cousin’s room when K.C. entered the room and asked the
girls if they wanted to go to the kitchen and have a snack. N.M.
agreed but her cousin declined.
N.M. entered a walk-in pantry in the kitchen followed by
K.C. He blocked the entrance, grabbed N.M. by her waist, and
tried to kiss her. She resisted and asked to return to her female
cousin’s bedroom. K.C. responded “Oh, just wait.” K.C. then
reached inside N.M.’s pants and placed his fingers inside her
vagina. She continued to state that she wanted to return to the
bedroom but K.C. ignored her. K.C. then pulled down her pants
as well as his. He guided N.M.’s hand to his penis and then
placed his penis in her vagina “for a few seconds.” Afterwards,
K.C. moved away from the doorway and N.M. ran upstairs to the
bedroom. Approximately one week later, N.M. informed her
family about the sexual assault.
Following an adjudication hearing, the juvenile court found
the felony allegations of the petition true, sustained the petition,
2
and declared K.C. a ward of the court. The court committed K.C.
to a secure youth treatment facility for a base term of three years
with a maximum term of confinement of 14 years 4 months. The
court also imposed various terms of probation. Among the terms
was this: “6A, you must not engage in any unconsented sexual
touching of any person.”
K.C. appeals and contends that probation condition 6A is
unconstitutionally vague. [[K.C. also contends the disposition
minute order does not accurately reflect the pronouncement of
judgment regarding probation condition 6A.]]
DISCUSSION
I.
K.C. argues that probation condition 6A is
unconstitutionally vague because it does not define “sexual
touching.” He points out, for example, that lewd or lascivious
conduct prohibits touching of a child with the intent to sexually
arouse the perpetrator or the child, but the touching need not be
done in a sexual manner. (People v. Martinez (1995) 11 Cal.4th
434, 452.)
The void-for-vagueness doctrine derives from the due
process concept of fair warning, which bars the government from
enforcing a provision that forbids or requires the doing of an act
in terms so vague that people of common intelligence must
necessarily guess as to its meaning and differ as to its
application. (People v. Hall (2017) 2 Cal.5th 494, 500.) “To
withstand a constitutional challenge on the ground of vagueness,
a probation condition must be sufficiently definite to inform the
probationer what conduct is required or prohibited, and to enable
the court to determine whether the probationer has violated the
condition.” (Ibid.)
3
In determining whether a probation condition is sufficiently
definite, a court is not limited to the condition’s text. (People v.
Hall, supra, 2 Cal.5th 494, 500.) The court may consider other
sources of law, including judicial construction of similar
provisions. (Ibid.) A probation condition should not be
invalidated as unconstitutionally vague if any reasonable and
practical construction can be given to its language. (Id. at pp.
500-501.) We independently review a probation condition’s
alleged vagueness as a question of law. (People v. Stapleton
(2017) 9 Cal.App.5th 989, 993.)
Probation condition 6A provides fair warning of the conduct
it prohibits. A reasonable person would interpret this provision
to proscribe unconsented touching of another person that involves
any sexual connotation, either due to the parts of the body
involved or K.C.’s intent in touching the person. The term
“unconsented” provides guidance and permits K.C. to avoid
violating the condition in those instances where he has that
person’s consent. That different penal statutes define and
proscribe particular sexual crimes in different terms makes no
difference; K.C. must avoid all unconsented sexual touching. The
condition is sufficiently definite to preclude constitutional
infirmity.
[[II.
K.C. asserts that the disposition minute order conflicts
with the oral pronouncement of judgment and therefore must be
corrected. The Attorney General agrees.
The oral pronouncement of judgment stated that K.C.
“must not engage in any unconsented sexual touching of any
person,” whereas the minute order omits the word “unconsented”
and prohibits “any sexual touching of any person.”
4
The oral pronouncement of judgment controls when there is
a discrepancy between the clerk’s minute order and the oral
pronouncement. (People v. Farell (2002) 28 Cal.4th 381, 384, fn.
2 [“The record of the oral pronouncement of the court controls
over the clerk’s minute order]”.) Accordingly, the trial court shall
correct the disposition minute order to add the word
“unconsented.” (People v. Mitchell (2001) 26 Cal.4th 181, 185-
187.)]]
DISPOSITION
[[The trial court shall correct the disposition minute order
to add the word “unconsented.”]] The order is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
5
Fred J. Fujioka, Judge
Superior Court County of Los Angeles
______________________________
Lynette Gladd Moore, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
6