Wednesday, August 30, 2017
Court of Appeal Holds:
Word ‘Socialize’ in Condition of Probation Is Too Broad
By a MetNews Staff Writer
The Sixth District Court of Appeal yesterday declared that a condition of probation imposed on a man who pled guilty to sex crimes involving minors forbidding him to “socialize” with anyone having custody of children, unless a probation officer approved, is overly broad.
The holding mirrors one in another Sixth District opinion, filed Monday, as well as one filed in that district July 31. In each of those cases, the Office of Attorney General conceded that the word “socialize” was overly broad and vague.
However, it argued to the contrary, unsuccessfully, in a case decided by the Sixth District on April 18.
The cases all emanated from the Santa Clara Superior Court. None of the opinions was certified for publication.
The condition read, in full:
“You may not date, socialize with, or form [a] romantic relationship with anyone that you know has physical custody of a minor unless approved by probation.”
Goes Too Far
Writing for the appeals court, Acting Presiding Justice Franklin Elia said in yesterday’s opinion:
“Here, the word ‘socialize’ must be omitted from the condition in order to prevent vagueness and overbreadth. The purpose of the condition is to prevent defendant from having contact with children. The condition, however, prevents defendant from socializing with friends and family even where he may never come into contact with their children. A prohibition on socializing with anyone who has physical custody of children, even where defendant will never come into contact with those children, is not closely tailored to the purpose of the condition. Moreover, the word ‘socialize’ does not provide adequate notice of the proscribed conduct. As defendant asserts, it is unclear ‘what activities are covered by that term,’ which could be interpreted to include trivial activities such as ‘having a conversation with someone in a grocery store,’ having ‘a telephone conversation with someone who has a child,’ and speaking to ‘someone at work who has children.’ The inclusion of the word ‘socialize’ thus renders the condition overbroad and vague. It therefore must be omitted from the condition.”
The judge who imposed the probation condition on defendant Hugo Cortes Guzman is Shelyna Brown.
Guzman pled guilty to four counts of unlawful sexual intercourse with a minor more than three years younger than he, two counts of oral copulation with a minor, and one count of sexual penetration of a person under the age of 18. Brown’s suspended sentence, requiring, as a condition of his three years of probation, that Guzman “complete an approved sex offender management program.”
Elia rejected Guzman’s challenges to other conditions of probation, saying that such conditions have been previously upheld.
The case is People v. Guzman, H041903.
The opinion filed Monday, in People v. Flores, H041903, was also authored by Elia. There, too, the word “socialize” was stricken from a condition of probation.
Judge Ron Del Pozzo imposed the conditions.
There, merit was additionally found in defendant Mark Alexander Flores’s challenge to another condition of probation: that he not “frequent, be employed by, or engage in any business where pornographic materials are openly exhibited.”
Flores had pled guilty to one count of possession of child pornography.
Elia noted that the Office of Attorney General agreed with Flores that the word “frequent” was “unconstitutionally vague.” He wrote:
“In order to prevent vagueness, the Attorney General proposes that the condition be modified to replace the word ‘frequent’ with the phrase ‘visit or remain in.’ Defendant does not dispute that the Attorney General proposes the proper remedy.
“This Court has previously held that the term ‘frequent’ is unconstitutionally vague….We will modify probation condition No. 22 in the manner proposed by the Attorney General.”
July 31 Decision
Justice Patricia Bamattre-Manoukian wrote the July 31 opinion striking the word “socialize.”
There, the defendant had pled no contest to unlawful sex by a person age 21 or older with a minor under age 161 and possession of matter depicting a person under age 18 engaging in or simulating sexual conduct. He was placed on three years’ probation by Judge Alfonso Fernandez.
Bamattre-Manoukian, expressing the same thoughts as Elia but choosing different words, said:
“The condition imposed here is designed to prevent defendant having contact with children. However, the condition prohibits defendant from socializing with people such as family, friends and coworkers, even though he may never come into contact with their children. A restriction on socializing with anybody who has a child or children under the age of 18, even though defendant may never come into contact with those children, is not carefully tailored to the purpose of the condition. Simply put, it burdens activity that does not raise a sufficiently high probability of harm to governmental interests to justify the interference. Thus, we agree that the term “socialize” should be stricken from the condition.”
The opinion also deleted the word “frequent” and substituted “‘visit or remain in.”
That opinion is People v. Lovato, H041328.
Presiding Justice Conrad Rushing wrote the April 18 opinion in People v. Millendez, H041941. Defendant Paulo Tabios Millendez had pled guilty to one count of committing a lewd or lascivious act on a child and two counts of annoying or molesting a child, and was sentenced by Del Pozzo to three years of probation, with one year in jail.
Rushing not only found the word “socialize” to be overly broad but, unlike Elia and Bamattre-Manoukian, found the condition, in its entirety, to be invalid. Elia signed that opinion (as did Justice Eugene Premo).
As Rushing saw it:
“We… conclude that the term ‘socialize’ is unconstitutionally vague….All kinds of daily personal interactions—e.g., meeting a person, shaking hands, waving, or simply exchanging greetings—may or may not constitute “socializing” or entrance into a personal relationship. Under this definition, a reasonable person cannot determine with sufficient precision what conduct constitutes socializing.
“The same conclusions apply to the requirement that Millendez not ‘date’ or ‘form a romantic relationship’ with persons having custody of a minor. It is unclear what conduct constitutes a ‘date.’ Furthermore, it is possible for a probationer to engage in these activities without coming into contact with the minors the condition seeks to protect. These conditions impinge directly on Millendez’s right of association while only indirectly serving the stated interest. Much less restrictive and more narrowly targeted conditions are available for the same purposes—e.g., a requirement that defendant not be present in the same room with a minor absent adult supervision.”
Rushing did not participate in the more recent cases. Bamattre-Manoukian and Justice Nathan Mihara signed Elia’s opinions; Elia and Mihara signed the one penned by Bamattre-Manoukian.
The Ninth U.S. Circuit Court of Appeals in 2012, in U.S. v. Wolf Child, struck a similar condition of probation, imposed by a district court judge in Montana, barring socializing with a person who had children under the age of 18—which would have precluded the defendant from dating his fiancée.
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