IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

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1 Filed 12/18/09 P. v. Carrigg CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE THE PEOPLE, Plaintiff and Respondent, v. SHAWN PATRICK CARRIGG, Defendant and Appellant. A (Contra Costa County Super. Ct. No ) A jury found defendant guilty of the attempted commission of a lewd and lascivious act on a minor, and the trial court placed him on formal probation. Defendant challenges certain of the probation conditions imposed on him on constitutional grounds. We agree in part with defendant s contentions, and will modify the conditions and affirm the judgment as so modified. I. BACKGROUND Defendant was charged by information with one count of attempted commission of a lewd and lascivious act on a minor (Pen. Code, 288, subd. (a)/664). A jury found defendant guilty as charged. The trial court suspended the imposition of sentence and placed defendant on formal probation. A. Facts of the Offense While using an Internet chat room, defendant made contact with Sergeant Chris Simmons of the Contra Costa County Sheriff s Office, who was posing as a 13-year-old girl using the screen name of NorCaliGirl13. After a number of private chat room conversations and exchanges between defendant and NorCaliGirl13 over the next

2 few days, which included discussions about engaging in oral sex and intercourse, defendant offered to drive from Fremont to Martinez to meet NorCaliGirl13. They agreed to meet at 7:00 p.m. on August 25, 2005, at a particular location in Martinez. Simmons met defendant at the agreed location and arrested him. B. Probation Conditions The court imposed the following conditions of probation on defendant, among others: [(1)] You will not contact minors by any means, including but not limited to the Internet or telephone[,]... except as approved by the probation officer. [ ]... [ ] [(2)] You re to have no contact with any persons under the age of 18 unless specifically authorized by the probation officer. [ ]... [ ] [(3)] You re not to frequent or visit places that exist primarily for the use of minors, i.e., schools, circuses, playgrounds, arcades, toy stores, amusement parks, zoos, et cetera.... [ ] [(4)] Your residence must be approved by your probation officer and not be within 200 yards of any school, playground or other facility frequented primarily by children. [ ]... [ ] [(5)] [Y]ou re not to reside with any other convicted sex offender. 1 When the court imposed the terms of probation it stated that the probation officer had determined that defendant s current residence did not fall within the prohibited area. Defendant did not object to any of the conditions of probation, although his counsel noted that defendant s 16-year-old son would qualify as a minor. The court explained that the exception allowed for contacts with minors authorized by the probation officer would cover that situation. Defendant timely appealed from the judgment. II. DISCUSSION Defendant contends that (1) condition No. 5 is constitutionally overbroad and vague because it includes no knowledge requirement, (2) condition No. 4 is overbroad and vague, (3) condition No. 3 violates defendant s constitutional right to fair notice; (4) conditions Nos. 1 and 2 violate defendant s first amendment right to freedom of 1 We have numbered the conditions defendant challenges for ease of identification. 2

3 association insofar as they fail to exempt his minor son, and (5) conditions Nos. 1 and 2 are impermissibly vague and overbroad in failing to require that defendant have knowledge the person he communicates or has contact with is a minor. We agree in part with defendant s contentions and will modify the probation conditions accordingly. A. Applicable Law A probation condition may be overbroad if it unduly restricts the exercise of a constitutional right. (In re Byron B. (2004) 119 Cal.App.4th 1013, 1016.) Conditions of probation that impinge on constitutional rights must be tailored carefully and be reasonably related to the compelling state interest in reformation and rehabilitation. (People v. Delvalle (1994) 26 Cal.App.4th 869, 879.) If available alternative means exist that are less violative of a constitutional right and are narrowly drawn to correlate more closely with the purpose contemplated, those alternatives should be used. (People v. Zaring (1992) 8 Cal.App.4th 362, 371.) Probation conditions are valid, however, even though they restrict a probationer s exercise of constitutional rights, if they are narrowly drawn to serve the important interests of public safety and rehabilitation and are specifically tailored to the individual probationer. (In re Babak S. (1993) 18 Cal.App.4th 1077, 1084.) Further, 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. (People v. Lopez (1998) 66 Cal.App.4th 615, 634.) B. Analysis Although defendant failed to timely object to the probation conditions in the trial court, we will address them on the merits because they present pure question[s] of law, easily remediable on appeal by modification of the condition[s]. (In re Sheena K. (2007) 40 Cal.4th 875, 888.) 1. Knowledge Requirement The People do not oppose the addition of knowledge requirements to all of the challenged conditions. The People propose in substance that we modify the conditions by the addition of the italicized words, to read as follows: (1) You will not contact 3

4 persons you know or should know are minors by any means, including but not limited to the Internet or telephone,... except as approved by the probation officer ; (2) You re to have no contact with any persons you know or should know are under the age of 18 unless specifically authorized by the probation officer ; (3) You re not to frequent or visit places that you know or should know exist primarily for the use of minors, i.e., schools, circuses, playgrounds, arcades, toy stores, amusement parks, zoos, et cetera ; (4) Your residence must be approved by your probation officer and you may not reside within 200 yards of any school, playground or other facility that you know or should know is frequented primarily by children ; (5) You re not to reside with any other person you know or should know is a convicted sex offender. Defendant concedes, and we agree, that the People s proposed changes would resolve most of his concerns about vagueness and overbreadth. A knowledge requirement for conditions of this nature is appropriate and should not be left to inference. (See In re Sheena K., supra, 40 Cal.4th at pp ) We will therefore modify the challenged probation conditions to add knowledge requirements to them. Regarding conditions Nos. 1 and 2, we concur with the People that the conditions must be read narrowly to avoid any general prohibition against defendant having contact with his own minor son. At the same time, however, it is appropriate for the probation officer to condition his approval of such contact so as to limit defendant from interacting with his son s underage friends or acquaintances. Defendant agrees that conditions Nos. 1 and 2 are constitutional if so construed and if an explicit knowledge requirement is added. C. Issues in Dispute 1. Condition No. 4 Defendant contends that condition No. 4, requiring approval of his residence by his probation officer and specifying that he may not reside within 200 yards of any facility frequented primarily by children, is overbroad and confers too much discretion on the probation officer. 4

5 Defendant s objection to condition No. 4 is twofold. First, he argues that, as written, the condition gives the probation officer the power to find almost any residence inappropriate since it can be interpreted to allow the probation officer to withhold approval without regard to whether the residence is within 200 yards of a facility frequented primarily by children. Second, the problem is exacerbated because the phrase facility frequented primarily by children is itself vague and overbroad. He asks hypothetically whether a baseball stadium, a park, a store selling youth-oriented clothing, a candy store, or a Baskin and Robbins ice cream store are such facilities. Defendant maintains that condition No. 4 should be modified to require that he not live within 200 yards of any facilities his probation officer advises him in writing are off-limits because they are primarily frequented by children. While we believe the second clause of condition No. 4 would be reasonably construed as a limitation on the probation officer s discretion to disapprove defendant s residence, we will modify the condition to read as follows, in order to make this limitation more explicit: You may not reside within 200 yards of any school, playground, or other facility that you know or should know is frequented primarily by children, and your residence must be approved by your probation officer as being compliant with this requirement. The phrase facility frequented primarily by children does pass constitutional muster. In People v. Delvalle, supra, 26 Cal.App.4th 869, the Court of Appeal affirmed an even broader probation condition that the defendant stay away from any places where minor children congregate. [ ] The obvious places that come to mind are elementary schools, day care, parks. [ ] Stay away from places where young children are around. (Id. at p. 878.) The court stated: [T]he state has a compelling interest in the protection of children which justifies the restriction on Delvalle s freedom of association. Nor is the condition overbroad as the trial court indicated by example the restriction applied to such places as elementary schools, day-care centers and parks. As no overbreadth or ambiguity appears, the condition properly was imposed. (Id. at p. 897; see also U.S. v. Bee (9th Cir. 1998) 162 F.3d 1232, 1235 (Bee) [upholding condition that 5

6 the defendant not loiter within 100 feet of school yards, parks, playgrounds, arcades, or other places primarily used by children under the age of 18 ]; cf. U.S. v. Guagliardo (9th Cir. 2002) 278 F.3d 868, [reaffirming Bee, but rejecting condition that the defendant not reside in close proximity to places frequented by children, solely on the ground that the residency restriction lacked a precise distance limitation].) As modified herein, the residency restriction in this case offers even greater protections against overbroad interpretation or unfair surprise than the conditions approved in the cited cases. It includes a precise distance limitation, requires a knowing violation, provides examples of prohibited locations, and furnishes an added safeguard against unintentional violation by requiring the probation officer s approval for any residence location chosen. Defendant s alternative of requiring advance written notice of facilities he must avoid is impractical and provides insufficient protection for the public. The probation department is not in a position to exhaustively crosscheck all areas in which defendant might choose to reside. Public safety would not be adequately protected if defendant was free to reside near a facility frequented by minors without consequence merely because the probation department overlooked it. Condition No. 4 as modified by this court satisfies constitutional requirements. 2. Condition No. 3 Defendant objects to condition No. 3 on similar grounds that the prohibition against frequenting places that exist primarily for the use of minors presents the same problems of overbreadth and vagueness as condition No. 4. Defendant cites People v. Sanchez (2003) 105 Cal.App.4th 1240 (Sanchez), which held that a condition requiring the probationer to disclose areas that he frequented was unconstitutionally vague. (Id. at p ) Sanchez states: [A]reas frequented has no fixed meaning such that defendant can know what information he is expected to disclose and it places excessive discretion in law enforcement for its interpretation.... [O]ne cannot determine with any degree of confidence whether the registrant must list places where he or she may be found daily, weekly, or even a couple of times a month. Furthermore, it is not just the frequency with which the registrant may be found at a particular place that is uncertain; it 6

7 is also the type of area that must be listed that is unclear. Given this uncertainty, the registrant cannot know either whether failing to list a place he goes to with some regularity, or going to a place he has not listed, would constitute a violation of the statute and of his probation. That portion of the trial court s order requiring defendant to identify areas frequented is impermissibly vague and must be stricken. (Ibid.) Sanchez is distinguishable. Condition No. 3 states that defendant may not frequent or visit (italics added) places that exist primarily for the use of minors. There is no vagueness or ambiguity about whether a single visit to a place defendant knows or should know exists primarily for the use of minors violates condition No. 3. It does. Based on the authorities cited earlier, the phrase exist[s] primarily for the use of minors, is also not problematic, especially in view of the examples given and of the requirement of a knowing violation. Defendant s alternative of requiring the probation department to provide him with a written list of prohibited locations is impractical and invites deliberate evasion if the defendant is so inclined. III. DISPOSITION The probation conditions from which defendant has appealed are modified to read as follows: (1) You will not contact persons you know or should know are minors by any means, including but not limited to the Internet or telephone,... except as approved by the probation officer ; (2) You re to have no contact with any persons you know or should know are under the age of 18 unless specifically authorized by the probation officer ; (3) You re not to frequent or visit places that you know or should know exist primarily for the use of minors, i.e., schools, circuses, playgrounds, arcades, toy stores, amusement parks, zoos, et cetera ; (4) You may not reside within 200 yards of any school, playground, or other facility that you know or should know is frequented primarily by children, and your residence must be approved by your probation officer as being compliant with this requirement ; and (5) You re not to reside with any other person you know or should know is a convicted sex offender. As so modified, the judgment is affirmed. 7

8 Margulies, J. We concur: Marchiano, P.J. Banke, J. 8