People v. Jordan CA4/2

• Court: California Court of Appeal
• Decided: August 1, 2016
• Docket: E063488
• Status: Unpublished

Opinion

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.