FILED OCTOBER 17, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 34713-3-111 ) Respondent, ) ) V. ) UNPUBLISHED OPINION ) GIL SALGADO VELAZQUEZ, JR., ) ) Appellant. )
LAWRENCE-BERREY, J. - A jury found Gil Velazquez guilty of second degree
child molestation and fourth degree assault with sexual motivation. The trial court
sentenced Velazquez within the standard range, including 36 months of community
custody. Velazquez challenges three of his community custody conditions. We accept
the State's concessions that two of the three challenged conditions should be stricken, and
generally uphold the condition that prohibits Velazquez from "frequent[ing] places where
children congregate, including but not limited to parks, playgrounds or schools." Clerk's
Papers (CP) at 88. No. 34713-3-111 State v. Velazquez
FACTS
On February 23, 2016, 13-year-old M.M. was shopping with her mother and
younger sister at a Walmart in Ephrata, Washington. While in the deodorant aisle, she
felt someone brush up against her from behind. She saw Velazquez, whom she did not
know, walking away. M.M. was surprised because although the aisle was crowded, there
was plenty of room for him to pass by her.
M.M. and her younger sister later went to the hair accessory aisle. M.M. was
concerned when she saw Velazquez behind her, pacing back and forth. Velazquez
stopped behind her and reached above her for an item. As he did this, he pressed his
pelvic area against M.M.'s backside, and put his hand on her waist. M.M. quickly pulled
away. M.M. was very upset and told her mother about both incidents. Her mother
contacted Walmart employees and reported the incidents.
Also that day, Connie Sisco encountered Velazquez while shopping at Walmart.
Velazquez brushed up against her from behind when attempting to pass her. Sisco was
shocked and offended. She continued shopping and became increasingly worried when
she saw Velazquez in the same areas she was shopping.
Employees, responding to the complaint from M.M.'s mother, located Velazquez
and called police. Velazquez told police he had inadvertently bumped into M.M. while
2 No. 34713-3-III State v. Velazquez
reaching for an item. Police viewed store security video and noticed that Velazquez had
contact with several female shoppers that day. Police posted an online request for people
who experienced offensive touching that day at W almart to come forward. Sisco
responded to the request.
The State charged Velazquez with second degree child molestation, or
alternatively, second degree attempted child molestation, both as to M.M, and fourth
degree assault with sexual motivation as to Sisco. The jury found Velazquez guilty of
second degree child molestation and fourth degree assault with sexual motivation.
The trial court imposed a standard range sentence of 48 months for the second
degree child molestation conviction, imposed a consecutive 364 day sentence for the
misdemeanor assault conviction, and imposed 36 months of community custody.
Relevant to this appeal are the following three community custody conditions: "Do not
purchase, possess or view any pornographic material. . . . Do not frequent places where
children congregate, including but not limited to parks, playgrounds or schools .... No
internet/email/social media access." CP at 88.
Velazquez appealed.
3 No. 34713-3-III State v. Velazquez
ANALYSIS
Velazquez challenges the three community custody conditions set forth above. He
argues the first condition should be stricken because it is not crime related and is
unconstitutionally vague. The State concedes both arguments, and we accept the State's
concession. Velazquez argues the third condition should be stricken because it is not
crime related. The State concedes that argument, too, and we accept the State's
concession.
Velazquez argues the second condition should be stricken because it is
unconstitutionally vague and because it violates his First Amendment to the United States
Constitution right to religious freedom. The State contends, and we mostly agree, that the
second condition is proper.
A. Standard of review
We review community custody conditions for an abuse of discretion. State v.
Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015). The abuse of discretion standard
applies whether this court is reviewing a crime-related community custody condition, or
reviewing a community custody condition for vagueness. See id. at 652, 656; State v.
Sanchez Valencia, 169 Wn.2d 782, 791-92, 239 P.3d 1059 (2010); State v. Cordero, 170
4 No. 34713-3-III State v. Velazquez
Wn. App. 351,373,284 P.3d 773 (2012). Imposing an unconstitutional condition is
always an abuse of discretion. Irwin, 191 Wn. App. at 652.
B. Prohibition against frequenting places where children congregate
1. The condition is not unconstitutionally vague
The guarantee of due process contained in the Fourteenth Amendment to the
United States Constitution and article I, section 3 of the Washington Constitution requires
that laws not be vague. State v. Magana, 197 Wn. App. 189,200,389 P.3d 654 (2016).
Because a violation of a community custody condition can subject a person to arrest and
incarceration, vagueness prohibitions extend to community custody conditions. See
Sanchez Valencia, 169 Wn.2d at 791-92. A community custody condition is not
unconstitutionally vague so long as it: ( 1) provides ordinary people with f~ir warning of
the proscribed conduct, and (2) has standards that are definite enough to "' protect against
arbitrary enforcement.'" Magana, 197 Wn. App. at 200-01 (internal quotation marks
omitted) (quoting State v. Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008)).
Velazquez relies on Irwin. In that case, one of Samuel Irwin's conditions
prevented him from frequenting "' areas where minor children are known to congregate,
as defined by the supervising CCO [community corrections officer]."' Irwin, 191 Wn.
App. at 650. That court decided the condition could not satisfy either prong of the
5 No. 34713-3-III State v. Velazquez
vagueness test. Id. at 655. The condition needed either clarifying language such as the
language the trial court used in the sentencing hearing but not in the condition, or an
illustrative list, so that an ordinary person would have fair warning of the proscribed
conduct. Id. at 654-55. The condition also was subject to arbitrary enforcement because
the CCO in that case was able to define the proscribed conduct, which would otherwise
have cured notice. Id.
a. Fair warning ofproscribed conduct
Here, the trial court tailored the condition to comply with Irwin by use of an
illustrative list of places where children often congregate. Velazquez asserts the
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FILED OCTOBER 17, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 34713-3-111 ) Respondent, ) ) V. ) UNPUBLISHED OPINION ) GIL SALGADO VELAZQUEZ, JR., ) ) Appellant. )
LAWRENCE-BERREY, J. - A jury found Gil Velazquez guilty of second degree
child molestation and fourth degree assault with sexual motivation. The trial court
sentenced Velazquez within the standard range, including 36 months of community
custody. Velazquez challenges three of his community custody conditions. We accept
the State's concessions that two of the three challenged conditions should be stricken, and
generally uphold the condition that prohibits Velazquez from "frequent[ing] places where
children congregate, including but not limited to parks, playgrounds or schools." Clerk's
Papers (CP) at 88. No. 34713-3-111 State v. Velazquez
FACTS
On February 23, 2016, 13-year-old M.M. was shopping with her mother and
younger sister at a Walmart in Ephrata, Washington. While in the deodorant aisle, she
felt someone brush up against her from behind. She saw Velazquez, whom she did not
know, walking away. M.M. was surprised because although the aisle was crowded, there
was plenty of room for him to pass by her.
M.M. and her younger sister later went to the hair accessory aisle. M.M. was
concerned when she saw Velazquez behind her, pacing back and forth. Velazquez
stopped behind her and reached above her for an item. As he did this, he pressed his
pelvic area against M.M.'s backside, and put his hand on her waist. M.M. quickly pulled
away. M.M. was very upset and told her mother about both incidents. Her mother
contacted Walmart employees and reported the incidents.
Also that day, Connie Sisco encountered Velazquez while shopping at Walmart.
Velazquez brushed up against her from behind when attempting to pass her. Sisco was
shocked and offended. She continued shopping and became increasingly worried when
she saw Velazquez in the same areas she was shopping.
Employees, responding to the complaint from M.M.'s mother, located Velazquez
and called police. Velazquez told police he had inadvertently bumped into M.M. while
2 No. 34713-3-III State v. Velazquez
reaching for an item. Police viewed store security video and noticed that Velazquez had
contact with several female shoppers that day. Police posted an online request for people
who experienced offensive touching that day at W almart to come forward. Sisco
responded to the request.
The State charged Velazquez with second degree child molestation, or
alternatively, second degree attempted child molestation, both as to M.M, and fourth
degree assault with sexual motivation as to Sisco. The jury found Velazquez guilty of
second degree child molestation and fourth degree assault with sexual motivation.
The trial court imposed a standard range sentence of 48 months for the second
degree child molestation conviction, imposed a consecutive 364 day sentence for the
misdemeanor assault conviction, and imposed 36 months of community custody.
Relevant to this appeal are the following three community custody conditions: "Do not
purchase, possess or view any pornographic material. . . . Do not frequent places where
children congregate, including but not limited to parks, playgrounds or schools .... No
internet/email/social media access." CP at 88.
Velazquez appealed.
3 No. 34713-3-III State v. Velazquez
ANALYSIS
Velazquez challenges the three community custody conditions set forth above. He
argues the first condition should be stricken because it is not crime related and is
unconstitutionally vague. The State concedes both arguments, and we accept the State's
concession. Velazquez argues the third condition should be stricken because it is not
crime related. The State concedes that argument, too, and we accept the State's
concession.
Velazquez argues the second condition should be stricken because it is
unconstitutionally vague and because it violates his First Amendment to the United States
Constitution right to religious freedom. The State contends, and we mostly agree, that the
second condition is proper.
A. Standard of review
We review community custody conditions for an abuse of discretion. State v.
Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015). The abuse of discretion standard
applies whether this court is reviewing a crime-related community custody condition, or
reviewing a community custody condition for vagueness. See id. at 652, 656; State v.
Sanchez Valencia, 169 Wn.2d 782, 791-92, 239 P.3d 1059 (2010); State v. Cordero, 170
4 No. 34713-3-III State v. Velazquez
Wn. App. 351,373,284 P.3d 773 (2012). Imposing an unconstitutional condition is
always an abuse of discretion. Irwin, 191 Wn. App. at 652.
B. Prohibition against frequenting places where children congregate
1. The condition is not unconstitutionally vague
The guarantee of due process contained in the Fourteenth Amendment to the
United States Constitution and article I, section 3 of the Washington Constitution requires
that laws not be vague. State v. Magana, 197 Wn. App. 189,200,389 P.3d 654 (2016).
Because a violation of a community custody condition can subject a person to arrest and
incarceration, vagueness prohibitions extend to community custody conditions. See
Sanchez Valencia, 169 Wn.2d at 791-92. A community custody condition is not
unconstitutionally vague so long as it: ( 1) provides ordinary people with f~ir warning of
the proscribed conduct, and (2) has standards that are definite enough to "' protect against
arbitrary enforcement.'" Magana, 197 Wn. App. at 200-01 (internal quotation marks
omitted) (quoting State v. Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008)).
Velazquez relies on Irwin. In that case, one of Samuel Irwin's conditions
prevented him from frequenting "' areas where minor children are known to congregate,
as defined by the supervising CCO [community corrections officer]."' Irwin, 191 Wn.
App. at 650. That court decided the condition could not satisfy either prong of the
5 No. 34713-3-III State v. Velazquez
vagueness test. Id. at 655. The condition needed either clarifying language such as the
language the trial court used in the sentencing hearing but not in the condition, or an
illustrative list, so that an ordinary person would have fair warning of the proscribed
conduct. Id. at 654-55. The condition also was subject to arbitrary enforcement because
the CCO in that case was able to define the proscribed conduct, which would otherwise
have cured notice. Id.
a. Fair warning ofproscribed conduct
Here, the trial court tailored the condition to comply with Irwin by use of an
illustrative list of places where children often congregate. Velazquez asserts the
condition, even with the illustrative list, is unconstitutionally vague. He argues that some
schools or parks are areas where children congregate, whereas others, such as the
University of Washington or state parks, are not. Construing the condition in a sensible
manner, we disagree.
A clear reading of the condition indicates the first clause-places where children
congregate-modifies the clause that provides the illustrative list. So if the illustrative
list clause is not where children congregate, the condition is not violated.
6 No. 34713-3-III State v. Velazquez
Ordinary people know that children congregate in schools, excluding colleges and
universities. Ordinary people also know that children congregate in playgrounds and
local parks, as opposed to state or national parks, places that require motor transportation.
b. Definite enough to protect against arbitrary enforcement
The condition contains two terms which help to protect against arbitrary
enforcement. The first term is "children." The second term is "congregate."
The term "children" is somewhat indefinite. We define the term in the manner in
which sentencing courts typically impose the challenged condition. Sentencing courts
typically impose the challenged condition against offenders who commit a sex crime
against a child. The various degrees of child rape and child molestation criminalize ·
sexual acts against children under 16. See RCW 9A.44.073-.089. We further note that
the legislature distinguished the term "child" from "minor" in these statutes,
and used the term "minor" to describe those who were at least 16 and under 18. Cf id.
and RCW 9A.44.093-.096. For these reasons, we construe "children" as meaning
"children under 16." Because the term "children" is somewhat indefinite, and because
remand is necessary to strike two of the challenged community custody conditions, we
direct the trial court on remand to interlineate "under 16" after the word "children."
7 No. 34713-3-III State v. Velazquez
The term "congregate" is more precise. "Congregate" means "to collect together
into a group, crowd, or assembly." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY
478 (1993).
The terms "children under 16" and "congregate" are sufficiently definite to protect
against arbitrary enforcement. In general, children under 16 do not collect into a group or
crowd in places they cannot reach by foot or bicycle. Exceptions include schools and day
cares, places where ordinary people know children congregate. Also, children under 16
do not congregate in malls, areas where adults worship, or grocery stores. These places
are not reached by foot or bicycle, and they are not places where children under 16 are
known to collect into a group or crowd.
We conclude that the trial court's example list, modified as directed, provides
sufficient clarity to comply with constitutional notice so that ordinary persons can
understand what is proscribed. We also conclude that the terms "children under 16" and
"congregate" provide sufficient definiteness to prevent arbitrary enforcement.
2. The condition does not affect Velazquez 's ability to worship
Velazquez argues the challenged condition should be stricken because it affects his
First Amendment to the United States Constitution right to worship and because the
8 No. 34713-3-111 State v. Velazquez
condition is not narrowly tailored. As explained above, the challenged condition does not
affect Velazquez from attending adult worship services.
CONCLUSION
We remand for the trial court to modify the second condition and to strike the first
and the third conditions.
Affirmed in part and remanded.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
j WE CONCUR: