    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON                        ]
                                                   No. 70044-8-1
                     Respondent,           ]
                                                   DIVISION ONE
              v.                           ]
                                                   UNPUBLISHED OPINION
JOSE ALFREDO GABINO,

                     Appellant.             i      FILED: January 20, 2015


       Trickey, J. — The exercise of challenges for cause and peremptory challenges
during jury selection at a sidebar conference does not violate the right to a public trial.
       In April 2003, the State charged Jose Gabino with child molestation in the first

degree. The victim, a minor at the time, was not Gabino's biological child. The trial
resulted in a hung jury. Following a second trial in 2012, a jury convicted Gabino as

charged. The trial court imposed a minimum term of 62 months confinement and a

lifetime term of community custody.

       Gabino appeals his conviction and several community custody conditions in the

judgment and sentence. We affirm, but remand to the trial court for proceedings
consistent with this opinion.

                                   PUBLIC TRIAL RIGHT

       Gabino maintains that the trial court violated his constitutional right to a public trial

by allowing for-cause and peremptory challenges to take place during a sidebar
conference without first analyzing the requisite factors set forth in State v. Bone-Club, 128
Wn.2d 254, 906 P.2d 325 (1995). This contention fails.

       The Sixth Amendment to the United States Constitution and article I, section 22 of

the Washington Constitution guarantee a defendant the right to a public trial. State v.
No. 70044-8-1 / 2


Wise. 176 Wn.2d 1, 9, 288 P.3d 1113 (2012). Certain proceedings must be held in open

court unless the trial court first considers on the record the five-factor test set forth in

Bone-Club, and finds the factors justify a closure of the courtroom. 128 Wn.2d at 258-

59. The threshold determination when addressing an alleged violation of the public trial

right is whether the proceeding at issue implicates the right. State v. Sublett. 176 Wn.2d

58, 71, 292 P.3d 715 (2012). "[N]ot every interaction between the court, counsel, and

defendants will implicate the right to a public trial or constitute a closure if closed to the

public." Sublett. 176 Wn.2d at 71.

       Here, during jury selection, the jury venire was questioned in an open courtroom

and on the record. At the close of questioning, the trial court held a sidebar conference

with counsel outside the presence of the jury panel and offthe record. The trial court did

not conduct a Bone-Club analysis before convening the sidebar conference. Following

the sidebar conference, the trial court announced in open court which jurors had been

selected to sit on the jury. After the jury left the courtroom, the trial court stated it wished

"to put on the record what we did at side bar regarding jury selection."1 The trial court
made a clear indication of the discussion that took place during the sidebar conference,

and announced which party challenged which juror and the results of those challenges.

The court reporter notes indicated the same.             Washington appellate courts have

repeatedly rejected Gabino's argument and similar ones. State v. Filitaula,           Wn. App.
_, 339 P.3d 221 (2014); State v. Marks.            Wn. App. _, 339 P.3d 196 (2014); State v.
Webb. 183 Wn. App. 242, 333 P.3d 470 (2014); State v. Dunn. 180 Wn. App. 570, 321
P.3d 1283 (2014); State v. Love. 176 Wn. App. 911, 309 P.3d 1209 (2013), petition for


12 Report of Proceedings (October 10, 2012) (Supp.) at 3.
                                               2
No. 70044-8-1 / 3


review granted in part. No. 89619-4 (Wash. Jan. 6, 2015). Following those decisions, we

conclude that the trial court did not violate Gabino's public trial right.

                          COMMUNITY CUSTODY CONDITIONS

       Gabino next challenges several of the crime-related conditions of sentence

imposed upon him during the lifetime term of community custody.

       Under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, a court has

the authority to impose "crime-related prohibitions" and affirmative conditions as part of a

felony sentence. RCW 9.94A.505(8). "'Crime-related prohibition' means an order of a

court prohibiting conduct that directly relates to the circumstances of the crime for which

the offender has been convicted." RCW 9.94A.030(10). A court may order compliance

"with any crime-related prohibitions" as a condition of community custody.            RCW

9.94A.703(3)(f). "We review the imposition of community custody conditions for an abuse

of discretion, and reverse only if the decision is manifestly unreasonable or based on

untenable grounds." State v. Johnson. No. 44194-2-11, 2014 WL 6778299, at *1 (Wash.

Ct. App. Dec. 2, 2014).

       Condition 13 ordered Gabino to "[a]void all contact with minors, to including your

own children, and adhere to the instructions of the Community Corrections Officer[(CCO)]

concerning residence and employment, unless otherwise authorized by the Department

of Corrections and treatment provider with an adult sponsor approved by the provider and

the Department of Corrections."2         Gabino asserts that the trial court violated his

fundamental right to parent because it did not consider whether the condition was

reasonably necessary to effectuate a compelling state interest.



2Clerk's Papers (CP) at 112.
No. 70044-8-1 / 4


       "More careful review of sentencing conditions is required where those conditions

interfere with a fundamental constitutional right." State v. Warren. 165 Wn.2d 17, 32,195

P.3d 940 (2008). The right to the care, custody, and companionship of one's children

constitutes such a fundamental constitutional right. In re Pers. Restraint of Rainev. 168

Wn.2d 367, 374, 299 P.3d 686 (2010). Thus, sentencing conditions burdening this right

"must be 'sensitively imposed' so that they are 'reasonably necessary to accomplish the

essential needs of the State and public order.'" Rainev. 168 Wn.2d at 374 (quoting

Warren. 165 Wn.2d at 32).

       In State v. Letourneau. the defendant was convicted of second degree rape of a

child. 100 Wn. App. 424, 427, 997 P.2d 436 (2000). The victim was a minor to whom the

defendant was not related. Letourneau. 100 Wn. App. at 428-29. As a condition of her

sentence, Letourneau was prohibited from unsupervised contact with her biological

children until they reached the age of majority. Letourneau. 100 Wn. App. at 437-38.

Because there was no evidence that the defendant might molest her own children, we

found that the condition was not reasonably necessary to accomplish the State's

compelling interest. Letourneau. 100 Wn. App. at 441-42.

      Similarly, in Rainev. the Supreme Court struck a lifetime no-contact order

prohibiting the defendant from all contact with his child. 168 Wn.2d 367, 381-82, 299

P.3d 686 (2010). The court based its decision on the fact that the sentencing court did

not articulate any reasonable necessity for the lifetime duration of that order. Rainev, 168

Wn.2d at 381-82.      Recognizing the "fact-specific nature of the inquiry," the court

remanded to the trial court for resentencing so that the court could "address the
No. 70044-8-1 / 5


parameters of the no-contact order under the 'reasonably necessary' standard." Rainev.

168Wn.2dat382.

       As in Rainev. the trial court here provided no explanation as to whether the no-

contact order was reasonably necessary to realize a compelling state interest. Although

the State has a compelling interest in protecting children from harm, the State did not

demonstrate how prohibiting all contact between Gabino and his children was reasonably

necessary to protect that interest, especially in light of the fact that his children were not

victims of Gabino's offenses. See Letourneau. 100 Wn. App. at 441-42. And the State

presented no evidence to indicate that Gabino would molest his own children. Moreover,

there is no temporal limit on the restriction on contact with minor children because Gabino

was sentenced to lifetime community custody. If Gabino were to have children in the

future, he would be prohibited from contacting them.

       The State responds that the no-contact order was proper because Gabino's

children are minors and therefore fall within the same class as that of the victim.         In

addition to crime-related prohibitions, a court may order an offender to have no contact

with victims or a "specified class of individuals." RCW 9.94A.703(3)(b). The specified

class must bear some relationship to the crime. State v. Riles. 135 Wn.2d 326, 350, 957

P.2d 655 (1998), abrogated on other grounds by State v. Valencia. 169 Wn.2d 782, 239

P.3d 1059 (2010). The State's cursory argument fails to demonstrate with specificity how

Gabino's children fall within the same "specified class" as the victim. We are not

persuaded by this argument.

       The sentencing condition prohibiting contact with his biological children implicates

Gabino's fundamental right to parent his children. Therefore, the State must make some
No. 70044-8-1 / 6


showing that the condition is reasonably necessary to accomplish the essential needs of
the state and the public order. The State failed to do so. We therefore strike the portion

of Condition 13 that prohibits Gabino from contacting his own children.

       Condition 3 ordered Gabino to "[sjubmit to polygraph and/or plethysmograph

assessment at own expense as directed by Department of Corrections and therapist, but

limited to topics related to monitoring compliance with crime-related sentencing

conditions."3 Gabino argues that this condition violates his right to be free from bodily

intrusions insofar as it requires him to submit to plethysmograph testing at the direction

of the Department of Corrections for purposes of monitoring compliance with sentencing
conditions. He does not challenge the polygraph aspect of the condition.

       RCW 9.94A.703(3)(c) allows a trial court to order an offender to "[participate in
crime-related treatment or counseling services." But requiring an offender to submit to

plethysmograph testing incident to crime-related treatment is a proper community custody
condition, so long as the testing is not used as a routine monitoring tool subject only to
the discretion of a CCO. State v. Land. 172 Wn. App. 593, 605, 295 P.3d 782, review

denied. 177 Wn.2d 1016, 304 P.3d 114 (2013V. see also Johnson. 2014 WL 6778299, at
*2 (holding that CCO may order plethsymograph testing, but scope of the CCO's authority
is limited to ordering such testing only for purposes of sexual deviancy treatment).
Accordingly, we affirm the trial court's imposition of condition 3 with directions to the trial
court to clarify that a CCO may order plethsymographs only for the purpose of sexual
deviancy treatment.




 3 CP at 111.
No. 70044-8-1 / 7


       Condition 6 prohibited Gabino from "us[ing] or posess[ing] sexually explicit material

in any form as described by the treatment provider and/or [CCO], including [Ijnternet use

and possession."4 Reiving on State v. Bahl. 164Wn.2d739,193 P.3d 678 (2008), Gabino

contends that this condition is unconstitutionally vague.

       The Fourteenth Amendment to the United States Constitution and article I, section

3 of the Washington Constitution require that citizens have fair warning of proscribed

conduct. Bahl. 164 Wn.2d at 752. Community custody conditions that fail to provide

ascertainable standards of guilt to        protect against arbitrary enforcement are

unconstitutionally vague. Bahl. 164 Wn.2d at 752-53; State v. Sansone, 127 Wn. App.

630, 638-39,111 P.3d 1251 (2005). Because sentencing conditions are not laws enacted

by the legislature, they are not afforded the same presumption of constitutionality as

legislative enactments. State v. Sanchez Valencia. 169 Wn.2d 782, 793, 239 P.3d 1059

(2010); Bahl. 164 Wn.2d at 753. Nevertheless, "'a community custody condition is not

unconstitutionallyvague merely because a person cannot predict with complete certainty

the exact point at which his actions would be classified as prohibited conduct.'" Sanchez

Valencia. 169 Wn.2d at 793 (internal quotation marks omitted) (quoting State v. Sanchez

Valencia. 148 Wn. App. 302, 321, 198 P.3d 1065 (2009)). "If persons of ordinary

intelligence can understand what the [condition] proscribes, notwithstanding some

possible areas of disagreement, the [condition] is sufficiently definite." City of Spokane

v. Douglass. 115Wn.2d 171, 179, 795 P.2d 693 (1990).

       In Bahl. our Supreme Court reviewed a similar condition of community custody,

which stated the following: "Do not possess or access pornographic materials, as directed



4 CP at 111.
No. 70044-8-1 / 8


by the supervising [CCO].      Do not frequent establishments whose primary business

pertains to sexually explicit or erotic material." 164 Wn.2d at 743. The court first held

that the prohibition on possessing pornographic materials was vague and that the

discretion of the CCO only made the vagueness more apparent because it "acknowledges

that on its face it does not provide ascertainable standards for enforcement." Bahl. 164

Wn.2d at 758. Second, the court held that the terms "sexually explicit" and "erotic" were

not unconstitutionally vague when considering the context in which they are used, their

dictionary definitions, and the statutory definition. Bahl. 164 Wn.2d at 759. We likewise

find that the condition here was sufficiently definite to give notice to Gabino of the

proscription against using or possessing explicit materials. Nor does the condition fail to

provide ascertainable standards of guilt to protect against arbitrary enforcement.

       Nevertheless, the trial court abused its discretion in imposing this condition.

Restrictions implicating First Amendment rights must be reasonably necessary to

accomplish essential state needs and public order. Bahl. 164 Wn.2d at 757-58. No

evidence indicates that use of sexually explicit material was related to Gabino's conviction

of first degree child molestation. And the State failed to establish that this prohibition was

reasonably related to a compelling state interest and public order. Accordingly, we

remand with instructions to strike condition 6.

       Conditions 12 and 16 state, respectively: "Do not withhold information or keep

secrets from treatment provider or [CCO]," and "[d]o not date or form relationships with

people who are less than 20 percent of your age."5 The State correctly concedes that




5 CP at 112.
No. 70044-8-1 / 9


these conditions are vague and not crime-related. We accept the State's concessions

and remand to strike conditions 12 and 16.

       We affirm Gabino's conviction, but remand for the trial court to (1) strike the portion

of condition 13 that prohibits Gabino's contact with his children, (2) clarify that condition

3 authorizes a CCO to order plethsymographs only for the purpose of sexual deviancy

treatment, (3) strike condition 6, and (4) strike conditions 12 and 16.6




                                                    "T/ivkiNj, ^

WE CONCUR:




                                                              £ck,3*




6 In a statement of additional grounds, Gabino asserts that he received ineffective assistance of
counsel and that he was unlawfully sentenced under the current version ofthe SRA, even though
he committed the criminal act in 2003. We discern no error.
