Filed 6/15/16 P. v. Andrade 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                      E063762

v.                                                                      (Super.Ct.No. FSB1204004)

RENE ANDRADE,                                                           OPINION

         Defendant and Appellant.


         APPEAL from the Superior Court of San Bernardino County. Michael M. Dest,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with

directions.

         William Paul Melcher under appointment by the Court of Appeal, for Defendant

and Appellant.




                                                             1
       Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, and Elizabeth

M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.

                                               I

                                     INTRODUCTION1

       Defendant Rene Andrade was the pastor of a Los Angeles church where his 15-

year-old victim was a member. After being charged with three offenses, defendant

eventually pleaded no contest to one count of contact with a minor for the purposes of

committing a sexual offense (count 3; § 288.3, subd. (a).) On appeal, defendant

challenges 12 of his probation conditions. We uphold in part and reverse in part.

                                              II

                    FACTUAL AND PROCEDURAL BACKGROUND

A. The Underlying Offense

       In May 2012, defendant was 43 years old2 and a pastor at El Shaddai Church in

Los Angeles. Defendant met Jane Doe at her quinceañera ceremony, celebrating her 15th

birthday. After the ceremony, defendant communicated with Jane Doe using Facebook,

text messaging, and cell phones. The two would often speak to each other on the

telephone for hours at a time.

       1   All statutory references are to the Penal Code unless stated otherwise.

       2   According to the probation reports, defendant was born in January 1969.



                                              2
       On August 21, 2012, Jane Doe reported to San Bernardino Police Officer Gerardo

Orozco that she and defendant had a relationship in which they were seeing one another

and exchanging messages and phone calls. Officer Orozco reviewed several text

messages from defendant asking to see Jane Doe.

       Jane Doe reported that defendant asked her to send him a naked picture and Jane

Doe sent him a photo of her breasts. When Jane Doe confirmed that it was a genuine

photo, defendant replied that he was masturbating and Jane Doe could hear him moaning

and breathing heavily on the phone.

       Defendant later asked Jane Doe if she would have sex with him. On August 14,

2012, he picked her up from school and they hugged and kissed in his car for about 20

minutes. Defendant also touched her thighs, pulled her bra down, and sucked on her

breasts.

       When Jane Doe’s mother discovered that her daughter and defendant were

communicating with one another and planning to have sex, she confiscated Jane Doe’s

cell phone. Defendant supplied Jane Doe with a new cell phone so that the two could

stay in contact.

       In September, 2012, officers arranged for Jane Doe to make a pretext telephone

call to defendant. During the call, defendant agreed to come to Jane Doe’s residence for

a sexual encounter when her parents were not home. Defendant came to the residence

but drove away without entering because he was aware he was being watched. Police

stopped defendant and took him into custody. Defendant admitted to police that he had

                                            3
intended to meet Jane Doe at her home for sex but he denied he had ever kissed her or

touched her inappropriately.

B. The Criminal Charges

       Defendant was initially charged with two counts of committing a lewd and

lascivious act upon a minor 10 years or younger than defendant (counts 1 and 2; § 288,

subd. (c)(1)) and one count of contact with a minor for the purposes of committing a

sexual offense (count 3; § 288.3, subd. (a).) After various interim proceedings, defendant

pleaded no contest to count 3 pursuant to a plea agreement. In exchange for his plea, the

court sentenced defendant to 135 days in jail and placed him on five years of formal

probation.

                                             III

         WAIVER OF PRIVILEGE AGAINST SELF-INCRIMINATION AND

                 PARTICIPATION IN POLYGRAPH EXAMINATION

       Three of defendant’s probation conditions, Nos. 25, 26, and 34, read together

require him to register as a sex offender (§ 290) and to participate in a treatment program,

including polygraph testing. (§ 1203.067, subd. (b)(2).) Section 1203.067, subdivision

(b)(3), requires “[w]aiver of any privilege against self-incrimination and participation in

polygraph examinations, which shall be part of the sex offender management program.”

       When defendant raises a “facial constitutional defect in the relevant probation

condition,” (In re Sheena K. (2007) 40 Cal.4th 875, 887) this court reviews such

questions of law de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) The

                                             4
Fifth Amendment to the United States Constitution provides that no person shall be

compelled to incriminate himself at trial or in future criminal proceedings. (Minnesota v.

Murphy (1984) 465 U.S. 420, 426.)

       Defendant contends the statutory waiver of the privilege against self-incrimination

violates the Fifth Amendment and is constitutionally overbroad: “A probation condition

that imposes limitations on a person’s constitutional rights must closely tailor those

limitations to the purpose of the condition to avoid being invalidated as unconstitutionally

overbroad.” (In re Sheena K., supra, 40 Cal.4th at p. 890.) Defendant contends the

waiver is overly broad because it is not limited to statements concerning the subject

offenses and because it applies in any criminal proceeding, including a future offense

committed after his probation expires. Accordingly, defendant contends the blanket

waiver of privilege is unconstitutional under the Fifth Amendment.

       The People counter that it does not violate the Fifth Amendment to require

defendant to provide truthful disclosures while participating in the sex offender treatment

program as a term of his probation. The People argue that trial courts have broad

discretion to set reasonable conditions of probation in order to foster rehabilitation and to

protect public safety pursuant to section 1203.1. (People v. Carbajal (1995) 10 Cal.4th

1114, 1120; People v. Olguin (2008) 45 Cal.4th 375, 379.) Therefore, the waiver

requirement is narrowly tailored for purposes of probation supervision and treatment.




                                              5
Additionally, the People assert that sex-offender probationers are protected in criminal

proceedings regardless of any waiver of the privilege against self-incrimination.3

       Based on a quartet of published cases which we discuss below, we conclude that,

although defendant’s statements generally would be inadmissible in criminal

prosecutions, the blanket waiver is too broad and should be framed more narrowly.

Defendant’s statements, made in compliance with probation condition Nos. 25 and 34,

are compelled, and therefore are inadmissible in a criminal trial under the Fifth

Amendment privilege against self-incrimination. Defendant is also privileged not to

answer official questions in any other proceeding, civil or criminal, formal or informal,

where he reasonably believes the answers might incriminate him in a criminal case.

Defendant’s compelled statements can be used in a probation revocation proceeding

because it is not a criminal proceeding. (Minnesota v. Murphy, supra, 465 U.S. at p. 435,

fn. 7.) However, defendant cannot be forced to waive his constitutional right against self-

incrimination for any crime other than the present offenses.




       3 This issue is presently pending before the California Supreme Court in
numerous cases, including People v. Friday (2014) 225 Cal.App.4th 8, review granted
July 16, 2014, S218288; People v. Garcia (2014) 224 Cal.App.4th 1283, review granted
July 16, 2014, S218197; People v. Klatt (2014) 225 Cal.App.4th 906, review granted July
16, 2014, S218755; People v. Rebulloza (2015) 234 Cal.App.4th 1065, review granted
June 10, 2015, S225503.)



                                             6
Murphy

       In Murphy, the United States Supreme Court addressed the admissibility in a

criminal trial of statements the defendant, a sex offender, made during questioning by his

probation officer. When Murphy’s probation officer learned from Murphy’s counselor

that he had abandoned his treatment program and had admitted to previously committing

rape and murder seven years before, the probation officer called Murphy into the office,

with the intent of reporting to the police any incriminating statements. (Minnesota v.

Murphy, supra, 465 U.S. at p. 422.)

       The court in Murphy held that the Fifth and Fourteenth Amendments did not

prohibit the introduction into evidence of Murphy’s admissions made to the probation

officer. The court stated: “We conclude, in summary, that since Murphy revealed

incriminating information instead of timely asserting his Fifth Amendment privilege, his

disclosures were not compelled incriminations. Because he had not been compelled to

incriminate himself, Murphy could not successfully invoke the privilege to prevent the

information he volunteered to his probation officer from being used against him in a

criminal prosecution.” (Minnesota v. Murphy, supra, 465 U.S. at p. 440.)

       The Murphy court explained: “The Fifth Amendment, in relevant part, provides

that no person ‘shall be compelled in any criminal case to be a witness against himself.’

It has long been held that this prohibition not only permits a person to refuse to testify

against himself at a criminal trial in which he is a defendant, but also ‘privileges him not

to answer official questions put to him in any other proceeding, civil or criminal, formal

                                              7
or informal, where the answers might incriminate him in future criminal proceedings.’

[Citation.] In all such proceedings, [¶] ‘a witness protected by the privilege may

rightfully refuse to answer unless and until he is protected at least against the use of his

compelled answers and evidence derived therefrom in any subsequent criminal case in

which he is a defendant. . . . Absent such protection, if he is nevertheless compelled to

answer, his answers are inadmissible against him in a later criminal prosecution.’

[Citation.]” (Minnesota v. Murphy, supra, 465 U.S. at p. 426.)

       The Murphy court further noted: “A defendant does not lose this protection by

reason of his conviction of a crime; notwithstanding that a defendant is imprisoned or on

probation at the time he makes incriminating statements, if those statements are

compelled they are inadmissible in a subsequent trial for a crime other than that for which

he has been convicted. [Citation.]” (Minnesota v. Murphy, supra, 465 U.S. at p. 426.)

       The issue in the instant case is not the admissibility of compelled statements made

in compliance with probation condition Nos. 25 and 34. Unlike in Murphy, the issue here

is whether compelling waiver of defendant’s self-incrimination privilege is constitutional.

Murphy supports the proposition that a defendant on probation retains the privilege

against self-incrimination and cannot be compelled to waive it.

Maldonado

       In Maldonado v. Superior Court (2012) 53 Cal.4th 1112, 1127, the California

Supreme Court held the Fifth Amendment bars, not mere disclosure, but actual use of a

declarant’s compelled utterances to convict or criminally punish that person: “[T]he Fifth

                                              8
Amendment does not provide a privilege against the compelled ‘disclosure’ of self-

incriminating materials or information, but only precludes the use of such evidence in a

criminal prosecution against the person from whom it was compelled.” (Id. at pp. 1134.)

Thus, a defendant’s Fifth Amendment rights are adequately safeguarded by the immunity

against use, either direct or derivative, of defendant’s statements against him. The

Maldonado court stated: “As we have seen, the Fifth Amendment does not provide a

privilege against the compelled ‘disclosure’ of self-incriminating materials or

information, but only precludes the use of such evidence in a criminal prosecution against

the person from whom it was compelled.” (Id. at pp. 1122, 1129, 1134, 1137.)

       Again it is undisputed here that defendant’s statements made in compliance with

probation condition Nos. 25 and 34 are compelled and therefore are inadmissible in a

criminal trial under the Fifth Amendment privilege against self-incrimination. The issue

here is whether a probation condition can compel defendant to waive his privilege against

self-incrimination.

Spielbauer

       The Spielbauer court rejected a forced waiver of self-incrimination: “[t]he

constitutional guarantee against compelled self-incrimination protects an individual from

being forced to testify against himself or herself in a pending criminal proceeding, but it

does more than that. It also privileges a person not to answer official questions in any

other proceeding, ‘civil or criminal, formal or informal,’ where he or she reasonably

believes the answers might incriminate him or her in a criminal case. [Citations.] One

                                             9
cannot be forced to choose between forfeiting the privilege, on the one hand, or asserting

it and suffering a penalty for doing so on the other. [Citation.]” (Spielbauer v. County of

Santa Clara (2009) 45 Cal.4th 704, 714; see Minnesota v. Murphy, supra, 465 U.S. at p.

426.)

        We recognize “it is necessary or highly desirable to procure citizens’ answers to

official questions, including their formal testimony under oath. In such circumstances, an

individual’s invocation of the privilege against self-incrimination would frustrate

legitimate governmental objectives. In light of the competing interests, it is well

established that incriminating answers may be officially compelled, without violating the

privilege, when the person to be examined receives immunity ‘coextensive with the scope

of the privilege’ — i.e., immunity against both direct and ‘derivative’ criminal use of the

statements. [Citations.] In such cases, refusals to answer are unjustified, ‘for the grant of

immunity has removed the dangers against which the privilege protects. [Citation.]’

[Citation.]” (Spielbauer v. County of Santa Clara, supra, 45 Cal.4th at pp. 714-715.)

        In the instant case, however, defendant is required under the section 1203.067,

subdivision (b)(3), probation condition, not only to respond to questions during

polygraph testing, but also to waive his privilege against self-incrimination. By requiring

such waiver, defendant loses the Fifth Amendment safeguards of use immunity in a

criminal trial.

        In Spielbauer v. County of Santa Clara, supra, 45 Cal.4th 704, the plaintiff, who

was a deputy public defender, refused to answer questions by a supervising attorney who

                                             10
was investigating allegations the plaintiff had made deceptive statements to the court

while representing a defendant. The plaintiff was told refusal to answer the questions

would be deemed insubordination warranting discipline up to and including dismissal.

The plaintiff was also told his responses could not be used in a criminal proceeding. The

plaintiff declined to answer the questions, invoking his privilege against self-

incrimination. The plaintiff was terminated on the grounds of deceptive court conduct

and refusal to answer his employer’s questions. (Id. at p. 709.)

       The California Supreme Court in Spielbauer concluded that “a public employee

may be compelled, by threat of job discipline, to answer questions about the employee’s

job performance, so long as the employee is not required, on pain of dismissal, to waive

the constitutional protection against criminal use of those answers.” (Spielbauer v.

County of Santa Clara, supra, 45 Cal.4th at p. 710.) The Spielbauer court added that

“the constitutional privilege against compelled self-incrimination in a criminal case or

cause (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15) does not protect against the

nonpenal adverse use of officially compelled answers. [Citations.]” (Id. at p. 715.) This

would include probation revocation proceedings. “Although a revocation proceeding

must comport with the requirements of due process, it is not a criminal proceeding.

[Citations.]” (Minnesota v. Murphy, supra, 465 U.S. at p. 435, fn. 7.)

       Therefore, under Spielbauer, probation may be revoked for refusing to answer

officially compelled questions in probation proceedings, so long as the defendant is not

required to surrender his or her right against criminal use of the statements thus obtained.

                                             11
(Spielbauer v. County of Santa Clara, supra, 45 Cal.4th at p. 725.) In addition, under

Spielbauer, a formal guarantee of immunity is not required before defendant is required

to submit to polygraph testing in compliance with probation condition No. 25 and 26,

assuming questioning is tailored specifically, directly, and narrowly to compliance with

probation conditions and participation in a sex offender management program. (Id. at pp.

718, 725.)

         Although Spielbauer is distinguishable in that the plaintiff was not required to

waive the privilege against self-incrimination, as was defendant in the instant case,

Spielbauer supports the proposition that a probation condition can compel a defendant to

answer questions by threat of revocation of probation but cannot require waiver of the

privilege against self-incrimination. A defendant cannot be forced to forego the

constitutional protection against criminal use of officially compelled statements in a

criminal trial. (Spielbauer v. County of Santa Clara, supra, 45 Cal.4th at p. 710.) Thus,

in the instant case, defendant can be compelled under section 1203.067, subdivision

(b)(3), to submit to polygraph testing, but cannot be forced to waive his constitutional

privilege against self-incrimination.

Miller

         In People v. Miller (1989) 208 Cal.App.3d 1311, the court held that “[t]he trial

court did not abuse its discretion by including the polygraph requirement as a condition

of probation for the limited use as an investigative tool.” (Id. at p. 1316.) The defendant

in Miller, who pleaded guilty to committing a lewd and lascivious act upon a child

                                              12
(§ 288, subd. (a)), was placed on probation, conditional upon the defendant submitting to

polygraph testing at the direction of his probation officer. The Miller court concluded the

polygraph probation condition was reasonable and valid because it assisted in monitoring

probation compliance. The Miller court noted that “[t]he polygraph condition is designed

to help evaluate the truthfulness of defendant’s reports and ‘[t]he purpose and objectives

of probation would be frustrated if a convicted defendant could maintain . . . a right of

silence at the time of his . . . report to the probation officer . . . .’” (Miller, at p. 1316.)

The Miller court further stated the polygraph condition was “aimed at deterring and

discovering criminal conduct most likely to occur during unsupervised contact with

young females,” and therefore was reasonably related to future criminality. (Id. at p.

1314.)

         The court in Miller concluded the polygraph condition was not overbroad because

it was limited to questions relating to compliance with probation conditions. Even

though there were no specific limitations on the questions to be asked during polygraph

testing, the Miller court construed the condition as imposed to monitor the defendant’s

compliance with the probation condition prohibiting unsupervised contact with young

females and therefore any polygraph test administered to the defendant at the direction of

his probation officer “necessarily will be limited to questions relevant to compliance with

that condition.” (People v. Miller, supra, 208 Cal.App.3d at p. 1315.) The Miller court

held the polygraph probation condition did not violate the defendant’s privilege against




                                                13
self-incrimination unless the defendant showed a realistic threat of self-incrimination.

(Ibid.)

          The court in Miller explained: “Although defendant has a duty to answer the

polygraph examiner’s questions truthfully, unless he invokes the privilege, shows a

realistic threat of self-incrimination and nevertheless is required to answer, no violation

of his right against self-incrimination is suffered. [Citation.] The mere requirement of

taking the test in itself is insufficient to constitute an infringement of the privilege.”

(Ibid.)

          Miller, decided in 1989, does not address the constitutionality of the section

1203.067, subdivision (3)(b), probation condition requiring waiver of the self-

incrimination privilege because the statute was not enacted until after Miller was decided.

We nevertheless conclude, based on Murphy, Maldonado, Spielbauer, and Miller, that

the probation conditions, premised on section 1203.067, subdivision (b)(3), are

unconstitutional to the extent they mandate defendant waive his privilege against self-

incrimination. Such mandated waiver violates defendant’s Fifth Amendment privilege

against self-incrimination.

          On the other hand, the probation condition compelling defendant to submit to

polygraph testing at the direction of his probation officer, which is narrowly tailored to

monitoring compliance with defendant’s probation conditions and participation in his sex

offender management program, is constitutional and valid when appropriately modified,

as proposed by the People, to read as follows: “The questions shall be limited to those

                                               14
relating to the successful completion of probation and the crime for which you were

convicted.” (In re Sheena K., supra, 40 Cal.4th at p. 888; Brown v. Superior Court

(2002) 101 Cal.App.4th 313, 316-317, 322.)

                                             III

            PROBATION CONDITION NO. 17, FIELD INTERROGATION

       Probation condition No. 17 requires defendant to “Submit to and cooperate in a

field interrogation by any peace officer at any time of the day or night.” A field

interrogation condition is meant as a correctional tool used to determine whether the

probationer is complying with the terms of his probation or disobeying the law. (People

v. Reyes (1998) 19 Cal.4th 743, 752; In re Anthony S. (1992) 4 Cal.App.4th 1000, 1006.)

An otherwise valid probation condition that impinges upon constitutional rights “must be

carefully tailored, ‘reasonably related to the compelling state interest in reformation and

rehabilitation . . . .’” (People v. Bauer (1989) 211 Cal.App.3d 937, 942, quoting In re

White (1979) 97 Cal.App.3d 141, 146.) A probation condition cannot be vague; it

“‘“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.

Barajas (2011) 198 Cal.App.4th 748, 753, quoting In re Sheena K., supra, 40 Cal.4th at

p. 890.) A state may not “constitutionally carry out a threat to revoke probation for the

legitimate exercise of the Fifth Amendment privilege.” (Minnesota v. Murphy, supra,

465 U.S. at p. 438.)




                                             15
       Defendant contends the condition is unconstitutionally vague and overbroad and

impairs his Fifth Amendment right because “it would be inherently uncooperative for

[defendant] to assert his constitutional privilege during a field investigation.” Defendant

also asserts probation condition No. 17 would allow him to be interrogated on any matter,

rather than his crime of conviction and compliance with probation, whether related or

unrelated to his conduct.

       We disagree the condition is vague because it expressly describes that defendant is

required to submit to a field interrogation at any time. The probation condition is not

overbroad because it aids the probation department in monitoring defendant’s probation

compliance and future criminality. (People v. Olguin, supra, 45 Cal.4th at p. 380; People

v. Bravo (1987) 43 Cal.3d 600, 610; People v. Lent (1975) 15 Cal.3d 481, 486.) The

Fifth Amendment claim also fails because defendant’s incriminating statements can only

be used against him to revoke his probation, not in a criminal proceeding. (Minnesota v.

Murphy, supra, 465 U.S. at 435, fn. 7; Maldonado v. County of Santa Clara, supra, 53

Cal.4th at p. 1134; People v. Brown, supra, 101 Cal.App.4th at p. 320.)

                                            IV

                 PROBATION CONDITION NOS. 13, 16, 24, AND 30

       Probation condition No. 13 prohibits defendant’s association “with females under

the age of eighteen (18), unless in the presence of a responsible adult, who is aware of the

nature of your background and current offense, and who has been approved by the

probation officer.” Probation condition No. 16 prohibits defendant from approaching

                                            16
“minor female motorists or pedestrians not previously known to you or engag[ing] same

in conversation in a public place or street.” Probation condition No. 24 states, “Do not

utilize any form of social media via the internet or access social media. Submit all

internet devices including smart phones and tablets for examination upon request by any

law enforcement agency.” Probation condition No. 30 states, “Do not associate with

minors or frequent places where minors congregate, including but not limited to:

schoolyards, parks, amusement parks, concerts, playgrounds, swimming pools, and

arcades, unless in the company of a responsible adult over the age of 21 who is approved

by the Probation Officer or court, . . .”

       The parties generally agree these probation conditions must contain a scienter

requirement and must be modified to prohibit only knowing conduct. (People v.

Contreras (2015) 237 Cal.App.4th 868, 886.) Where a probationer could unknowingly

engage in activity prohibited by probation conditions, Courts of Appeal have modified

those conditions to incorporate a scienter requirement. (See, e.g., People v. Lopez (1998)

66 Cal.App.4th 615, 629; In re Kacy S. (1998) 68 Cal.App.4th 704, 713 [association with

approved persons]; People v. Turner (2007) 155 Cal.App.4th 1432, 1435-1436 [persons

under 18]; In re Victor L. (2010) 182 Cal.App.4th 902, 912-913; People v. Moses (2011)

199 Cal.App.4th 374, 377 [minors]; People v. Moore (2012) 211 Cal.App.4th 1179,

1185.) Because defendant may act unknowingly the conditions must be modified to

incorporate an express scienter requirement. (People v. Patel (2011) 196 Cal.App.4th

956, 960; People v. Pirali (2013) 217 Cal.App.4th 1341, 1350 [with addition of an

                                            17
express knowledge requirement, probation condition regarding internet access is not

unconstitutionally vague or overbroad].)

                                              V

                   PROBATION CONDITION NOS. 14, 27, 28, and 30

       Defendant objected to probation condition Nos. 14, 27, and 28. Probation

condition No. 14 states, “Neither possess nor have under your control any ‘obscene

matter,’ as defined in PC311.” Probate condition No. 27 states, “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.” Probation condition No. 28

states, “Do not frequent massage parlors, live nude shows or conventions where erotic

materials and/or devices are the primary items sold.”

       We conclude these probation conditions are not overbroad because they are

relevant to defendant’s present and future criminality. A condition of probation will not

be held invalid unless it (1) has no relationship to the crime of which the offender was

convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids

conduct which is not reasonably related to future criminality. (People v. Lent, supra, 15

Cal.3d at p. 486; People v. Olguin, supra, 45 Cal.4th at pp. 379-380; People v. Carbajal,

supra, 10 Cal.4th at p. 1121.)




                                             18
       Here the prohibited conduct is not in itself criminal. However, the conduct

reasonably relates to defendant’s present crimes and future criminality. Defendant

encouraged his victim to share nude photos of herself and he used those photos for sexual

gratification. The probation conditions could help prevent future crime by defendant.

The challenged probation conditions are valid under two prongs of Lent. The trial court

did not abuse its broad discretion imposing the conditions. (People v. Contreras (2015)

237 Cal.App.4th 868, 881.)

       Defendant also objects to the term “frequent” as used to mean visit in probation

conditions Nos. 27, 28, and 30. Probation condition No. 30 forbids appellant to

“associate” with minors or “frequent” places where minors congregate. Defendant relies

on two cases: “We also agree with defendant that the word ‘frequent’ renders the

condition unconstitutionally vague, because it is both obscure and has multiple meanings.

(In re H.C. (2009) 175 Cal.App.4th 1067, 1072.) Accordingly, we will order the gang-

area condition to read as follows: ‘You are not to visit or remain in any specific location

which you know to be or which the probation officer informs you is an area of criminal-

street-gang-related activity.’” (People v. Leon (2010) 181 Cal.App.4th 943, 952.) We

disagree that “frequent” is too archaic to be commonly understood. Its meaning is the

equivalent of “visit.” No modification of the word is necessary to uphold the validity of

the probation conditions using it.




                                            19
                                            VI

                                     DISPOSITION

       The parties agree probation condition Nos. 11, 25, and 26 must be modified to

strike the portion of each condition requiring defendant to be responsible for paying costs

or fees. (See People v. Brown, supra, 101 Cal.App.4th at pp. 321-322.) We also remand

to modify probation condition Nos. 13, 16, 24, 25, 26, 30, 34 as explained in this opinion.

Probation condition Nos. 13, 16, 24, and 30 should include the requirement of scienter.

Subject to these modifications, we affirm the judgment.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               CODRINGTON
                                                                                          J.

We concur:


RAMIREZ
                       P. J.


McKINSTER
                          J.




                                            20
