Filed 8/25/15 P. v. Lopez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068109
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. MCR038495)
                   v.

ROBERTO LOPEZ,                                                                           OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Madera County. Ernest J.
LiCalsi, Judge.
         Katharine Eileen Greenbaum, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Kane, Acting P. J., Franson, J. and Smith, J.
       Roberto Lopez was on probation after pleading guilty to violation of Penal Code
section 288, subdivisions (a) and (b)(1).1 The Madera County Probation Department
filed a petition alleging Lopez violated the condition of his probation that required him to
obey the reasonable orders of the probation department. Specifically, the petition alleged
Lopez had been ordered by the probation department not to possess any photographs of
children under the age of 18, and he violated this order when he possessed what appeared
to be school photographs of four fully clothed children. We conclude the trial court erred
in ruling Lopez violated his probation because there was insufficient evidence the order
of the probation department was reasonable, as required by the conditions of probation.
                      FACTUAL AND PROCEDURAL SUMMARY
       In October 2010 the Madera County District Attorney filed a first amended
information charging Lopez with (1) continuous sexual abuse of a child (§ 288.5,
subd. (a)), (2) two counts of lewd and lascivious acts on a child under 14 years of age
(§ 288, subd. (a)), and (3) lewd and lascivious acts on a child under 14 years of age by the
use of force or fear (id., subd. (b)(1)). According to the probation report, Lopez had lived
with the victim’s mother and the mother’s young children for a number of years. The
children referred to Lopez as their grandfather.2 The charges were instituted when one of
the children told her mother that Lopez had entered her bedroom during the night and had
touched her breasts and vagina, and that such acts had occurred on more than one
occasion.
       In December 2010 Lopez entered into a plea agreement wherein he agreed to
plead guilty to one count of lewd and lascivious acts on a child under 14 years of age and
one count of lewd and lascivious acts on a child under 14 years of age by force or fear.

       1All   further statutory references are to the Penal Code unless otherwise specified.
       2At the time of the offenses, Lopez was approximately 81 years old. He was 83 at
the time of the hearing on the violation of probation.


                                              2.
In exchange, the prosecution dismissed the remaining two counts and Lopez was
sentenced to a term of 10 years in prison, which the trial court suspended upon the
condition that Lopez successfully complete a five-year term of probation.
       In November 2012 the Madera County Probation Department (probation
department) filed a petition alleging Lopez violated his probation by being in the
presence of children without supervision by an adult approved by the probation
department. It appears the probation department discovered that Lopez had befriended a
young woman with children in the same manner he had befriended the mother of the
victim. According to the recommendation filed by the probation department, Lopez,
“[b]y his appearance and soft spoken demeanor … has again begun to earn the trust of
another young mother.” After an evidentiary hearing, the trial court found Lopez had
violated the terms and conditions of his probation. The trial court revoked and then
reinstated probation under the same terms and conditions, with the addition that Lopez
serve 360 days in jail.
       In July 2013, apparently shortly after Lopez was released from custody for the
violation of probation, the probation department filed a second petition alleging Lopez
violated the terms and conditions of his probation. The petition alleged that one of the
terms of probation required Lopez to obey “all reasonable oral and written directives of
the probation officer.” Lopez allegedly violated this condition by possessing pictures of
children, which the probation department had forbidden.
       The prosecution called three witnesses in support of the petition. The first
witness, Probation Officer Maryann Dawkins, testified she discovered the photos when
she visited Lopez in the motel room in which he was staying. On top of the dresser were
two grocery bags. Inside one of the grocery bags was a small item, variously described
as a small wallet or wallet insert. This item contained three separate wallet-size photos.
One photo was a picture of a woman and a girl (who may have been over 18), the second
photo was a picture of a young man, and the third photo was a picture of a young girl.

                                             3.
The last two photos were described as being “like a school photo.” Dawkins opined the
two children in the photos by themselves were elementary school age.
      Dawkins also searched Lopez’s wallet, in which she found two pictures, one of a
young boy and the other of a young girl. Dawkins testified these photos appeared to be
elementary school photos. Dawkins seized all of the photos.
      Humberto Nava acted as an interpreter for Dawkins during her contact with
Lopez. Lopez told Dawkins a nephew had given the bag to him and he did not know the
photos were in the grocery bag.
      The third witness offered by the prosecution was Probation Officer Gabrielle
Sanchez, who apparently was Lopez’s probation officer. She testified she informed
Lopez “[m]any times” that he was prohibited from possessing photos of children, each
time through an interpreter. Through the interpreter Sanchez confirmed Lopez
understood the condition. The specific advisement was “[h]e could have no pictures of
minors under the age of 18.” He was allowed, however, to keep “pictures of his parents
and himself and his siblings when they were younger, so him and his brothers and sisters,
pictures from 1940.” Sanchez was “very specific and clear to him.”
      The trial court inquired about the reason behind the prohibition, after which the
following colloquy occurred:

      “[SANCHEZ]:          Because he is a registered 290. Per our policy, we
                           don’t allow them to have pictures of children under the
                           age of 18 on their possession.

      “THE COURT:          Why is there such a policy?

      “[SANCHEZ]:          I can’t answer that question.

      “[PROSECUTOR]: Maybe I can help. [¶]…[¶] … What kind of
                     conditions do your 290 registrants have generally?

       “[SANCHEZ:]         Possess no porn. Not be around social websites. You
                           are not to be around children unsupervised by someone



                                           4.
                            not approved by us, not congregate in areas that cater
                            specifically to children.

       “[PROSECUTOR:] What are the functions of those requirements?

       “[SANCHEZ:]          I am sorry?

       “[PROSECUTOR:] Why do you have those requirements?

       “[SANCHEZ:]          To protect children.

       “[PROSECUTOR:] How is it that, for example, not having pornography
                      protects children?

       “[SANCHEZ:]          There could be child pornography, it could arouse him.

       “[PROSECUTOR:] And is he also required to take polygraph
                      examinations?

       “[SANCHEZ:]          Yes.

       “[PROSECUTOR:] Has he done that?

       “[SANCHEZ:]          One which resulted—I don’t think he ever completed
                            it. It resulted in the last violation when we arrested
                            him.

       “[PROSECUTOR:] Is the containment model designed to contain persons
                      with deviant sexual interests?

       “[SANCHEZ:]          Yes.”
       There is no other reference in the record to explain why Lopez was denied the
right to possess photos of children. In concluding Lopez had violated his probation, the
trial court explained its reasoning as follows, “I haven’t chewed tobacco for two and a
half years. You put a tobacco can in front of me and I start wanting tobacco. Mr. Lopez
is a pedophile and you put pictures of young children in front of him and that’s going to
arouse his interest and we can’t have that.” Based on that reasoning, the trial court found
the order from the probation officer was clear and understood by Lopez. At the
sentencing hearing, the trial court revoked Lopez’s probation and ordered him to serve
the previously imposed sentence of 10 years in prison.


                                            5.
                                       DISCUSSION
       Lopez presents two arguments asserting the trial court erred in finding he had
violated his probation. First, he asserts the probation condition was constitutionally
overbroad, and thus unenforceable. Second, he argues the trial court’s decision was not
supported by substantial evidence. It is important to properly frame the issue before
proceeding.
       The term of probation imposed by the trial court required Lopez to obey all
reasonable oral and written directives of the probation officer. Lopez does not challenge
this condition of probation, although an argument easily could be crafted that this
condition was overbroad because what is reasonable to one probation officer may be
unreasonable to another person, or even another probation officer. A probationer could
not know if an order given by a probation officer would indeed by seen by the court as
reasonable or unreasonable unless he refused to obey the order and was charged with
violating probation, or, in the alternative, petitioned the trial court to determine if every
order given was reasonable.3
       Instead, Lopez focuses his arguments on the order of the probation officer that
prohibited him from possessing any photographs of children under the age of 18, except
for a few specifically identified photographs of Lopez and his brothers and sisters when
they were children. Lopez argues, in essence, this order was both overbroad and vague.
His substantial evidence argument contains several parts. First, Lopez points out the
photos that allegedly were in his possession were never introduced into evidence, so the
trier of fact could not determine whether the pictures were of children. Second, it is
impossible to know if the photos were of family members and therefore within the
parameters of the order. Third, since there was no evidence the photos were

       3Because   Lopez does not challenge this order, the People’s assertion that Lopez
forfeited the right to challenge this condition of probation by failing to object in the trial
court is moot.


                                               6.
pornographic, they could not result in a violation of probation. Lopez also suggests that
since Sanchez communicated with him through an interpreter, and that interpreter did not
testify at the hearing, it is impossible to know what was communicated to Lopez by the
interpreter.
       We conclude the resolution of this case involves both a substantial evidence and
overbreadth component. The condition of probation Lopez was charged with violating
required him to obey the reasonable orders of the probation department. The prosecution
was required, therefore, to establish the order Lopez was charged with violating was
reasonable. The prosecution failed to meet this burden, i.e., failed to present substantial
evidence to support the ruling because the order was unreasonable since it was overbroad
and unrelated to the crime of which Lopez was convicted.
       The case most often cited to define the parameters of probation or parole
conditions is People v. Lent (1975) 15 Cal.3d 481. “The Legislature has placed in trial
judges a broad discretion in the sentencing process, including the determination as to
whether probation is appropriate and, if so, the conditions thereof. (Pen. Code, § 1203 et
seq.) 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 .…’ [Citation.] Conversely, a condition of probation which requires or
forbids conduct which is not itself criminal is valid if that conduct is reasonably related to
the crime of which the defendant was convicted or to future criminality.” (Id. at p. 486.)
Applying these factors to the facts of this case compels the conclusion that this probation
order was not reasonable.
       We begin with the crime of which Lopez was convicted. He pled guilty to two
counts of lewd and lascivious conduct on a child under the age of 14. The probation
report summarizes the offense as follows: “The offense was perpetrated in the supposed
safety of [the victim’s] home by the defendant who she viewed as a grandfather. The

                                              7.
defendant had been residing with her family for most of her life. The offense occurred
while she was sleeping in her bed with her two siblings.”
       The probation report prepared for this violation further summarizes the original
offense and the first violation of probation. “Prior to the defendant’s conviction in this
case, he had befriended a young woman with children and became a grandfather figure to
them. He then molested his ten year old ‘granddaughter’ and was subsequently arrested.
The basis of the first violation of probation was that he befriended yet another young
woman with children and was viewed as ‘grandpa’ to them also; bringing them special
gifts and kisses.”
       These probation reports establish that Lopez’s method of operation consisted of
befriending young mothers and insinuating himself in the lives of the mother and her
children by undertaking the role of grandfather. In this role, he gained access to the
young victim, which permitted him to molest her.
       The order of the probation department prohibited Lopez from possessing pictures
of children. However, Lopez’s method of operation did not include the use of pictures of
children. There was no testimony that Lopez utilized the photographs to insinuate
himself in the lives of young mothers, or that possession of such photographs compelled
him to molest children. Nor was there any testimony, as suggested by the trial court, that
merely looking at pictures would “arouse his interest.” Even if this were so, to avoid
arousing his interest Lopez would have to avoid television, the Internet, and any place a
child may be seen, clearly an impossible task.
       The trial court did not receive any assistance from Sanchez, the only witness to
address the issue, to determine if this condition was reasonable. She could not provide
any reason for prohibiting Lopez from possessing photos of children. Her reply to the
court was that the restriction was office policy, which suggests a failure to consider
whether the restriction was required for this person based on his crimes.



                                             8.
      The same result is reached when considering the overbreadth aspect of the
probation order.

              “[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’ [citation], protections that
      are ‘embodied in the due process clauses of the federal and California
      Constitutions. [Citation.]’ [Citation.] The vagueness doctrine bars
      enforcement of ‘“a statute which either forbids or requires the doing of an
      act in terms so vague that men of common intelligence must necessarily
      guess at its meaning and differ as to its application.” [Citation.]’
      [Citation.] A vague law ‘not only fails to provide adequate notice to those
      who must observe its strictures, but also “impermissibly delegates basic
      policy matters to policemen, judges, and juries for resolution on an ad hoc
      and subjective basis, with the attendant dangers of arbitrary and
      discriminatory application.” [Citation.]’ [Citation.] In deciding the
      adequacy of any notice afforded those bound by a legal restriction, we are
      guided by the principles that ‘abstract legal commands must be applied in a
      specific context,’ and that, although not admitting of ‘mathematical
      certainty,’ the language used must have ‘“reasonable specificity.”’
      [Citation.]

              “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.] 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. (2007) 40 Cal.4th 875,
      890.)
      As we discussed above, the order of the trial court could have been challenged on
vagueness grounds, but the order of the probation department was not constitutionally
vague. The order was clear and direct -- if it was translated properly to Lopez. He was
not to possess any photographs of children under 18 except for a few specifically
identified photographs from his youth.
      The overbreadth aspect of the problem relates to the blanket prohibition
preventing Lopez from possessing pictures of any children. The probation order


                                            9.
prevented Lopez from possessing pictures of his children when they were young, as well
as his grandchildren, great-grandchildren, nieces, nephews, and all other relatives when
they were children. The circumstances of this case do not justify such a prohibition.
Indeed, outside of the case where a defendant had molested a relative, it is difficult to
imagine how the probation department could justify prohibiting an 80-year-old man from
possessing pictures of his children and grandchildren when they were under 18. One
could argue such a prohibition would tend to isolate a defendant from his family, thereby
increasing the risk of another molestation.
       In any event, the order clearly was constitutionally overbroad, as it limited
Lopez’s constitutional rights but was not closely tailored to the purposes of probation.
While Lopez’s interaction with children in the future, if any, clearly needs to be
supervised, the probation department and the prosecution failed to provide any reasoning
that could explain why prohibiting Lopez from possessing pictures of family members
when they were children would assist in preventing future criminal conduct.
                                      DISPOSITION
         The order finding Lopez violated his probation is vacated, and the trial court is
ordered to enter a new order finding Lopez did not violate his probation by possessing
pictures of children under the age of 18.




                                              10.
