Filed 6/30/15 P. v. Fisch CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C075352

         v.                                                                     (Super. Ct. No. 10F0008550)

SEAN MICHAEL FISCH,

                   Defendant and Appellant.


         Defendant Sean Michael Fisch picked up a 17-year-old hitchhiker and asked her to
show him her breasts in exchange for the ride. When she refused and tried to get out of
the moving car, defendant grabbed her hair to prevent her from leaving, punched her in
the face, and then pushed her out of the car. He was convicted by jury of felony false




                                                             1
imprisonment by violence or menace and misdemeanor battery.1 The trial court
sentenced defendant to serve a term of three years in the county jail, with execution of the
concluding two years suspended and defendant ordered to mandatory supervision during
that two-year period. The trial court also ordered defendant to register as a sex offender
pursuant to Penal Code section 290.0062 and to have no contact with the victim.
       On appeal, defendant asserts: (1) the trial court abused its discretion in ordering
him to register as a sex offender under section 290.006; and (2) the no contact order must
be stricken as unauthorized by law. We shall affirm the judgment. As we explain, the
trial court’s registration order was not an abuse of discretion. Contrary to defendant’s
argument on appeal, ample evidence supports the trial court’s findings defendant’s
offenses were committed as a result of sexual compulsion or for purposes of sexual
gratification and defendant is likely to commit offenses similar to those listed in section
290 in the future. The trial court’s rejection of the conclusion of defendant’s expert on
the question of his risk of reoffending was not arbitrary. Nor has defendant demonstrated
any bias on the part of the trial judge. With respect to the no contact order, we conclude
such an order was authorized by law and constitutes a valid condition of defendant’s
mandatory supervision.
                                          FACTS
       During the early morning hours of November 29, 2010, defendant picked up a
hitchhiker at a gas station in Redding. He stopped at the station to get gas before his
graveyard shift at the Record Searchlight, a newspaper in Redding. That morning, he



1      The jury acquitted defendant of assault with intent to commit rape, kidnapping
with intent to commit rape, simple kidnapping, attempted simple kidnapping, and
annoying or molesting a child.
2      Undesignated statutory references are to the Penal Code.


                                              2
was required to deliver newspapers to Burney, a small town east of Redding along
Highway 299. The hitchhiker, S., was a 17-year-old girl who was looking for a ride to
Marysville. She was in Redding visiting a friend, but her ride returned to Marysville
without her the day before. Defendant offered to drive her as far as Chico, which S.
accepted. When she got in the car, defendant said he “had to go do something for a
friend” and drove to the Record Searchlight, where he picked up a box of newspapers.
On the way to the newspaper building, S. asked defendant whether he had a wife and
kids. He said that he did, which made S. feel more comfortable. Defendant then asked S.
how old she was. S. answered she was 17 years old. After picking up the newspapers,
defendant headed south on Interstate Highway 5. However, rather than continue south, in
the direction of Chico, defendant got onto Highway 299 heading east towards Burney. S.
did not realize they were no longer heading towards Chico until they approached Old
Oregon Trail, a road leading to Shasta College on the left of the highway and leading into
“the middle of nowhere” on the right of the highway.
       Defendant turned right. Before he did so, defendant asked S. what she “was
going to do for the ride,” which S. interpreted to mean “something sexual.” S. became
afraid. She told defendant: “I can’t pay you for the ride and I don’t do things like that.”
Defendant then asked S. to “show her boobs for the ride.” She did not comply. They
then continued down Old Oregon Trail in silence until S. pulled out her cell phone to
send a text message to a friend. Defendant asked to see the phone. When S. refused,
defendant said: “[Y]ou’re just going to make this worse on yourself.” S. then asked
to be let out of the car. At this point, defendant made a u-turn in the middle of the
road and started heading back towards the highway. After they drove a short distance,
S. opened her door and tried to jump out of the car. Defendant grabbed her by her
hooded sweatshirt and pulled her back inside. She immediately tried again. This time,
defendant pulled her back by her hair and punched her in the face. When S. “freaked


                                             3
out” and “started hitting him,” defendant pushed her out of the car, which by this point
was not moving very fast. Defendant drove away. S. ran across the highway to Shasta
College.
       At the college, S. called 911, but her cell phone died during the call. She then
stopped a woman who was pulling into the college and used her cell phone to again call
911. The woman described S. as being “[v]ery upset, crying, trembling, very shaken.” A
sheriff’s deputy arrived a short time later. He also described S. as being “[e]motionally
upset, shaken.” Eventually, S. was able to provide the deputy with enough information
for him to determine at which gas station she and defendant crossed paths. The deputy
drove her to the gas station, where she confirmed that was the correct location. From
there, the deputy drove her northbound on Interstate Highway 5 until she recognized the
exit defendant took to drive to the Record Searchlight building. She then led the deputy
to that building and identified it as the place defendant stopped. By this time, S. had
calmed down enough to provide the deputy with more details of defendant’s conduct.
She then led him along the remainder of the route defendant drove before her escape
from the car. Later in the morning, after delivering S. into the custody of Child
Protective Services, the deputy drove back to the gas station, where he viewed
surveillance video confirming S. and defendant were at that location at the same time. S.
also positively identified defendant in a photographic lineup.
       When defendant was questioned by police two days later, he denied picking up a
hitchhiker, denied traveling on Highway 299, and denied Burney was in his delivery
district. In a second interview, defendant admitted picking up a girl at the gas station, but
said she was already “beat up.” When he asked her “what was going on,” she “said she
got left” at the gas station and asked for money and a ride “somewhere [defendant] never
even heard of.” Defendant told the girl he did not have money for her, but he would try
to take her where she needed to go. As they pulled out of the gas station, the girl


                                              4
revealed her destination “was over an hour away.” At this point, defendant told her he
was on his way to work and could not take her that far. The girl “started getting very
upset,” so defendant “pulled over on the side of the road, probably not even two blocks
from [the gas station] and she got out.” Defendant then drove to work.
       At trial, defendant offered a third version of events. The beginning of defendant’s
story was the same, i.e., he picked up a girl at the gas station, who was already “beat up,”
and agreed to drive her home until he realized how far she needed to go. However, while
the girl got out of defendant’s car a short distance from the gas station in his prior
account, she stayed in the car in the new version. According to defendant, the girl was
“sobbing” and “begging” him “to do anything [he] could to just help her out.” Defendant
“felt bad” for the girl and offered to drive her to his work, which he said would “buy
[her] ten minutes of extra time” to try to find a ride home. The girl agreed. She was
texting on her phone the entire drive, which defendant believed to be her trying to secure
a ride. At the newspaper building, after defendant went inside for five or ten minutes, the
girl asked whether defendant knew where “Oregon Trail” or “Old Oregon” was located.
Defendant said he did. He assumed from the question that someone who lived on that
road had agreed to take her home, got back in the car, and began driving out there. At no
point during the drive did defendant ask the girl what she “was going to do for the ride”
or ask her to show him her “boobs.” A short distance down Old Oregon Trail, defendant
became “suspicious” and asked the girl to provide an address. When she indicated “her
phone wasn’t working,” defendant pulled over and asked to see the phone. He was
concerned the girl was “trying to set [him] up.” When she did not give him the phone,
defendant made a u-turn and again asked to see the phone. The girl again did not
comply. At this point, defendant said: “That’s it. I’m done. . . . You need to get ahold of
your parents or you’re just going to keep making it worse on yourself.” He then




                                              5
continued up Old Oregon Trail and dropped her off a short distance from a gas station
located near Highway 299.
       The jury did not believe defendant’s account of events, finding him guilty of
felony false imprisonment by violence or menace and misdemeanor battery. However, as
mentioned, the jury acquitted him of assault with intent to commit rape, kidnapping with
intent to commit rape, simple kidnapping, attempted simple kidnapping, and annoying or
molesting a child.
                                       DISCUSSION
                                               I
                             Sex Offender Registration Order
       Defendant claims the trial court abused its discretion in ordering him to register as
a sex offender under section 290.006. Specifically, he argues: (1) there is no evidence to
support the trial court’s finding he is likely to reoffend by commission of an offense
similar to those listed in section 290; (2) the trial court arbitrarily rejected testimony from
defendant’s expert that he presented a minimal risk of reoffending; and (3) the trial
court’s decision to require registration resulted from bias harbored against him by the
trial judge. We disagree.
                                              A.
                                  Additional Background
       Following the jury’s verdict, the People moved for an order requiring defendant to
register as a sex offender under section 290.006. At the hearing on the motion, the
People submitted evidence defendant had previously exposed himself to a woman and her
10-year-old nephew while masturbating. The event occurred in 2009. The woman
testified she was driving down a highway with her nephew in the truck when defendant’s
car approached from behind and pulled alongside them. Erratic movements of
defendant’s car caught her attention. When she looked over, defendant was naked from


                                               6
the waist down and was masturbating as he looked at her. The woman yelled at her
nephew to not look in defendant’s direction. Defendant maintained his position next to
the woman’s truck, despite the fact she altered her speed, and he continued to masturbate
as he did so. This went on for about two miles before the woman called 911 and pulled
off the highway to wait for police. She provided the responding officer with defendant’s
license plate number and positively identified him in a subsequent in-field show up. No
charges were filed based on this incident.
       Defendant called a forensic psychologist, Dr. Baljit Atwal, who evaluated him and
submitted a psychological report recommending defendant not be required to register as a
sex offender. We do not provide a detailed summary of the results of the various
psychological tests performed. The following will suffice. The Psychopathic Personality
Inventory-Revised (PPI-R) revealed defendant, “when he is in conflict with other people,
does not register much empathy in the heat of the moment.” However, other “low
psychopathy scores” indicated defendant “is not prone to engaging in criminal behavior.”
The Inventory of Offender Risk, Needs and Strengths (IORNS) revealed an “overall risk
assessment score,” i.e., “the risk associated with criminal and/or violent behavior,” of
“average.” The report notes one factor indicating an increased risk of such behavior is
defendant’s “problems with interpersonal conflict . . . associated with low self-esteem,
poor self-confidence, and difficulty with interpersonal relationships.” The report also
notes defendant “tends not to think before he acts, is slow to learn from previous
behaviors, and does not manage strong emotions effectively,” which also increase his
level of risk. Balancing against these risk factors is defendant’s “extremely high” score
on the protective scale for environmental resources, i.e., his “unusually strong social
support network.”
       The Sexual Adjustment Inventory (SAI), assessing “risk of sexually offensive
behavior,” also revealed an elevated score for “impulsiveness, . . . that he tends to act


                                              7
without thinking.” This test further revealed defendant exhibited “some defensiveness
and some denial . . . in answering items that had some obvious sexual content.” While
Dr. Atwal expected “a certain degree of defensiveness” due to the fact the evaluation was
undertaken in connection with a criminal proceeding, defendant scored in the “75th
percentile,” which “raised some red flags” in the doctor’s mind. Nevertheless,
defendant’s scores on other components of the test caused the doctor to conclude
defendant to be at “low risk for committing sexual assault and specifically rape.”
       We also note Dr. Atwal was aware of the 2009 incident, but “didn’t factor it in one
way or the other” because defendant was not charged with or convicted of the offense
and the police report contained “inconsistent information,” i.e., the victim’s account of
defendant masturbating was purportedly inconsistent with there being no evidence of
ejaculation. However, the doctor did acknowledge if the 2009 incident in fact occurred,
“then it would have increased his risk” for reoffending. Overall, the doctor concluded
defendant should not be ordered on the sex offender registry and instead recommended
outpatient counseling to deal with “his tendency to be impulsive, his tendency to perhaps
rub people the wrong way, . . . and [his] interpersonal problems.”
       After hearing argument on the motion, the trial court ordered defendant to register
as a sex offender under section 290.006, finding (1) “defendant committed the offenses
for which he was convicted, the false imprisonment by violence and the battery, [as] a
direct result of sexual compulsion and/or for purposes of sexual gratification,” and
(2) “lifetime sex registration . . . is necessary to protect the public and, more importantly,
enable law enforcement to quickly locate possible suspects who commit serious behavior
as that exhibited by the defendant in this case in the future.”
       With respect to the first of these findings, the trial court relied exclusively on the
facts of this case, noting: “The defendant asked the victim what she was going to do for
the ride, and I emphasize ‘do.’ That information suggests that the defendant was


                                              8
referring to a sexual act which is how the victim interpreted the statement. I see no other
logical or rational conclusion and I haven’t heard any other than that he made the
statement due to a sexual compulsion or for sexual gratification. [¶] The victim testified
that the defendant made reference to her boobs, her breasts, and she also told [a detective]
that the defendant asked to see her boobs and asked her about her sexual history. This
also tends to support a sexual motive on the defendant’s part.”
       With respect to the appropriateness of requiring lifetime registration, the trial court
relied primarily on the facts of this case, bolstered by the fact defendant had previously
exposed himself to a woman while masturbating. Addressing this prior incident, the trial
court found the testimony of the alleged victim to be “extremely credible,” noted that
“past behavior is reflective of future conduct,” and concluded: “[T]he conduct of the
defendant [in] that . . . situation is consistent with my view of his behavior in this case
and supports, I believe, my findings and conclusions regarding the appropriateness of
registering pursuant to . . . Section 290.” Addressing Dr. Atwal’s testimony, the trial
court stated: “I don’t really question her testimony except that I question the conclusion
that the defendant’s at a minimal risk for reoffense. The fact that defendant lacks
empathy and has low self-esteem and self-confidence and difficulty with interpersonal
relationships as well as his defensiveness in answering items or questions with obvious
sexual content is indicative of an inability to control his behavior which in my opinion
increases the risk of reoffense of sexual or violent conduct in the future[].”
                                              B.
                                          Analysis
       The Sex Offender Registration Act (the Act) requires mandatory lifetime sex
offender registration for any person convicted of an offense listed in section 290,
subdivision (c). (§ 290, subd. (b).) These enumerated offenses “may be characterized
generally as sexual offenses committed by means of force or violence, violent offenses


                                              9
committed for sexual purposes, sexual offenses committed against minors, or offenses
that involve the sexual exploitation of minors.” (Lewis v. Superior Court (2008) 169
Cal.App.4th 70, 78 (Lewis).) The premise behind sex offender registration is that “sex
offenders pose a ‘continuing threat to society’. . . .” (Wright v. Superior Court (1997) 15
Cal.4th 521, 527.) Thus, one reason for requiring sex offender registration is to enable
law enforcement “to keep track of persons likely to reoffend” by commission of
“offenses like those listed in section 290.” (Lewis, supra, 169 Cal.App.4th at p. 78.)
Another reason for requiring such registration is “to notify members of the public of the
existence and location of sex offenders so they can take protective measures.” (People v.
Hofsheier (2006) 37 Cal.4th 1185, 1196 (Hofsheier), overruled on other grounds in
Johnson v. Department of Justice (2015) 60 Cal.4th 871, 888.)
       Section 290.006 gives the trial court discretion to require sex offender registration
for persons convicted of an offense not listed in section 290, subdivision (c): “Any
person ordered by any court to register pursuant to the Act for any offense not included
specifically in subdivision (c) of Section 290, shall so register, if the court finds at the
time of conviction or sentencing that the person committed the offense as a result of
sexual compulsion or for purposes of sexual gratification. The court shall state on the
record the reasons for its findings and the reasons for requiring registration.” When
imposing a discretionary registration requirement under this provision, “the trial court
must engage in a two-step process: (1) it must find whether the offense was committed
as a result of sexual compulsion or for purposes of sexual gratification, and state the
reasons for these findings; and (2) it must state the reasons for requiring lifetime
registration as a sex offender. By requiring a separate statement of reasons for requiring
registration even if the trial court finds the offense was committed as a result of sexual
compulsion or for purposes of sexual gratification, the statute gives the trial court




                                              10
discretion to weigh the reasons for and against registration in each particular case.”
(Hofsheier, supra, 37 Cal.4th at p. 1197.)
       Defendant does not challenge the trial court’s finding that his crimes were
committed as a result of sexual compulsion or for purposes of sexual gratification.3
Rather, defendant complains the trial court abused its discretion in ordering him to
register as a sex offender for life because there was insufficient evidence he would be
likely to reoffend by commission of an offense similar to those listed in section 290,
subdivision (c). He is mistaken.
       In exercising its discretion under the second stage of the Hofsheier analysis, the
trial court should “consider all relevant information available to it at the time it makes its
decision.” (People v. Garcia (2008) 161 Cal.App.4th 475, 483, disapproved on other
grounds by Johnson v. Department of Justice, supra, 60 Cal.4th at p. 888.) The facts
supporting registration need be proved only by a preponderance of the evidence. (People




3       The following paragraph in defendant’s opening brief is buried in the middle of
his argument that he presents a low risk of reoffending: “The only offense of which
[defendant] was convicted -- forcible false imprisonment and misdemeanor battery -- are
not sex offenses. Although [defendant’s] comments to [S.] may have sexual overtones,
asking what she would do for the ride is certainly equivocal. And, asking to see her
boobs is not indicative of or a precursor to the commission of a violent sexual offense and
does not show a likelihood of reoffense. Further, these statements were uttered before
commission of the false imprisonment and battery offenses and there is no direct
evidence that these offenses were committed with a sexual intent or for a sexual
purpose.” To the extent this could be construed as an argument challenging the trial
court’s finding under the first stage of the Hofsheier analysis (Hofsheier, supra, 37
Cal.4th at p. 1197), it is forfeited for failure to (1) raise it under a separate heading,
(2) provide meaningful argument supported by citation to authority, and (3) provide
citations to the record. (See Cal. Rules of Court, rule 8.204(a)(1)(B)&(C).) In any event,
we conclude there is sufficient evidence in the record to support the trial court’s
conclusion defendant’s offenses were committed as a result of sexual compulsion or for
purposes of sexual gratification.


                                              11
v. Marchand (2002) 98 Cal.App.4th 1056, 1063-1065.) Here, the trial court based its
decision to require registration on the facts of this case coupled with the fact defendant
had previously exposed himself to a woman and her 10 year-old nephew while
masturbating. Beginning with this case, while the jury acquitted defendant of the more
serious sex offenses, the trial court was within its discretion in determining, by a
preponderance of the evidence presented at trial, that defendant was nevertheless guilty
of serious sexual misconduct with a minor. Nor can there be any dispute this misconduct
was violent in nature, as the jury found defendant guilty of false imprisonment by
violence or menace and battery. Thus, while not enumerated in section 290, subdivision
(c), defendant’s crimes in this case were similar to such enumerated crimes. (See Lewis,
supra, 169 Cal.App.4th at p. 78 [enumerated crimes generally include “violent offenses
committed for sexual purposes” and “sexual offenses committed against minors”].)
Turning to defendant’s previous sexual misconduct, the testimony of the prior victim was
sufficient to establish by a preponderance of the evidence this misconduct occurred. As
to the trial court’s ultimate conclusion defendant would be likely to reoffend by
committing similar crimes in the future, we note that when an historical pattern of
conduct is shown, it is not unreasonable to infer that conduct will repeat itself in the
future. (See Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1157; id. at pp. 1163-
1164 [“Notwithstanding the nuances of psychiatric diagnosis and the difficulties inherent
in predicting human behavior, the United States Supreme Court has consistently upheld
commitment schemes authorizing the use of prior dangerous behavior to establish both
mental impairment and the likelihood of future harm”].)
       Nevertheless, defendant argues it was improper for the trial court to reject the
conclusion of his expert, i.e., he presented a low risk of reoffending. We disagree. “A
trial court is not required to accept even unanimous expert opinion at face value.
[Citation.] As long as the decision to reject such testimony is not ‘arbitrary,’ the trial


                                              12
court may reject the conclusion of an expert.” (In re Marriage of Battenburg (1994) 28
Cal.App.4th 1338, 1345.) Here, the trial court rejected Dr. Atwal’s conclusion as to
defendant’s risk of reoffending, noting her evaluation of him revealed he “lacks
empathy,” has low “self-esteem and self-confidence and difficulty with interpersonal
relationships,” and exhibited “defensiveness in answering items or questions with
obvious sexual content.” The trial court found these facts indicated defendant has “an
inability to control his behavior” and concluded there was enough risk he would reoffend
to require registration. Far from being arbitrary, we conclude the trial court’s assessment
was quite reasonable. Indeed, defendant’s inability to control his behavior is confirmed
by the fact he committed the present offenses not more than two years after escaping
prosecution for the prior sexual offense, which defendant’s own expert acknowledged
“would have increased his risk” for reoffending had she not disregarded the prior offense
in her analysis.
       Finally, defendant argues the trial court’s decision to require registration resulted
from bias harbored against him by the trial judge, the Honorable Gregory S. Gaul.
Defendant supports this contention by noting Judge Gaul revoked his status of being
released on his own recognizance (OR) and set bail at $1 million immediately following
his testimony at trial. As Judge Gaul explained his decision in response to a
disqualification motion, considering the nature of the allegations, the fact defendant
was out of custody during trial was “of great concern, . . . but his release on [OR] had
previously been ordered by another judge and [Judge Gaul] had no independent objective
basis to revisit that earlier determination” until he heard the evidence in the case. Judge
Gaul then described his view of the evidence, noting the victim “presented as very
credible,” her testimony was corroborated by various items of independent evidence,
defendant’s various versions of what had happened contradicted each other, and his
trial testimony was internally inconsistent. He then explained his rationale for revoking


                                             13
defendant’s OR status: “The charged offenses involved serious acts of violence on a
minor female with evidence of sexual intent as the motivating factor for that violence;
[¶] That public safety is the primary consideration in setting bail and that ordinarily
an individual facing such serious charges would not be free of custody; [¶] That in
my view the defendant’s testimony did not go well for the defense and there was a
strong likelihood that the defendant might flee prior to completion of the trial; [¶] The
defendant’s version of events was not credible in light of the testimony and strong
corroborating evidence of guilt presented by the prosecution prior to the presentation of
the defendant’s testimony; [¶] The defendant’s demeanor while testifying. Specifically,
a portion of his testimony during which he briefly, but forcefully, expressed his
anger/frustration with the victim (in reference to a point during the incident when he
says the victim was begging him to drive her to the City of Chico, located two counties
south of Shasta County). Of all the factors I considered, I recall that as the defendant
provided this testimony, I distinctly felt as if I was witnessing the defendant’s anger
and frustration just as the victim likely experienced it while trying to escape from the
defendant; [¶] After becoming more fully aware of the facts, the bulk of which I was
not privy to until I heard the evidence as the jury was hearing it, in my mind there was
a change of circumstances warranting my reassessment of the defendant’s custodial
status.”
       Judge Gaul’s decision to revoke defendant’s OR status does not reveal any bias
harbored against defendant, as the judge who ruled on the disqualification motion found.
As the disqualification ruling observes, Judge Gaul “ensured the jury was not made aware
of the change in custody status” and “he lowered bail after the defendant was found
guilty of lesser charges . . . .” These facts run counter to defendant’s assertion Judge
Gaul harbored a bias against him.




                                             14
       Defendant also takes issue with certain statements Judge Gaul made while
explaining his decision to require defendant to register as a sex offender. Specifically,
defendant complains Judge Gaul “ruled as if [he] had been convicted as charged,” when
the jury acquitted him on the more serious crimes. Not so. Judge Gaul correctly
observed that “a not guilty verdict by a jury does not mean that the defendant is
innocent,” and pointed out various reasons he believed the jury could have found
defendant not guilty of the more serious offenses without necessarily finding defendant
was innocent of the misconduct. Then, based on his assessment of the evidence, Judge
Gaul determined by a preponderance of the evidence the offenses for which defendant
was convicted were committed as a result of sexual compulsion or for purposes of sexual
gratification and lifetime registration as a sex offender was appropriate. This is the type
of analysis Judge Gaul was required to employ in exercising his discretion under section
290.006.
       The trial court did not abuse its discretion in ordering defendant to register as a sex
offender under section 290.006.
                                             II
                                     No Contact Order
       We also reject defendant’s assertion the no contact order must be stricken as
unauthorized by law.
       As a condition of defendant’s being ordered to mandatory supervision, the trial
court ordered him “to neither attempt nor have any contact in any manner with nor be in
the presence of the victim.” Defendant does not dispute such an order would be
appropriate if he were granted probation rather than mandatory supervision. (See
§ 1203.1, subd. (i)(2) [no contact order authorized as condition of probation where
defendant convicted of sex offense subjecting him or her to sex offender registration]; see
also id., subd. (j) [trial court may impose other reasonable conditions of probation];


                                             15
People v. Lent (1975) 15 Cal.3d 481, 486 [condition of probation that requires or forbids
conduct is valid if reasonably related to crime of which defendant was convicted or future
criminality].)
       Instead, citing our decision in People v. Fandinola (2013) 221 Cal.App.4th 1415
(Fandinola), defendant argues the foregoing provisions do not authorize the no contact
order in this case because he was ordered to mandatory supervision rather than granted
probation. Defendant’s reliance on Fandinola is misplaced. There, we held section
1203.1b did not authorize imposition of a probation supervision fee because that
provision, by its terms, applied to cases “‘in which a defendant is granted probation or
given a conditional sentence’” and mandatory supervision “is not a grant of probation or
a conditional sentence.” (Id. at p. 1422.) However, as we also explained in Fandinola,
while probation and mandatory supervision are not interchangeable, section 1170,
subdivision (h)(5)(B)(i), provides a defendant ordered to mandatory supervision “‘shall
be supervised by the county probation officer in accordance with the terms, conditions,
and procedures generally applicable to persons placed on probation.’” (Fandinola,
supra, 221 Cal.App.4th at p. 1422, italics added.) In a case such as this one, a no contact
order is a condition generally applicable to persons granted probation. Moreover, while
we also noted in Fandinola that “mandatory supervision is more similar to parole than
probation” (id. at p. 1423), “[t]he validity and reasonableness of parole conditions is
analyzed under the same standard as that developed for probation conditions,” i.e., “‘a
condition of [parole] 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.’” (People v. Martinez (2014) 226 Cal.App.4th 759,
764, quoting People v. Lent, supra, 15 Cal.3d at p. 486.) Here, the no contact order was
reasonably related to defendant’s crimes and to future criminality.




                                             16
       In the alternative, defendant asserts the condition “is overbroad in that it requires
[defendant] not to ever be in the presence of the victim. First, ‘presence,’ as used in the
order, is not defined. Second, ‘presence’ is a broad term and can be construed to mean
within inches, within feet, within yards, in the same shopping mall, in the same movie
theater, etc. Third, whatever ‘presence’ may mean, [defendant] can unintentionally
violate the order merely entering a grocery store where the victim is shopping.” “A
probation condition ‘must be sufficiently precise for the probationer to know what is
required of him [or her], 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. [Citation.]” (In re Sheena K. (2007) 40 Cal.4th 875,
890.) We review such a challenge de novo (In re Shaun R. (2010) 188 Cal.App.4th 1129,
1143) and interpret the challenged condition with “common sense.” (In re Ramon M.
(2009) 178 Cal.App.4th 665, 677; People v. Olguin (2008) 45 Cal.4th 375, 383
[“probation condition should be given ‘the meaning that would appear to a reasonable,
objective reader’”].) We conclude a reasonable person would understand being in one’s
“presence” to mean being in “the part of space within one’s immediate vicinity.”
(Merriam-Webster’s Collegiate Dict. (11th ed. 2003) p. 982, col. 1.) So understood, the
term is neither vague nor overbroad.
       Finally, for reasons expressed in People v. Patel (2011) 196 Cal.App.4th 956, we
decline to entertain defendant’s argument that the condition must be modified to include
a knowledge requirement. (Id. at pp. 960-961.)
       We conclude the no contact order imposed in this case was authorized by law and
constitutes a valid condition of defendant’s mandatory supervision.




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                                 DISPOSITION
     The judgment is affirmed.



                                               HOCH   , J.



We concur:



     HULL       , Acting P. J.



     MURRAY , J.




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