                                                                FILED
                                                            OCTOBER 17, 2017
                                                        In the Office of the Clerk of Court
                                                       WA State Court of Appeals, Division Ill




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,                         )         No. 34713-3-111
                                             )
                     Respondent,             )
                                             )
             V.                              )         UNPUBLISHED OPINION
                                             )
GIL SALGADO VELAZQUEZ, JR.,                  )
                                             )
                     Appellant.              )

      LAWRENCE-BERREY, J. - A jury found Gil Velazquez guilty of second degree

child molestation and fourth degree assault with sexual motivation. The trial court

sentenced Velazquez within the standard range, including 36 months of community

custody. Velazquez challenges three of his community custody conditions. We accept

the State's concessions that two of the three challenged conditions should be stricken, and

generally uphold the condition that prohibits Velazquez from "frequent[ing] places where

children congregate, including but not limited to parks, playgrounds or schools." Clerk's

Papers (CP) at 88.
No. 34713-3-111
State v. Velazquez


                                         FACTS

      On February 23, 2016, 13-year-old M.M. was shopping with her mother and

younger sister at a Walmart in Ephrata, Washington. While in the deodorant aisle, she

felt someone brush up against her from behind. She saw Velazquez, whom she did not

know, walking away. M.M. was surprised because although the aisle was crowded, there

was plenty of room for him to pass by her.

      M.M. and her younger sister later went to the hair accessory aisle. M.M. was

concerned when she saw Velazquez behind her, pacing back and forth. Velazquez

stopped behind her and reached above her for an item. As he did this, he pressed his

pelvic area against M.M.'s backside, and put his hand on her waist. M.M. quickly pulled

away. M.M. was very upset and told her mother about both incidents. Her mother

contacted Walmart employees and reported the incidents.

      Also that day, Connie Sisco encountered Velazquez while shopping at Walmart.

Velazquez brushed up against her from behind when attempting to pass her. Sisco was

shocked and offended. She continued shopping and became increasingly worried when

she saw Velazquez in the same areas she was shopping.

      Employees, responding to the complaint from M.M.'s mother, located Velazquez

and called police. Velazquez told police he had inadvertently bumped into M.M. while



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No. 34713-3-III
State v. Velazquez


reaching for an item. Police viewed store security video and noticed that Velazquez had

contact with several female shoppers that day. Police posted an online request for people

who experienced offensive touching that day at W almart to come forward. Sisco

responded to the request.

       The State charged Velazquez with second degree child molestation, or

alternatively, second degree attempted child molestation, both as to M.M, and fourth

degree assault with sexual motivation as to Sisco. The jury found Velazquez guilty of

second degree child molestation and fourth degree assault with sexual motivation.

      The trial court imposed a standard range sentence of 48 months for the second

degree child molestation conviction, imposed a consecutive 364 day sentence for the

misdemeanor assault conviction, and imposed 36 months of community custody.

Relevant to this appeal are the following three community custody conditions: "Do not

purchase, possess or view any pornographic material. . . . Do not frequent places where

children congregate, including but not limited to parks, playgrounds or schools .... No

internet/email/social media access." CP at 88.

      Velazquez appealed.




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No. 34713-3-III
State v. Velazquez


                                        ANALYSIS

       Velazquez challenges the three community custody conditions set forth above. He

argues the first condition should be stricken because it is not crime related and is

unconstitutionally vague. The State concedes both arguments, and we accept the State's

concession. Velazquez argues the third condition should be stricken because it is not

crime related. The State concedes that argument, too, and we accept the State's

concession.

       Velazquez argues the second condition should be stricken because it is

unconstitutionally vague and because it violates his First Amendment to the United States

Constitution right to religious freedom. The State contends, and we mostly agree, that the

second condition is proper.

       A.     Standard of review

       We review community custody conditions for an abuse of discretion. State v.

Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015). The abuse of discretion standard

applies whether this court is reviewing a crime-related community custody condition, or

reviewing a community custody condition for vagueness. See id. at 652, 656; State v.

Sanchez Valencia, 169 Wn.2d 782, 791-92, 239 P.3d 1059 (2010); State v. Cordero, 170




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No. 34713-3-III
State v. Velazquez


Wn. App. 351,373,284 P.3d 773 (2012). Imposing an unconstitutional condition is

always an abuse of discretion. Irwin, 191 Wn. App. at 652.

       B.     Prohibition against frequenting places where children congregate

              1.     The condition is not unconstitutionally vague

       The guarantee of due process contained in the Fourteenth Amendment to the

United States Constitution and article I, section 3 of the Washington Constitution requires

that laws not be vague. State v. Magana, 197 Wn. App. 189,200,389 P.3d 654 (2016).

Because a violation of a community custody condition can subject a person to arrest and

incarceration, vagueness prohibitions extend to community custody conditions. See

Sanchez Valencia, 169 Wn.2d at 791-92. A community custody condition is not

unconstitutionally vague so long as it: ( 1) provides ordinary people with f~ir warning of

the proscribed conduct, and (2) has standards that are definite enough to "' protect against

arbitrary enforcement.'" Magana, 197 Wn. App. at 200-01 (internal quotation marks

omitted) (quoting State v. Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008)).

      Velazquez relies on Irwin. In that case, one of Samuel Irwin's conditions

prevented him from frequenting "' areas where minor children are known to congregate,

as defined by the supervising CCO [community corrections officer]."' Irwin, 191 Wn.

App. at 650. That court decided the condition could not satisfy either prong of the


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No. 34713-3-III
State v. Velazquez


vagueness test. Id. at 655. The condition needed either clarifying language such as the

language the trial court used in the sentencing hearing but not in the condition, or an

illustrative list, so that an ordinary person would have fair warning of the proscribed

conduct. Id. at 654-55. The condition also was subject to arbitrary enforcement because

the CCO in that case was able to define the proscribed conduct, which would otherwise

have cured notice. Id.

                     a.     Fair warning ofproscribed conduct

       Here, the trial court tailored the condition to comply with Irwin by use of an

illustrative list of places where children often congregate. Velazquez asserts the

condition, even with the illustrative list, is unconstitutionally vague. He argues that some

schools or parks are areas where children congregate, whereas others, such as the

University of Washington or state parks, are not. Construing the condition in a sensible

manner, we disagree.

       A clear reading of the condition indicates the first clause-places where children

congregate-modifies the clause that provides the illustrative list. So if the illustrative

list clause is not where children congregate, the condition is not violated.




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No. 34713-3-III
State v. Velazquez


       Ordinary people know that children congregate in schools, excluding colleges and

universities. Ordinary people also know that children congregate in playgrounds and

local parks, as opposed to state or national parks, places that require motor transportation.

                     b.     Definite enough to protect against arbitrary enforcement

       The condition contains two terms which help to protect against arbitrary

enforcement. The first term is "children." The second term is "congregate."

       The term "children" is somewhat indefinite. We define the term in the manner in

which sentencing courts typically impose the challenged condition. Sentencing courts

typically impose the challenged condition against offenders who commit a sex crime

against a child. The various degrees of child rape and child molestation criminalize ·

sexual acts against children under 16. See RCW 9A.44.073-.089. We further note that

the legislature distinguished the term "child" from "minor" in these statutes,

and used the term "minor" to describe those who were at least 16 and under 18. Cf id.

and RCW 9A.44.093-.096. For these reasons, we construe "children" as meaning

"children under 16." Because the term "children" is somewhat indefinite, and because

remand is necessary to strike two of the challenged community custody conditions, we

direct the trial court on remand to interlineate "under 16" after the word "children."




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No. 34713-3-III
State v. Velazquez


       The term "congregate" is more precise. "Congregate" means "to collect together

into a group, crowd, or assembly." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY

478 (1993).

       The terms "children under 16" and "congregate" are sufficiently definite to protect

against arbitrary enforcement. In general, children under 16 do not collect into a group or

crowd in places they cannot reach by foot or bicycle. Exceptions include schools and day

cares, places where ordinary people know children congregate. Also, children under 16

do not congregate in malls, areas where adults worship, or grocery stores. These places

are not reached by foot or bicycle, and they are not places where children under 16 are

known to collect into a group or crowd.

       We conclude that the trial court's example list, modified as directed, provides

sufficient clarity to comply with constitutional notice so that ordinary persons can

understand what is proscribed. We also conclude that the terms "children under 16" and

"congregate" provide sufficient definiteness to prevent arbitrary enforcement.

       2.     The condition does not affect Velazquez 's ability to worship

      Velazquez argues the challenged condition should be stricken because it affects his

First Amendment to the United States Constitution right to worship and because the




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State v. Velazquez


condition is not narrowly tailored. As explained above, the challenged condition does not

affect Velazquez from attending adult worship services.

                                     CONCLUSION

       We remand for the trial court to modify the second condition and to strike the first

and the third conditions.

       Affirmed in part and remanded.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




                                                                              j
WE CONCUR:




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