Opinion
H046225
05-15-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY JEFFREY ZAMORA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1883017)
Defendant Anthony Zamora was placed on three years' formal probation after pleading no contest to failing to update his sex offender registration. He challenges a probation condition requiring that he not knowingly be in the same room with a minor without adult supervision. For the reasons stated here, we conclude that no abuse of discretion resulted under state law, and the First Amendment overbreadth challenges urged by defendant are either meritless or forfeited. We will affirm the probation order.
I. BACKGROUND
We take judicial notice of this court's file in People v. Zamora (case No. H042177), including the notice of appeal, and the trial court's March 25, 2015 sentencing minutes and probation order. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) We also take judicial notice of our nonpublished opinion in that case filed October 20, 2017. (Ibid.)
Defendant was granted three years formal probation in March 2015, after a jury convicted him of possessing child pornography on his computer. One of the probation conditions restricted his contact with children. He also served 10 months in jail and was required to register as a sex offender under Penal Code section 290.
A felony complaint was filed in February 2018 charging defendant with failing to update his sex offender registration within five days of his birthday in November 2017. (Pen. Code, § 290.012, subd. (a).) Pursuant to a negotiated disposition, defendant pleaded no contest to the offense and to an additional misdemeanor violation of failing to update his registration as a transient in September 2017. (Pen. Code, § 290.011, subd. (a).) Under the plea agreement, defendant would again be placed on probation for up to three years and serve 90 days in jail.
According to the probation officer's 2018 waived referral memorandum, defendant's 2015 probation had been terminated "pending the new grant for the current offense." The probation officer recommended that the trial court continue probation conditions prohibiting defendant from knowingly purchasing or possessing child pornography and from knowingly being in the same room with a minor without adult supervision "to facilitate a successful term of [p]robation." As part of the new three-year probation grant, the trial court imposed the recommended conditions over defendant's objection that they were unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent). Defendant's appeal challenges only the condition restricting his contact with minors.
II. DISCUSSION
A. REASONABLENESS CHALLENGE
A court granting probation has broad discretion under Penal Code section 1203.1 to impose conditions to promote rehabilitation and protect public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) The court may impose "any ... reasonable conditions, as it may determine are fitting and proper to the end that justice may be done ... and generally and specifically for the reformation and rehabilitation of the probationer." (Pen. Code, § 1203.1, subd. (j).)
Our Supreme Court has interpreted Penal Code section 1203.1 to require that a probation condition regulating lawful conduct be "reasonably related to the crime of which the defendant was convicted or to future criminality." (Lent, supra, 15 Cal.3d at p. 486.) Under Lent, "[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.' " (Ibid.) The Lent inquiry is conjunctive: "[E]ven if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (People v. Olguin (2008) 45 Cal.4th 375, 380.)
Being in a room with a minor without adult supervision is not unlawful conduct, and the Attorney General acknowledges that the condition is not reasonably related to defendant's sex offender registration offense. Our task under Lent is therefore to determine whether the condition is reasonably related to preventing future criminality. Reasonableness is not judged according to an exact formula: "Each case must be decided on its own facts and circumstances and on its total atmosphere." (In re White (1979) 97 Cal.App.3d 141, 148.) We review Lent challenges to probation conditions for abuse of discretion. (People v. Olguin, supra, 45 Cal.4th at p. 379.) A sentencing court violates that standard "when its determination is arbitrary or capricious or ' "exceeds the bounds of reason, all of the circumstances being considered." ' " (People v. Welch (1993) 5 Cal.4th 228, 234.)
Citing People v. Burton (1981) 117 Cal.App.3d 382, defendant argues that the record does not show a propensity on his part toward future criminal conduct justifying the challenged condition, because there is no evidence that he ever harmed or molested a minor, and no evidence suggesting he is more likely to engage in criminal conduct if he is permitted to be in a room with a minor without another adult present. The court in Burton struck a probation condition prohibiting alcohol use as not reasonably related to possible future criminal conduct because the record in that case failed to show "the requisite factual nexus between the crime, appellant's manifested propensities and the probation condition." (Id. at p. 390, citing In re Martinez (1978) 86 Cal.App.3d 577, 583 [requiring "some rational factual basis for projecting the possibility that defendant may commit a particular type of crime in the future, in order for such projection to serve as a basis for a particular condition of probation"].) The Burton court noted as "especially significant" that the defendant "had [n]ever been convicted of an alcohol-related offense" or "manifested a propensity to become assaultive while drinking." (Burton, at p. 390.) It also struck a warrantless search condition because "nothing in appellant's past history or the circumstances of the present offense indicate a propensity on appellant's part that he would resort to the use of concealed weapons in the future." (Id. at p. 391.)
The circumstances of defendant's previous child pornography possession conviction and defendant's conduct while on probation in that case provide a reasonable basis for limiting his contact with children in the current case. Our opinion resolving defendant's earlier appeal noted that when a search warrant was executed at defendant's residence several explicit sexual videos of children were found on his laptop computer. (People v. Zamora (Oct. 20, 2017, H042177) p. 2.) Defendant admitted to the investigating officer that he had watched child pornography for seven years (although not consistently) and had masturbated to child pornography, and he expressed relief to the investigating officer because he had thought about getting help. (Ibid.) But at trial 10 months later defendant denied downloading the images (based on his father having access to the laptop) or viewing the files with any sexual interest. (Id. at pp. 2-3.) According to the police report regarding his sex offender registration history, defendant registered as a transient in August 2017, after which time he fell out of compliance with the registration requirement and stopped reporting to his probation officer. Defendant's history with child pornography reflects a man struggling with a sexual interest in children, while his most recent failure to report to law enforcement and his probation officer reflect a continued struggle to abide by the law. The circumstances provide a rational factual basis for the possibility that he may continue to disregard the law, and could act on his attraction to children if given an isolated setting. The trial court acted within its discretion to impose the protective condition as reasonably related to future criminality.
B. FIRST AMENDMENT CHALLENGE
Defendant argues that the probation condition is an unconstitutional infringement on his First Amendment right of association because it restricts accidental or benign contact with persons such as grocery clerks and sales personnel in the course of daily living. We reject defendant's characterization of the probation condition as restricting contact with minors who work in retail establishments. By its purpose and terms, the condition prohibits defendant from being alone with a minor in an isolated setting (a room), not a public place. But even if we were to embrace defendant's sweeping view of the condition, the argument is flawed because he fails to implicate a First Amendment right to associate. "[A]lthough the Constitution recognizes and shields from government intrusion a limited right of association, it does not recognize 'a generalized right of "social association." ' " (People ex rel. Gallo v. Acuna (1997) 14 Cal 4th 1090, 1110.) Two kinds of association are entitled to First Amendment protection. First are associations with " 'intrinsic' or 'intimate' value," encompassing "personal affiliations that 'attend the creation and sustenance of a family.' " (Ibid.) The second type of constitutionally protected associations are "those that are 'instrumental' to forms of religious and political expression and activity." (Ibid.) The associations defendant describes—benign interactions with sales clerks and store personnel—are not familial, religious, or political associations protected by the First Amendment. His facial overbreadth challenge therefore fails.
Defendant's additional constitutional argument—that the probation condition is overbroad because the record does not show a need for the restriction—was not raised in the trial court, and is therefore forfeited. (In re Sheena K. (2007) 40 Cal.4th 875, 889 [only constitutional claims presenting " ' "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court" ' " are not subject to forfeiture].)
III. DISPOSITION
The probation order is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Elia, Acting P. J. /s/_________
Danner, J.