Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F09902548, Rosendo Pena, Jr., Judge.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Poochigian, J.
INTRODUCTION
Appellant/defendant Raymond Gonzalez, a high school Spanish teacher, had a two-year sexual relationship with a minor female student, which began when she was 16 years old. Their sexual relationship culminated in her pregnancy, an abortion, and her attempted suicide. Defendant pleaded no contest to two counts of unlawful sexual intercourse with a minor more than three years younger than defendant (Pen. Code, § 261.5, subd. (c)), and was placed on probation for three years subject to various terms and conditions.
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal, defendant contends the court abused its discretion when it ordered him to register as a sex offender. Defendant also challenges the probation conditions for him not to have contact with minors, and not to possess or control dangerous weapons, as being unconstitutionally vague. We will modify the probation conditions and otherwise affirm.
Given defendant’s no contest pleas, the facts are taken from the probation report.
In 2007, defendant was 36 years old and employed as a Spanish teacher at San Joaquin Memorial High School, a private Catholic school in Fresno. He was married and had two young children.
On October 22, 2007, officers from the Fresno Police Department responded to the high school regarding the possible sexual assault of a student. The school administrators reported there were rumors around the campus that defendant was engaged in a sexual relationship with a minor female student, hereinafter described as “CV” (confidential victim). The principal reported there had been a prior incident where defendant was suspected of having a relationship with another student, but he could not locate the records about that incident.
The officers spoke to CV and asked if she knew why they were there. CV replied that they were probably investigating a campus rumor that she had attempted suicide. CV was not very cooperative, and said the only reason she had been in the hospital was because her iron count was too high. The officers asked CV if she knew defendant. CV said she had been in defendant’s Spanish class for two years and she never had any type of relationship with him. CV said defendant had counseled her when she was a sophomore because she broke up with her boyfriend. CV said she had never contacted defendant outside of school, except when she called defendant to discuss her breakup with her former boyfriend. CV admitted she kept her P.E. clothes in defendant’s classroom because it was easier than keeping the clothes in her locker.
CV said she had heard various rumors around campus about her alleged relationship with defendant—that they purportedly had sex on his desk at school, and that she had been at defendant’s house and around his children. CV said these rumors were not true. CV said she had a friendly and outgoing personality, defendant was a popular teacher and had a reputation for being cute, and lots of students liked him. CV denied having any type of physical or sexual relationship with defendant, and she did not know how the rumors had started.
The investigation
After their initial meeting with CV, officers conducted a lengthy investigation and interviewed many of CV’s friends and their parents, and teachers and other school personnel. The investigation revealed that CV disclosed to several people that she had an ongoing sexual relationship with defendant for two years. The officers learned that defendant had sexual intercourse with CV in his school classroom, the bedroom at his house, in his truck, and at a motel.
The officers also obtained records showing that defendant and CV had stayed at an Auberry motel five times and at a Madera motel on one occasion. The phone records showed “an abundance” of calls between defendant and CV, at various hours of the day and night.
CV’s statements about her relationship with defendant
After conducting the investigation, the officers confronted CV with the information they discovered about her relationship with defendant. CV admitted that she had been having a sexual relationship with defendant since the summer of 2006. CV said she met defendant while a student in his Spanish class. They began having a sexual relationship in approximately June 2006, when she was 16 years old. These acts occurred at her Madera residence, his Fresno residence, and in his car. CV said she accompanied defendant to faculty meetings in Shaver Lake and they stayed at a motel. CV further admitted they went out of town together and stayed a hotel in Auberry.
The officers advised CV that they had information that CV and defendant went to a clinic together and she had an abortion. CV admitted she had been pregnant with defendant’s child and she had an abortion in April 2007. CV initially stated she went to the clinic with a friend. She later admitted that she went to the clinic with defendant, and defendant stayed with CV at a motel in Madera while she recovered from the abortion.
CV said the last time she had sex with defendant was at her house in Madera in mid-October 2007. Around that time, CV called defendant’s wife and told her that she had been pregnant with defendant’s child, and that she had stayed with defendant on many occasions when they were out of town. CV later told defendant about the telephone call and they argued about it.
CV admitted that she had trouble dealing with her relationship with defendant and the accompanying family issues. CV tried to commit suicide on October 15, 2007. She last talked to defendant on November 4, 2007. He asked her to lie about their relationship and she agreed.
PROCEDURAL HISTORY
The record implies that defendant was placed on administrative leave from the high school during the investigation, and he was later terminated from his employment.
On May 13, 2009, a complaint was filed in the Superior Court of Fresno County charging defendant with the felony charges in this case. Defendant pleaded not guilty. He was released on bail and remained out of custody for the entirety of the proceedings.
Defendant’s no contest pleas
On October 14, 2009, defendant pleaded no contest to both counts. Defendant was advised that as a consequence of his plea, the court had the discretion to order him to register as a sex offender pursuant to section 290, and that the matter was being referred to the probation department, and for section 288.1 evaluation, to determine defendant’s suitability for probation and registration as a sex offender.
The psychological report
In December 2009, Dr. Harold Seymour, a clinical psychologist, submitted a report about his interview and examination of defendant. Defendant gave a statement about the nature and circumstances of his relationship with CV. Defendant said he was “ ‘the biggest thing on that campus’ ” and the students “ ‘loved him.’ ” Defendant said CV sought him out for counseling and falsely claimed she had cancer. Defendant said CV was 17 years old when they began their sexual relationship. Defendant said CV was “ ‘very good looking’ ” and she was “ ‘[p]robably the most desirable person on campus.’ ”
Defendant said they had a sexual relationship for six months and CV initiated the majority of the sexual liaisons. Defendant said he tried to stop the relationship and CV threatened him.
Defendant said he always used a condom and believed that he was not responsible for CV’s pregnancy. Defendant found out about CV’s pregnancy on the day that CV sought an abortion. Defendant said he tried to talk CV out of it, and encouraged her to talk to her parents and a counselor about what to do. CV replied that she did not want him to be concerned because she had already been through an abortion on a previous occasion.
Defendant was asked if CV had been hurt by what happened. Defendant thought there was “ ‘probably some harm.’ ” Defendant “ ‘felt sorry’ ” that CV had to go back to school, because people would look at her and know “she was responsible for his being gone from the campus.”
As Dr. Seymour conducted his interview with defendant, defendant asked to clarify his earlier comments and said that he was not blaming CV for what happened, and he had to take responsibility as an adult for their relationship.
At the time of his plea, defendant was working as a translator for the Internal Revenue Service. He was also involved in a wide range of volunteer and church activities, and attended individual and group counseling.
Dr. Seymour concluded that defendant did not meet the criteria for a diagnosis of pedophilia, but his behavior was more consistent with ephebophilia, which was a sexual attraction to post-pubescent minors. Dr. Seymour also concluded defendant was not fully taking responsibility for his actions, and he only verbalized responsibility as “an afterthought.” Based on a series of tests, Dr. Seymour believed defendant was at a very low risk for engaging in this type of behavior again and he did not meet any other recidivism risk criteria.
However, Dr. Seymour further concluded that defendant’s actions with CV “were part of his need for attention and admiration, more than being standard sexual predation.” Defendant was “genuinely psychologically impaired, ” he had “no insight, ” he failed to acknowledge even the slightest flaws, and he saw little reason to participate in psychotherapy. Dr. Seymour noted that while the initial law enforcement investigation began in 2007, defendant only entered individual counseling after the criminal charges were filed in 2009. Such individuals usually halt psychotherapy once it is no longer required. Dr. Seymour said defendant was not interested in self-change and he was more interested in using counseling “to get others to change.” Dr. Seymour concluded that defendant would be a challenging psychotherapy candidate and he was “salvageable.”
The probation report
According to the probation report, defendant had a prior misdemeanor conviction in January 2000 for receiving stolen property (§ 496, subd. (a)), based on an incident when he was employed at Costco and involved in “a planned and orchestrated embezzlement scam, which involved the taking of thousands of dollars worth of property from Costco.”
During his interview with Dr. Seymour, defendant acknowledged his prior misdemeanor conviction for receiving stolen property, and said he unknowingly assisted other Costco employees who were engaged in an elaborate theft ring. Defendant said he had a large pickup truck, he was asked to transport goods to the homes of other employees, and he believed they had already purchased the items.
Defendant verbally told the probation officer that he had “only a couple of consensual sexual act[s]” with CV. Defendant also submitted a written statement to the probation officer, and wrote that that he had been going through months of counseling, and learned to understand his actions and had taken steps to ensure nothing similar would ever happen again. Defendant regretted his actions and prayed daily for forgiveness. Defendant further stated he had managed to save his marriage, find employment, and keep his family together.
Defendant was evaluated pursuant to the Static 99 Risk Assessment Instrument and scored “a one.” According to the probation report, “[i]ndividuals with these characteristics, on average, sexually re-offend at 15.8 percent over ten years, ” and defendant’s score placed him in “the low range relative to other adult male sex offenders.”
The probation report concluded that defendant was an unsuitable candidate for probation because he had been “deeply entrenched in a life of criminal activity in which he felt he was invincible, and beyond reproach.” Defendant never thought “he was violating a position of trust as a teacher” or about “the long term effects his behavior would have” on CV. Defendant’s account of his relationship with CV was contrary to the information revealed during the investigation, he never took responsibility for his behavior, and he “continually minimized his behavior by stating it was just a couple of consensual sexual acts.”
“The criminal acts were steady, ongoing and required strategic planning and preparation in order to be conducted. When [CV] became pregnant, he insisted she get an abortion and played on [CV’s] vulnerability, that she would lose his attention. The defendant’s behavior is reprehensible, and is viewed as irrational and highly dangerous. At no time has this officer seen any remorse from the defendant, aside from the fact that he got caught.”
The probation report stated defendant was not an appropriate candidate for probation, and recommended imposition of a six-year prison term. The probation report further recommended the court order defendant to register as a sexual offender pursuant to section 290.
The sentencing hearing
On January 26, 2010, the court conducted the sentencing hearing. Defense counsel stated that they were unhappy with the probation report’s characterization of defendant, because defendant admitted the charges at an early stage and he was a suitable candidate for probation. Defense counsel stated defendant had tried to rectify what happened by going to counseling and doing volunteer work.
Defense counsel noted defendant was not subject to mandatory registration as a sex offender based on the nature of the underlying felony offenses, and the court had discretion whether to order him to register. Counsel argued the court should not order him to register because it was unlikely that he would be a teacher again and the circumstances would not recur. Counsel pointed out that Dr. Seymour’s report indicated defendant’s likelihood to reoffend was very low.
Defense counsel suggested that in lieu of a registration order, the court could place defendant on probation, retain jurisdiction, and reconsider the matter in one year to determine if defendant had earned “the right not to have the Court impose” the registration order. Counsel added that the probation officer could monitor defendant’s conduct to ensure defendant did not have “some kind of lapse in judgment where he might re-offend.”
Defendant addressed the court and stated the probation and psychological reports misrepresented his character. Defendant said he had tried to lead an exemplary life during the prior two years, he attended counseling, and he performed volunteer work. Defendant said it was unfair to say that he was not remorseful, because he had spent the past two years “guilt-ridden and full of remorse for the actions, ” he tried to be accountable, and he never tried “to hide behind the law.” Defendant said he was currently employed and “never exhibited any signs that any of these actions would ever reoccur.” Defendant asked the court not to issue a registration order because it would impact his life. Defendant explained he and his family lived across the street from a school, and the registration order would force him to move his children from their home.
The prosecutor argued the case was very troubling and involved a fairly egregious situation, because defendant was a teacher who had a lengthy affair with a minor student. The case “factually calls out” for a registration order because the situation did not involve two teenagers having a dating-type sexual relationship. Instead, defendant was in his mid-thirties and in a position of authority over CV. The prosecutor was concerned that in the absence of a registration order, “these temptations could present themselves.”
The probation officer asserted that a prison term was appropriate in this case. The probation officer advised the court that her office was unable to provide the type of supervision suggested by defense counsel because of the department’s large caseload, and the registration requirement was appropriate based on the circumstances of the case. She noted that while defendant and his attorney discussed the negative impact of registration on defendant’s life, they had not discussed the impact of defendant’s conduct on CV.
The court stated defendant’s violations of section 261.5 were more serious than most cases because he was involved in a long-term relationship with a student and there was a large disparity in their ages. The court acknowledged that defendant had been doing some things to improve his life and prove he was amenable to rehabilitation through a grant of probation.
The court agreed with the probation officer that “this is a prison case, ” but decided to give defendant a chance to prove himself. The court admonished defendant that he should have realized “the wrongfulness of your conduct … certainly at an earlier stage than you did.” Defendant apologized. The court continued that defendant had certain good qualities, and he only had one prior misdemeanor conviction.
The court suspended imposition of sentence for counts I and II, and placed defendant on probation for three years subject to certain terms and conditions, including service of 365 days in jail and successful completion of a sex offender treatment program. The court ordered defendant not to have contact with CV or her family without consent from the court or the probation officer. The court further ordered defendant not to possess or control any dangerous or deadly weapons including firearms, and not to initiate, establish, or maintain contact with a minor.
The court denied defendant’s request to defer a decision on sex offender registration, and ordered defendant to register as a sex offender. The court allowed defendant to reside with his own children, but ordered him not to frequent places where children congregate, such as parks, playgrounds, and schools, without prior approval of the court or the probation officer, and not to obtain employment which would allow unsupervised contact with minors.
After an exchange between the court and the prosecutor, the court concluded that defendant did not have to move from his existing residence, which was across from a school, but that he could not move into a “new location” within a 1, 000-foot radius of any school.
DISCUSSION
I. The court did not abuse its discretion in ordering defendant to register as a sex offender
Defendant contends the court abused its discretion when it ordered him to register as a sex offender because it failed to consider the statutory requirements for a discretionary registration order and failed to address the probation report’s conclusion that defendant was at a low risk to reoffend.
A. Mandatory and discretionary registration
Section 290 requires anyone convicted of certain sex offenses to register for life as a sex offender. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1196 (Hofsheier).) The purpose of section 290 is to “ ‘ “ ‘assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. [Citation.]’ ” ’ [Citations.]” (Ibid.) Another purpose is to notify members of the public of the existence and location of sex offenders so they can take protective measures. (Ibid.) Registration must be renewed annually, and failure to register, or to renew registration, can be either a felony or misdemeanor depending on the nature of the underlying conviction. (Ibid.)
In the instant case, defendant pleaded no contest to two counts of violating section 261.5, subdivision (c), unlawful sexual intercourse with a minor more than three years younger than defendant. Section 261.5 is not one of the enumerated offenses for which lifetime registration is mandatory pursuant to section 290. Thus, convictions for violating section 261.5 are exempt from the mandatory registration requirement. (Hofsheier, supra, 37 Cal.4th at p. 1197.)
While defendant was not subject to the mandatory registration requirement, the court still retained discretion to order him to register as a sex offender pursuant to section 290.006. (Hofsheier, supra, 37 Cal.4th at p. 1197.) Section 290.006 states:
“Any person ordered by any court to register pursuant to the [Sex Offender Registration] 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.” (Italics added.)
The discretionary registration provisions were previously contained in former section 290, subdivision (a)(2)(E). It was renumbered as section 290.006 without substantive change. (People v. Thompson (2009) 177 Cal.App.4th 1424, 1430, fn. 7; Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 76, fn. 4; People v. Garcia (2008) 161 Cal.App.4th 475, 481, fn. 2 (Garcia), disapproved on other grounds in People v. Picklesimer (2010) 48 Cal.4th 330, 338, fn. 4.)
The trial court must engage in a two-step process when exercising its discretion to order registration under section 290.006: “(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 life-time registration as a sex offender. (Hofsheier, supra, 37 Cal.4th at p. 1197; Garcia, supra, 161 Cal.App.4th at p. 483.)
“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 discretion to weigh the reasons for and against registration in each particular case.” (Hofsheier, supra, 37 Cal.4th at p. 1197.)
“In order to make a discretionary determination as to whether or not to require registration, the trial court logically should be able to consider all relevant information available to it at the time it makes its decision, i.e., at the time of ‘sentencing.’ ” (Garcia, supra, 161 Cal.App.4th at p. 483.) Where registration is discretionary, “one consideration before the court must be the likelihood that the defendant will reoffend.” (Garcia, supra, 161 Cal.App.4th at p. 485; People v. Thompson, supra, 177 Cal.App.4th 1424, 1431.)
The “principal difference” between mandatory and discretionary registration is that discretionary registration “leaves the trial judge with the option of refusing to order registration.” (Hofsheier, supra, 37 Cal.4th at p. 1197.) In addition, discretionary registration “does not depend on the specific crime for which a defendant was convicted.” (Id. at pp. 1197-1198.) The court may order a defendant to register under section 290.006 “even if the defendant was not convicted of a sexual offense, ” as long as the court finds “the crime to have a sexual purpose.” (Id. at p. 1198.)
Moreover, a defendant charged with an offense that does not require mandatory registration “may be able to stipulate in a plea bargain that the trial court judge will not order registration. [Citation.]” (Hofsheier, supra, 37 Cal.4th at p. 1198.) In contrast, a defendant convicted of an offense which requires mandatory registration “cannot avoid lifetime registration either through a plea bargain or through the exercise of judicial discretion.” (Ibid.)
B. Analysis
As set forth ante, defendant pleaded no contest to two violations of section 261.5. Section 290 does not mandate sex offender registration for violations of that statute. (Hofsheier, supra, 37 Cal.4th at p. 1197.) However, the court retained discretion to order defendant to register under section 290.006. Someone charged with an offense that does not require mandatory registration “may be able to stipulate in a plea bargain that the trial court judge will not order registration, ” but defendant did not obtain any type of stipulation on that point when he entered his no contest pleas in this case. (See Hofsheier, supra, 37 Cal.4th at p. 1198.) Indeed, at the time of his plea, defendant was expressly advised that the court retained discretion to order him to register as a sex offender, registration was a “possibility, ” and the matter was being referred for probation and psychological reports to address whether defendant was a candidate for probation, and whether he should be required to register as a sex offender.
At the sentencing hearing, the court reviewed the probation and psychological reports and decided to place defendant on probation. In doing so, the court reviewed the facts of the case and found defendant’s offenses involved “a more serious” violation of section 261.5 “than we sometimes see in court.”
The court also decided to exercise its discretion and order defendant to register as a sex offender. In doing so, the court made the following findings:
“[T]he Court finds that in this case … because of the lengthy nature of the relationship, the disparity in age … and as well the report from Dr. Seymour, that under … section 290.006, this was a crime for sexual gratification and the Court finds that the defendant will be required to register as a sex offender pursuant to … section 290.”
The court further stated that “this clearly is a case that would require—or should require [section] 290 registration. And I’ve stated those reasons on the record.”
In making these findings, the court complied with the statutory requirements for a discretionary registration order, and the court’s findings are supported by the record. Defendant engaged in a two-year sexual relationship with a minor, which included acts of intercourse and oral copulation, and culminated in her pregnancy and abortion. It is clear that defendant’s offenses were committed for the purpose of sexual gratification. The court also made a number of comments about the case to explain why it required lifetime registration. The court found that defendant’s violations of section 261.5 were more serious than the typical prosecution for that offense, and cited to the extensive discussion in Dr. Seymour’s report about the nature and circumstances of defendant’s two-year sexual relationship with CV.
Defendant contends the court failed to make the two requisite statutory findings for a discretionary registration order, and argues the “second prong” of section 290.006 required the court to find that he was “likely to commit sexually related offenses in the future.” Defendant asserts the court “simply ignored the second prong and made absolutely no findings as to whether [defendant] was likely to commit sexual offenses in the future.…”
Defendant’s argument is based on a false premise about the nature of the court’s statutory findings. The California Supreme Court has explained that a trial court must engage in a two-step process to make a discretionary registration order under section 290.006: “(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.” (Hofsheier, supra, 37 Cal.4th at p. 1197.) Section 290.006 does not expressly require the court to make a specific determination as to whether a defendant is likely to reoffend. In making a discretionary registration decision, however, the court must consider all relevant information, including “the likelihood that the defendant will reoffend.” (Garcia, supra, 161 Cal.App.4th at pp. 483, 485; People v. Thompson, supra, 177 Cal.App.4th 1424, 1431.)
While defendant was found to be at low risk for reoffending, that was just one factor for the court to consider along with all other relevant information about his two-year sexual relationship with a student. The court specifically cited Dr. Seymour’s report as one of the reasons it ordered registration. In that report, Dr. Seymour acknowledged that defendant was at low risk to reoffend, but explained that defendant’s actions with CV “were part of his need for attention and admiration, more than being standard sexual predation.” Dr. Seymour concluded that he was “genuinely psychologically impaired, ” he had “no insight, ” he failed to acknowledge even the slightest flaws, and he saw little reason to participate in psychotherapy. Dr. Seymour was also concerned because defendant only entered into counseling once criminal charges were initiated in 2009, even though the investigation began in 2007, and explained such individuals usually halt psychotherapy once it is no longer required.
We find the court made the requisite findings and did not abuse its discretion when it ordered defendant to register as a sex offender pursuant to section 290.006.
II. The court’s order for defendant not to have contact with minors
Defendant next contends that when the court ordered him not to have any contact with minors as conditions of his probation, those orders violated due process because the language was vague and overbroad. Defendant argues the conditions must contain the element of knowledge and they must be modified so that he cannot knowingly have any contact with minors.
A. Due process and probation conditions
A trial court has “broad discretion” to prescribe probation conditions in order to foster rehabilitation and protect public safety. (People v. Freitas (2009) 179 Cal.App.4th 747, 750 (Freitas).) However, such conditions may be challenged for being unconstitutionally overbroad and vague. (Ibid.) A probation condition may be overbroad “if in its reach it prohibits constitutionally protected conduct. [Citation.]” (Ibid.) “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ [Citation.]” (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).)
“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. [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.) A reviewing court is authorized to modify conditions of probation when necessary to correct such constitutional infirmities. (Id. at p. 892; People v. Turner (2007) 155 Cal.App.4th 1432, 1436 (Turner).)
In Sheena K., a minor was placed on probation subject to various conditions, including that she “not associate with anyone disapproved of by probation.” (Sheena K., supra, 40 Cal.4th at p. 878.) Sheena K. held that “in the absence of an express requirement of knowledge, ” the probation condition was unconstitutionally vague because it “did not notify defendant in advance with whom she might not associate through any reference to persons whom defendant knew to be disapproved by her probation officer.” (Id. at pp. 891-892.) Sheena K. held that modification to impose “an explicit knowledge requirement” was necessary to render the probation condition constitutional. (Id. at p. 892.) Sheena K. further held that in the future, such an order should explicitly direct the probationer “not to associate with anyone ‘known to be disapproved of’ by a probation officer or other person having authority over the minor.” (Ibid.)
In Turner, the trial court ordered defendant, as a condition of probation, “ ‘[n]ot associate with persons under the age of 18 unless accompanied by an unrelated responsible adult.’ ” (Turner, supra, 155 Cal.App.4th at p. 1434.) Turner held the probation condition was vague and overbroad because a person “may reasonably not know whether he or she is associating with someone under the age of 18. Fair notice, as described in Sheena K., is not possible unless the probation condition is modified to require that defendant must either know or reasonably should know that persons are under 18 before he is prohibited from associating with them.” (Id. at p. 1436.) Turner modified the condition to state that defendant was prohibited from associating “ ‘with persons he knows or reasonably should know to be under the age of 18 unless accompanied by a responsible adult unrelated to defendant.’ ” (Ibid.)
B. Analysis
We first note that defendant did not raise any due process objections to these probation conditions at the sentencing hearing. His appellate contentions involve pure questions of law, however, and are properly before this court despite the lack of specific objections. (Sheena K., supra, 40 Cal.4th at pp. 888-889; Turner, supra, 155 Cal.App.4th at p. 1435.)
As noted by defendant, there are some discrepancies in the record as to the exact language of the court’s orders for defendant to have no contact with minors as conditions of his probation. At the sentencing hearing, the court allowed defendant to live with his own children but also imposed the following orders as conditions of probation when it orally pronounced judgment:
“Do not initiate, establish or maintain contact with a minor.… [¶ ] And the court will allow you to reside with your own children. Do not frequent places where children congregate such as parks, playgrounds, schools, video arcades, without prior approval of the Court or the probation officer. And do not obtain employment which would allow unsupervised contact with minors.”
The court further stated that defendant could remain in his current residence, which was across the street from a school, but ordered him not to move into a new residence which was within a 1, 000-foot radius of “any school attended by minors.”
The minute order is slightly different and states in paragraph No. 39 that the court imposed the following condition of probation:
“Court orders no contact with minors with exception of defendant’s own children and do not move into a new location within 1, 000 foot radius of school.”
In the court’s judgment and orders for probation, the conditions are again slightly different from the court’s oral pronouncements. Paragraph No. 20 states:
“Do not initiate, establish, or maintain contact with any minor child or reside with any children without prior Court order.”
Paragraph No. 21 states:
“Do not frequent places where children congregate, such as parks, playgrounds, schools, video arcades, without prior approval of the Court of the Probation Officer, do not obtain employment which would allow unsupervised contact with minors, and do not move into a new location within a 1, 000 foot radius of any school attended by minors.”
In the instant case, as in Sheena K. and Turner, the various versions of the court’s no-contact orders are unconstitutionally vague in the absence of an express requirement of knowledge. (Sheena K., supra, 40 Cal.4th at p. 891.) The court’s language raised the possibility that defendant could be found in violation of probation by associating with someone who, unbeknownst to him, was under 18 years old. In order to eliminate vagueness problems and ensure consistency between the court’s oral pronouncements and the judgment, we shall modify the judgment to include the requisite knowledge element to the conditions of probation that defendant shall not have any contact with any person he knows, or reasonably should know, is under the age of 18 years.
III. The court’s order not to possess dangerous or deadly weapons
At the sentencing hearing, the court ordered defendant not to “possess or control any dangerous or deadly weapons, including firearms” as a condition of probation. The judgment similarly states in paragraph No. 17: “Do not possess or control any dangerous or deadly weapons, including firearms.”
Defendant again raises a due process argument and contends this condition of probation is vague because there is no knowledge requirement. As we explained in section II, ante, defendant’s failure to raise a due process objection to this condition at the sentencing hearing does not forfeit review of his constitutional claim. (Sheena K., supra, 40 Cal.4th at pp. 888-889.) As we also explained, “in the absence of an express requirement of knowledge, ” a probation condition imposed upon defendant is unconstitutionally vague. (Id. at p. 891.)
While “it is unnecessary to specify that defendant must know a gun is a gun, ” the law has “no legitimate interest in punishing an innocent citizen who has no knowledge of the presence of a firearm or ammunition.” (Freitas, supra, 179 Cal.App.4th at p. 752.) We agree with defendant that it is appropriate to modify the probation condition to specify that he cannot knowingly possess any dangerous or deadly weapon, including firearms. (Id. at p. 753.)
DISPOSITION
The trial court is directed to correct and modify the following conditions of probation contained in the judgment and order of probation filed on January 26, 2010: Paragraph No. 20 of the judgment is modified (as italicized) to state:
“Do not initiate, establish, or maintain contact with any person defendant knows or reasonably should know is under the age of 18 years with the exception of defendant’s own children, without prior Court order.”
Paragraph No. 21 of the judgment is modified (as italicized) to state:
“Do not frequent places where people defendant knows or reasonably should know are under the age of 18 years congregate, such as parks, playgrounds, schools, video arcades, without prior approval of the Court or the Probation Officer, do not obtain employment which would allow unsupervised contact with any person defendant knows or reasonably should know is under the age of 18 years, and do not move into a new location within a 1, 000 foot radius of any school attended by any person defendant knows or reasonably should know is under the age of 18 years.”
Paragraph No. 17 of the judgment is modified (as italicized) to state:
“Do not knowingly possess or control any dangerous or deadly weapons, including firearms.” (Bold in original.)
The trial court is directed to forward copies of the corrected judgment and order of probation to defendant and to the probation department. In all other respects, the judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Cornell, J.