People v. Urke, C063169.

• Citation: 128 Cal.Rptr.3d 405,197 Cal.App.4th 766,11 Cal. Daily Op. Serv. 9115,2011 Daily Journal D.A.R. 10836
• Decision Date: 19 July 2011
• Docket Number: No. C063169.,C063169.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Matthew David URKE, Defendant and Appellant.

197 Cal.App.4th 766

128 Cal.Rptr.3d 405

11 Cal. Daily Op. Serv. 9115

2011 Daily Journal D.A.R. 10,836

The PEOPLE, Plaintiff and Respondent,

v.Matthew David URKE, Defendant and Appellant.

No. C063169.

Court of Appeal, Third District, California.

July 19, 2011.

Julia Freis, Santa Rosa, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Michael A. Canzoneri and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.

NICHOLSON, J.

Following his conviction for violating Penal Code section 288, defendant Matthew David Urke was placed on probation under various terms and conditions, including one which prohibited him from being “in the presence of any minor under the age of 18 without a responsible adult present that has been previously approved by [defendant's] probation officer, except [his] own siblings.” ¹ Following defendant's fourth probation violation, three of which involved being in the presence of minors, defendant's grant of probation was revoked, and he was committed to state prison for six years.

On appeal, defendant asserts: (1) the foregoing probation condition is unconstitutionally vague and overbroad; (2) the trial court further violated his constitutional rights by modifying this probation condition and finding that he violated the modified condition; (3) the trial court should have awarded him custody credit for time served in the county jail following two of his probation violations because he did not knowingly and intelligently waive his entitlement to this custody credit; and (4) the trial court improperly imposed two restitution fines.

As we explain, we need not decide whether the foregoing condition was too vague, or too broad. The subject matter of the condition is one upon which a properly-tailored condition may be imposed. And defendant's conduct was such that it would breach the condition regardless of how narrowly or precisely worded. Thus, even if the condition were constitutionally infirm, as defendant asserts, any error is harmless beyond a reasonable doubt. We do agree that defendant is entitled to additional custody credit, and that the second restitution fine must be stricken. With these modifications, we affirm the judgment.

BACKGROUND

Underlying Offense

In 2001, defendant was 18 years old, lived at his mother's house, and inappropriately touched several of his younger sisters' friends while they visited the house. The first victim was approximately 10 years old and was sleeping on the couch when she awoke to find defendant rubbing her pubic area. She pretended to be asleep, rolled over, and defendant left. Another victim was seven or eight years old. While she sat on defendant's lap, “he put his hands under her shirt and began rubbing her ‘boobs.’ ” She made up an excuse to leave and was not further molested. A third victim was 15 years old; defendant grabbed her in a “ ‘bear hug’ ” and unsuccessfully tried to pull her pants down. Finally, defendant was also found on top of another of his sister's friends, “moving his hands all over her body on top of her clothing.” He admitted that his behavior was “ ‘wrong and against the law,’ ” and stated he was trying to get help through counseling.

Defendant pleaded guilty to one count of committing a lewd and lascivious act on a child under the age of 14 and was placed on eight years' formal probation. As a condition of probation, defendant was prohibited from being “in the presence of any minor under the age of 18 without a responsible adult present that has been previously approved by [defendant's] probation officer, except [his] own siblings.” Defendant was also required to serve a year in the county jail.

First Probation Violation

In 2004, defendant violated his grant of probation by being in the presence of minors. Defendant interacted with three girls, ages 15 to 17, at a Burger King restaurant, bought alcohol at a nearby liquor store, and brought the minors back to his apartment. Defendant admitted the violation, entered a waiver of custody credits pursuant to People v. Johnson (2002) 28 Cal.4th 1050, 123 Cal.Rptr.2d 700, 51 P.3d 913( Johnson ), and was reinstated on probation with an additional sentence of 120 days in the county jail.

Second Probation Violation

In 2006, defendant violated his grant of probation by failing to participate in sex offender counseling. He was reinstated on probation with an additional sentence of 120 days in the county jail without entering a Johnson waiver. The trial court also modified the terms of defendant's probation to allow him to have contact with his own child without the supervision of a responsible adult.

Third Probation Violation

In 2007, defendant again violated his grant of probation by being in the presence of minors. This time, defendant was hired to build a children's playground set in a family's backyard. The family's one-year-old daughter and four-year-old son were present in the backyard while defendant performed the work, and sat near defendant while he and the family ate lunch together. Defendant admitted that he knew the children were present, and that this was a violation of his grant of probation. After entering a Johnson waiver, defendant was reinstated on probation with an additional sentence of 210 days in the county jail.

Fourth Probation Violation—The Present Case

In 2009, defendant again violated his grant of probation by being in the presence of minors. This time, defendant took his two-year-old son to the pool at his apartment complex. Several children, ages three to nine, were also at the pool with their mothers. While in the pool, defendant played with his son and the other children. As one of the mothers explained: “He was playing with the kids, swimming, splashing them with the ... long floating [pool noodle] that had two holes in each end, so he was putting water inside one hole and blowing and splashed the kid with the water....” When asked whether the playing was confined to splashing the children, she answered: “Yeah, splashing water, playing around. The kid was asking his son's name. He answered the son's name. And they was all in the water. Their moms didn't ask them to get out of the water. So nothing that I could do about it. But he was playing with the kids.” The apartment manager, who had previously been informed by defendant that he was “not to have any interactions with children,” unsuccessfully tried to call defendant's probation officer, and then called the sheriff's department. Sheriff's deputies arrived roughly 30 minutes later. Defendant later admitted to his probation officer that he did not have permission to be in the pool with these children.

Defendant moved to dismiss the petition alleging this conduct to be a violation of his probation, arguing that the probation condition prohibiting him from being in the presence of minors is unconstitutionally vague and overbroad because (1) it lacks a knowledge requirement, and (2) the term “presence” is not sufficiently clear to inform him of what conduct will amount to a violation of probation. The trial court agreed with the first of defendant's arguments and modified the condition to read: “ ‘not be in the presence of any person he knows or reasonably should know to be under the age of 18 without a responsible adult present as approved by the probation officer, except his siblings.’ ” Defendant's second argument was summarily rejected.

Following the hearing on the petition for violation of probation, the trial court determined that defendant violated this modified probation condition by “being in the knowing presence of a minor under the age of 18 without an approved responsible adult.” The trial court revoked defendant's grant of probation, sentenced him to a term of six years in state prison, and imposed other orders. This appeal followed.

DISCUSSION

I

We begin by summarizing several principles that govern the grant and review of a petition to revoke probation.

Section 1203.2, subdivision (a), authorizes a court to revoke probation if the interests of justice so require and the court, in its judgment, has reason to believe that the person has violated any of the conditions of his or her probation. (See People v. Rodriguez (1990) 51 Cal.3d 437, 447, 272 Cal.Rptr. 613, 795 P.2d 783( Rodriguez ).) ² “ ‘When the evidence shows that a defendant has not complied with the terms of probation, the order of probation may be revoked at any time during the probationary period. [Citations.]’ [Citation.]” ( People v. Johnson (1993) 20 Cal.App.4th 106, 110, 24 Cal.Rptr.2d 628.) The standard of proof in a probation revocation proceeding is proof by a preponderance of the evidence. ( Rodriguez, supra, 51 Cal.3d at p. 447, 272 Cal.Rptr. 613, 795 P.2d 783;People v. Stanphill (2009) 170 Cal.App.4th 61, 72, 87 Cal.Rptr.3d 643.) “Probation revocation proceedings are not a part of a criminal prosecution, and the trial court has broad discretion in determining whether the probationer has violated probation.” ( People v. DeGuzman (1995) 33 Cal.App.4th 414, 419, 39 Cal.Rptr.2d 137.)

We review a probation revocation decision pursuant to the substantial evidence standard of review ( People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681, 76 Cal.Rptr.2d 641, 958 P.2d 393), and great deference is accorded the trial court's decision, bearing in mind that “ [p]robation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court. [Citations.]” ( People v. Pinon (1973) 35 Cal.App.3d 120, 123, 110 Cal.Rptr. 406.)

“The discretion of the court to revoke probation is analogous to its power to grant the probation, and the court's discretion will not be disturbed in the absence of a showing of abusive or arbitrary action. [Citations.]” ( ...