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The People v. Juan Garcia

January 18, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JUAN GARCIA, DEFENDANT AND APPELLANT.



Super. Ct. No. 10F01298

The opinion of the court was delivered by: Hull, Acting P. J.

P. v. Garcia

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Juan Garcia entered a negotiated no contest plea to felony failure to register as a sex offender (Pen. Code, § 290.018, subd. (b); unspecified statutory references that follow are to the Penal Code) and he received probation. In this appeal, defendant challenges a number of his probation conditions as invalid under California law and unconstitutionally overbroad. For the most part, we disagree and, with one minor modification, we affirm the order of probation.

FACTS AND PROCEEDINGS

In 1990, defendant was convicted in Los Angeles County of misdemeanor child molestation or annoyance. (§ 647.6, subd. (a)(1).)

The word "molests" in section 647.6 is, in general, a synonym for "annoy[s]." (People v. Maurer (1995) 32 Cal.App.4th 1121, 1126, fn. 1.) A person may be convicted of violating section 647.6 if he (1) engages in acts or conduct, directed at a child under the age of 18, which would unhesitatingly disturb or irritate a normal person, if directed at such person, and (2) such acts or conduct were motivated by an unnatural or abnormal sexual interest in the child. (See People v. Maurer, supra, 32 Cal.App.4th at p. 1125.) It is not necessary that the acts or conduct actually disturb or irritate the child, or that the body of the child be actually touched. (Ibid.)

Neither the details of defendant's section 647.6 offense, nor the age and sex of the victim, appear in the record.

In 2004, defendant was convicted in Placer County of failure to register as a sex offender. (§ 290.)

In 2010 defendant entered a negotiated no contest plea to felony failure to register within five days of moving into Sacramento County in violation of section 290.018, subdivision (b), and was placed on three years' formal probation.

Over defendant's objections, the trial court imposed the following probation conditions, which he now challenges on appeal:

"Defendant is not to knowingly be in the presence of any minor or groups of minors under the age of 18 without an adult being present who has been approved by the probation officer. Do not knowingly communicate, either in writing or electronically with any minor under the age of 18 without prior approval by the probation officer." (The probation report, this is condition No. 3.)

"The defendant shall seek and obtain professional counseling through and under the direction of the Probation Officer." (In the probation report, this is condition No. 4.)

"Defendant shall disclose all email accounts, all internet accounts and any other means of access to any computer or computer network, all passwords and access codes. Defendant shall consent to the search of such email and internet accounts at any time and for the seizure of any information without a search warrant or probable cause." (In the probation report, this is condition No. 6.)

"Defendant shall not possess any software and/or hardware designed for the purpose of encrypting or decrypting computer files." (In the probation report, this is condition No. 7.)

Defendant shall "[s]ubmit to continuous electronic monitoring, Global Positioning System monitoring or other device as directed by [his] probation officer." (In the ...


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