APPEAL from a judgment of the Superior Court of Sacramento County, Jamie R. Roman, Judge. (Super. Ct. No. 02F05256)
The opinion of the court was delivered by: Nicholson, J.
CERTIFIED FOR PUBLICATION
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."*fn1 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fourth probation violation, three of which involved being in the presence of minors, defendant's grant of probation was revoked, and he was committed to state prison for six years.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.
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 (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. ...