P. v. Stafford CA4/2

Filed 3/13/13 P. v. Stafford CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E055138

v. (Super.Ct.No. FSB1102672)

DAVID MICHAEL STAFFORD, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Kenneth Barr,

Judge. Affirmed as modified.

Cynthia A. Grimm, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney

General, and Barry Carlton and Garrett Beaumont, Deputy Attorneys General, for

Plaintiff and Respondent.

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 On September 20, 2011, defendant and appellant David Michael Stafford pled

guilty to possessing child pornography (Pen. Code, § 311.11, subd. (a)) in exchange for a

grant of probation. Defendant agreed to destroy his computers and storage devices and

attend sex offender treatment. On October 21, defendant was placed on formal probation

for three years. Over defense counsel’s objection, the trial court imposed several terms

and conditions regarding controlled substances, polygraph testing, possession of sexually

explicit items, frequenting places where minors congregate, and possession of contact

magazines, restraint equipment and identify concealing items. Defendant appeals,

renewing his claims that the objected-to terms were improperly imposed.

I. FACTS

On September 28, 2010, defendant turned himself in and admitted downloading

and possessing child pornography for the past 10 years. Defendant directed an officer to

a computer located in his home office and informed the officer that he had given a second

computer to a neighbor. The computer and a flash drive were taken from the residence.

After contacting the neighbor, a second computer was located. The computers and flash

drive were submitted into evidence. On February 2, 2011, the computers were analyzed,

and 91 images of children under the age of 18 were found.

II. PROBATION CONDITIONS

Defendant challenges several of his conditions of probation.

Penal Code section 1203.1 specifically states that in granting probation, the court

is to determine what conditions are “fitting and proper to the end that justice may be

done, that amends may be made to society for the breach of the law, for any injury done

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to any person resulting from that breach, and generally and specifically for the

reformation and rehabilitation of the probationer . . . .” (Pen. Code, § 1203.1, subd. (j).)

The trial court has broad discretion to select appropriate probation conditions in an

individual case, those aimed at promoting rehabilitation and the protection of public

safety, as expressed in Penal Code section 1203.1. (People v. Carbajal (1995) 10 Cal.4th

1114, 1120 (Carbajal).)

“The trial court’s discretion, although broad, nevertheless is not without limits: a

condition of probation must serve a purpose specified in the statute. In addition, we have

interpreted Penal Code section 1203.1 to require that probation conditions which regulate

conduct ‘not itself criminal’ be ‘reasonably related to the crime of which the defendant

was convicted or to future criminality.’ [Citation.]” (Carbajal, supra, 10 Cal. 4th at p.

1121.) Accordingly, a probation condition “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 . . . .’ [Citation.]” (People v. Lent (1975) 15 Cal.3d 481, 486

(Lent), fn. omitted.) “This test is conjunctive—all three prongs must be satisfied before a

reviewing court will invalidate a probation term. [Citations.] As such, even 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. [Citation.]” (People

v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin).)

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 A. Drug Conditions

The trial court imposed the following drug conditions:

“11) Neither use nor possess any controlled substance without medical

prescription. A physician’s written notice is to be given to the probation officer.

“12) Submit to a controlled substance test at direction of probation officer. Each

test is subject to an $11.00 fee, to be collected by Central Collections[.]

“13) Not possess any type of drug paraphernalia, as defined in [Health and Safety

Code section] 11364.5(d)[.]

[¶] . . . [¶]

“16) Not associate with persons known to defendant to be illegal users or sellers

of controlled substances, except for those involved in your recovery.

[¶] . . . .[¶]

“37) Attend NA/AA [Narcotics Anonymous/Alcoholics Anonymous] meetings as

directed by the Probation Officer and show proof of attendance to the Probation

Department.”

According to the probation report, defendant first used marijuana at the age of 18

and continued using until age 24. During those years, he used marijuana daily and used

Ecstasy one time when he was 19.1 Defendant denied the use or experimentation with

any other illegal drugs and denied drinking alcohol. In objecting to condition Nos. 11,

1While the first page of the probation officer’s report states that defendant used
marijuana and cocaine, defendant’s statement identifies only marijuana and Ecstasy.

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12, 13, and 37 (requiring attendance at NA/AA meetings),2 defense counsel argued that

such conditions were not related to the crime and defendant was 55 years old and had not

used illegal drugs for 31 years. The prosecution argued that due to the nature of the

offense and defendant’s admitted use of drugs, it was important for probation to ensure

he was not using drugs that might limit his inhibition. Although the prosecution included

cocaine in the list of drugs used, such inclusion contradicts defendant’s statement to the

probation officer.

Defendant contends the probation drug conditions constitute an abuse of that

discretion. He further claims they are unreasonable and unconstitutional. Defense

counsel failed to object to condition No. 16 (formerly condition No. 17), and the People

argue error has therefore been forfeited. (In re Sheena K. (2007) 40 Cal.4th 875, 885,

889 (Sheena K.).) Defendant nonetheless argues ineffective assistance of counsel. The

People have addressed the issue on the merits and, thus, we will do the same.

In this case, the record contains no indication that any controlled substance was

involved in defendant’s offenses. However, condition Nos. 11 and 13 relate to conduct

that is in itself criminal, and thus, may be imposed in the court’s discretion. Condition

Nos. 12, 16, and 37 are more problematic. These conditions do not involve conduct that

is in itself criminal, and there is no evidence that any controlled substance was involved

or that defendant was associating with other illegal users or sellers of controlled

substances during the commission of the offenses. The only issue, therefore, is whether

2 Initially, these conditions were numbered 12, 13, 14 and 44. After some
conditions were stricken, they were renumbered.

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the probation drug conditions forbid conduct that is not reasonably related to future

criminality. The analysis is highly fact specific. (People v. Lindsay (1992) 10

Cal.App.4th 1642, 1644 (Lindsay).)

While an argument may be made that condition Nos. 16 and 37 require or forbid

conduct related to future criminality, given the facts of this case, these conditions are not

reasonably related to the offenses committed by defendant. Defendant’s admission was

that he committed the offenses in the privacy of his own home, not with others. There is

no evidence that he was under the influence of any controlled substance when

committing the offenses. And more importantly, he recognized that what he was doing

was wrong and took responsibility for his action by turning himself in to the police. In

People v. Kiddoo (1990) 225 Cal.App.3d 922 (Fourth Dist., Div. Two), overruled on

another ground in People v. Welch (1993) 5 Cal.4th 228, 237, this court invalidated a

condition prohibiting the defendant from possessing or consuming alcohol following his

guilty plea to possession of methamphetamine. The defendant had been selling drugs to

support a gambling habit; he had been using drugs and alcohol since he was 14, but he

was only “a social drinker” who used methamphetamine “sporadically.” (People v.

Kiddoo, supra, at p. 927.) This court found no facts to support the conclusion that the

prohibited conduct was reasonably related to future criminality, and it struck the

condition.

Here, the facts are more compelling to strike the conditions. Condition Nos. 12,

16 and 37 focus on controlled substances and making sure that defendant is removed

from illegal users or sellers of controlled substances, or circumstances, which could

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hinder his rehabilitation. However, there is no evidence that using controlled substances

had any connection whatsoever to defendant’s crime. Defendant admitted he watched

child pornography in the privacy of his own home while sober. Likewise, there is no

need for defendant to attend an NA/AA program in order to own an addiction to any

controlled substance. Like the fact that there was no issue involving the use of controlled

substances, failing to admit what he did was wrong was also not an issue in this case.

Defendant turned himself in to the police. His addiction was not for controlled

substances. Rather, he was addicted to child pornography. An NA/AA program would

not benefit him.

For the above reasons, condition Nos. 12, 16, and 37 violate the Lent criteria and

are ordered stricken.

B. Submitting to Random Polygraph Testing

Over defendant’s objection, the trial court imposed condition No. 24, which

included a requirement that defendant “submit to random polygraph testing by a

Probation department approved polygraph examiner at the direction of the Probation

Officer, as part of the sex offender surveillance program and be responsible for all costs

associated with examinations. Tool—admissibility.” On appeal, defendant contends this

probation condition “implicates [his] Fifth and Fourteenth Amendment right against self-

incrimination and therefore, it must be carefully scrutinized to determine if it is narrowly

drawn and reasonably related to a compelling state interest in reformation and

rehabilitation.”

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 A condition that requires a probationer to submit to polygraph testing as part of a

sex offender surveillance program does not in and of itself violate the privilege against

self-incrimination. (Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321 (Brown).)

Such condition helps monitor defendant’s compliance with probation and is therefore

reasonably related to defendant’s crime of possessing child pornography. (Id. at pp. 319-

321; People v. Miller (1989) 208 Cal.App.3d 1311, 1314.) Here, while the trial court

recognized that the polygraph condition is an appropriate tool which allows probation to

ensure that defendant complies with his probation, the court also acknowledged the test is

not admissible in court.

Notwithstanding the above, condition No. 24 is unconstitutionally overbroad. In

Brown, the defendant pled guilty to stalking his former girlfriend while a domestic

violence temporary restraining order was in effect. (Brown, supra, 101 Cal.App.4th at p.

317.) He was placed on probation, and one of his conditions required him to successfully

complete a stalking treatment program. (Ibid.) In pleading guilty, the defendant

stipulated to the facts contained in the police report and preliminary hearing transcript but

denied he had engaged in the behavior. He also told the psychologist in charge of the

treatment program that he did not belong in the program because he was not a stalker.

(Id. at p. 318.) The psychologist recommended that the defendant’s probation include a

polygraph testing condition for purposes of treatment, noting the defendant had attempted

to falsify a drug test, denied the major facts of the case, had a psychopathic personality,

and had several “‘stalking recidivism predictors’ . . . .” (Ibid.) The trial court then

imposed the condition that the defendant “‘undergo periodic polygraph examinations at

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[his] expense, at the direction of the probation officer,’” to further the defendant’s

successful completion of the stalking therapy program. (Id. at p. 321.) The trial court

declined to place any restrictions on the questions that could be asked during the testing.

(Ibid.) The Court of Appeal found the polygraph testing to be a valid condition since it

was reasonably related to the defendant’s crime and to possible future criminality. (Ibid.)

However, the court found the condition to be “broadly worded.” (Ibid.) It held that the

condition “must limit the questions allowed to those relating to the successful completion

of the stalking therapy program and the crime of which [the defendant] was convicted.”

(Ibid.)

Here, the text of condition No. 24 is similar to the one in Brown, except that

defendant is ordered to complete a sex offender surveillance program rather than a

stalking therapy program. Like the condition in Brown, condition No. 24 does not limit

the types of questions that can be asked during the examination and thus is overbroad. It

should be rewritten to limit the questions allowed to those relating to the successful

completion of the court-mandated sex offender surveillance program and the crime of

which defendant was convicted. Additionally, the People concede that the requirement

that defendant pay the costs of polygraph testing cannot be included in the probation

conditions and should therefore be stricken. (Brown, supra, 101 Cal.App.4th at p. 321.)

We agree.

Condition No. 24 is modified to read as follows: “You shall submit to random

polygraph testing by a Probation Department approved polygraph examiner at the

direction of the Probation Officer, as part of the sex offender surveillance program. The

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questions shall be limited to those relating to the successful completion of the sex

offender surveillance program and the crime of which you were convicted.”

C. Possession of Sexually Explicit Items, Frequenting Establishments that

Sell Such Items, and Using Sexually Oriented Telephone Services

Condition No. 27 requires that defendant “not own, use, or possess any form of

sexually explicit movies, videos, material, or devices unless recommended by a therapist

and approved by the probation officer. Do not frequent any establishment where such

items are primary items viewed, sold at such establishment, and do not utilize any

sexually oriented telephone services.” At sentencing, defense counsel objected on the

grounds that the crime involved children, not adults, and that possession of sexually

explicit materials involving adults would be legal and should be acceptable. In response,

the prosecution pointed out that, based on the nature of the offense, the condition was an

appropriate tool for probation to ensure compliance. The court imposed the condition as

“valid and appropriate.”

On appeal defendant contends condition No. 27 “is unconstitutionally vague as it

does not define the terms ‘frequent,’ ‘sexually explicit,’ and ‘primary items’ and it does

not include a knowledge requirement.” Furthermore, defendant claims he has no

“advance notice of the establishments he is prohibited from frequenting.” Defendant also

faults the condition for being overbroad in that it “could prevent [him] from entering all

movie theaters or video stores . . . depending on the definition of sexually explicit.”

“[T]he void for vagueness doctrine applies to conditions of probation.

[Citations.]” (People v. Reinertson (1986) 178 Cal.App.3d 320, 324.) A vagueness

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challenge is based on the “due process concept of ‘fair warning.’ [Citation.]”

(Sheena K., supra, 40 Cal.4th at p. 890.) Therefore, 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’ . . . .” (Ibid.) In this case, we

agree that condition No. 27 is vague because it does not include a definition of “sexually

explicit material.” The record is void of any advisement as to what the trial court

considered sexually explicit material. The condition itself fails to inform subsequent trial

courts or probation officers of precisely what constitutes a violation. Nonetheless,

defendant’s challenged probation condition can easily be remedied on appeal by

modification of the condition. (See, e.g., Sheena K., supra, at p. 888.) The following

language should be added to condition No. 27: “‘Sexually explicit’ is defined as X-rated

movies and items classified as pornography.”

Regarding defendant’s claim that condition No. 27 is also unconstitutionally

overbroad, we disagree. “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.) Possession of obscene material is protected by the First and

Fourteenth Amendments. (Stanley v. Georgia (1969) 394 U.S. 557, 568.) We believe the

condition as modified above is not overbroad. To provide more clarification by including

all of the exclusions to the above condition would present an onerous task. The condition

as modified is sufficiently precise for defendant to know what is required of him, is

sufficient for future trial courts to determine whether the condition has been violated, and

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is closely tailored to those limitations on pornography to meet the purpose of the

condition. To the extent that it does not, defendant can seek approval from the probation

department for such other materials or venues.

Finally, we reject the challenge that condition No. 27 unnecessarily impinges on

defendant’s First Amendment rights by “unreasonably prohibiting conduct which is legal

and normal [by including] any form of sexually explicit movies, videos, materials, or

devices unless recommended by a therapist and approved by the probation officer.” We

note federal case authority that invalidated a similar condition upon a defendant who had

been convicted of possessing child pornography. (United States v. Voelker (3rd Cir.

2007) 489 F.3d 139, 150-151 [the appellate court found no “nexus” between viewing

adult pornography and the goals of supervised release and no evidence that the viewing

of adult pornography, a legal activity, had contributed to the defendant’s crime, the

possession of child pornography].) However, we are not bound by Voelker. In any

event, we find the case to be factually inapplicable to the circumstances before this court.

According to defendant himself, shortly after purchasing a home computer, he began

looking at legal pornography and the child pornography would come up. He then started

looking at child pornography and continued to do so for 10 years. Clearly, a “nexus”

exists between defendant viewing adult pornography and defendant possessing child

pornography.

D. Association with Minors or Frequenting Places Where Minors Congregate

Condition No. 28 prohibits defendant from “associate[ing] with minors or

frequent[ing] places where minors congregate, including but not limited to schoolyards,

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parks, amusement parks, concerts, playgrounds, swimming pools, and arcades, unless in

the company of a responsible adult over the age of 21 who is approved by the probation

officer or court, knows of [defendant’s] offense(s) and is willing to monitor [his]

behavior.”

Defendant contends the condition is unconstitutionally vague and overbroad

because it infringes on his constitutional freedom to travel, and his constitutional rights of

privacy, religion, association and assembly, to a greater degree than is necessary to serve

its purpose. The People urge us to reject the contention as meritless because the

condition “is tailored to the purpose of the condition, to wit: the compelling state interest

of protecting children from [defendant].” We conclude there is merit to both sides of the

argument.

Although vagueness and overbreadth are related, they are not identical. The basis

of a vagueness challenge is the due process concept of fair warning. (People v.

Castenada (2000) 23 Cal.4th 743, 751.) “‘Vagueness may invalidate a criminal law for

either of two independent reasons. First, it may fail to provide the kind of notice that will

enable ordinary people to understand what conduct it prohibits; second, it may authorize

and even encourage arbitrary and discriminatory enforcement.’ [Citation.]” (Ibid.) The

overbreadth doctrine requires that, “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.) However, “[a] statute may not be found

constitutionally invalid on overbreadth grounds simply because it is possible to conceive

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of one or a few impermissible applications . . . .” (People v. Toledo (2001) 26 Cal.4th

221, 234-235.)

Here, although condition No. 28 is overbroad and vague, it serves the dual purpose

of rehabilitation and public safety by attempting to prevent defendant from engaging in

misconduct which could escalate into criminal conduct. Thus, the best solution is to

modify the language in condition No. 28 so that it reads as follows: “Do not knowingly

contact or associate with minors and stay away from places where you know minors

congregate, such as locations especially designated for use by minors, including

schoolyards, parks, amusement parks, playgrounds, swimming pools, and arcades, unless

accompanied by an informed, responsible adult over the age of 21 who knows of your

offense(s) and is willing to monitor your behavior or is approved by the probation officer

or court.”

E. Possession of Personal Contact Magazines, Identity Concealing Items, and

Items for Sadomasochistic Purposes

Over defendant’s objection, the following conditions were imposed:

“33) Not possess or have access to handcuffs, restraint equipment, or other items

that could be used for sadomasochistic purposes.

“34) Not possess personal contact magazines, nor place any ads, nor respond to

any ads in such publications unless approved by the probation officer.

“35) Not possess or have access to costumes, masks, or other identity-concealing

items unless approved by the probation officer.”

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 Defendant contends these conditions (1) have no relationship to the crime of

which he was convicted; (2) relate to conduct that is not in itself criminal; and (3) require

or forbid conduct that is not reasonably related to future criminality. Moreover, he argues

they are unconstitutionally vague and overbroad. The People note the prosecution’s

argument that these conditions “are specific to the class of crime committed by

[defendant] and keep [him] away from items that might tempt [him].” Further, the

People argue these conditions “foster [defendant’s] rehabilitation and public safety by

lessening the likelihood that [he] will be tempted to act out the sexual offenses he

previously observed when he possessed child pornography.” We agree with defendant.

The record lacks any evidence that defendant’s offense involved any of the items

identified in condition Nos. 33, 34, and 35. There is no evidence that defendant used any

restraint equipment, identity-concealing items, or magazines and ads in violation of Penal

Code section § 311.11, subdivision (a). Defendant admitted he viewed child

pornography on the internet. He did not admit to using magazines, ads or identity-

concealing items to lure children into his home where he restrained them in order to

watch them perform sexual acts. Again, we note that our Supreme Court has repeatedly

stated the relevant test for the propriety of a probation condition is “reasonableness.”

(Olguin, supra, 45 Cal.4th at pp. 383-384.) Because condition Nos. 33, 34, and 35 are

15
not reasonable given the facts of this case, they violate the Lent criteria and are ordered

stricken.3

F. Submit to Field Interrogation

Condition No. 17 requires defendant to “[s]ubmit to and cooperate in a field

interrogation by any peace officer at any time of the day or night.” On appeal, defendant

contends this condition is unconstitutional because it implicates his right against self-

incrimination. Alternatively, he argues it is overbroad and should be modified to read:

“Probationer should submit to and cooperate in a reasonable field interrogation by any

peace officer. However, when questioned by a peace officer under this condition,

probationer is always permitted to invoke his Fifth Amendment right by refusing to

answer any question that might be self-incriminating.”

Regarding defendant’s concern that condition No. 17 implicates his right against

self-incrimination, a probation condition is valid under the Fifth Amendment unless there

is a reasonable basis for concluding an impermissible penalty has been attached to the

exercise of the privilege. (Minnesota v. Murphy (1984) 465 U.S. 420, 436-437

(Murphy).) Murphy sets forth the rule that the Fifth Amendment privilege is not lost

when a person is granted probation: A state cannot “constitutionally carry out a threat to

revoke probation for the legitimate exercise of the Fifth Amendment privilege.”

(Murphy, supra, at p. 438.)

3Having found these conditions violate the Lent criteria, we need not address
defendant’s claim that they are also unconstitutionally vague and overbroad.

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 In light of this well-settled rule, there is no reasonable basis for concluding that the

field interrogation probation condition places an impermissible penalty on defendant’s

Fifth Amendment privilege. The condition does not compel him to make incriminating

disclosures. The condition merely requires him to “[s]ubmit to and cooperate in a field

interrogation by any peace officer . . . .” While probationers have long been required to

“cooperate” with their probation officers, a probationer is not foreclosed from asserting

his Fifth Amendment privilege, and it would not be inherently uncooperative for him to

assert that privilege. (See United States v. Davis (1st Cir. 2001) 242 F.3d 49, 52 [finding

no realistic threat of having the defendant’s probation revoked in a requirement to

“cooperate” with the probation officer].) Thus, although defendant must cooperate with

the police and not walk away, he retains the right to assert the Fifth Amendment, and his

probation cannot be revoked based on a valid exercise of that right. (Murphy, supra, 465

U.S. at p. 434.) Accordingly, we conclude defendant’s Fifth Amendment privilege has

not been infringed by the field interrogation probation condition.

Regarding the claim that condition No. 17 is overbroad, under the facts of this

case, we agree. Although the general propriety of such a term has been recognized,

(Murphy, supra, 465 U.S. at p. 438) it must nonetheless be tailored, so that it is

reasonably related to the crime of which defendant was convicted, or to defendant’s

future criminality. (Carbajal, supra, 10 Cal.4th at p. 1121; Brown, supra, 101

Cal.App.4th at p. 321.) Here, defendant is not the typical convicted felon, who in his

fifties, has an extensive criminal record. Rather, this is defendant’s only conviction.

More importantly, defendant was not caught by the police; rather, he turned himself in.

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While this court has repeatedly held that the language in condition No. 17 is not

overbroad, we find the facts currently before us warrant a different holding. A field

interrogation probation condition is a correctional tool which can be used to determine

whether the defendant is complying with the terms of his or her probation or disobeying

the law. (See People v. Reyes (1998) 19 Cal.4th 743, 752 [purpose of an unexpected

search is to determine not only whether parolee disobeys the law, a basic condition of

parole, but also whether he or she obeys the law; the condition helps measure the

effectiveness of parole supervision]; In re Anthony S. (1992) 4 Cal.App.4th 1000, 1006

[probation is an alternative form of punishment, carrying with it certain burdens, such as

a search term, which can be used as a correctional tool].) However, by its current

provision, the term allows for defendant to be interrogated as to any subject matter,

whether related or unrelated to his conduct. Again, given the facts of this case, we

conclude that condition No. 17 should be limited to allow field interrogation of defendant

only as it relates to his criminality and compliance with the other terms and conditions of

probation. Thus, condition No. 17 is modified to read: “Submit to and cooperate in a

reasonable field interrogation by any peace officer, at any time of the day or night, as

such interrogation relates to your criminality and compliance with the other terms and

conditions of your probation.”

III. DISPOSITION

The judgment is modified, as follows:

(1) Probation condition Nos. 12, 16, 33, 34, 35, and 37 are stricken.

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 (2) Probation condition No. 24 is modified to read as follows: “You shall submit

to random polygraph testing by a Probation Department approved polygraph examiner at

the direction of the Probation Officer, as part of the sex offender surveillance program.

The questions shall be limited to those relating to the successful completion of the sex

offender surveillance program and the crime of which you were convicted.”

(3) Probation condition No. 27 is modified to add the following language:

“‘Sexually explicit’ is defined as X-rated movies and items classified as pornography.”

(4) Probation condition No. 28 is modified to read as follows: “Do not knowingly

contact or associate with minors and stay away from places where you know minors

congregate, such as locations especially designated for use by minors, including

schoolyards, parks, amusement parks, playgrounds, swimming pools, and arcades, unless

accompanied by an informed, responsible adult over the age of 21 who knows of your

offense(s) and is willing to monitor your behavior or is approved by the probation officer

or court.”

(5) Probation condition No. 17 is modified to read as follows: “Submit to and

cooperate in a reasonable field interrogation by any peace officer, at any time of the day

or night, as such interrogation relates to your criminality and compliance with the other

terms and conditions of your probation.”

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 The trial court is ordered to correct its records to reflect these modifications. As

so modified, the judgment is affirmed. (See People v. Burden (1988) 205 Cal.App.3d

1277, 1281.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST
Acting P. J.
We concur:

MCKINSTER
J.

CODRINGTON
J.

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