Filed 9/26/17 P. v. Berliner CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Steven David Berliner pleaded no contest to possessing child pornography (Pen. Code, § 311.11, subd. (a))[1] and was granted probation. On appeal, he challenges the trial court’s imposition of the probation conditions required by section 1203.067, subdivisions (b)(3) and (b)(4), and he contends that the use of the word “frequent” in another probation condition rendered that condition unconstitutionally vague. We reject his challenges to the statutorily mandated probation conditions, but we modify the other challenged probation condition to replace “frequent” with “visit or remain in.”

I. Background

In November 2013, the police found child pornography on defendant’s computer in his home during the execution of a search warrant. Defendant admitted that he had downloaded the child pornography on the computer and that he had been doing so for 10 years. Defendant was charged by complaint with possession of child pornography. He pleaded no contest in exchange for a grant of probation for three years conditioned on his serving 30 days in jail and 330 days on electronic monitoring. The court suspended imposition of sentence and placed defendant on probation with numerous conditions. Defendant objected to imposition of probation conditions mandated by section 1203.067, subdivisions (b)(3) and (b)(4), but the court overruled his objections and imposed those conditions. It also imposed as a condition of probation that defendant “not knowingly frequent, be employed by, or engage in, any business where pornographic materials are openly exhibited.” Defendant timely filed a notice of appeal.

II. Discussion

A. Section 1203.067 Probation Conditions

Defendant challenges the validity of the probation conditions mandated by section 1203.067, subdivisions (b)(3) and (b)(4). After defendant briefed these issues on appeal, the California Supreme Court rejected challenges to the validity of these probation conditions in People v. Garcia (2017) 2 Cal.5th 792 (Garcia). In post-Garcia supplemental briefing, defendant makes no attempt to argue that Garcia does not dispose of his challenges to these probation conditions. Based on Garcia, we reject his challenges. (Garcia, at pp. 807-814.)

B. “Frequent” Probation Condition

Defendant also challenges the probation condition requiring that he not “knowingly frequent, be employed by, or engage in, any business where pornographic materials are openly exhibited.” He contends that the word “frequent” is unconstitutionally vague. The Attorney General concedes that the word “frequent” is unconstitutionally vague and suggests a modification that replaces “frequent” with “visit or remain at . . ..” In People v. Leon (2010) 181 Cal.App.4th 943, this court held that a probation condition’s use of “ ‘frequent’ ” was unconstitutionally vague, and we modified the condition to replace “ ‘frequent’ ” with “ ‘visit or remain in . . . .’ ” (Id. at p. 952.) We do the same here.

III. Disposition

The probation order is hereby modified to replace the word “frequent” with “visit or remain in” in the condition concerning “any business where pornographic materials are openly exhibited.” As modified, the probation order is affirmed.

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Mihara, J.

WE CONCUR:

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Elia, Acting P. J.

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Bamattre-Manoukian, J.