Filed 5/28/15 P. v. Mendoza CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent,

v.

GERALDO MENDOZA Defendant and Appellant. G051069

(Super. Ct. No. P-00460)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed. Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

* * *2 Appellant Geraldo Mendoza was convic ted of having sex with his 17-yearold sister and his 10-year-old stepsister. He was imprisoned for thos e offenses and he is required to register as a sex offender u nder Penal Code section 290. One of the conditions of his parole is that he is to have no contact with any minor children. He has violated this and other conditions of his paro le on three occasions in the 20 months since his release from custody, includi ng violations for being in th e presence of minor children and possessing pornogra phic materials. The parole violation that comes befo re us now took place late last year when police responded to a domestic violen ce call at his home and found him with his girlfriend and three-week-old son. He was arrested for violating the provision of his parole that forbids him being in the presence of minors. That provision reads, “You shall not have contact with your bi ological or adopted children. ‘No contact’ means no contact in any form, whether direct or indirect, personally, by telephone, in writing, through electronic media, e-mail, computer, or through another person, etc.” Appellant argued the condition was vague and overbroad. The former complaint had to do w ith the word “contact” and whethe r that prohibited mere presence with the child or only touching or comm unicating with the child. The “overbreadth” complaint was that it fo rbade contact with his biological son. The trial court rejected both arguments and Mendoza appealed. We appointed counsel to represent hi m on that appeal. Counsel filed a brief

which set forth the facts of the case. Counse l did not argue against his client, but advised

the trial court he could find no issues to argue on appellant’s behalf. Mendoza was invited to express his own objections to the proceedings against him, but did not. Under the law, this put the onus on us to review the re cord and see if we could find any issues that might result in some kind of amelioration of Mendoza’s lot. ( People v. Wende (1979) 25 Cal.3d 436.) It should be emphasized that our search was not for issues upon

which Mendoza would prevail, but only issues upon which he might possibly prevail.3 We have examined the record and fo und no arguable issue. This is not surprising. In fact, it is what we find in th e vast majority of cases in which appellate

counsel files a Wende brief. Even the most cynical ob server of the appellate system would have to recognize that appellate c ounsel has a financial incentive for finding issues. The simple matter is counsel makes more money if he /she finds an issue that is arguable than if he/she does not. So while it sometimes happens that an appellate court will find issues after appellate counsel ha s thrown in the towe l, it is unusual. This is factually an un usual case, but its legal i ssues have been rather conclusively decided against Mr. Mendoza. While the law certainly recognizes the importance of familial relationships, it also reco gnizes the right of an infant child to be protected against sexual predators – includin g his own father. Mr. Mendoza asserts the harsh result of the “no contact” provision in hi s case – the fact it forbids his association

with his own child – makes it unconstitutionally broad. But th is is not a new issue, and its resolution has generally not be en favorable to probationers. “The existence of a constitutionally prot ected liberty interest . . . does not render impermissible any condition that w ould interfere with the parent-child relationship.” ( United States v. Davis (8th Cir. 2006) 452 F.3d 99 1, 995.) The parents’ fundamental right to familial association “is not absolute” and “‘must be balanced against the interests of the state, a nd when conflicting, against the interests of the children.’ [Citation.]” ( Kruse v. State of Hawai’i (9th Cir. 1995) 68 F.3d 331, 336.) Both federal and California law require that probation and parole provisions be narrowly tailored and directly related to the offense for wh ich the parolee was sent to prison. ( People v. Burgener (1986) 41 Cal.3d 505; In re Sheena K. (2007) 40 Cal.4th 875.) And they must provide fair notice of what the parolee is not allowed to do. As to the notice issue, we have no doubt the parole condition involved here provided fair notice to Mendoza. It would be hard to be more explicit about what was not allowed. It says no contact in any form . And its explicit prohibition of telephone or4 written contact rebuts Mendoza’s argument it could be read to prohibit only actual physical contact. The overbreadth challenge is more difficult, because we can all identify with the severity of the stricture against be ing in the presence of one’s own son. But

there is no real dilemma here. As noted in United States v. Wolf Child (2012) 699 F.3d 1082 [similar provision not f acially invalid, but overturned for failure to follow federal procedural requirements], the state has the po wer to impose conditions that interfere with familial relationships where the interests of the family and the in terests of the child

conflict. Here those interests conflict. Mendoz a has an interest in spending time with his son that arguably conflicts w ith the interest of the son in being safe. That makes the restriction facially valid. The trial court correctly concluded that the parole condition did relate to the crime committed. That was the first prong of the overbreadth analys is. The second was whether there was a less restrictive option avai lable to the state. She could not find one,

and neither can we – at leas t not at this level. As the trial court noted, Mendoza ha s violated conditions of parole that

were much less restrictiv e than this one. It appears that less restrictive conditions do not

work. And the conduct for wh ich he is on parole was con duct with family members. Given that fact, there is nothing on the face of the parole order that makes it constitutionally objectionable. An appeal based upon a facial challenge would be unavailing.

Nor can we find fault in the court’s denial of the request to amend the conditions of parole. The trial court has broa d discretion in determin ing the necessity of conditions of parole. It can modify or amelio rate such conditions up on request. Such a request was made here and was denied – a decision we cannot quarrel with given Mendoza’s inability so fa r to control the conduct that firs t brought him before the courts. His record of dealing with sexual matters wh ile on parole has not been good, and all he5 offered as a basis for changing the restri ction was that he promises to be more trustworthy in the future. The law does not a llow us – at this far remove – to secondguess the decision of a judge who has dealt with the parties in person and is better equipped to evaluate such promises. So we must conclude that appellate counsel was right that there are no issues that might result in reve rsal of the parole violation in this case. Mendoza may be able to conduct himself on parole so as to co nvince the court to relax the restriction. Counsel may be able through experts or othe rwise to establish an “as applied” argument

that will relieve him of the restriction or result in its replacement with another, less limiting one. Together they may find a wa y to convince the trial court Mendoza’s promise that his infant son is safe is convinc ing. But this judgment, on this appeal, is

affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

ARONSON, J.