Filed 11/20/20 P. v. Oats CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

SINCLAIRE OATS,

Defendant and Appellant.

 D076792

 (Super. Ct. No. SCD282660)

APPEAL from a judgment of the Superior Court of San Diego County, 

Polly H. Shamoon, Judge. Affirmed in part; reversed in part; remanded with 

directions.

Kenneth J. Vandevelde, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Eric 

Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

Sinclaire Oats was charged with attending an arranged illicit meeting 

with a minor (Pen. Code,1 § 288.4, subd. (b); count 1), contacting a minor 

with intent to commit a sexual offense (§ 288.3, subd. (a); count 2), and 

sending harmful matter to a minor with the intent to seduce the minor 

(§ 288.2, subd. (a); count 3). Oats pled guilty to count 3 in exchange for 

dismissal of counts 1 and 2. 

The court suspended imposition of sentence and granted Oats formal 

probation for four years. 

Oats appeals, challenging certain probation conditions. He asserts that 

the no contact with female minors provision contained in probation 

conditions 10(k), 10(i), and an additional condition under probation 

condition 14 is unconstitutional and unauthorized to the extent it prohibits

him from having contact with his children. Oats argues that probation 

condition 7(a), which requires him to take psychotropic medications if 

prescribed or ordered by a physician is vague and overbroad. He further 

maintains that probation condition 10(p), prohibiting possession of 

pornographic material, is vague and overbroad. Oats also claims probation 

conditions 6(r) and 7(b), which require him to participate in any assessment 

program chosen by his probation officer as well as any treatment, counseling, 

or other conduct suggested by the assessments, are an unconstitutional 

delegation of judicial power. Additionally, he contends that probation 

condition 6(k), requiring him to notify the probation officer of any contacts

with law enforcement, is vague. Finally, Oats insists that the order granting 

formal probation should be corrected to reflect the fact that probation 

conditions 15, 16, and 17 were stayed pending a successful completion of 

probation.

1 Statutory references are to the Penal Code unless otherwise specified.
3

We agree with Oats that probation condition 7(a) is both vague and 

overbroad. Also, as the government concedes, probation condition 10(p) is 

vague and needs further clarification by the superior court. Because we are 

remanding this matter to address these two probation conditions, we 

additionally will instruct the superior court to make sure the order granting 

formal probation accurately states what conditions were stayed pending 

successfully completion of probation. However, as to the remainder of Oats’s

claims, we find them forfeited or without merit.

FACTUAL AND PROCEDURAL BACKGROUND

Oats, a 34-year-old man with a wife and nine children under the age 

of 15, had a profile on an application called MeetMe.2 In March 2019, he 

exchanged numerous messages with a detective who was posing as a 13-yearold girl named “Ash.” Although “Ash’s” profile stated that she was 18 years 

old, she told Oats that she was 13 years old, and Oats responded, “Ok, Wow, 

I’m super Lowkey [sic] with you,” and, “Can’t let anyone know about you.” In 

other messages, Oats asked “Ash” when she would “be ready to get some king 

dick in [her] life,” told her she could perform oral sex on him, and sent her a 

photo of his erect penis.

On March 13, Oats arranged to meet with “Ash” to have sex in his car, 

after he picked up his children from school and dropped them off at home.

While he was on his way to the arranged meeting, Oats sent “Ash” a message 

telling her to remove her panties so he could “start right away to eat [her] 

sweet pussy and then have sex.” When Oats exited his car at the meeting 

point, the police arrested him and discovered a box of condoms in his 

possession.

2 Because Oats pled guilty, we take the background facts from the 

probation report.
4

Oats admitted sending the picture of his penis as well as using several 

online dating apps. When the police searched Oats’s phone, they found a 

message in which Oats appeared to solicit a sex act and other messages with 

an unknown person involving payment for images. Officers also found photos 

on his phone depicting females “who appeared to be under age or considered 

‘age difficult.’ ”

Oats was charged with attending an arranged illicit meeting with a 

minor (§ 288.4, subd. (b); count 1), contacting a minor with intent to commit a 

sexual offense (§ 288.3, subd. (a); count 2), and sending harmful matter to a 

minor with the intent to seduce the minor (§ 288.2, subd. (a); count 3). Oats 

pled guilty to count 3 in exchange for dismissal of counts 1 and 2.

At this sentencing hearing, the superior court began by asking whether 

this case had been referred to Child Protective Services (CPS). The court 

explained, “[T]his [case] deals with a very serious offense of an arranged 

meeting to have sex with a 13-year-old girl. [Oats] has three other daughters 

in the house, all minors around that age, at least one of them[,] with another 

baby on the way. And CPS looks like [it] has done nothing to look into that. 

And I’m not sure if his wife is protecting those children. . . . So that’s a 

concern to the Court.”

The court then imposed “an absolute no contact with any minor female 

under the age of 18” order as a condition of probation. The court explained 

that the condition meant “no contact with any minor females under the age 

of 18 until further court order, which means he can’t go live at home with his 
5

daughters under the age of 18 until after this Court gives him permission, 

which will be after he attends a significant amount of sex offender therapy.”3

Oats’s counsel objected to imposition of the no contact condition

(probation condition 14), claiming that it was overbroad and that there was 

no evidence that Oats had behaved inappropriately with his own children. 

Defense counsel pointed out that the “detectives . . . had plenty of opportunity 

to interview [Oats’s] family. And [probation condition 14] is basically going to 

force [Oats] into a potentially homeless situation . . . .” In response, the 

superior court “clarif[ied] for the record . . . the facts that ha[d] been 

presented to” the court. To this end, the court explained:

“The defendant met with the victim on social media. 

Although it was an undercover agent, to him it was a 13-

year-old girl named Ash. He contacted her, and they had 

correspondence on numerous occasions. She told him that 

she was 13 years old. He said he wants to be low key about 

that and not tell anybody.

“His next conversation, including conversations about 

sex, specifically asking, ‘When are you going to be ready for 

some king dick in your life,’ specifically referring to sexual 

acts.

“He went on to specifically correspond with this 

seemingly 13-year-old girl about how she can perform oral 

sex on him, how they can have sex in a regular way, and 

how they would meet to have sex. And in fact, he says to 

her, ‘I have to pick up my kids from school and drop them 

3 The court stated that probation condition “14 will also include no 

contact with any minor females under the age of 18 until further court 

order . . . .” The court’s statement in this regard is reflected in 

“Attachment 1” to the order granting formal probation, which provides, “No 

Contact with any female minors under the age of 18.” For convenience and 

consistency with the briefs submitted by the parties, we will refer to this 

blanket no contact with female minors as probation condition 14. 
6

off at home. And once I take them home and stop at the 

store to get some condoms, then we can meet in the parking 

lot to have sex in my car.’ ”

After the court asked for clarification from the prosecutor, it continued 

to explain:

“And after he dropped his kids off and after he went and 

bought a brand-new box of condoms, it was then that he 

parked his vehicle in the lot where he was to meet the 

victim, where he was then contacted by the undercover 

agent.

“In investigating this case further, it was clear that 

there were pictures that he was sending of his genitalia to 

this seemingly 13-year-old girl about having sex with her.

“Given that fact pattern and the fact that he has young 

girls at home—in fact, he claims he has nine children and 

his wife is pregnant and he specifically says ‘I hope she has 

a girl,’ this Court is very concerned about the welfare of 

those children. But specifically because he was contacting 

this 13-year-old girl and dropped his kids off at home with 

the specific intent of dropping them off before he went to 

meet her to have sex is a concern for their safety. And it’s 

the nexus to the Court’s order in this case.

“So I will let your record stand as it will. The Court is 

willing to consider modifying that order as soon as he has 

been in some sort of treatment or therapy for his conduct 

and potential modify that behavior. But until he goes to 

treatment, sex offender therapy, there will be an absolute 

no contact order with him being with minors, at least 

females under the age of 18.”
7

DISCUSSION

I

THE CHALLENGED PROBATION CONDITIONS

A. Oats’s Contentions

Oats challenges a number of the conditions of probation that the court 

imposed, on various and multiple grounds. For example, he challenges 

conditions 10(k),4 10(i),5 and 14 on the grounds they are constitutionally 

overbroad and violate People v. Lent (1975) 15 Cal.3d 481 (Lent). He also 

contends the additional no contact condition under probation condition 14 is 

vague. Oats maintains probation conditions 7(a)6 and 10(p)7 are vague and 

overbroad. He challenges probation 6(k)8 as vague. Oats additionally 

4 Under probation condition 10(k), Oats may not “knowingly associate 

with minors, nor be in places where [he] know[s], or [his] P.O. or other law 

enforcement officer informs [him] that minors congregate, unless with an 

adult approved by P.O.”

5 Per probation condition 10(i), Oats is prohibited from “knowingly 

contact[ing] females under 18 [years of] age except per family court orders 

regarding visitation and/or custody of children”

6 Probation condition 7(a) requires Oats to “[t]ake psychotropic 

medications if prescribed/ordered by doctor.”

7 Probation condition 10(p) does not allow Oats to “knowingly possess 

any pornographic material, including computer files and disks, or knowingly 

be in places where [he] know[s], or a P.O. or other law enforcement officer 

informs [him], that pornographic materials are the main item for sale.”

8 Probation condition 6(k) requires Oats to “[p]rovide true name, address, 

and date of birth if contacted by law enforcement” and to “[r]eport contact or 

arrest in writing to the P.O. within 7 days,” including “the date of 

contact/arrest, charges, if any, and the name of the law enforcement agency.”
8

contends probation conditions 6(r)9 and 7(b)10 constitute unconstitutional 

delegation of judicial power. Finally, Oats claims the probation order needs 

to accurately reflect that probation conditions 15, 16, and 17 were stayed 

pending successful completion of probation.

B. Applicable Law

The only condition to which Oats raised an objection with the superior

court was probation condition 14. He claimed that the condition was 

overbroad and that there was no evidence that he behaved inappropriately 

with his own children. He did not explicitly make a Lent reasonableness 

objection. Nor did he claim probation condition 14 was vague. He accepted 

without objection all of the other conditions of probation. 

Challenges to probation conditions ordinarily must be raised in the 

trial court; if they are not, appellate review of those conditions will be deemed 

forfeited. (People v. Welch (1993) 5 Cal.4th 228, 234-235 (Welch) [extending 

the forfeiture rule to a claim that probation conditions are unreasonable, 

when the probationer fails to object on that ground in the trial court].) 

However, a defendant who did not object to a probation condition at 

sentencing may raise a challenge to that condition on appeal if the 

defendant’s appellate claim “amount[s] to a ‘facial challenge,’ ” i.e., a 

challenge that the “phrasing or language . . . is unconstitutionally vague and 

overbroad,” and the determination whether the condition is constitutionally 

defective “does not require scrutiny of individual facts and circumstances but 

instead requires the review of abstract and generalized legal concepts—a 

9 Probation condition 6(r) requires Oats to “[p]articipate and comply with 

any assessment program if directed by the P.O.”

10 Probation condition 7(b) requires Oats to “[p]articipate in treatment, 

therapy, counseling, or other course of conduct as suggested by validated 

assessment tests.”
9

task that is well suited to the role of an appellate court.” (In re Sheena K.

(2007) 40 Cal.4th 875, 885 (Sheena K.).)

Because Oats did not object in the trial court to any of the probation 

conditions except for condition 14, he has forfeited any as-applied 

constitutional objections on appeal to the remaining conditions. We therefore 

address Oats’s constitutional challenges to most of the conditions only to the 

extent that they “ ‘present “pure questions of law that can be resolved 

without reference to the particular sentencing record developed in the trial 

court.” ’ ” (Sheena K., supra, 40 Cal.4th at p. 889.)

Further, as we discuss in part I.F, post, we decline to consider Oats’s 

constitutional challenge to probation conditions 6(r) and 7(b) on the ground 

that they constitute impermissible delegations of judicial authority to a 

probation officer. Because Oats accepted these conditions without objection, 

he failed to provide the trial court with an opportunity to address his 

concerns. Although it could be argued that such challenges constitute facial 

constitutional challenges, and that we therefore could exercise our discretion 

to consider these claims (see Sheena K., supra, 40 Cal.4th at p. 889), we 

decline to do so under the circumstances.

C. Conditions 10(k), 10(i), and 14

Probation condition 10(k) requires that Oats “not knowingly associate 

with minors, nor be in places where you know, or your P.O. or other law 

enforcement informs you, that minors congregate, unless with an adult 

approved by the P.O.”

Probation condition 10(i) prohibits Oats from “knowingly contact[ing] 

females under 18 [years of] age except per family court orders regarding 

visitation and/or custody of children.”
10

Probation condition 14 prohibits Oats from having “[c]ontact with any 

female minors under the age of 18.”

Here, Oats claims that these three conditions are overbroad and violate 

Lent, supra, 15 Cal.3d 481. However, Oats only objected to probation 

condition 14. As such, he has forfeited his challenge to conditions 10(k) 

and 10(i) unless he is making a facial challenge to either condition. (See 

Welch, supra, 5 Cal.4th at pp. 234-235; Sheena K., supra, 40 Cal.4th at 

p. 885.)

Oats does not advance a facial challenge against probation 

conditions 10(k) and 10(i). Further, we do not see how he could articulate 

such a challenge. The language in both of those conditions is not overbroad 

on its face. Both conditions require knowledge and provide a mechanism for 

association (either by identifying an approved adult or allowing Oats to seek 

permission through a family court order). Moreover, Oats’s attack on 

conditions 10(k) and 10(i) is clearly an as-applied challenge because he 

argues that those conditions prohibit him from seeing his minor, female 

children. However, those conditions apply to all female minors, not just his 

daughters. Therefore, we are satisfied that the constitutional challenge to 

probation conditions 10(i) and 10(k) has been forfeited as well as his 

challenge to those conditions under Lent. We thus turn to Oats’s challenge of 

probation condition 14.

Here, Oats claims probation condition 14 infringes upon numerous 

constitutional rights, including the right to family privacy (see Stanley v. Ill.

(1972) 405 U.S. 645, 651), the right to raise one’s children (see Brekke v. Wills

(2005) 125 Cal.App.4th 1400, 1404), the right to marital privacy (see People v. 

Frazier (1967) 256 Cal.App.2d 630, 631), and the right to privacy in one’s 

home (see Tom v. City and County of San Francisco (2004) 120 Cal.App.4th 
11

674, 678-679). In addition, referring to rights beyond the home and family 

unit, Oats claims probation condition 14 violates his freedom of association 

(see People v. Leon (2010) 181 Cal.App.4th 943, 951; People v. Bauer (1989) 

211 Cal.App.3d 937, 944 (Bauer)) and right to travel (see Shapiro v. 

Thompson (1969) 394 U.S. 618, 630). Yet, merely referring to constitutional 

rights and claiming they have been violated does not end our inquiry.

“If a probation condition serves to rehabilitate and protect public 

safety, the condition may ‘impinge upon a constitutional right otherwise 

enjoyed by the probationer, who is “not entitled to the same degree of 

constitutional protection as other citizens.” ’ ” (People v. O’Neil (2008) 165 

Cal.App.4th 1351, 1355.) A constitutionally overbroad condition is one that 

restricts a defendant’s fundamental constitutional rights to a greater degree 

than necessary to achieve the condition’s purpose. (People v. Olguin (2008) 

45 Cal.4th 375, 384 (Olguin).) The overbreadth doctrine requires that 

probation conditions that may impinge on constitutional rights be tailored 

carefully and be reasonably related to the compelling state interest in 

reformation and rehabilitation. (In re Victor L. (2010) 182 Cal.App.4th 902, 

910.) “ ‘The essential question in an overbreadth challenge is the closeness of 

the fit between the legitimate purpose of the restriction and the burden it 

imposes on the defendant’s constitutional rights—bearing in mind, of course, 

that perfection in such matters is impossible, and that practical necessity will 

justify some infringement.’ [Citation.]” (People v. Pirali (2013) 217

Cal.App.4th 1341, 1346 (Pirali).)

The rights that Oats claims probation condition 14 violates are not 

absolute. For example, the restriction of the right of association is part of the 

nature of the criminal process. (People v. Robinson (1988) 199 Cal.App.3d 

816, 818.) Probationers do not enjoy the absolute liberty to which other 
12

citizens are entitled. (Griffin v. Wis. (1987) 483 U.S. 868, 874; see People v. 

Mills (1978) 81 Cal.App.3d 171, 181 [any person who commits sexual offense 

has waived any right to privacy].) In addition, California has a compelling 

interest in ensuring the safety of children, and this compelling interest may 

justify restrictions on a defendant’s constitutional rights. (Mills, at p. 176; 

People v. Delvalle (1994) 26 Cal.App.4th 869, 879.) 

In the instant action, the state’s compelling interest in protecting 

children and rehabilitating Oats justified restrictions on Oats’s constitutional 

rights. That the restrictions operated to prohibit Oats’s contact with his 

daughters does not categorically make them unconstitutional. (See People v. 

Jungers (2005) 127 Cal.App.4th 698, 705 [upholding prohibition on 

defendant’s ability to contact his wife in a domestic violence case, even 

though the restriction curtailed the defendant’s rights of association and 

marital privacy]; In re Peeler (1968) 266 Cal.App.2d 483, 492-493 [court 

upheld probation condition prohibiting association with reputed drug users, 

including defendant’s husband, effectively requiring her to live apart from 

him]; People v. Celestine (1992) 9 Cal.App.4th 1370, 1375 [probation condition 

prohibiting defendant from associating with other drug users, including 

defendant’s girlfriend, was proper]; People v. Wardlow (1991) 227 Cal.App.3d 

360, 367 (Wardlow) [court properly imposed probation condition of no contact 

with other child molesters, including defendant’s brothers].)

The probation condition at issue here also was carefully tailored and 

reasonably related to Oats’s reformation. The evidence before the superior 

court proved that Oats has a sexual interest in female minors. As the court 

explained, Oats pursued a sexual encounter with someone whom he believed 

to be a 13-year-old girl. Additionally, on Oats’s phone, the police found 

photos depicting females who appeared to be minors or “age difficult.” 
13

Apparently, Oats had retrieved the subject photos from those individuals’ 

social media and dating application profiles. Because of Oats’s clearly 

demonstrated sexual interest in female minors, the superior court carefully 

tailored probation conditions, like condition 14, to help reform that behavior 

by prohibiting Oats from having any contact with female minors.

In doing so, the superior court recognized that this probation condition 

would impact Oats’s ability to contact his minor daughters, and it made clear 

that it would consider modifying that condition as soon as it had reason to 

believe that Oats did not pose a threat to his daughters’ safety. Until then, 

the court was concerned by the fact that there appeared to have been no CPS

investigation and that it was unclear whether Oats’s wife was in a position to 

protect their children. In light of these significant concerns—as well as the 

nature of Oats’s offense and his willingness to pursue a 13-year-old for sex—

the probation condition did not impinge on Oats’s constitutional rights any 

more than necessary to protect female minors, including Oats’s own children. 

In addition, the condition is clearly aimed at rehabilitating Oats. (See 

Olguin, supra, 45 Cal.4th at p. 384.)

Oats argues that probation condition 14 is overbroad because there was 

no evidence that he engaged in inappropriate conduct with his own 

daughters. Although Oats is correct that there was no evidence that he 

engaged in sexually inappropriate conduct with his daughters, the lack of 

that evidence is cold comfort on the record before us. As the superior court 

noted, Oats told someone, whom he believed to be a 13-year-old girl, that he 

needed to pick up his children and drop them off at home before he met the 

13 year old for sex. The court further noted that Oats commented that he 

hoped his pregnant wife would give birth to a girl. And at least one of Oats’s 

daughters is near in age to the girl with whom he was seeking to have a 
14

sexual encounter. The lengths of which Oats labored to meet a supposed 13-

year-old girl for sex as well as the cavalier manner in which he approached 

the safety of his own family underscores the superior court’s concern that 

Oats was too dangerous to be left alone with any female minors, even his own

daughters.

Further, despite the superior court’s well-founded concern for Oats’s 

minor daughters, the court remained willing to modify probation condition 14 

if it was warranted. To this end, the court left open the possibility that Oats 

would be permitted to resume contact with his daughters after he received 

sex offender counseling. Additionally, we observe that probation condition 14 

does not prohibit any contact with his male children.

Focusing on his right to raise his children, Oats asks this court to 

follow United States v. Wolf Child (9th Cir. 2012) 699 F.3d 1082 (Wolf Child)

and determine that probation condition 14 is overbroad. Oats’s reliance on 

Wolf Child is misplaced.11 There, the 22-year-old defendant tried to have 

sex with the heavily-intoxicated 16-year-old victim at a party. (Wolf Child,

at p. 1088.) As a condition of the defendant’s probation, the district court 

prohibited him from being in the company of children under the age of 18, 

and the defendant challenged that condition as overbroad because it 

prohibited contact with his own daughters. (Id. at p. 1091.) The Ninth 

Circuit agreed. In reaching its conclusion, the Ninth Circuit expressed 

consternation that the district court gave little consideration or weight to the 

burden that the probation condition would place on the defendant’s 

association and privacy rights. (Id. at pp. 1093-1095.) The Ninth Circuit 

11 We recognize that decisions of the federal district courts are not 

binding on this court. (People v. Seaton (2001) 26 Cal.4th 598, 653.) That 

said, we may still rely on them as persuasive authority. (People v. Bradford

(1997) 15 Cal.4th 1229, 1292.)
15

noted that the district court had not made any effort to examine that 

relationship and determine whether the defendant’s conduct posed a risk to 

his children. (Ibid.) The court also explained that the nature of the 

defendant’s offense (trying to have sex with someone who was only six years 

younger than him at a party) did not support the subject probation condition. 

(Id. at pp. 1097-1098.) Further, the court was clearly troubled by the fact 

that the defendant would be deprived “of his fundamental right to reside with 

and be in the company of his daughters during the 10 years of his supervised 

release that follows his seven year prison sentence.” (Id. at p. 1098.)

Here, Oats attempted to have sex with someone who he believed to be 

only 13 years old, 21 years his junior, and closer in age to his own daughters. 

Rather than a single alcohol-induced act of sexual aggression, Oats developed 

a rapport with a minor using an electronic application, where he presumably 

believed he could maintain secrecy and privacy. The trial court thus was 

reasonably concerned by Oats’s sophisticated pursuit of sexual relationships 

with minors. Moreover, unlike the district court in Wolf Child, the trial court 

here did give considerable weight to the impact that the probation conditions 

would have on Oats’s relationship with his daughters. The court also 

explained why it was concerned, and it clarified the circumstances under 

which it would consider modifying the conditions in the future. Additionally, 

the time that Oats could be prohibited from contact with his daughters is 

much shorter than the 10-year prohibition in Wolf Child. And Oats could 

further decrease the time of his prohibition by engaging in therapy and 

seeking visitation approval in the family court.

Also, we are not persuaded by Oats’s reliance on Bauer, supra, 211 

Cal.App.3d 937. In that case, the defendant was convicted of false 

imprisonment and assault, and a condition of his probation required the 
16

probation officer’s approval of the defendant’s choice of residence. (Id. at 

p. 940.) At 26 years old, the defendant still lived at home with his parents, 

and the only connection between his living arrangements and the offenses or 

his rehabilitation was the tenuous suggestion that the defendant was 

immature because his parents were overly protective. (Id. at p. 944.) Against 

this backdrop, the appellate court determined that the condition was 

unconstitutionally overbroad. (Ibid.) Here, by contrast, the evidence showed 

that Oats had pursued a sexual encounter with a 13-year-old girl and that he 

was also living with three girls under the age of 15. Because of those facts, 

the condition of probation that prohibits Oats from having contact with any 

females under the age of 18 (until further order of the court) directly operates 

to protect children and rehabilitate Oats.

Likewise, we do not believe that People v. Beach (1983) 147 Cal.App.3d 

612 (Beach) compels a different result in the instant action. There, an elderly 

widow who was concerned about her neighborhood’s decline and her own 

safety shot a man who had parked in her driveway and whom she perceived 

to be a threat. (Id. at pp. 618-619.) As a condition of probation, the court 

exiled the woman from her home and neighborhood, where she had lived for 

24 years, out of concern for her own safety and repeat incidents. (Id. at 

pp. 619-620.) The appellate court held that the condition was

unconstitutionally overbroad because in the 24 years in which the defendant 

had lived in the neighborhood, she had not been involved in any other acts of 

violence, and it was likely she would feel even less secure in a new and 

unfamiliar environment. (Id. at pp. 621-622.) The court also noted that other 

probation conditions were more narrowly tailored to address the same 

concerns, such as prohibiting the defendant’s possession of dangerous 
17

weapons and requiring her to participate in community service activities.

(Id. at p. 623.) 

Here, the same concerns that plagued the appellate court in Beach are 

not present. Unlike the defendant in Beach, Oats has not argued that he will 

feel less secure if prohibited from cohabitating with his minor daughters. 

Additionally, the record before us is clear that Oats poses a danger to female 

minors. The superior court provided a very detailed explanation why it was 

imposing probation condition 14, and, in doing so, specifically referenced the 

safety of Oats’s female children. Oats points to no other, more narrowly 

tailored probation condition, that can achieve the same result. To the 

contrary, he argues that any condition that prohibits him from living with his 

female children is overbroad. Further, as the court explained, we are mindful 

that the record is unclear whether Oats’s wife is in a position to supervise 

interactions between Oats and his daughters and protect the daughters as 

necessary. Thus, we agree with the People, there does not appear to be any 

other adequate, more narrowly tailored way to ensure the protection of Oats’s 

children. And, in a nod to Oats’s constitutional rights, the superior court 

explicitly stated that it would entertain alternatives if presented with 

additional evidence. On the record before us, we cannot say that probation 

condition 14 is constitutionally overbroad.

Oats also challenges probation condition 14 on the grounds that it is 

unauthorized under Lent, supra, 15 Cal.3d 481. We observe that it is not 

clear that Oats made any such objection below. In response to the superior 

court indicating that condition 14 “will also include no contact with any 

minor females under the age of 18 until further court order, which means 

[Oats] can’t go live at home with his daughters under the age of 18 until after 
18

this Court gives him permission . . .”[,] Oats’s counsel made the following 

objection:

“Your honor, I object to that condition. It’s overbroad. 

There’s no evidence in this particular case that my client’s 

children are in any way affected at all. The detectives have 

had plenty of opportunity to interview my client’s family. 

And it’s basically going to force my client into a potentially 

homeless situation, and then we end up seeing, you know, 

people living on the streets and being stuck in a situation 

where they’re not able to get off the streets, get a place to 

live, find a job.”

Perhaps, Oats’s counsel’s reference to a lack of evidence that Oats’s 

children are not “affected at all” implicitly raised a nexus challenge, thus 

implicating Lent, supra, 15 Cal.3d 481. The People do not argue that Oats 

forfeited his Lent challenge. As such, we will address Oats’s claim on the 

merits.

When an offender accepts a probationary sentence, thereby avoiding 

incarceration, state law authorizes the sentencing court to impose conditions 

on such release as 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 to any person resulting from such breach and . . . for the reformation 

and rehabilitation of the probationer.” (§ 1203.1, subd. (j).) Accordingly, “[i]n 

granting probation, courts have broad discretion to impose conditions to 

foster rehabilitation and to protect public safety . . . .” (People v. Carbajal

(1995) 10 Cal.4th 1114, 1120 (Carbajal).) The broad discretion granted to 

trial courts to impose probation conditions “is not without limits,” however; “a 

condition of probation must serve a purpose specified in the statute,” and 

conditions regulating noncriminal conduct must be “ ‘reasonably related to 

the crime of which the defendant was convicted or to future criminality.’ ” 

(Id. at p. 1121.) Therefore, a condition of probation is generally “invalid [only 
19

if] 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.’ ” (Lent, 

supra, 15 Cal.3d at p. 486.) “This test is conjunctive—all three prongs must 

be satisfied before a reviewing court will invalidate a probation term.”

(Olguin, supra, 45 Cal.4th at p. 379.) We review the reasonableness of a 

probation condition imposed by the trial court for an abuse of discretion. 

(Ibid.)

Oats argues that probation condition 14 is unreasonable under Lent 

because: (1) his relationship with his own children is unrelated to his offense 

of sending illicit material to a minor to seduce her; (2) having a relationship 

with one’s own children is not criminal; and (3) “the record does not indicate 

more than a hypothetical relationship between the probation condition and 

future criminality.” We reject these conditions.

As a threshold matter, we note that Oats ignores the blanket 

prohibition in probation condition 14 that he may not have any contact with 

any female minor. Rather, Oats presents condition 14 as a restriction on his 

ability to interact with his daughters only. In this sense, Oats characterizes 

this condition as if it specifically prohibits him from contacting his own 

children. It does not. Probation condition 14 limits his contact with all 

female minor children, a category that includes his minor daughters. The 

condition is not specifically aimed at Oats’s daughters. Nor does it only apply 

to them. 

Because probation condition 14 applies to all female minors, we 

evaluate its reasonableness under Lent in that context. Oats was convicted of 

sending sexual photos to a 13-year-old with the intent to seduce her. 

Prohibiting Oats from contacting female minors is directly related to that 
20

offense. Moreover, the subject condition does not criminalize Oats for having 

a relationship with his own children. He must avoid contact with all female 

minors. However, the court specifically stated it could reconsider his contact 

with his own female children if he engages in certain therapy and/or receives

an order from the family law court. Finally, probation condition 14 is 

reasonably related to future criminality because it helps to prevent Oats from 

establishing a similar relationship with any female minor in the future. (See 

Lent, supra, 15 Cal.3d at p. 486.)

In short, on the record before us, we certainly cannot say the superior 

court abused its discretion imposing probation condition 14. That condition is 

not arbitrary or capricious or does not otherwise exceed the bounds of reason 

under the circumstances presented. (See Olguin, supra, 45 Cal.4th at p. 384; 

Carbajal, supra, 10 Cal.4th at p. 1121.)

Finally, Oats maintains that probation condition 14 is 

unconstitutionally vague. He asserts that the condition needs a scienter 

requirement. The People, relying on People v. Hall (2017) 2 Cal.5th 494 

(Hall), argue that the scienter requirement is to be presumed. We agree with 

the People.

Probation conditions are subject to the “void-for-vagueness doctrine.” 

(Hall, supra, 2 Cal.5th at p. 500.) “This doctrine, which derives from the due 

process concept of fair warning, bars the government from enforcing a 

provision that ‘forbids or requires the doing of an act in terms so vague’ that 

people of ‘common intelligence must necessarily guess at its meaning and 

differ as to its application.’ [Citations.] To withstand a constitutional 

challenge on the ground of vagueness, a probation condition must be 

sufficiently definite to inform the probationer what conduct is required or 

prohibited, and to enable the court to determine whether the probationer has 
21

violated the condition. [Citations.] In determining whether the condition is 

sufficiently definite, . . . a court is not limited to the condition’s text. 

[Citation.] We must also consider other sources of applicable law [citation], 

including judicial construction of similar provisions. [Citations.] Thus, a 

probation condition should not be invalidated as unconstitutionally vague 

‘ “ ‘if any reasonable and practical construction can be given to its 

language.’ ” ’ ” (Id. at p. 500-501.)

Applying these principles, the California Supreme Court concluded in 

Hall, supra, 2 Cal.5th 494 that probation conditions prohibiting the 

possession of firearms and illegal drugs were not void for vagueness despite 

their lack of an express scienter requirement. (Id. at pp. 501-504.) Looking 

beyond “the condition’s text” to “other sources of applicable law” (id. at 

p. 500), the court construed the conditions in light of case law that 

(1) “articulates . . . a general presumption that a violation of a probation 

condition must be willful,” (2) “specifically provides that probation conditions 

barring possession of contraband should be construed to require knowledge of 

its presence and its restricted nature” (id. at p. 501.), and (3) “construe[s] 

criminal statutes against the backdrop of the common law presumption that 

scienter is required and impl[ies] the requisite mental state, even where the 

statute is silent” (ibid). Because these sources were sufficient to inform a 

reasonable probationer that the conditions included a scienter requirement, 

the court concluded “no change to the substance of either condition would be 

wrought by adding the word ‘knowingly.’ ” (Id. at p. 503.)

When the Supreme Court decided Hall, it dismissed review of In re A.S.

(2016) 245 Cal.App.4th 758,12 which presented the issue of whether no12 Review granted and opinion superseded July 31, 2014, review 

dismissed March 22, 2017, No. S220280.
22

contact probation conditions must be modified to explicitly include a scienter 

requirement. We infer from this dismissal that the Supreme Court intended 

that courts construe no-contact probation conditions in the same manner as 

conditions prohibiting the possession of contraband. Applying this approach, 

we conclude probation condition 14 is not void for vagueness. That condition 

implicitly contains a scienter requirement. Thus, probation condition 14 

prohibits Oats from knowingly having “[c]ontact with any female minors 

under the age of 18.”13

D. Conditions 7(a) and 10(p)

Oats claims that probation conditions 7(a) and 10(p) are 

unconstitutionally overbroad and vague. The People concede that 

condition 10(p) is vague, but argue that neither condition is overbroad. 

Further, the People contend that condition 7(a) is not vague, and, 

additionally, Oats’s challenge to that condition is not ripe. We agree with 

Oats as to these two conditions. Accordingly, we conclude that probation 

condition 7(a) is both overbroad and vague, and probation condition 10(p) is 

vague.

Probation condition 7(a) requires Oats to “[t]ake psychotropic 

medications if prescribed/ordered by doctor.” Because Oats did not object to 

this condition below, we must limit our review to his facial challenge that the 

condition is vague and overbroad. (See Sheena K., supra, 40 Cal.4th at 

p. 889.)

Probation condition 7(a) is unconstitutionally vague because it does not 

define the term “psychotropic,” leaving Oats to guess what prescribed drug 

might fall under the psychotropic category. The People argue we should read 

13 We note that the implicit scienter requirement in probation 

condition 14 is consistent with the explicit scienter requirements in the other 

no contact probation conditions, 10(k) and 10(i).
23

a scienter requirement into this condition. (See Hall, supra, 2 Cal.5th at 

p. 503.) Yet, even if we were to read probation condition 7(a) as requiring 

Oats to know that a prescribed drug is a psychotropic, we struggle to 

contemplate how he could do so. The People point out that the doctor is likely 

to inform Oats if a psychotropic medication is prescribed; however, this 

assumption does not change the fact that the condition does not require an 

explanation from a doctor or alter the lack of any definition of psychotropic in 

the condition itself.

Additionally, we agree with Oats that probation condition 7(a) is 

overbroad. The People claim this condition is “tailored carefully and 

reasonably related to the compelling state interest in reformation and 

rehabilitation.” To this end, they insist the condition “only requires that 

[Oats] take psychotropic medication that a physician determines to be 

medically necessary for [Oat’s] treatment.” Yet, the People’s assertion begs

the question: treatment of what? The People imply that the condition is 

aimed at a doctor prescribing a drug to Oats as part of his treatment arising 

out of his underlying offense of pursuing a sexual encounter with a 13-yearold. But a simple reading of the plain text of probation condition 7(a) 

undermines the People’s argument. There are no restrictions limiting this 

condition to treatment of Oats as it relates to his offense. Instead, the 

condition requires Oats to take psychotropic medications for any purpose, if 

ordered or prescribed by a physician, regardless of whether they are for a 
24

mental disorder related to Oats’s offense or to his reform and rehabilitation. 

Such a condition is a textbook example of overbreadth.14

Probation condition 10(p) fares no better than condition 7(a). Probation 

condition 10(p) does not allow Oats to “knowingly possess any pornographic 

material, including computer files and disks, or knowingly be in places where 

[he] know[s], or a P.O. or other law enforcement officer informs [him], that 

pornographic materials are the main item for sale.” Oats argues this 

condition is overbroad and vague. The People disagree that the condition is 

overbroad, but concede that it is vague. Consequently, they offer additional 

language they contend addresses the vagueness. As we explain below, we 

determine that the People’s suggested language does not remedy the 

vagueness problem before us.

The People acknowledge that the identification of pornography is 

inherently imprecise and subjective. (See People v. Turner (2007) 155 

Cal.App.4th 1432, 1436 (Turner); Pirali, supra, 217 Cal.App.4th at p. 1353.) 

Thus, they propose a revision to probation condition 10(p) that is similar to 

modifications that have satisfied other appellate courts: Oats “shall not 

possess or view pornographic or sexually explicit material, having been 

informed by the probation officer that specified publications, websites, or 

other materials are pornographic or sexually explicit.” (See Turner, at 

p. 1436; Pirali, at p. 1353.) In this sense, the People urge us to follow Turner

and Pirali but do not explain why we should do so.

14 Because we find probation condition 7(a) overbroad on these grounds, 

we do not reach Oats’s argument that the condition also violates his right to 

privacy. Additionally, we summarily reject the People’s argument that Oats’s 

challenge to probation condition 7(a) is not ripe. The fact that Oats could 

challenge the condition after a doctor prescribes him psychotropic medicine 

that he does not wish to take does not cure the condition’s constitutional ills.
25

The defendant in Pirali, who had been convicted of possessing child 

pornography, was barred by the conditions of his probation from possessing 

or purchasing “ ‘any pornographic or sexually explicit material as defined by 

the probation officer.’ ” (Pirali, supra, 217 Cal.App.4th at p. 1344.) He 

challenged this condition on the grounds that it was vague and lacked 

specificity, and that without an express knowledge requirement he would not 

know what the condition forbade. (Id. at p. 1352.) The appellate court 

agreed, explaining, “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.” ’ [Citation.] Here, [the 

court found] the probation condition does not sufficiently provide defendant 

with advance knowledge of what is required of him. The fact that the 

probation officer may deem material sexually explicit or pornographic after

defendant already possesses the material would produce a situation where 

defendant could violate his probation without adequate notice.” (Ibid.) The 

court therefore modified the condition to state: “ ‘You’re ordered not to 

purchase or possess any pornographic or sexually explicit material, having 

been informed by the probation officer that such items are pornographic or 

sexually explicit.’ ” (Id. at p. 1353.)

The appellate court in Pirali relied on Turner, supra, 155 Cal.App.4th 

1432. In that case, the defendant exposed himself indecently to a three-yearold girl. (Id. at p. 1434.) One of his conditions of probation was that he 

“ ‘[n]ot possess any sexually stimulating/oriented material deemed 

inappropriate by the probation officer and/or patronize any places where such 

material or entertainment is available.’ ” (Ibid.) The appellate court 

concluded this condition was unconstitutionally vague: “The phrase ‘sexually 

stimulating/oriented material deemed inappropriate by the probation officer’ 
26

is an inherently imprecise and subjective standard.” (Id. at p. 1436.) The 

court modified the condition to read, “ ‘Not possess any sexually 

stimulating/oriented material having been informed by the probation officer 

that such material is inappropriate and/or patronize any places where such 

material or entertainment in the style of said material are known to be 

available.’ ” (Ibid.) The court also concluded that, as modified, the condition 

was not overbroad because “[p]reventing the possession of sexually oriented 

materials by persons such as defendant promotes public safety and his 

rehabilitation.” (Id. at p. 1437.)

In both Pirali and Turner, the respective courts were concerned with 

advance notice to the probationer. In other words, how would the

probationers know what material they were prohibited from possessing? The 

two appellate courts provided similar answers: The probation officer would 

determine what was prohibited and inform the probationers as such. Thus, 

in Pirali, it was the probation officer who was to define pornography or 

sexually explicit material (see Pirali, supra, 217 Cal.App.4th at p. 1353), and, 

in Turner, the probation officer would define sexually stimulating/oriented 

material (see Turner, supra, 155 Cal.App.4th. at p. 1436.) Therefore, neither 

case directly addressed what Oats argues here—the term “pornography” is 

unconstitutionally vague.

Unlike Pirali or Turner, a more recent appellate case addressed that 

very question. In re D.H. (2016) 4 Cal.App.5th 722 (D.H.), in which the 

appellate court determined that the term “ ‘pornography,’ ” contained in a 

probation condition for a minor, was vague. (Id. at p. 743.) The appellate 

court in that case also observed that “Pirali and Turner provide little 

guidance . . . because both decisions were concerned with the lack of notice 

created by leaving the prohibited category’s definition to the probation 
27

officer.” (Id. at p. 728.) In the instant action, Oats asks us to follow D.H. 

Surprisingly, the People do not discuss D.H. whatsoever in their respondent’s 

brief.

In D.H., a 16-year-old minor who admitted to indecent exposure on a 

public bus was placed on probation. (D.H., supra, 4 Cal.App.5th at p. 724.) 

As a condition of probation, the minor was prohibited from accessing 

pornography. (Id. at p. 725.) The minor appealed, arguing the nopornography condition was unconstitutionally vague. (Id. at pp. 727-728.) 

The appellate court agreed with the minor that the term “ ‘pornography’ ” 

was inherently vague and directed the trial court on remand “to define more 

precisely the material the court intends to prohibit.” (Id. at p. 729.)15 

Although not faced with an overbreadth challenge, the court suggested the 

juvenile court carefully consider on remand “what purpose this condition is 

intended to serve, as it is far from clear to us how restricting D.H.’s access to 

any materials that might be considered pornographic will help him avoid the 

behavior he exhibited in committing his offense or aid more generally in his 

rehabilitation.” (Ibid.)

We agree with the reasoning of D.H. Probation condition 10(p), as 

currently written, is unconstitutionally vague and must be stricken. (See 

People v. Dominguez (1967) 256 Cal.App.2d 623, 624, 629 [striking invalid 

condition of probation after defendant found to have violated it].) We are not 

satisfied that the People’s proposed modification of the condition, based on 

the language of Pirali—that Oats “not possess or view any pornographic or 

15 The court concluded the constitutional infirmity could not be remedied 

by requiring the probation officer to notify the minor in advance what 

materials would be considered pornographic because the term 

“ ‘pornography’ ” was itself subjective and capable of multiple interpretations. 

(D.H., supra, 4 Cal.App.5th at pp. 728-729.)
28

sexually explicit material, having been informed by the probation officer that 

specified publications, websites, or other materials are pornographic or 

sexually explicit”—solves this problem. (See Pirali, supra, 217 Cal.App.4th 

at p. 1353.) There is a logistical difficulty with this approach: How could 

Oats get the probation officer’s opinion on whether any particular material is 

pornographic without first viewing it and showing it to the officer? Even if 

this obstacle could be overcome, the more fundamental problem of the 

inherent vagueness of the term “pornography” remains.

Our conclusion here should not be read as a determination that a 

probation condition cannot prohibit a defendant’s access to pornography or 

that pornography is incapable of a definition that passes constitutional 

muster. To the contrary, there are several avenues down which the superior 

court may travel to craft a constitutional condition. For example, the court 

could refer to “obscene material,” as defined by title 15, section 3006,

subdivision (c)(15) of the California Code of Regulations. Under that 

provision, “[o]bscene material” is defined as “material taken as a whole, 

which to the average person, applying contemporary statewide standards, 

appeals to the prurient interest; and is material which taken as a whole, 

depicts sexual conduct; and which, taken as a whole, lacks serious literary, 

artistic, political, or scientific value.” (Cal. Code Regs., tit. 15, § 3006, 

subd. (c)(15)(A) [adopting standard set forth in Miller v. California (1973) 413 

U.S. 15, 24]; see Jenkins v. Georgia (1974) 418 U.S. 153 [“nudity alone does 

not render material obscene under Miller’s standards”].) “Obscene material” 

may encompass visual depictions of anal or vaginal contact and nudity/sexual 

conduct involving a minor, but it excludes text-only material. (Cal. Code 

Regs., tit. 15, § 3006, subds. (c)(15)(C), (D).) Or perhaps, the superior court 

can use the phrase “sexually explicit” instead of pornography and then utilize 
29

the definition of “sexually explicit conduct” under federal law, which defines 

such conduct as (1) sexual intercourse, including genital-genital, oral-genital, 

anal-genital, or oral-anal; (2) bestiality; (3) masturbation; (4) sadistic or 

masochistic abuse; or (5) lascivious exhibition of the genitals, breast or pubic 

area. (18 U.S.C. § 2256.)

Although we have proposed some potential language that could make 

probation condition 10(b) less vague and we possess the authority to modify 

an unconstitutional probation condition on appeal (see Sheena K., supra, 40 

Cal.4th at p. 892), here, we believe the more prudent approach would be to

remand the matter to the superior court and allow it to fashion a 

constitutional probation condition. On remand, we encourage the superior 

court to consider the scope of this probation condition and what purpose this 

condition is intended to serve. (See D.H., supra, 4 Cal.App.5th at p. 729.) 

Although Oats was convicted of a sex crime, his crime was aimed at seducing 

a 13-year-old minor. Further, material found on his phone implicated that 

Oats is interested in sexual interactions with underage females. As such, the 

superior court can fashion a probation condition to more directly relate to 

Oats’s offense and predilections while aiding in his rehabilitation.16

E. Condition 6(k)

Oats contends that condition 6(k), which states that he shall “[p]rovide 

true name, address, and date of birth if contacted by law enforcement” and 

16 Oats also challenges probation condition 10(p) on the grounds it is 

overbroad. In doing so, he argues that his First Amendment right to free 

speech includes the right to view sexually oriented materials. (See United 

States v. Playboy Entm’t Group (2000) 529 U.S. 803, 810.) We do not address 

the overbreadth challenge here because we determined the subject condition 

is vague and provide the superior court the opportunity to revise the 

condition. In doing so, we anticipate the superior court will ensure the 

revised condition in narrowly tailored.
30

“[r]eport contact or arrest in writing to the [probation officer] within 7 days,”

including “the date of contact/arrest, charges, if any, and the name of the law 

enforcement agency,” is unconstitutionally vague.

“[T]he underpinning of a vagueness challenge is the due process 

concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the 

due process concepts of preventing arbitrary law enforcement and providing 

adequate notice to potential offenders’ [citation], protections that are 

‘embodied in the due process clauses of the federal and California 

Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).’ ” 

(Sheena K., supra, 40 Cal.4th at p. 890.) “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,’ if it is to 

withstand a challenge on the ground of vagueness.” (Ibid.) Probation 

conditions are given “ ‘ “the meaning that would appear to a reasonable, 

objective reader.” ’ ” (In re I.V. (2017) 11 Cal.App.5th 249, 261.) The mere 

fact that there “ ‘ “ ‘may be difficulty in determining whether some marginal 

or hypothetical act is covered by [a condition’s] language’ ” ’ ” does not render 

the condition “impermissibly vague.” (Id. at p. 261.)

Oats relies on People v. Relkin (2016) 6 Cal.App.5th 1188 (Relkin), to 

support his argument that the portion of this condition requiring that he 

report any “contact” with law enforcement is unconstitutionally vague. The 

court in Relkin considered a probation condition that required the defendant 

“to ‘report to the probation officer, no later than the next working day, any 

arrests or any contacts with or incidents involving any peace officer.’ ” (Id. at 

p. 1196.) The court concluded that “the portion of the condition requiring 

that defendant report ‘any contacts with . . . any peace officer’ ” was vague 

because it “does indeed leave one to guess what sorts of events and 
31

interactions qualify as reportable.” (Id. at p. 1197.) According to the court, it 

was not certain that the condition would not be triggered “when defendant 

says ‘hello’ to a police officer or attends an event at which police officers are 

present, but would be triggered if defendant were interviewed as a witness to 

a crime or if his ‘lifestyle were such that he is present when criminal activity 

occurs.’ ” (Ibid.) “The language does not delineate between such occurrences 

and thus casts an excessively broad net over what would otherwise be 

activity not worthy of reporting.” (Ibid.)

In contrast to the condition at issue in Relkin, condition 6(k)’s 

requirement that Oats “[p]rovide [his] true name, address, and date of birth if 

contacted by law enforcement” would appear to a reasonable, objective reader 

to refer to contacts initiated by a law enforcement officer in which the officer 

requests that information from Oats. This would not include mere greetings 

by law enforcement officers or conversations with officers at events Oats may 

attend. Further, the requirement that Oats report the “contact or arrest” and 

that he include the “name of the law enforcement agency” indicates that the 

interaction must be of a type and nature that either the law enforcement 

officer would have supplied this information to Oats, or Oats would have been 

made aware of this information because the nature of the “contact” was 

sufficiently substantive. This, too, indicates that a reasonable reading of the 

condition sufficiently delineates between a casual, random interaction 

between Oats and a law enforcement officer, including the exchanging of 

pleasantries, and a situation in which Oats is a witness to a crime or is 

specifically stopped and questioned by a law enforcement officer. We 

therefore reject Oats’s vagueness challenge to condition 6(k).
32

F. Conditions 6(r) and 7(b)

Oats relies on People v. Cervantes (1984) 154 Cal.App.3d 353 

(Cervantes) to argue that conditions 6(r) and 7(b) “are void because they 

delegate to the probation officer the judicial power to determine the kinds of 

tests, counseling, treatment, and conduct to which Mr. Oats must 

participate.” Additionally, Oats contends these conditions represent “[a]n 

unlawful delegation of judicial power to the probation officer . . . [that] 

violates the doctrine of separation of powers . . . .”

Again, condition 6(r) requires that Oats “[p]articipate and comply with 

any assessment program if directed by the P.O.” Condition 7(b) requires that 

Oats “[p]articipate in treatment, therapy, counseling, or other courses of 

conduct as suggested by validated assessment tests.” 

Oats argues that probation condition 6(r) “unlawfully delegates to the 

probation officer the court’s authority to determine the types of assessment 

tests in which Mr. Oats must participate.” Oats objects that condition 7(b)

“unlawfully delegates to the probation officer the court’s authority to 

determine the types of treatment, counseling, and other conduct in which Mr.

Oats must participate.” Further, Oats contends these two probation 

conditions would allow the probation officer to engage in such mischief as

requiring him to take an eye exam and then purchase and wear glasses or 

take the Scholastic Aptitude Test and enroll in an algebra course. Oats 

warns that under conditions 6(r) and 7(b), the probation officer is granted 

“unfettered discretion to select any assessment test whatsoever” and “require 

Mr. Oats to take the test, and then to direct Mr. Oats to take any remedial 

measures suggested by the test.” As such, Oats insists these conditions allow 

the probation officer to usurp the judicial function of determining the terms 

and conditions of probation.
33

We reiterate that Oats did not object to either of these two conditions 

on the ground that they improperly delegate judicial authority at the time the 

trial court imposed them. Challenges to probation conditions are typically

forfeited if not raised when they are imposed (Welch, supra, 5 Cal.4th 

at pp. 234-235), with a narrow exception that a court may exercise its 

discretion to consider such challenges if they are constitutional challenges 

presenting pure questions of law (Sheena K., supra, 40 Cal.4th at p. 885).

However, merely couching an objection as a constitutional challenge is not 

sufficient to avoid forfeiture. Not “ ‘all constitutional defects in conditions of 

probation may be raised for the first time on appeal, since there may be 

circumstances that do not present “pure questions of law that can be resolved 

without reference to the particular sentencing record developed in the trial 

court.” [Citation.] In those circumstances, “[t]raditional objection and waiver 

principles encourage development of the record and a proper exercise of 

discretion in the trial court.” [Citation.]’ [Citation.] . . . [T]he probationer 

should object to a perceived facial constitutional flaw at the time a probation 

condition initially is imposed in order to permit the trial court to consider, 

and if appropriate in the exercise of its informed judgment, to effect a 

correction.’ ” (Ibid.)

To the extent Oats had any concerns about the court delegating to the 

probation officer the authority to direct him to comply with any of these 

conditions, Oats could have, and should have, objected and asked the trial 

court to address those concerns at the time the conditions were imposed. 
34

Instead, he accepted these conditions to avoid imprisonment.17 In accepting 

the terms of probation without raising any objection that would have allowed 

the trial court to address these concerns, Oats prevented the trial court from 

being able to more narrowly draw the conditions. Indeed, the court could 

have had legitimate reasons for leaving some of the conditions open-ended in 

Oats’s case, and could have stated those reasons on the record if Oats had 

raised an objection at the time the conditions were imposed. Specifically, the 

court could have related its discretionary choices to Oats’s needs as a 

probationer. The purpose of the forfeiture rule is to avoid precisely the 

situation that we have here, where an objection would have permitted the 

trial court to address these concerns and/or make a better record to support 

the court’s decisions; the forfeiture rule exists to encourage parties to bring 

errors to the attention of the trial court so they may be immediately 

corrected. (Sheena K., supra, 40 Cal.4th at p. 881.) We conclude that Oats

17 Probation is not an inherent right; it is an act of leniency (Wardlow,

supra, 227 Cal.App.3d at p. 365), the purpose of which is to serve as a “period 

of genuine rehabilitation” (Griffin v. Wis., supra, 483 U.S. at p. 875). 

Probationers may consent to limit their constitutional rights in preference to 

incarceration; on the flip side, if a condition appears too onerous, a defendant 

may choose to serve the prison sentence instead. (Olguin, supra, 45 Cal.4th 

at p. 379.)
35

has forfeited his contentions, and we see no reason to exercise our inherent 

discretion to consider them despite the forfeiture.18

G. Probation Conditions 15, 16, and 17

Oats’s final argument is that the written order granting formal 

probation does not accurately reflect that the superior court declared during 

the sentencing hearing that probation conditions 15, 16, and 17 were to be 

stayed. The People agree that the order should be corrected to reflect that 

condition 17 is to be stayed, but note that the order already provides that 

conditions 15 and 16 will be stayed.

Below, the superior court ordered that probation conditions 15, 16, 

and 17 be stayed pending Oats’s successful completion of probation. The 

18 We also question the validity of Oats’s contentions on the merits. Oats 

relies primarily on Cervantes in support of his contentions that a number of 

conditions improperly delegate to the probation officer the court’s authority to 

set the conditions of probation. However, Cervantes involved the delegation 

of the calculation of restitution; but the calculation of restitution is 

specifically reserved for the court, pursuant to statute. (Cervantes, supra, 

154 Cal.App.3d at p. 356.) Cervantes does not stand for the proposition that a 

court may never delegate to the probation officer some decision-making 

authority with regard to the precise implementation of probation conditions. 

Leaving certain day-to-day decision-making to a probation officer often 

makes sense and is necessary, in fact, because the “trial court is poorly 

equipped to micromanage” the selection of programs or tools that assist a 

probationer in his or her rehabilitation. (People v. Penoli (1996) 46 

Cal.App.4th 298, 308.) Further, it seems apparent that under the terms of 

the challenged conditions, the court effectively authorized the conditions but 

permitted the probation officer to determine whether to implement them, 

depending on Oats’s performance on probation, thereby placing Oats in a 

better position than he would have been if the court had simply imposed the 

conditions without allowing the probation officer to determine that such 

conditions were not in fact necessary for the effective supervision of Oats. 

Essentially, the court has determined that Oats may be subjected to these 

conditions, and that they should be imposed. However, Oats may avoid 

having the conditions applied to him if he successfully performs on probation 

without them.
36

court’s written order granting Oats formal probation states that probation 

conditions 15 and 16 are stayed pending successful completion of probation, 

but is silent as to condition 17. A court’s oral judgment controls when there 

is an inconsistency between that and the written documents, such as minutes 

and abstracts of judgment, purporting to summarize the court’s order, and 

appellate courts may correct such clerical errors. (People v. Mitchell (2001) 

26 Cal.4th 181, 185.) Accordingly, on remand, we order the superior court to 

ensure the order granting formal probation accurately states that probation 

condition 17 is stayed pending Oats’s successful completion of probation.

DISPOSITION

We remand this matter to the superior court to modify probation 

conditions 7(a) and 10(p). In addition, the superior court is to ensure that the 

amended order granting probation accurately reflects that probation 

condition 17 is stayed pending Oats’s successful completion of probation. In 

all other respects, the judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.