### FILED OCTOBER 17, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, Respondent, V. GIL SALGADO VELAZQUEZ, JR., Appellant. ) ) ) ) ) ) ) ) ) No. 34713-3-111

UNPUBLISHED OPINION

LAWRENCE-BERREY, 

### J.

- Ajury found Gil Velazquez guilty ofsecond degree childmolestation and fourth degree assaultwith sexual motivation. The trial court sentencedVelazquezwithinthe standardrange, including 36 months ofcommunity custody. Velazquez challengesthree ofhis community custody conditions. We accept the State's concessions thattwo ofthe three challenged conditions shouldbe stricken, and generally upholdthe conditionthatprohibits Velazquez from "frequent[ing] places where children congregate, including butnot limitedtoparks, playgrounds or schools." Clerk's Papers (CP) at 88.No. 34713-3-111 State v. Velazquez
FACTS OnFebruary 23, 2016, 13-year-oldM.M. was shopping withhermother and younger sister at a Walmart in Ephrata, Washington. While in the deodorant aisle, she felt someone brush up against her from behind. She saw Velazquez, whom she did not know, walking away. M.M. was surprisedbecause althoughthe aisle was crowded, there
was plenty ofroom for him to pass by her. M.M. and heryounger sister later wentto the hair accessory aisle. M.M. was concerned when she saw Velazquezbehindher, pacingback and forth. Velazquez stopped behind her and reached above her for an item. As he did this, hepressedhis pelvic area against M.M.'s backside, andputhis hand on herwaist. M.M. quicklypulled away. M.M. was very upset andtold hermother about both incidents. Hermother contacted Walmart employees and reportedtheincidents. Also that day, Connie Sisco encountered Velazquezwhile shopping at Walmart. Velazquez brushed up against her from behind when attempting to pass her. Sisco was shocked and offended. She continued shopping and became increasinglyworried when she saw Velazquez in the same areas she was shopping. Employees, responding to the complaint from M.M.'s mother, located Velazquez and called police. Velazqueztoldpolice he had inadvertentlybumped into M.M. while
2No. 34713-3-III State v. Velazquez reaching for an item. Police viewed store security video and noticed that Velazquezhad contactwith several female shoppers that day. Policeposted an onlinerequest for people who experienced offensive touching that day at Walmartto come forward. Sisco responded to the request. The State charged Velazquezwith second degree child molestation, or alternatively, second degree attempted child molestation, both as to M.M, and fourth degree assault with sexual motivation as to Sisco. Thejury found Velazquez guilty of second degree child molestation and fourth degree assault with sexual motivation. The trial court imposed a standardrange sentence of48 months for the second degree child molestation conviction, imposed a consecutive 364 day sentence for the misdemeanor assault conviction, and imposed 36 months ofcommunity custody. Relevant to this appeal are the following three community custody conditions: "Do not purchase, possess orview any pornographic material.
. . . Donot frequent places where children congregate, including but not limited to parks, playgrounds or schools
.... No internet/email/social media access." CP at 88. Velazquez appealed.

3No. 34713-3-III State v. Velazquez
ANALYSIS Velazquez challenges the three community custody conditions set forth above. He argues the first condition should be stricken because it is not crime related and is unconstitutionally vague. The State concedes both arguments, and we accept the State's concession. Velazquez argues the third condition should be strickenbecause it is not crime related. The State concedes that argument, too, and we acceptthe State's concession. Velazquez argues the second condition should be stricken because it is unconstitutionally vague and because it violates his FirstAmendmentto the United States Constitution right to religious freedom. The State contends, and we mostly agree, thatthe second condition is proper. A. Standardof review We review community custody conditions for an abuse ofdiscretion. State v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015). The abuse ofdiscretion standard applies whetherthis court is reviewing a crime-related community custody condition, or reviewing a community custody condition for vagueness. See id. at 652, 656; State v. Sanchez Valencia, 169 Wn.2d 782, 791-92, 239 P.3d 1059 (2010); State v. Cordero, 170

4No. 34713-3-III State v. Velazquez
Wn. App. 351,373,284P.3d 773 (2012). Imposing an unconstitutional condition is always an abuse ofdiscretion. Irwin, 191 Wn. App. at 652. B. Prohibition against frequentingplaceswhere children congregate 1. The condition is not unconstitutionally vague The guarantee ofdue process contained in the Fourteenth Amendment to the United States Constitution and article I, section 3 ofthe Washington Constitutionrequires that laws not be vague. State v. Magana, 197 Wn. App. 189,200,389P.3d 654 (2016). Because a violation ofa community custody condition can subject apersonto arrest and incarceration, vagueness prohibitions extend to community custody conditions. See Sanchez Valencia, 169 Wn.2d at 791-92. A community custody condition is not unconstitutionally vague so long as it: (1) provides ordinarypeople with f~ir warning of the proscribed conduct, and (2) has standards that are definite enough to "'protect against arbitrary enforcement.'" Magana, 197 Wn. App. at 200-01 (internal quotation marks omitted) (quoting State v. Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008)). Velazquez relies onIrwin. In that case, one ofSamuel Irwin's conditions prevented him from frequenting "'areas where minor children are known to congregate,
as defined by the supervising CCO [community corrections officer]."' Irwin, 191 Wn. App. at 650. That court decided the condition could not satisfy eitherprong ofthe


### 5No. 34713-3-III 

### State v. Velazquez
vagueness test. Id. at 655. The condition needed either clarifying language such as the language the trial court used in the sentencing hearing but not in the condition, or an illustrative list, so that an ordinaryperson would have fair warning ofthe proscribed conduct. Id. at 654-55. The condition also was subjectto arbitrary enforcementbecause the CCO in that case was able to define the proscribed conduct, which would otherwise have cured notice. Id.


### a. Fair warning of proscribedconduct Here, the trial court tailored the condition to comply with

### Irwin by use ofan illustrative list ofplaces where children often congregate. Velazquez asserts the condition, even with the illustrative list, is unconstitutionally vague. He argues that some schools or parks are areas where children congregate, whereas others, such as the University ofWashington or state parks, are not. Construing the condition in a sensible manner, we disagree. A clear reading ofthe condition indicates the first clause-placeswhere children congregate-modifiesthe clause that provides the illustrative list. So ifthe illustrative list clause is not where childrencongregate, the condition is not violated.

6No. 34713-3-III 

### State v. Velazquez Ordinarypeople knowthat children congregate in schools, excluding colleges and universities. Ordinary people also know that children congregate in playgrounds and local parks, as opposed to state or national parks, places thatrequire motortransportation. 

### b. Definite enough toprotectagainstarbitrary enforcement The condition contains two terms which help to protect against arbitrary enforcement. The first term is "children." The secondterm is "congregate." The term "children" is somewhat indefinite. We define the term in the manner in which sentencing courts typically impose the challenged condition. Sentencing courts typically impose the challenged condition against offenders who commit a sex crime against a child. The various degrees ofchild rape and child molestation criminalize · sexual acts against children under 16. 

### See RCW 9A.44.073-.089. We further note that the legislature distinguished the term "child" from "minor" in these statutes, and used the term "minor"to describe those who were at least 16 and under 18. 

### Cfid. and RCW 9A.44.093-.096. Forthese reasons, we construe "children" as meaning "childrenunder 16." Becausethe term "children" is somewhat indefinite, and because remand is necessary to strike two ofthe challenged community custody conditions, we direct the trial court onremand to interlineate "under 16" afterthe word "children."

7No. 34713-3-III 

### State v. 

### Velazquez
The term "congregate" is moreprecise. "Congregate" means "to collecttogether into a group, crowd, or assembly." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 478 (1993). The terms "childrenunder 16" and "congregate" are sufficiently definite to protect against arbitrary enforcement. In general, children under 16 do not collect into a group or crowd in places they cannot reach by foot orbicycle. Exceptions include schools and day cares, places where ordinarypeople know children congregate. Also, children under 16 do not congregate in malls, areas where adults worship, or grocery stores. These places
are not reached by foot or bicycle, and they are notplaces where children under 16are known to collect into a group or crowd. We conclude that the trial court's example list, modified as directed, provides sufficient clarity to comply with constitutional notice so that ordinarypersons can understand what is proscribed. We also conclude that the terms "childrenunder 16" and "congregate"provide sufficient definiteness to prevent arbitrary enforcement. 

### 2. The condition does notaffect Velazquez 's ability to worship Velazquez argues the challenged condition should be strickenbecause it affects his First Amendmentto the United States Constitution right to worship and because the

8

### No. 34713-3-111 State v. Velazquez
condition is not narrowlytailored. As explained above, the challenged condition does not affect Velazquez from attending adult worship services. CONCLUSION We remand for the trial court to modify the second condition and to strike the first and the third conditions. Affirmed in part and remanded. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for publicrecordpursuantto RCW 2.06.040.

WE CONCUR: 

## j

9