Defendant forfeited his “as applied” challenge to a probation condition limiting his right of association by failing to object when it was imposed. Connors was on probation for failing to register as a sex offender (Pen. Code, § 290). One of his probation terms barred him from associating with other probationers; he did not object when this condition was imposed. Later he asked the trial court to modify the condition so Connors could associate with his wife, Jennifer, who was on probation. The court granted this request. Sometime later, a petition to revoke probation was filed because Connors was associating with another probationer, Sheryl Rhodes. He had been warned several times not to be in her company. The court found that Connors violated his probation, then reinstated it with several modifications and additions, including allowing Conners to associate with Rhodes. The court imposed 145 days for the violation, with credit for time served. He appealed. Held: Affirmed as modified. Conner claims the association prohibition is unreasonable “as applied.” In People v. Welch (1993) 5 Cal.4th 228, 237 the court held “that failure to timely challenge a probation condition on Bushman/Lent grounds in the trial court waives the claim on appeal.” Subsequently, in In re Sheena K. (2007) 40 Cal.4th 875, the court determined the Welch waiver rule did not apply to facial constitutional challenges to probation conditions based on vagueness or overbreadth. In this case, however, Connors expressly asserted a challenge under People v. Lent (1975) 15 Cal.3d 481 on appeal and did not assert a facial constitutional challenge to the association probation condition. Therefore, the Welch rule applies and Connors’ challenge is forfeited.
The probation condition prohibiting Connors from possessing sexually explicit materials for the purpose of arousing prurient interest must be modified to add a knowledge requirement. When Connors’ probation was reinstated, the trial court imposed a new condition prohibiting him from possessing sexually explicit material. Conners objected to this term. A condition of probation is valid unless it has no relationship to the crime of which the defendant was convicted; relates to conduct which is not itself criminal; and requires or forbids conduct which is not reasonably related to future criminality. (People v. Lent (1975) 15 Cal.3d 481.) Because Connors was previously convicted of a sexually violent offense, the trial court could have reasonably concluded that his possession of pornography might cause him to commit another sexual offense. However, Connors’ challenge to the condition as being vague and overbroad, because it lacks a knowledge requirement, has merit. The term is modified to prohibit Connors from possessing materials that the probation officers has identified and informed him are sexually explicit for the purposes of arousing prurient interest.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/H042385.PDF
