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Name: People v. Urke
Case #: C063169
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 07/19/2011

Probation condition prohibiting defendant convicted of Penal Code section 288 offense from being in the “presence” of minors was proper. Appellant was convicted of violating Penal Code section 288. One of the terms of his probation prohibited him from being in the “presence” of any minor without an approved adult present. Following a fourth violation of his probation terms, he was committed to prison. Urke challenged the wording of the probation condition (i.e., prohibiting him from being in the “presence” of children rather than “associating” with them) as vague and overbroad. It was unnecessary for the court to reach the constitutional issue, however, because the term was one upon which a properly tailored condition may be imposed (People v. Lent (1975) 15 Cal.3d 481, 486). Even if the “presence” term was overbroad, any error was harmless because defendant’s conduct was such that it would have breached an even more narrowly worded term. Appellant was playing in a pool with several young children and was aware of the fact this was prohibited behavior.