P. v. Oats

Filed 11/20/20 P. v. Oats CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
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.

-- 1 of 36 --

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.

-- 2 of 36 --

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-year-
old 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.

-- 3 of 36 --

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

-- 4 of 36 --

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.

-- 5 of 36 --

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.”

-- 6 of 36 --

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.”

-- 7 of 36 --

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.”

-- 8 of 36 --

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.”

-- 9 of 36 --

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

-- 10 of 36 --

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

-- 11 of 36 --

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.”

-- 12 of 36 --

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

-- 13 of 36 --

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.)

-- 14 of 36 --

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

-- 15 of 36 --

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

-- 16 of 36 --

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

-- 17 of 36 --

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

-- 18 of 36 --

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

-- 19 of 36 --

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

-- 20 of 36 --

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 no-
12 Review granted and opinion superseded July 31, 2014, review
dismissed March 22, 2017, No. S220280.

-- 21 of 36 --

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).

-- 22 of 36 --

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-year-
old. 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

-- 23 of 36 --

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.

-- 24 of 36 --

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-year-
old 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’

-- 25 of 36 --

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

-- 26 of 36 --

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 no-
pornography 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.)

-- 27 of 36 --

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

-- 28 of 36 --

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.

-- 29 of 36 --

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

-- 30 of 36 --

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).

-- 31 of 36 --

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.

-- 32 of 36 --

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.

-- 33 of 36 --

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.)

-- 34 of 36 --

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.

-- 35 of 36 --

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.

-- 36 of 36 --