Probation Condition: No Unconsented Sexual Touching OK

N.M. was thirteen years old.  One weekend, she and her siblings visited their cousin, K.C., age 17, and his siblings on the weekend of May 11, 2020.

They watched movies and went to bed.  N.M. was sharing her female cousin’s room when K.C. entered and asked the girls if they wanted to go to the kitchen to have a snack.  N.M. agreed, but her cousin declined.

N.M. entered the walk-in pantry in the kitchen followed by K.C.  He blocked the entry, grabbed N.M. by the waist and tried to kiss her.  N.M. resisted and asked to go back to her cousin’s room, but K.C. did not let her, saying, “Oh, just wait.” 

K.C. then reached into N.M.’s pants and placed his fingers inside her vagina.  N.M. continued to state that she wanted to go back to her cousin’s room, but K.C. ignored her.  K.C. then pulled down N.M.’s pants as well as his own pants.  He then guided N.M.’s hand to his penis and placed his penis in her vagina “for a few seconds” according to N.M.

Afterwards, K.C. moved away from the doorway and N.M. ran upstairs to the bedroom.

Approximately one week later, N.M. informed her family about the sexual assault and K.C. was arrested.

The Los Angeles District Attorney’s Office then filed a juvenile court petition charging 17-year-old K.C. with felony forcible rape of a child under the age of 14 years (Penal Code § 261(a)(2)), and felony forcible sexual penetration of a child under the age of 14 years (Penal Code § 289(a)(1)(B)).

Following an adjudication hearing (a trial in juvenile court), the judge found the allegations true and sustained the petition and declared K.C. a ward of the court.  The judge then committed K.C. to a secure youth treatment facility for a base term of three years with a maximum term of commitment of 14 years and four months. 

The judge also imposed various terms of probation.  Among the terms of probation were that K.C. “not engage in any unconsented sexual touching of any person.”

K.C. appealed this probation condition to the Second Appellate District Court in Los Angeles as unconstitutionally vague because “sexual touching” is not defined.  He pointed out that, for example, lewd and lascivious conduct prohibits touching a child with the intent to sexually arouse the perpetrator or the child, but the touching need not be done in a sexual manner.  People v. Martinez (1995) 11 Cal. 4th 434, 452.

The Second Appellate District reminded the reader that the void-for-vagueness doctrine derives from the due process concept of fair warning or notice, which 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 as to its meaning and differ as to its application.  People v. Hall (2017) 2 Cal. 5th 494, 500.

“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 violated the condition.” Id.

Turning to the probation condition challenged by K.C., the Second Appellate District denied K.C.’s appeal, finding that the condition provided fair warning about what type of conduct is prohibited.  The condition was sufficiently clear because no two reasonable persons would differ in how what they regarded as sexual contact due to the body parts involved or unconsented contact in terms of permission granted.

We present this summary because clients often do have probation conditions ordered by a judge, particularly in DUI or public intoxication cases, where a judge will order a person not to consume any alcohol or to visit a place “where alcohol is the chief item for sale.”  Some clients do not understand that this means one can still go to a restaurant, such as a Applebee’s in Torrance, but they cannot go to a bar like American Junkie in Hermosa Beach on Pier Plaza.

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