Is a probation condition requiring a defendant not to socialize with anybody who has a child or children under the age of 18 unconstitutionally vague and overbroad?

We agree with the parties that the inclusion of the word "socialize" in this condition renders it unconstitutionally vague and overbroad. (See United States v. Wolf Child (9th Cir. 2012) 699 F.3d 1082, 1100-1101.) A restriction on socializing with anybody who has a child or children under the age of 18, even though defendant may never come into contact with those children, is not carefully tailored to the purpose of the condition because it burdens activity that does not raise a sufficiently high probability of harm to governmental interests to justify the interference. Consequently, we will modify this condition to remove the word "socialize," thereby rendering it constitutional.

Defendant also challenges the probation condition requiring that he not "frequent, be employed by, or engage in, any business where pornographic materials are openly exhibited." He contends that the word "frequent" is unconstitutionally vague. The Attorney General concedes that the word "frequent" is unconstitutionally vague and suggests a modification that replaces "frequent" with "visit or remain in." In People v. Leon (2010) 181 Cal.App.4th 943, this court held that a probation condition's use of " 'frequent' " was unconstitutionally vague, and we modified the condition to replace " 'frequent' " with " 'visit or remain in . . . .' " (Id. at p. 952.) We do the same here.

Page 4