People v. Urke
197 Cal. App. 4th 766
| Cal. Ct. App. | 2011Background
- Urke pled guilty to lewd and lascivious acts on a child under 14 and was placed on eight years of formal probation with a condition prohibiting being in the presence of any minor under 18 without a responsible adult approved by his probation officer, except his siblings.
- He also served a year in county jail as part of probation.
- In 2004, he violated probation by being in the presence of minors at a Burger King, admitted the violation, waived custody credits, and was reinstated with 120 days in county jail.
- In 2006, he violated probation by failing to participate in sex offender counseling and was reinstated with 120 days in county jail; the court also modified the terms to allow contact with his own child without supervision.
- In 2007, he violated probation again by being in the presence of minors while working on a playground; after a Johnson waiver, he received 210 days in county jail.
- In 2009, he violated probation by being in the pool with his two-year-old son and several other children; the court revoked probation and imposed six years in state prison.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the presence-of-minors probation condition is vague or overbroad | Urke argues the condition lacks a knowledge limitation and is too broad. | Urke contends the condition is constitutionally infirm on vagueness/overbreadth grounds. | Court avoids ruling on vagueness; error deemed harmless. |
| Whether the modification to include a knowledge requirement was proper and whether it supports the violation finding | Modification violated due process or misapplied the standard. | Modification aligns with due process and sustains the violation. | Modification permissible; conduct violated the narrowed condition. |
| Whether Urke is entitled to additional custody credit due to unwitting Johnson waivers | Waivers were not knowingly/intelligently explained; credit should be increased. | Waivers were knowingly relinquished; no extra credit due. | Urke entitled to 330 additional days; total presentence custody credit 954 days. |
| Whether the second restitution fine was proper | Restitution fines imposed at probation and again at revocation are permissible. | Second restitution fine is unauthorized since first survives revocation. | Second restitution fine stricken; first fine remains. |
Key Cases Cited
- People v. Rodriguez, 51 Cal.3d 437 (1990) (probation revocation standard and burden of proof)
- In re Edgerly, 131 Cal.App.3d 88 (1982) (harmful error framework for probation violations)
- People v. Delvalle, 26 Cal.App.4th 869 (1994) (stay-away-from-places-where-children congregate upheld)
- People v. Mills, 81 Cal.App.3d 171 (1978) (probation condition restricting association with minors related to crime)
- People v. Lopez, 66 Cal.App.4th 615 (1998) (probation conditions reasonably related to future criminality)
- People v. Johnson, 28 Cal.4th 1050 (2002) (Johnson waiver of custody credits evaluated for knowing/intelligent waiver)
- People v. Arnold, 33 Cal.4th 294 (2004) (knowing and intelligent waiver requirement for custody credits)
- People v. Chambers, 65 Cal.App.4th 819 (1998) (second restitution fine vacated when first survived probation revocation)
- People v. Arata, 118 Cal.App.4th 195 (2004) (second restitution fine improper when already imposed)