Opinion
E052834
07-11-2012
THE PEOPLE, Plaintiff and Respondent, v. McCLAIN BELL, Defendant and Appellant.
Johanna R. Pirko, under assignment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. SWF10000915)
OPINION
APPEAL from the Superior Court of Riverside County. Richard J. Hanscom, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Affirmed with directions.
Johanna R. Pirko, under assignment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant, McClain Bell, of transporting and possessing cocaine for sale (Health & Saf. Code, §§ 11352, subd. (a); 11351), possessing testosterone (§ 1377, subd. (a)) and possessing less than 28.5 grams of marijuana (§ 11357, subd. (b)). He was granted probation and appeals, claiming his motion for a continuance to substitute counsel was erroneously denied, the trial court erred in failing sua sponte to instruct on accomplice testimony and one of the conditions of his probation is unconstitutional. We reject his first two contentions, and conclude that the probation condition must be narrowed. We therefore affirm the judgment, while directing the trial court to modify the probation condition at issue.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
FACTS
On April 28, 2010, defendant, who was riding in a car, was stopped by a Murrieta police officer for having outstanding warrants. Inside the zippered compartment of defendant's backpack, which was on the floor of the car between his feet, were about 13 grams of cocaine, cutter, a prescription bottle containing marijuana and plastic baggies with dollar signs on them. Defendant acknowledged that a syringe and vial of testosterone that he had handed his girlfriend, who was in the back seat of the car, after the car had been stopped by the police, was his. More facts will be disclosed as they are relevant to the issues discussed.
ISSUES AND DISCUSSION
1. Denial of Continuance to Substitute Counsel
The complaint against defendant was filed April 30, 2010. The same day, the Public Defenders Office was appointed to represent him and the same deputy public defender appeared with defendant at all proceedings beginning on May 7 until July 12, when the Public Defender's Office declared a conflict and the court appointed a Conflict Defense Lawyer. By May 27, defendant was free on bond while awaiting trial. Defendant began to be represented by the same Conflict Defense Lawyer on August 2 until December 1, including appearances on November 1, 2 and 29. On October 5, the People had announced that they were ready for trial. At the November 29 proceedings, the People again announced ready for trial and trial was set to begin on December 1, with the last day to commence trial being December 9. On December 1, both sides announced that they were ready for trial. However, defendant stated that after speaking with his attorney the day before, which, he claimed was the first time he had spoken to her "for a long duration[,]" he had decided to retain counsel. Defendant named the attorney he wanted to hire, but said this attorney was not in court that day. The trial court told defendant that it was now "late in the day" as far as trial was concerned, the last day for trial was December 9 and both attorneys were ready for trial. The court said it would send the case out for trial and if no courtrooms were available, it would place the case low on the list of cases waiting for a courtroom, but defendant should be prepared to go to trial that day. The case was assigned out and proceedings began that afternoon.
Defense counsel represented to the court that defendant had contacted this attorney, but neither counsel nor defendant told the court that this attorney had agreed to represent defendant or when he could be ready to go to trial. Counsel's representation to the court is interesting, because, according to defendant, he had not decided until talking to his appointed counsel the day before, that he should get a new attorney.
Defendant contends that the trial court abused its discretion in denying the motion to continue so he could hire a new attorney because the trial court failed to ask defendant why he had waited so long to seek other counsel. Additionally, defendant contends that without information as to why defendant wanted a different attorney and/or why he waited so late in seeking one, the trial court abused its discretion because it did not have reasons to balance against concerns for judicial expediency. We disagree on both counts.
In his opening brief, defendant relies only on People v. Munoz (2006) 138 Cal.App.4th 860 (Munoz)in making these assertions. The People view defendant as relying also on People v. Courts (1985) 37 Cal.3d 784 (Courts). In his reply brief, defendant relies on both Courts and People v. Lara (2001) 86 Cal.App.4th 139 (Lara). None of these cases support defendant's position.
In Munoz, the issue was whether a defendant may have retained counsel relieved after his conviction but before sentencing and new counsel appointed without having to show that retained counsel was incompetent. (Munoz, supra, 138 Cal.App.4th at p. 863.) Division One of this court concluded that "'[A]bsent prejudice to [the defendant] or unreasonable delay in the processes of justice,' a motion to relieve retained counsel must be granted without regard to the quality of counsel's representation." [Citation.]" (Id. at p. 869.) The trial court concluded that defendant had to demonstrate that his retained counsel was incompetent during the post-conviction/pre-sentencing period because "'it would be an automatic situation where there would be a substantial delay in the administration of justice because any new lawyer who came in would only be competent if transcripts were prepared, the entire trial was reviewed, and then a decision was made . . . .'" (Id. at p. 865.) The appellate court rejected the People's contention that because defendant waited until after he had been convicted, the motion should have been denied. (Id. at p. 869.) Division One noted that the motion had been brought nine days before sentencing and review of the two day trial transcript and other preparation needed for sentencing could have been accomplished in this unique case "through a long phone call to the court reporter and an afternoon's worth of interviews." (Id. at p. 868.) The appellate court said, "[S]ubstantial delay in the administration of justice was [not] inevitable. While the trial court may have been correct had it made such a finding, there is nothing in the record to suggest any such inquiry was made. The trial court, quite reasonably, but we think incorrectly, assumed [that] to be the case—as it would be in many cases. [¶] '[A trial] court faced with a request to substitute retained counsel must balance the defendant's interest in new counsel against the disruption, if any, flowing from the substitution. [Citation.]' [Citation.] . . . "'[A] myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality." [Citation.]' [Citation.] [¶] . . . While we can certainly envision circumstances under which a defendant's request for a new attorney would necessitate a lengthy delay in the proceedings, this doesn't appear to have been one of them. [¶] [D]efendant's repeated and detailed requests for a new attorney reflect a 'genuine concern about the adequacy of his defense rather than any intent to delay' the proceedings. [Citation.] The record is devoid of even a suggestion that defendant had an interest in delay, and, considering the fact that the court delayed the [sentencing] five weeks after it denied the substitution request, it seems unlikely that appointing new counsel for defendant would have led to 'an unreasonable disruption of the orderly processes of justice.' [Citation.]" (Id. at pp. 869-870, italics added.)
Munoz stands for the following propositions, as are relevant here: 1) the trial court cannot, in denying a motion for a continuance to substitute counsel, assume that the substitution will cause a substantial delay, especially, in a unique case, like Munoz, where it definitely would not have; and, 2) the trial court should not myopically insist on expeditiousness in the face of a justifiable request for substitution, i.e., a request motivated by a sound reason, other than mere delay. Munoz does not stand for the proposition that it is up to the trial court to elicit from defendant his reason(s) for wanting new counsel and/or for delaying his request for same, and, absent this, the trial court's denial of a continuation to substitute counsel is an abuse of discretion. It also does not stand for the proposition that in the case before us, which, unlike Munoz, is typical of most cases where the request comes on the first day of trial, a motion may not be denied due to untimeliness, as a substantial delay in such cases is obvious and incontestable.
In Courts, several weeks before trial was to begin, defendant, who was out on bail, approached a private lawyer about substituting in for defendant's public defender. (Courts, supra, 37 Cal.3d. at p. 787.) The two met a few times to discuss the case and the payment of the attorney's fee, and defendant tried to get money for the fee. (Ibid.)At a trial setting conference eight days before trial was to begin, the defendant requested a continuance so he could make final arrangements for the fee. (Id. at p. 788.) The trial court denied the request, finding it to be untimely. (Ibid.)The same day, the retained attorney stated his willingness to represent defendant if a continuance was granted. (Ibid.)Five days before trial was to begin, the defendant retained the attorney. (Ibid.) The trial court refused to place a motion on calendar for substitution of attorney and a continuance. (Ibid.) On the day set for trial, the defendant's public defender requested a continuance. (Ibid.) Retained counsel appeared and stated his willingness to represent defendant, but he said that a continuance to prepare was necessary. (Ibid.) The trial court denied the motion, finding that the hiring of retained counsel was not significant because it was conditioned on a continuance being granted. (Ibid.) Defendant filed a declaration summarizing the steps he had taken to retain counsel and explaining why he wanted experience retained counsel over the inexperienced public defender. (Id. at pp. 788-789.) The Supreme Court said, "In deciding whether the denial of a continuance was so arbitrary as to violate due process, the reviewing court looks to the circumstances of each case, '"particularly the reasons presented to the trial judge at the time the request [was] denied.'" [Citation.] [¶] The record establishes that [the defendant] engaged in a good faith, diligent effort to obtain the substitution of counsel before the scheduled trial date. . . . [¶] . . . [T]he court was not confronted with the 'uncertainties and contingencies' of an accused who simply wanted a continuance to obtain private counsel. [Citation.] Therefore, it cannot be said that [the defendant] was 'unjustifiably dilatory' in attempting to obtain the services of counsel of his own choosing. [Citation.] [¶] . . . [¶] The . . . motion represented a timely assertion of [the defendant's] intentions. [Citation.] [It] was made more than a week before trial—at a time when it appeared that a retainer arrangement was imminent. . . . [T]he [trial] court's reasoning that it was 'last minute' and 'too late' to substitute counsel was not a correct reading of the law." (Courts, at pp. 791-792, fn. omitted, italics added.) "In this regard, . . . [the] continuance request should be contrasted with the eve-of-trial, day-of-trial, and second-day-of-trial requests . . . .[citations]. In those cases, the Courts of Appeal found the lateness of the continuance request to be a significant factor which justified a denial where there were no compelling circumstances to the contrary. [Citation.]" (Id. at p. 792, fn. 4, italics added.) "[A]ll of the prosecution's witnesses with one exception were residents of the area or employees of Shasta County—and could all have been resubpoened." (Id. at p. 795.)
Like Munoz, Courts did not place the burden of soliciting the reason for the defendant's desire to substitute counsel or the reason for his delay in doing so on the shoulders of the trial court. The defendant in Courts submitted to the trial court a declaration setting forth this information.
Additionally, the Supreme Court in Courts drew a distinction between the facts before it and cases where a defendant requests substitution of counsel on the day before, the day of or the day after trial begins, and that court found denial of substitution in the latter situation to be fully justified by the delay it would cause in the proceedings.
In Lara, the appellate court observed, "'The "fair opportunity" to secure counsel of choice . . . "is necessarily [limited by] the countervailing state interest . . . in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of 'assembling the witnesses, lawyers, and jurors at the same place at the same time.'" . . . [Citation.] [¶] . . . [¶] . . . [T]he defendant's right to discharge his retained counsel is not absolute, and the trial court retains discretion to deny such a motion if the discharge . . . would 'result in . . . "disruption of the orderly processes of justice unreasonable under the circumstances of the particular case."' [Citations.]" (Lara, supra, 86 Cal.App.4th at pp. 153, 155.) "[T]he prosecutor never objected to the . . . motion as being untimely." (Id. at p. 163.) "The court did not deny the . . . motion as untimely or make any findings as to timeliness." (Id. at p. 162.) "We thus lack any factual findings that [the] motion was necessarily untimely or that it would have disrupted the orderly process of justice." (Id. at p. 163.) "While [the defendant's] motion was made on the scheduled first day of trial, there is no evidence that [he] raised such complaints in an effort to improperly delay the proceedings. [Rather, t]he record strongly suggests that [defendant's retained attorney] had not consulted with [the defendant] during the numerous continuances, and [he] was unaware of the nature of [retained counsel's] preparation until . . . trial was finally set to begin. [The defendant] . . . was clearly upset that counsel did not seem prepared." (Id. at pp. 162-163.) Here, in contrast to Lara, defendant offered no reason for wanting to discharge his court appointed attorney and no reason for waiting until the day of trial to do so. Like Munoz and Courts, Lara cannot be read as placing the burden on the trial court to ask defendant these reasons because, like the defendants in those cases, the defendant offered the reasons to the trial court.
On the other hand, case law based on facts similar to those here supports the trial court's denial of the motion. In People v. Jeffers (1987) 188 Cal.App.3d 840, the appellate court observed, "In deciding whether the trial court's denying a continuance was so arbitrary as to deny due process, this court 'looks to the circumstances of each case, "'particularly in the reasons presented to the trial judge at the time the request [was] denied.'" [Citations.]' [Citation.] [¶] The trial court found [the defendant's] request for continuance was untimely and unsupported by sufficient reasons. [The defendant] has the burden to show 'an abuse of judicial discretion in the denial of his request for continuance to secure new counsel.' [Citation.] . . . [¶] Nothing in the record suggests [the defendant] made a good faith, diligent effort to obtain retained counsel before the scheduled trial date. . . . [He] made no showing he was financially unable to retain counsel earlier. On this record the [trial] court reasonably found [the defendant's] motion for continuance on the day of trial was untimely. [¶] . . . Here [the defendant] did not present the trial court with compelling circumstances supporting his late request for continuance. . . . [D]uring the five months before trial [the defendant] had the opportunity to substitute retained counsel if he desired, but he did not do so. [¶] . . . [T]he prosecutor expressed a valid concern about the inconvenience to [a] witness . . . who had to travel from the east coast to testify. The trial court could reasonably find a continuance here would adversely affect the orderly administration of justice. [Citations.]" (Jeffers at pp. 850-851, italics added.) Jeffers stands for the proposition that defendant has the burden of going forward with sufficient evidence justifying his delay in seeking a continuance, which is the inverse of the role defendant seeks to ascribe to himself here.
In People v. Pigage (2003) 112 Cal.App.4th 1359, the defendant was free on bail pending trial. (Id. at p. 1366.) His retained attorney was relieved in April 1998, and defendant had the same deputy alternate defender for the next four and one-half months. (Ibid.) On November 2, defendant appeared with a second deputy alternate defender and, ten days later, defendant made a Marsden motion concerning this attorney. (Ibid.) The attorney told the court that his failure to meet with defendant before November 2 was due to defendant not showing up for appointments with him. (Ibid.) The trial court denied defendant's Marsden motion and defendant moved for a continuance to retain private counsel. (Ibid.) The trial court noted that it was then three days after the date trial was scheduled to begin and it told defendant it would deny the motion "unless there is a real decent reason why I should [grant it]. If you wanted private counsel, you should have gotten private counsel." (Ibid.) Division Three of this court held that this was not an abuse of discretion, reasoning, "[The d]efendant fails to demonstrate [that] the [trial] court erred. . . . [H]e waited until the last minute to express . . . concerns [that he had argued with his attorney and did not feel confident in his representation of him]. There is no evidence [the] defendant attempted to retain counsel, or had even taken steps to secure funds to hire private counsel, although his problems with appointed counsel apparently began before November 2." (Id. at pp. 1366-1367, italics added.) Like Pigage, defendant here was free on bail awaiting trial and failed to volunteer why he wanted to change attorneys or why he waited until trial to do so. We note that the trial court in Pigage was not required to solicit from defendant his reasons for moving so late for a continuance and Division Three of this court did not conclude that the trial court abused its discretion in denying defendant's motion for a continuance to retain private counsel because it had not balanced this information against the orderly administration of justice in making its order. The fact remains that defendant here was the moving party— as such it was his obligation to come forth with reasons for the trial court to balance against concerns of expediency and the convenience of parties, witnesses, judicial officers and the jury. It was his burden to assert that he had actually retained the named attorney (not just that he wanted to)and the attorney would be ready for trial very soon. It was not the job of the trial court to drag this information out of him. He did not supply the requisite information, he did not carry his burden and he lost the motion. It is as simple as that.
We also note that the star witness, listed on both the prosecution's and defense's witness list for trial and the person defendant "fingered" at trial as the sole possessor of the cocaine was defendant's girlfriend. She testified that defendant told her while he was awaiting trial that because she had only been subpoenaed through the mail, no one could prove that she had received the subpoena, so she didn't have to show up to testify. She said she went along with this, she was evasive with the District Attorney's Office and disregarded their subpoenas, and ended up having a bench warrant issued for her arrest. In fact, September 20, 2010, a bench warrant had been issued. She appeared in court almost a month later and it was recalled. She also testified that she didn't want to be there testifying, but she had decided to cooperate with law enforcement. She added, "[I]f I wanted to [avoid the District Attorney's Office,] you still wouldn't have found me. I could easily have been gone, gone to another state or have hid to where you wouldn't have been able to reach me with a subpoena." She testified that at the time of trial, she was living in a different city. Delaying trial for defendant to secure new counsel might have cost both defendant and the People this reluctant but very important witness.
2. Accomplice Instructions
The only evidence adduced at trial that defendant's girlfriend transported and/or possessed cocaine for sale came from defendant's testimony. He denied knowing that there was cocaine, or a powder used to cut it, in the backpack. He denied selling cocaine. He denied that the cocaine found in the backpack was his. He said his girlfriend also used the backpack, someone had to have put the cocaine and cutter into the backpack, she was the only one that had access to it at the time so she "definitely had to have" put it there, although later he said he could not be absolutely certain of this. Remarkably, defendant completely ignores this evidence in arguing that there was sufficient evidence that the girlfriend was an accomplice, therefore, the trial court had a sua sponte duty to give accomplice instructions and its failure to do so requires reversal. Instead, he points to the testimony of the arresting officer that the girlfriend initially told him that both she and defendant use the backpack, then she later said that it belonged to defendant and she sometimes kept property, such as her keys, inside it. He also points to the testimony of the girlfriend that inside her purse were one or two empty plastic baggies "that looked like" or were "similar in appearance to" the three empty baggies that had been found in the zipper compartment of the backpack along with the cocaine and cutter. Finally, he points to the girlfriend's testimony that when she and defendant left defendant's apartment in San Diego, defendant had the backpack, which he put on the floor of his stepfather's car where defendant was seated. After his stepfather told defendant there was someone waiting at the stepfather's house to buy "product" from defendant, defendant went back into the apartment, and returned to the car with the drugs in his pocket, which he put into the backpack when the car got pulled over by the police in Murrieta. Defendant contends that these three pieces of evidence constitute sufficient evidence to establish by a preponderance that the girlfriend could have been charged as an accomplice to transporting and possessing cocaine for sale. We disagree. Even if the girlfriend either used the backpack, along with defendant, or it was his and she occasionally kept her keys in it, she had in her purse empty plastic baggies similar in appearance to the empty ones found with the cocaine and cutter and she knew defendant had cocaine in his pocket during the trip from San Diego to Murrieta, this would not establish her guilt by a preponderance of either crime. There was simply nothing in the evidence defendant points to that the girlfriend had control over the cocaine or the right to control it either personally or through another person as is required for transportation or that she intended to sell it as was required for possession with intent to sell. Having not established by a preponderance of the evidence that the girlfriend was an accomplice based on the evidence defendant points to, he fails to establish that the trial court had a sua sponte obligation to give accomplice instructions.
The girlfriend denied making either statement.
Interestingly enough, the police officer who searched the girlfriend's purse testified that there were no plastic baggies in it, which accounts for the fact that neither they nor a picture of them was introduced as evidence at trial.
Defendant overstates the facts by asserting that there were two or three of these baggies in the girlfriend's purse and they had dollar signs on them like the baggies that had been found with the cocaine and cutter in the backpack. In fact, the girlfriend testified that there was one or two in her purse. She also testified that the baggies in her purse "look[ed] like" or were "similar in appearance" to the baggies with dollar signs on them found with the cocaine and cutter, but she did not say that the baggies in her purse had dollar signs on them and neither they nor a picture of them was introduced into evidence. (See fn. 3, ante, p. 14.) She was never asked why the baggie(s) were in her purse.
Defendant cites to a portion of argument to the jury to support his assertion that certain evidence was presented at trial. However, as the jury was instructed, argument by counsel is not evidence.
The stepfather lived in Murrieta.
Defendant reasserts his unsupported contention that the baggies in the girlfriend's purse had dollar signs on them similar to the ones found with the cocaine and cutter in making this argument.
Defendant also, once again, cites to two portion of argument to the jury in asserting that there was evidence of the girlfriend's intent to sell. This defendant cannot do. (See second paragraph of fn. 5, ante, p. 14.)
Even if we were to conclude that there was sufficient evidence that the girlfriend was an accomplice, reversal would not be required as there was more than adequate corroboration of her testimony. (See People v. Boyer (2006) 38 Cal.4th 412, 467.) According to the arresting officer, the backpack was on the floorboard of defendant's stepfather's car between defendant's feet when the car was stopped. Six pieces of identification in defendant's name in defendant's wallet and mail in his name were found in the backpack—no one else's identification was found there. No items belonging to the girlfriend were found in the backpack. Defendant admitted that the marijuana in the prescription bottle found with the cocaine, cutter and baggies in the zippered pocket of the backpack was his. He admitted that the syringe and vial of testosterone, which he said had been in the same zippered pocket when he removed them and handed them to his girlfriend upon the car being stopped by the police, were his. On his cell phone were what a prosecution expert testified were pay-owe sheets for the sale of cocaine.
Defendant cites no authority holding that when there is sufficient corroboration of an accomplice's testimony, reversal is required if the standard instruction that the testimony of only one witness can prove any fact (Judicial Council of California Criminal Jury Instruction, CALCRIM No. 301) and the standard instruction that the jury should not speculate about whether third persons who may have been involved in the crimes charged have been or will be prosecuted, (CALCRIM No. 373), neither of which defense counsel objected to below, are given. Of course, the latter was completely appropriate as to the possession of testosterone charge. A substantial attempt to impeach the girlfriend was made by the defense based on the fact that she was either angry or hurt after catching defendant lying to her about other women and an audiotape in which she cussed him out and told him that she would get him and he was going to pay for lying to her was played for the jury.
3. Probation Condition
One of the conditions of defendant's probation is that he reside at a home "approved by the probation officer[.]" Defendant here contends that this condition is unconstitutional under People v. Bauer (1989) 211 Cal.App.3d 937.
Defendant's girlfriend testified at trial that defendant was and had been a cocaine dealer. She said, "That's what he does. That's what he's always done." She said he had sold cocaine to her when she was 19 (in fact, that was how they met and it was though defendant's brother, who was a good friend of hers) and she was 23 at the time of trial. She said she was with defendant almost every day during their eight month relationship and defendant sold cocaine almost every day. She said she had seen him sell cocaine "[p]robably about 100 [times] or more" to people he knew. She said he sold from his home (he kept the drugs in a safe in the home) and had the woman he was living with, who was a performer at a strip club in San Diego, sell cocaine for him at the club to other strippers and this was reflected in the pay-owe records found in his cell phone. He also fronted drugs to two other people, they sold some of the drugs and kept the rest and gave him the money from the sales. She also said he sold ecstasy to a stripper.
Defendant testified that his job was to "help people who have foreclosed homes stay in their properties for two years with the state remedies. I also have a medical marijuana facility" but it had closed down because it was too close to the Marine Corps base (defendant was a former Marine) and the pay-owe sheets in his cell phone were for his medical marijuana customers. Interestingly, he told the probation officer five weeks after he testified that he was a director of rentals for "Affordable Portables."
She said she was a stripper when she was 18.
The prosecution's drug expert had testified at trial that the account of cocaine found in the backpack had a street value of $500-600, but when combined with the cutter also found, was valued at $800-1200.
According to the probation report, when defendant was pulled over by the police in Murrieta, he had almost $10,000 in cash in his possession. In the probation report, the prosecutor stated that defendant was on felony probation and out on bail at the time of these offenses. The probation officer reported that the circumstances of the crimes were more serious than in other cases in that defendant had almost 13 grams of cocaine in his possession and he demonstrated criminal sophistication by having his girlfriend put the syringe and vial of testosterone in her purse. Considering defendant had violated probation for his prior domestic violence conviction, the probation officer "seriously question[ed] if [defendant] had the ability or willingness to comply with the conditions of probation."
The girlfriend testified at trial that they were on their way to Sun City to buy a car. However, defendant testified that his stepfather picked them up to take them to Murrieta (he said nothing about buying a car in Sun City) and the officer who pulled the car over testified he did so on a street in Murrieta and not on Interstate 15.
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When determining whether to allow defendant to continue to be free on bail after conviction and before sentencing, the trial court observed, "[H]e maybe lives a little different life than a lot of people[.]" At the sentencing hearing, the trial court said, "[W]hat I really worry about . . . is that [defendant] . . . is an intelligent person and could be a productive person. But he has chosen . . . [a] life in . . . the fast lane. And if he continues in that, he's going to be in prison. There's no question about it. And if he continues wanting to live life that way, the girlfriends, the fancy trappings and . . . all of that stuff, . . . he's going to get caught and he's going to turn down that path. . . . But whether or not he wants to change, that's really up in the air. I . . . don't feel . . . any great strong vibes that he does. . . . [F]or a lot of people, life in the fast lane is really exciting, and it's something . . . they get a charge just doing it, just trying to play these games. And that's the satisfaction in and of itself over any . . . monetary profit . . . . And that's what he's been doing. And the question is, does he want to stop? . . . [¶] . . . [P]art of his whole lifestyle is to be able to con people. And probably the person he's conned the most is himself because he buys into a lot of this stuff. [¶] . . . [H]e . . . thinks he's smart enough not to get caught again, [that] . . . he can get around it. . . . [O]f course, that isn't true. He isn't. . . . [Anybody,] if they keep persisting in this kind of activity, they are going to get caught as he did here. [¶] So if he's going to . . . keep hanging around . . . the gentleman's clubs and you're going to do all of that stuff, . . . you're going to end up in prison, no matter how smart you are."
"Trial courts have broad discretion to set conditions of probation in order to 'foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1' [Citations.] . . . [¶] However, the trial court's discretion in setting the conditions of probation is not unbounded." (People v. Lopez (1998) 66 Cal.App.4th 615, 624.) A term of probation is invalid if it: '"(1) had 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 reasonable related to future criminality . . . ."' (People v. Lent (1975) 15 Cal.3d. 481, 486.)
"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 to other citizens.'" [Citation.]" (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355.) "[W]here an otherwise valid condition of probation impinges on constitutional rights, such conditions must be carefully tailored, "'reasonably related to the compelling state interest in reformation and rehabilitation . . . .'" [Citations.]" (People v. Bauer (1989) 211 Cal.App.3d 937, 942 (Bauer).)
In Bauer, supra, 211 Cal.App.3d at pages 944-945, the reviewing court struck a residence approval probation condition nearly identical to the one at issue, stating: "The condition is all the more disturbing because it impinges on constitutional entitlement— the right to travel and freedom of association. Rather than being narrowly tailored to interfere as little as possible with these important rights, the restriction is extremely broad. The condition gives the probation officer the discretionary power, for example, to forbid appellant from living with or near his parents—that is, the power to banish him. It has frequently been held that a sentencing court does not have this power. [Citations.]"
Similarly, in the instant case, the condition at issue is not narrowly tailored to be reasonably related to the state's interest in defendant's reformation and rehabilitation. As in Bauer, the probation condition gives defendant's probation officer the unfettered power to prevent him from living anywhere the officer decides in unsuitable. The potentially arbitrary nature of such a condition is not justified under the circumstances of this case. Neither the trial court nor the probation officer expressed any concerns particularly regarding defendant's residence. Nevertheless, we do not simply strike the condition. With respect to future criminality, knowing where defendant resides is clearly necessary in order to properly supervise him and aid in his rehabilitation Moreover, the trial court expressed a well-founded concern for the lifestyle defendant was living, which includes the type of residence in which defendant lives. If defendant is living in a residence which he clearly cannot afford based on the money he legitimately makes, the probation officer may properly insist that defendant live "within his legitimate means" rather than continue a lifestyle that defendant can support only by continuing to deal drugs. Under these circumstances, a condition that required defendant to get approval from the probation officer of his residence and any changes in his residence would be proper. "If available alternative means exist which are less violative of the constitutional right and are narrowly drawn so as to correlate more closely with the purposes contemplated, those alternatives should be used [citations]." (In re White (1979) 97 Cal.App. 3d 141, 150.) Accordingly, the condition should be modified to read: "Reside at a residence deemed affordable by the probation officer based on defendant's legitimate income and not move without prior consent." This would address the obvious concern about defendant's lifestyle, without unduly infringing upon his freedom of movement.
DISPOSITION
The trial court is directed to amend the at-issue condition of probation to read, "Reside at a resident deemed affordable by the probation officer based on defendant's legitimate income and not move without prior consent." In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
RICHLI
J.
KING
J.