Opinion
E065152
08-18-2017
THE PEOPLE, Plaintiff and Respondent, v. DANNIE MICHAEL BRADSHAW, Defendant and Appellant.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Peter Quon, Jr., and Marilyn L. George, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. BAF1400230 & RIF1501700) OPINION APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Affirmed. Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Dannie Michael Bradshaw repeatedly threatened a mixed-race family that lived across the street from him. One morning, he tried to run the wife off of the road, then he threatened to kill the husband. Defendant's threats were witnessed by a neighbor, as well as defendant's daughter. While out on bail for making criminal threats, defendant threatened and dissuaded his daughter from testifying.
Following a jury trial, defendant was convicted of two counts of making criminal threats (Pen. Code, § 422; counts 1 & 2) and one count of dissuading a witness from attending and giving testimony at trial (§ 136.1, subd. (a)(2); count 3). In a bifurcated proceeding, defendant admitted that he committed count 3 while he was released from custody on counts 1 and 2 (§ 12022.1). Defendant was sentenced to a total term of six years. However, his sentence was suspended and he was placed on formal probation for a period of 60 months on various terms and conditions. Defendant appeals from the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
The jury found the hate-crime allegations (§ 422.75, subd. (a)) attached to counts 1 and 2 not true.
Defendant seeks relief from the probation conditions which require that his place of residence and any plans to change it, including leaving the state of California, be approved by his probation officer. Defendant argues the residence requirement conditions are overbroad and infringe upon his constitutional rights to travel and freedom of association. We do not find the conditions unconstitutional and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
E.M. is African-American. His wife, S.M., is of Mexican descent and their five children are of mixed African-American and Mexican descent. In January 2014, the M. family lived in a house on Adele Avenue in Cabazon. Defendant lived in a house directly across the street from the M. family.
On January 25, 2014, Mrs. M. was driving home from her graveyard shift at around 7:00 a.m. when she made eye contact with defendant, who was driving a truck, at an intersection. As defendant drove ahead of Mrs. M., he repeatedly tried to force her off the road by driving erratically, fishtailing his truck back and forth in the soft dirt next to the paved road to stir up dust so that Mrs. M. could not see, and drastically changing the speed of his car. Mrs. M. had to stop her car at least three times. After Mrs. M. got home, she called 911 because she was afraid. Mrs. M. reported that defendant "tried to run [her] off the road" and provided defendant's name and described him as a Caucasian man in his 50s.
The recording of the 911 call was played for the jury at the time of trial. --------
Mr. M. heard Mrs. M.'s call to 911 and went outside to see what was going on with defendant. Mrs. M. followed Mr. M. outside and saw defendant doing donuts, burning rubber, and screeching his tires on their street. Defendant eventually pulled into his driveway, exited his car, and began screaming racial slurs at Mr. M. Defendant threatened to kill Mr. M.'s family and stated he had a bullet with Mr. M.'s name on it. Defendant stated that he had nooses in his backyard and that he was going to "hang [Mr. M.'s N word] ass." Defendant also told Mr. M. that he was going to lynch him and that "all you [N word] need to hang." While defendant spewed his racial epithets, Mrs. M. relayed them to the 911 dispatcher.
Mrs. M. heard defendant make threatening comments and racial slurs on many other occasions towards the family. Defendant had told the M. children he wanted to "lynch their dad." He also threatened to kill the children and followed the children to or from the school bus stop on several occasions. Before defendant tried running Mrs. M. off the road, she was not sure what defendant was capable of doing. However, defendant's actions that morning had changed her perception of him, and Mrs. M. was afraid he intended to carry out his threats. After the events of that morning, she was afraid every time she saw defendant and the children were not allowed to go outside without supervision. Mrs. M. was aware defendant owned a gun and Mr. M. had seen a noose in defendant's yard.
A neighbor witnessed the incident and heard defendant scream racial slurs at Mr. M. The neighbor also heard defendant threaten to kill Mr. M. In addition, the neighbor heard defendant exclaim that he had a bullet with Mr. M.'s name on it.
Defendant's daughter was at defendant's home on the day of the incident. She heard Mrs. M. say defendant tried to run her off the road. She also heard defendant use "the N word" and make "a couple of threats." Specifically, defendant's daughter heard defendant tell Mr. M. that "he had a bullet with his name on it, and that he has a noose in the backyard." Defendant's daughter frequently heard defendant call people "the N word," including herself. During the confrontation, defendant's daughter also observed Mr. M. to be angry with defendant and heard Mr. M. use profanity and challenge defendant to come out to the street to fight. Defendant's daughter was aware that defendant possessed several guns at the time of the incident.
Defendant's daughter had told investigators the truth when she spoke to them on January 25, 2014. When she went to Mississippi with defendant in July 2014, she wrote a letter recanting much of what she had said because defendant threatened to leave her and her mother in Mississippi if she did not write the letter. After defendant's daughter and her mother returned to Cabazon, defendant threatened to contact child protective services (CPS) and have her newborn son removed from her if she did not go into court and lie on his behalf. Defendant had called CPS before and defendant's daughter's three other children had been taken away from her. Defendant later dissuaded his daughter from coming to court. In November 2014, defendant told his daughter "whoever testifies against him is dead." He also told his daughter he would disable her car if she testified against him.
Defendant's daughter had been served with a subpoena to appear in court on April 9, 2015, to testify against defendant. She did not want to go into court and lie for defendant, nor did she want to testify against him due to his threats, so she stayed home. Later that day, defendant arrived at his daughter's house with his former attorney. Defendant gave his daughter some bags of groceries and said, " 'You are lucky you didn't go to court.' " Defendant's former attorney did not hear defendant's statement, but defendant's daughter claimed that defendant's former attorney was standing approximately 50 to 75 feet away when defendant made his statement.
B. Trial Court Proceedings
During the jury trial, defendant repeatedly exhibited strange behavior. For example, during his daughter's testimony, he "started loudly sobbing uncontrollably, and wailing in front of the jury." A recess was taken to allow him to compose himself. On November 30, 2015, defendant appeared in the courtroom with a helmet bearing the words, " 'I have a dream 2016.' " He also had a Vietnam veteran's hat and a Bible on the table. The trial court directed defendant to move the items out of the jury's view. He was also directed to take off a vest that stated, " 'Black lives matter.' " Later that day, outside the presence of the jury, the trial court asked defendant why he was leaning back in his chair and staring at the ceiling. Defendant responded by saying, "I know the truth."
Following the jury trial, defendant was found guilty on two counts of making criminal threats (§ 422; counts 1 & 2) and one count of dissuading a witness from attending and giving testimony at trial (§ 136.1, subd. (a)(2); count 3). After the jurors were discharged, the trial court turned its attention to the out-on-bail enhancement allegation attached to count 3. When defendant was asked if he was out of custody on bail when he committed count 3, his initial response was, "I didn't commit no crimes. I was out on bail on no crime." Defendant eventually admitted that he committed count 3 while he was released from custody.
During his interview with the probation officer, defendant told the probation officer that he did nothing wrong and that if he was granted probation, he wanted it transferred to Mississippi, where his siblings live, so he could "be away from his daughter and the [M.'s]." Defendant denied having any mental health issues, despite his admission that he had previously been diagnosed with manic depression, and said he would not take any medication for any reason. The probation officer acknowledged defendant had no prior felony convictions, but the current offenses were serious and he had been out on bail when he dissuaded and threatened his daughter. In light of the serious nature of the offenses and defendant's erratic behavior, the probation officer recommended denying probation and imposing a four-year eight-month prison term.
The sentencing hearing was held on January 8, 2016. At that time, the trial court stated that it had discussed its tentative decision with both counsel in chambers and that the decision between a grant of probation and the imposition of a prison sentence "is an extremely close call." The People opposed a grant of probation, noting defendant believed he had done nothing wrong and expressed no remorse. The People also argued that defendant had made threats of extreme violence, exhibited strange behavior, and had "a complete lack of emotional control" that made him likely to reoffend and be a danger to public safety.
Defendant's trial counsel asserted that defendant wanted to return to Mississippi, but he understood that "should the Court give him the gift of granting him probation, that he is to live in the state of California." Counsel represented that defendant had a place to live with his pastor and "would be happy to comply with the Court's order, now that he is aware that he would be unable to move to Mississippi." Counsel argued that the public would be protected as there were already restraining orders against him by the victims and that defendant would be under probation supervision and could benefit from counseling and treatment programs.
The trial court discussed some of defendant's odd behavior, such as his emotional outbursts inside the courtroom and courthouse and his direct violation of the court's instructions by wearing certain items of clothing back into the courtroom. The court reasoned a grant of probation was appropriate in this case due to defendant's unaddressed mental health issues and belief defendant had a "great likelihood" of being injured or killed in prison due to his inability to control his words. The court noted that on some days, defendant appeared "to be more in tune to what is happening than other days." The court acknowledged that defendant had signed a form indicating he was willing to accept the terms and conditions of probation and informed defendant he was not to leave California without permission, and that if he did leave the state, a warrant would be issued for his arrest. The court informed defendant that there would also be restrictions on where he could live and notifications he would have to make to his probation officer. When the court asked if he understood everything, defendant responded in the affirmative. The trial court recommended defendant obtain a mental health evaluation and participate in counseling.
The trial court suspended defendant's sentence and granted defendant formal probation for a period of five years on various terms and conditions. The court thereafter reviewed the probation conditions with defendant and reminded defendant of the following:
"THE COURT: Okay. You're ordered to not leave the state of California without first obtaining written permission of the probation department per the Interstate Compact Act. You're ordered to inform your probation officer of your place of residence and reside at a residence approved by your probation officer.
"You're ordered to give written notice to your probation officer 24 hours before changing your residence and do not move without the approval of your probation officer.
"Do you understand that?
"THE DEFENDANT: Yes, sir."
III
DISCUSSION
Defendant argues that the terms requiring a probation officer's approval of his choice of residence and changes thereto interfere with his rights to travel and to free association and must be stricken as unconstitutionally overbroad. We disagree.
Probation is a suspension of a sentence and a revocable grant of release conditioned upon supervision by a probation officer. (§ 1203, subd. (a).) Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety. (People v. Welch (1993) 5 Cal.4th 228, 233 (Welch).) Persons placed on probation by a court shall be under the supervision of the county probation officer who shall determine both the level and type of supervision consistent with the court-ordered conditions of probation. (§ 1202.8, subd. (a).) " 'Probation is not a right, but a privilege.' " (In re York (1995) 9 Cal.4th 1133, 1150, quoting People v. Bravo (1987) 43 Cal.3d 600, 608.) "[I]f the defendant feels that the terms of probation are harsher than the sentence for the substantive offense[,] he is free to refuse probation." (People v. Rubics (2006) 136 Cal.App.4th 452, 459 (Rubics), disapproved on another ground in People v. Martinez (2017) 2 Cal.5th 1093, 1099-1104, quoting People v. Miller (1967) 256 Cal.App.2d 348, 356.)
A. Standard of Review
"In 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).) We review their decisions for abuse of discretion. A trial court abuses its discretion when the probation conditions imposed are arbitrary, capricious, or exceed the bounds of reason. (Ibid.) A condition will not be invalidated as unreasonable unless it satisfies each of the following criteria: (1) it has no relationship to the crime of which the offender was convicted; (2) it relates to conduct which is not itself criminal; and (3) it requires or forbids conduct which is not reasonably related to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent); Carbajal, at p. 1121.) The test is conjunctive. All three prongs must be satisfied before an appellate court will find it invalid. (Lent, at p. 486.) "[E]ven if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (People v. Olguin (2008) 45 Cal.4th 375, 380 (Olguin).) A condition of probation that enables a probation officer to effectively supervise a probationer is reasonably related to future criminality. (People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240-1241 (Kwizera).)
Where there is a constitutional challenge based on vagueness and overbreadth, and the matter presents a pure question of law that can be resolved without resort to the record, the standard of appellate review is de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) However, not every term which requires a defendant to give up a constitutional right is per se unconstitutional. (People v. Mason (1971) 5 Cal.3d 759, 764-765, overruled on a different point as stated in Lent, supra, 15 Cal.3d at p. 486, fn. 1.) Probation conditions may place limits on constitutional rights if they are reasonably necessary to meet the twin goals of rehabilitation of the defendant and protection of the public. (People v. Bauer (1989) 211 Cal.App.3d 937, 940-941 (Bauer).)
B. Forfeiture
Defendant did not object to the residence-approval conditions at issue in the trial court. But where a claim that a probation condition is facially overbroad and violates fundamental constitutional rights is based on undisputed facts, it may be treated as a pure question of law, which is not forfeited by failure to raise it in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.); Welch, supra, 5 Cal.4th at p. 235.) The forfeiture doctrine does apply if the objection involves a discretionary sentencing choice or unreasonable probation conditions "premised upon the facts and circumstances of the individual case." (Sheena K., at pp. 885, 888.)
The People argue that the probation conditions at issue here do not fall into the relevant category as described in Sheena K., supra, 40 Cal.4th 875, because they do not involve pure questions of law. Specifically, the People maintain, "Given the facts in this case and the trial court's concerns about [defendant's] mental health, [defendant] should not be allowed to specifically agree to the terms of probation, then do an end run around the trial court by raising these claims for the first time on appeal." We are inclined to agree with the People.
First, the residence-approval conditions are not facially unconstitutional, as defendant suggests. To support a determination of facial unconstitutionality, a defendant must demonstrate that "the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions." ' [Citations.]" (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) This defendant cannot do. There are many situations where offenders have used their homes in a criminal enterprise, and where the probation officer's approval of the probationer's choice of residence is necessary to protect the public and deter future criminality. (See, e.g., People v. Stein (1942) 55 Cal.App.2d 417, 420 ["house of ill repute" used for prostitution]; People v. Villalobos (2006) 145 Cal.App.4th 310, 315 [" 'drug house' " used for illegal drug transactions]; People v. $497,590 United States Currency (1997) 58 Cal.App.4th 145, 155 [" 'safe house' " used to launder (literally) proceeds from illegal drug transactions].) Defendant in this case committed his crimes in front of his home to threaten his neighbors. Where he lives will directly affect his rehabilitation because, without any limitations, he could opt to live near the M. family or violate the restraining order. Accordingly, defendant's grant of probation could legitimately be conditioned on his probation officer's approval of the probationer's choice of residence, and on any plan he might develop to change his place and conditions of residence.
Second, the approval conditions were not unconstitutional as applied to defendant. There is no evidence that the probation department arbitrarily or capriciously disapproved any of his choices of a home. Defendant speculates that the probation officer may disapprove his residence choice, or change of residence, because the residence is "inconveniently far for the probation officer to visit" or the residence is "in a poor or unsafe neighborhood, where the probation officer would not relish visiting."
Because the approval conditions were not unreasonable and did not violate the Lent criteria, defendant should have taken the many meaningful opportunities he had to object to them. He did not, and so, except for overbreadth, his claim is not properly before us.
C. Overbreadth
"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, quoting People v. Lopez (1998) 66 Cal.App.4th 615, 624 (Lopez).) But an otherwise valid condition that impinges upon constitutional rights "must be carefully tailored, ' "reasonably related to the compelling state interest in reformation and rehabilitation . . . ." ' " (Bauer, supra, 211 Cal.App.3d at p. 942, quoting In re White (1979) 97 Cal.App.3d 141, 146 (White); accord, Olguin, supra, 45 Cal.4th at p. 379; Sheena K., supra, 40 Cal.4th at p. 890.)
A probation condition cannot be overbroad. (Olguin, supra, 45 Cal.4th at p. 384; Sheena K., supra, 40 Cal.4th at p. 890.) "A restriction is unconstitutionally overbroad . . . if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' [Citations.] 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." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
Moreover, a probation condition cannot be vague; it " ' "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 . . . . " ' " (People v. Barajas (2011) 198 Cal.App.4th 748, 753 (Barajas), quoting Sheena K., supra, 40 Cal.4th at p. 890.) On the other hand, probation is a privilege and not a right, and adult probationers, in preference to incarceration, may validly consent to limitations upon their constitutional rights. (Olguin, supra, 45 Cal.4th at p. 384.) For example, probationers may agree to warrantless search conditions or restrictions on their constitutional right of association. (Id. at pp. 384 & 385, fn. 4, citing People v. Ramos (2004) 34 Cal.4th 494, 506; People v. Medina (2007) 158 Cal.App.4th 1571, 1580 ["a suspicionless search pursuant to a probation search condition is not prohibited by the Fourth Amendment"]; People v. Balestra (1999) 76 Cal.App.4th 57, 68-69 [upholding a probation condition requiring submission to alcohol and drug testing at the discretion of the probation officer]; Lopez, supra, 66 Cal.App.4th at pp. 624, 628-629 [upholding condition prohibiting association with known gang members]; People v. Peck (1996) 52 Cal.App.4th 351, 363 [condition prohibiting association with known possessors, users, or traffickers of controlled substances]; and other cases.)
Much of defendant's opening brief is devoted to establishing that rights to travel and to free association are constitutional rights, and to claiming that the probation conditions in question violate those rights. Defendant relies primarily on Bauer, supra, 211 Cal.App.3d 937. We agree that these rights are constitutional and fundamental, and that the conditions curtail them. (Bauer, at p. 944.) However, we do not agree that the conditions violate the rights in the sense that the restrictions imposed are unreasonable or otherwise constitutionally impermissible. (White, supra, 97 Cal.App.3d at p. 146.) Insofar as probation is a grant of supervised release in lieu of confinement, virtually all probation conditions restrict these rights. " 'Inherent in the very nature of probation is that probationers "do not enjoy 'the absolute liberty to which every citizen is entitled.' " [Citation.] Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.' [Citation.]" (Barajas, supra, 198 Cal.App.4th at p. 753.) Since it is impossible to travel or to associate freely with persons of one's choice from inside a prison cell, probation is generally a great deal for the grantee. If defendant felt otherwise, he was free to refuse probation, and instead serve his sentence. (Rubics, supra, 136 Cal.App.4th at p. 459.)
In Bauer, the reviewing court struck a residence condition apparently designed to prevent the defendant from living with his overprotective parents. (Bauer, supra, 211 Cal.App.3d at p. 944.) Nothing in the record suggested the defendant's home life contributed to the crimes of which he was convicted (false imprisonment and simple assault), or that living at home reasonably related to future criminality. (Ibid.) The court concluded the probation condition impinged on the defendant's right to travel and freedom of association, and was extremely broad since it gave the probation officer the power to forbid the defendant "from living with or near his parents—that is, the power to banish him." (Ibid.)
The present case is distinguishable. That case concerned a 26-year-old man who had lived with his parents all his life. There was no evidence that his "exemplary" home life, or his parents, had contributed to his crime in any way. (Bauer, supra, 211 Cal.App.3d at p. 944.) Residing with one's parents, the court noted, is conduct not in itself criminal, and the probation department could not use the condition to "banish" the defendant from his parents. (Id. at pp. 943-944.) The situation here is different. Banishment is not an issue. Unlike the condition in Bauer, the residence condition imposed here is not a wolf in sheep's clothing; it is not designed to banish defendant or to prevent him from living where he pleases. Moreover, unlike the defendant in Bauer, where defendant lives may directly affect his rehabilitation, considering his issues related to his mental health and inability to control his behavior and speech. Defendant made racially charged criminal threats to his neighbors and dissuaded his daughter from being a witness against him at trial while he was released on bail. Defendant's behavior, during his crimes and his trial, was at times bizarre and out of control. Without a limitation placed by the residence conditions or without supervision, for example, defendant could opt to live near his daughter or the M. family or violate the restraining order. A probation officer supervising a person like defendant must reasonably know where he resides and with whom he is associating in deterring future criminality.
The residency conditions are necessary under these circumstances to aid in defendant's rehabilitation, and not to banish defendant from any geographic region. The residency conditions properly serve the state's interest in reformation and rehabilitation because where he lives will directly affect his rehabilitation. Contrary to defendant's claims, there is no evidence to suggest defendant's residence could be disapproved for any reason or that it would be impractical for a defendant to find a place of residence with the notice and approval requirements. The nature of defendant's crimes suggests a need for oversight. Like the court in Bauer, we do not find that the condition itself is inappropriate in all circumstances (see Bauer, supra, 211 Cal.App.3d at p. 944 [finding residence approval condition not related to the defendant and his crimes in the case, but not invalidating the condition in every case]), but that such notice and approval here was warranted as the requirements relate to defendant's future criminality and crimes.
Furthermore, the legal landscape has changed since Bauer, supra, 211 Cal.App.3d 937. Bauer was decided before our Supreme Court's decision in Olguin, supra, 45 Cal.4th 375, which held that a "condition of probation that enables a probation officer to supervise his or her charges effectively is . . . 'reasonably related to future criminality.' " (Id. at pp. 380-381.) In Olguin, the defendant challenged a condition of probation requiring him to notify his probation officer of the presence of any pets at his residence. In part, the defendant challenged the condition on reasonableness grounds. The Supreme Court rejected the defendant's arguments, noting that "[t]he condition requiring notification of the presence of pets is reasonably related to future criminality because it serves to inform and protect a probation officer charged with supervising a probationer's compliance with specific conditions of probation." (Id. at p. 381.)
The Supreme Court in Olguin, supra, 45 Cal.4th 375 also stated that "[a] probation condition should be given 'the meaning that would appear to a reasonable, objective reader.' [Citation.]" (Id. at p. 382.) We view the residence approval condition here in light of Olguin and presume a probation officer will not withhold approval for irrational or capricious reasons. (Id. at p. 383.) A probation officer cannot issue directives that are not reasonable in light of the authority granted to the officer by the court. Thus, a probation officer cannot use the residence condition to arbitrarily disapprove a defendant's place of residence. The condition does not grant a probation officer the power to issue arbitrary or capricious directives that the court itself could not order. (See, e.g., Kwizera, supra, 78 Cal.App.4th at p. 1240-1241 [a case concerning a condition requiring a probationer to obey directions from his probation officer].)
Moreover, as previously observed, "probation is a privilege and not a right, and that adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights—as, for example, when they agree to warrantless search conditions. [Citations.]" (Olguin, supra, 45 Cal.4th at p. 384.) "If a defendant believes the conditions of probation are more onerous than the potential sentence, he or she may refuse probation and choose to serve the sentence. [Citation.]" (Id. at p. 379.)
In sum, although the residency conditions may restrict his movements and his choice of places to live, requirements that defendant obtain his probation officer's approval of his residence or plans to change it or to move out of state, are neither unreasonable nor unconstitutionally vague nor overbroad. In view of defendant's peripatetic pattern of criminal behavior, restriction on his rights to travel and to live any place he might choose is critical to the goals of protecting the public and rehabilitating defendant. The conditions will enable his probation officer to effectively supervise him and will make it much more difficult for him to live near unsuspecting victims.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.