Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CR912249.
Sepulveda, J.
Defendant was convicted by jury trial of one count of spousal battery (Pen. Code, § 243, subd. (e)(1)), and was placed on probation. On appeal, he challenges a condition of probation which ordered that he have no physical contact with two individuals. We agree that the challenged probation condition was improper and order it stricken; in all other respects the judgment is affirmed.
He was acquitted of an additional count charging that he made a terrorist threat (Pen. Code, § 422).
I.
BACKGROUND
The charges in this case arose from an incident occurring on March 16, 2007. Defendant and his wife, Eileen Shea, were renting a room from Cynthia and Don Stephens. On the date in question, Ms. Shea went out with Ms. Stephens, which apparently angered defendant. Defendant and Ms. Stephens were already having a dispute about his tenancy. When she got home, Ms. Shea took several sleeping pills and went to sleep; defendant later assaulted her in an attempt to awaken her (he poured water on her, put shaving cream on her, and pushed his fingers into her ears). Several times in the hours following, Ms. Stephens called the police, who ultimately arrested defendant. Defendant returned to the house after being released from custody, and according to Ms. Stephens he threatened to kill her.
The jury convicted defendant of spousal battery, but acquitted him of making a terrorist threat against Ms. Stephens. The court placed defendant on probation, with one condition being that he have no physical contact with Cynthia or Don Stephens. The legality of this probation condition is the only issue on appeal.
II.
DISCUSSION
Defendant contends that the probation condition prohibiting him from having any physical contact with the Stephenses was impermissible because it was not reasonably related to the crime of which he was convicted or future criminality and was overbroad, and contends it infringes on his right of free association. We agree that the condition is not reasonably related to the crime of which he was convicted or future criminality and that it is overbroad, and therefore order it stricken.
A. Defendant Adequately Objected to Issue Below.
Respondent first contends that defendant failed to object to this probation condition below and that the issue was therefore not preserved for appeal. While failure to object to a probation condition in the trial court generally waives the issue for appeal (People v. Welch (1993) 5 Cal.4th 228, 237), we find no such waiver here. The trial court and counsel engaged in a rather lengthy dialogue regarding the prosecution’s request for the stay-away order, during which the trial court expressed concern regarding its ability to impose such an order, and therefore repeatedly attempted to elicit an agreement to the order from defendant and his counsel. Both sides have quoted from this exchange extensively in their briefing. Suffice it to say that while at times defendant seemed to acquiesce to the court’s request (“[W]hatever you want to do, Your Honor. I—I’m agreeable. . . . The Court—whatever you and [defense counsel] want to do.” “If it makes everyone happy, sure”), he also expressed concern about the propriety of the order and the limitations it might place upon him (“I’m planning on filing a lawsuit against these folks, so yeah [he would have an objection]. That would be contact.” “I’ve been completely acquitted. I don’t see how it’s relevant.” “But I just figure it’s going to be an excuse for them—she made false allegations against me. . . . I’ve been acquitted of this. . . .”) Defendant and his attorney questioned whether the order would apply if he needed to personally serve papers on the Stephenses, or if he ran into them in the courthouse, or if he ran into them at the local Safeway. The court ultimately gave up trying to get defendant to agree to the order and merely imposed it.
Under these circumstances, we do not find that defendant failed to object to the order below.
B. The Probation Condition Was Not Reasonably Related to the Crime of which Defendant Was Convicted or to Future Criminality.
A probation condition must be reasonably related to the crime of which the defendant was convicted or to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486.) The trial court repeatedly asked the prosecutor to provide legal authority supporting his request for such an order in the present case. Defendant was acquitted of the charge which alleged that he threatened Ms. Stephens. There was never any allegation that he committed a crime involving Ms. Stephens’s husband, Don Stephens. While the crime of which defendant was convicted, spousal battery, did arise out of factual circumstances which also led to the terrorist threat allegation, that fact alone does not support imposition of an order for defendant to have no physical contact with Cynthia and Don Stephens. As defendant argued below, such an order would potentially restrict his ability to serve the parties in the lawsuit he planned on filing, from being in the courthouse with them during the pendency of that litigation, and from even shopping in the same stores in the Lakeport community. In light of his acquittal of the charge relating to Ms. Stephens, such a broad order was not reasonably related either to the crime of which he was convicted, or to preventing future criminality. The court made no attempt to draft a reasonably limited restraining order, even though it was suggested by the prosecution. The court did not limit its “no contact order” in any manner.
The minute order reflecting this probation condition indicates that defendant was ordered to have no physical contact with either Cynthia or Don Stephens, and also indicated that a Penal Code section 136.2 protective order (for witnesses and victims in criminal cases) was “to remain in effect throughout the term of probation.” As far as we can ascertain from the record, there was no prior section 136.2 order relating to the Stephenses. Another potential order indicated on the minute order, that defendant not annoy, harass, or threaten the individuals, was not checked as being issued. Defendant himself admitted disturbing property belonging to the Stephenses and admitted threatening to damage their property. The additional order issued by the trial court, for defendant to not enter the Stephenses residence (which is not challenged on appeal), was thus arguably reasonably related to preventing future criminality.
III.
DISPOSITION
The condition of probation ordering that defendant have no contact with Cynthia and Don Stephens is therefore ordered stricken. In all other respects, the judgment is affirmed.
We concur: Ruvolo, P. J., Rivera, J.