Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF059233. David B. Downing, Judge.
Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant Robert Rodriguez Nunez was convicted of forgery for possessing or attempting to pass an altered check (Pen. Code, § 476) and receiving stolen property (Pen. Code, § 496, subd. (a)). Defendant was placed on probation. He challenges one of the imposed conditions. We affirm with directions to strike or revise the challenged condition.
I. BACKGROUND
On July 20, 2007, defendant went to the Palm Springs branch of victim’s bank and attempted to cash a check drawn from victim’s account. Defendant attempted to cash the check at the behest of his former roommate, a woman half his age. He had previously cashed checks for her “because she didn’t have I.D.” Defendant’s former roommate had mentioned needing money to pay her rent. Defendant’s former roommate was dating the victim’s roommate and, according to the victim, had a warrant outstanding for her arrest.
In announcing its verdict, the trial court rejected the defendant’s proffered narrative that the former roommate had preyed upon him. Instead, the trial court stated that “[t]he problem for [defendant] is that he told different stories to the police officer, several different. I do not believe he has a comprehension problem at all. He comprehends fully what happened.”
While attempting to prepare the probation report, the probation officer was unable to contact defendant by mail, telephone, or at defendant’s last known address. An occupant at defendant’s last known address reported that “defendant no longer lived there and it was believed he had moved to New Mexico.” Defendant appeared for the sentencing hearing, which was then continued, and was ordered to report to the probation office.
Other than reducing the jail time from 365 days to 45 days, the trial court imposed all of the conditions recommended by the probation officer without modification. This included a condition requiring the written permission from the probation officer to leave the state, as well as the challenged condition, which states: “(7) Reside at a residence approved by the Probation Officer and not move without prior consent of the Probation Officer.” Defendant does not challenge any other conditions.
The minute order states the condition differently: “Reside at a residence approved by the Probation Officer and not move without his/her prior approval.”
II. DISCUSSION
Defendant contends the challenged condition should be stricken because it is not reasonably related to his crime or future criminality, and it is an overbroad unconstitutional impingement on his rights to travel and freely associate. The People contend the condition is not constitutionally overbroad and that defendant has forfeited any challenge not based on constitutional grounds. Defendant responds that any forfeiture was the result of ineffective assistance of counsel. Because we conclude that the condition is constitutionally overbroad, we do not address the issue of forfeiture or ineffective assistance of counsel.
A probation condition that grants a probation officer discretion over a defendant’s residence “impinges on constitutional entitlements-the right to travel and freedom of association.” (People v. Bauer (1989) 211 Cal.App.3d 937, 944.) Such a “condition gives the probation officer the discretionary power, for example, to forbid [a defendant] 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.]” (Id. at pp. 944-945.) “[C]onditions of probation that impinge on constitutional rights must be tailored carefully and ‘reasonably related to the compelling state interest in reformation and rehabilitation....’ [Citation.]” (People v. Delvalle (1994) 26 Cal.App.4th 869, 879.) In People v. O'Neil (2008) 165 Cal.App.4th 1351 (O'Neil), a probation condition prohibiting association “ ‘with any person, as designated by [the] probation officer’ ” was ordered revised or stricken because “[i]t is for the court to determine the nature of the prohibition placed on a defendant as a condition of probation, and the class of people with whom the defendant is directed to have no association.” (Id. at pp. 1354 & 1359.)
Two factors underlie the challenged condition: defendant’s inaccessibility to the probation officer while the probation report was being prepared and the involvement of defendant’s former roommate in defendant’s criminal activity. Unlike Bauer, in which there was no basis for any restriction on the defendant’s residence, these factors may provide an appropriate basis for imposing some restrictions. However, as imposed “there are no limits on those persons whom the probation officer may prohibit defendant from associating with” as co-residents (O'Neil, supra, 165 Cal.App.4th at p. 1357) and no limits on the location or kinds of housing where the probation officer may prohibit defendant from residing. Thus, the condition is overbroad, and, if the two factors are to be addressed in defendant’s probation conditions, it is up to the trial court “to determine the nature of the prohibition,” any “class of people with whom the defendant is directed to have no association,” or any locations or residences where defendant is directed not to reside. (Id. at p. 1359.)
The People cite People v. Olguin (2008) 45 Cal.4th 375, 382, for the proposition that it would be a “simple task,” imposing no undue hardship, for defendant to obtain approval of his residence. However, the condition in Olguin required mere notification of the presence of pets and did not require permission to obtain or keep a pet. (Id. at p. 383.)
The People also contend that an enumerated list of residency restrictions would be unduly burdensome, insufficient to achieve the government’s interest, and unnecessarily limit the probation officer’s ability to “adapt the list to circumstances as they present themselves during rehabilitation.” However, as stated in O’Neil, it is up to the trial court to establish the list of restrictions. A petition may always be filed by the probation officer if the restrictions in the condition need to be changed. (People v. Olguin, supra, 45 Cal.4th at p. 383.) Furthermore, defendant’s underlying issues can be addressed through other conditions more narrowly tailored to defendant’s circumstances. For instance, mere notice of defendant’s address, roommates, or of moving or changing residences or roommates could be required (see id. at p. 385, fn. 4), and contact with known felons, the former roommate, or other persons who may provide a “temptation to continue to pursue a criminal lifestyle” could be prohibited (see People v. Lopez (1998) 66 Cal.App.4th 615, 626). Such notice could justify a parole officer’s visit to determine whether a new residence or roommates are inconsistent with rehabilitation.
Accordingly, defendant’s probation conditions must be revised so that they are narrowly tailored to the facts and circumstances underlying defendant’s case and the rehabilitative goals of probation.
III. DISPOSITION
The superior court is directed to either strike condition No. 7 from the conditions of defendant’s probation, or revise condition No. 7 (and impose or modify other conditions, if necessary) so that the conditions are narrowly tailored to the facts and circumstances underlying defendant’s case and the rehabilitative goals of probation.
In all other respects, the judgment is affirmed.
We concur: RICHLI J.KING J.