Opinion
G046019
01-16-2013
THE PEOPLE, Plaintiff and Respondent, v. ANGEL PERDOMO and JOSE DOMINGUES, Defendants and Appellants.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant Perdomo. Julie Sullwold, under appointment by the Court of Appeal, for Defendant and Appellant Domingues. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lilia Garcia and Barry Carlton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 09NF3522)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Frank F. Fasel, Judge. Affirmed as modified.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant Perdomo.
Julie Sullwold, under appointment by the Court of Appeal, for Defendant and Appellant Domingues.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lilia Garcia and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Angel Perdomo and Jose Domingues of three counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); all statutory citations are to the Penal Code unless otherwise noted). Defendants contend the trial court erred in imposing the following term and condition of probation: "Maintain a residence subject to the approval of the probation officer." For the reasons expressed below, we modify the probation order to delete the condition.
I
FACTUAL AND PROCEDURAL HISTORY
On the evening of October 31, 2009, Perdomo and his cousin Domingues started a fight at an Anaheim residence after refusing to pay a cover charge to enter a Halloween party. Domingues swung an aluminum baseball bat at Jose Garcia, and Perdomo threw a brick, hitting Garcia in the chest. Perdomo then hit Garcia in the face with a bottle. Garcia required surgery and 100 stitches to close the wound he suffered in the assault.
In August 2011, a jury convicted Perdomo and Domingues of three counts of assault with a deadly weapon against Garcia. In October 2011, the trial court suspended imposition of sentence and placed Perdomo and Domingues on probation for three years on various terms and conditions, including jail terms.
II
DISCUSSION
The Court Erred by Requiring Probation Officer Approval of Defendant's Residences as a Condition of Probation
Perdomo and Domingues contend the trial court erred by imposing the following term and condition of probation: "[Defendants] to maintain a suitable residence . . . as approved by the probation officer." We agree.
Section 1203.1, subdivision (a), authorizes the court to place a defendant on probation "upon those terms and conditions as it shall determine." The discretion to determine proper terms and conditions has limits. (People v. Garcia (1993) 19 Cal.App.4th 97, 101.) "[A] condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (People v. Lent (1975) 15 Cal.3d 481, 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. [Citation.]" (People v. Olguin (2008) 45 Cal.4th 375, 380.)
Defendants did not object to the probation condition at the sentencing hearing. The forfeiture rule bars a claim a probation condition is unreasonable when the defendant fails to object on that ground in the trial court. (People v. Welch (1993) 5 Cal.4th 228, 234-238; see also In re Sheena K. (2007) 40 Cal.4th 875, 882 ["an adult probationer who elects to receive probation in lieu of incarceration fairly may be charged with the need to timely challenge any conditions imposed and that application of the forfeiture doctrine would deter the promulgation of invalid conditions in the trial court and decrease the number of appeals contesting such conditions"].) But a defendant may raise on appeal, without having objected in the trial court, an appellate claim amounting to a "facial challenge" based on a constitutional defect that does not require scrutiny of individual facts and circumstances.
Perdomo and Domingues contend the probation condition to obtain the probation officer's approval of their residence is constitutionally infirm because the language is overbroad. A probation condition that imposes limitations "on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (In re Sheena K., supra, 40 Cal.4th at p. 890.) A "court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court's order cannot be entirely open-ended." (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1358-1359 [probation condition forbidding defendant from associating with all persons designated by his probation officer was "overbroad and permit[ted] an unconstitutional infringement on defendant's right of association"].)
In People v. Bauer (1989) 211 Cal.App.3d 937, the defendant was convicted of false imprisonment and assault. As a probation condition, the trial court required the defendant to "obtain his probation officer's approval of his residence . . . ." (Ibid.)The court in Bauer concluded the condition was unconstitutionally overbroad because it unnecessarily limited the defendant's associational rights. (Ibid.; see also People v. Burden (1988) 205 Cal.App.3d 1277, 1280 [restriction on the defendant's constitutional right to employment was overbroad].)
The requirement that Perdomo and Domingues obtain probation officer approval of their residences is overbroad. There is nothing in the record to show the nature of the defendants' residences contributed to their crimes or related to future criminality. It impedes defendants' rights to travel and freely associate, and gives too much discretionary control to the probation officer, failing to provide a standard to which the probation officer must adhere. Under the imposed probation condition, the probation officer has the discretion to prohibit a defendant from living with any person, including an elderly parent or future spouse who has no association with the offense committed and no criminal record. The condition is not narrowly tailored to the government's interests of rehabilitation and protection of the public.
Finally, we note the unchallenged conditions of the probation order require defendants to notify the probation officer within 48 hours of any change of address. They also must submit themselves, their residences, and their property to search and seizure at any time without warrant or reasonable cause. The order also bars them from contact with the victim, and prevents them from associating with persons they know are parolees, convicted felons, users or sellers of illegal drugs, or "otherwise disapproved of by probation." These conditions adequately address the state's interest in rehabilitation and protection of the public without unduly burdening defendants' constitutional right to freedom of association. For these reasons, we will modify the probation order to delete the conditions requiring Perdomo and Domingues to obtain approval of their residences from their probation officer.
III
DISPOSITION
The probation order is modified (§ 1260) to delete the condition that Perdomo and Domingues "Maintain a residence subject to the approval of the probation officer." In all other respects, the judgment is affirmed.
ARONSON, J. WE CONCUR: MOORE, ACTING P. J. IKOLA, J.