Opinion
F086216
08-12-2024
THE PEOPLE, Plaintiff and Respondent, v. JESSE REYNOLDS, Defendant and Appellant.
Heather Monasky, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. PCF392379A Melinda Myrle Reed, Judge.
Heather Monasky, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
Jesse Reynolds, appellant, was convicted of two felony counts of receiving stolen property exceeding $950 in value. Appellant claims two conditions of his probation, an electronic search provision and a travel restriction, are unconstitutionally restrictive. An order from the trial court entered subsequent to the filing of this appeal indicated the electronic search provision was imposed in error, and the provision was stricken rendering the issue of its constitutionality moot. We find the travel restriction probation condition is not overbroad and affirm the judgment.
PROCEDURAL HISTORY
On February 14, 2023, the Tulare County District Attorney filed a first amended information charging appellant with two felony counts of receiving stolen property exceeding $950 in value (Pen. Code, § 496, subd. (a)). This information consolidated two prior filed cases, one filed on November 30, 2020, charging appellant with one felony count of receiving stolen property, committed on January 31, 2020 (count 4), and one filed on September 20, 2022, charging appellant with one felony count of receiving stolen property, committed on April 26, 2019 (count 6). (§ 496, subd. (a).) The information additionally alleged other counts pertaining to appellant's codefendant.
Undesignated statutory references are to the Penal Code.
Appellant was charged with Jesus Federico Vargas, his codefendant, whose appeal is presently pending before this court in case No. F086270.
On February 16, 2023, a jury found appellant guilty of both counts. On March 15, 2023, the trial court sentenced appellant to two years' probation, and ordered appellant serve 180 days in jail on count 4 and 185 days in jail on count 6. Appellant was awarded 13 days' time credit and was subject to a number of probation conditions.
STATEMENT OF FACTS
On April 26, 2019, Eduardo Zendejas was working as a loss prevention officer at a retail store in Visalia. He noticed two suspicious individuals-appellant and codefendant Vargas-pushing a shopping cart with a hamper inside. He confronted them, and they discarded the cart and exited the store. Within the hour, a fire alarm alerted Zendejas that someone had went out of the fire exit at the back of the store.
Officer Blaine Gamache had just started his shift on April 26, 2019, when he saw a Toyota without a rear license plate pull out in front of him. Gamache stopped the vehicle and identified appellant as the driver and codefendant Vargas as a passenger. Upon searching the vehicle, Gamache recovered a black clothing hamper filled with alcoholic beverages and electronic merchandise which appeared to be stolen. Zendejas subsequently confirmed the items were stolen from a retail store that day. The value of the items was $1,144.86.
Steven O'Toole was an additional passenger in the vehicle.
After being read his Miranda rights, appellant told Gamache "he was not proud of what he did, and that he should have been at home with his son. And he was just trying to make some money."
Miranda v. Arizona (1966) 384 U.S. 436.
On January 31, 2020, Courtney Carter, an assistant manager at a hardware store in Tulare, noticed codefendant Vargas and O'Toole in the store. Vargas was carrying a basket with a black and yellow tote inside, and O'Toole was empty handed. O'Toole went out through the front door, and Vargas exited through the garden center and out of the emergency exit.
Detective Carl Santos heard a call on the police radio regarding two subjects placing yellow and black boxes inside a silver Toyota Camry at a gas station, before speeding away. Santos located the vehicle and conducted a traffic stop. Appellant was the driver, and Vargas and O'Toole were passengers.
Santos observed several yellow and black colored boxes stacked in the rear of the vehicle, haphazardly covered with a piece of clothing. Carter was brought to the scene by an officer and identified a black and yellow tote and various pieces of merchandise throughout the car. Carter confirmed the merchandise was stolen. The value of the items was over $1,000.
DISCUSSION
I. The Electronic Search Probation Condition Was Stricken
On March 15, 2023, the trial court sentenced appellant and imposed a probation condition requiring appellant to "[s]ubmit to a search of your person, residence, and automobile, and any object under your control, at any time, day or night, with or without a search warrant, with or without your consent by any peace or probation officer."
In the sentencing minute order dated March 15, 2023, the probation condition was listed as "[d]efendant shall submit to a search of his/her person, automobile, residence and any object under his/her control including any electronic device at any time day or night with or without a search warrant, with or without his/her consent by any Peace and/or Probation officer."
On April 9, 2024, the trial court issued an amended minute order stating "[t]he Sentencing Minute Order dated March 15, 2023, is amended due to Clerk error leaving the search clause that included any electronic device that was not ordered by the Court and is hereby stricken."
"An' "action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events." '" (People v. Pipkin (2018) 27 Cal.App.5th 1146, 1149-1150.) Appellant concedes the electronic search probation condition issue is moot.
II. The Travel Restriction Probation Condition Is Not Unconstitutionally Restrictive
Appellant argues the travel restriction probation condition is facially overbroad, and requests this court order the trial court to modify the probation condition to require notice, but not permission, to leave the state, or to direct the trial court to provide exceptions for work or emergencies, or to eliminate the need for written approval. We find the probation condition not unconstitutionally overbroad.
A. Background
On March 15, 2023, the trial court imposed a probation condition, ruling "[a]s to [appellant], I will allow you [to reside] in the County of Kern or Tulare. And do not leave the State of California, each of you, without permission from the probation officer in writing."
In the sentencing minute order dated March 15, 2023, the probation condition states "[t]he defendant is not to leave the State of California for any reason, including vacation or other travel, unless permission is granted, in writing, by the Probation Officer. To obtain such permission, the defendant must contact the Probation Department [address], a minimum of 10 judicial days prior to such travel to seek written permission." Appellant did not object to the imposition of this probation condition.
B. Legal Standard
It is well established that "failure to timely challenge a probation condition on" 'Bushman/Lent' " grounds in the trial court waives the claim on appeal." (People v. Welch (1993) 5 Cal.4th 228, 237.) Thus, a claim that a probation condition is unreasonable cannot be brought for the first time on appeal when the defendant fails to object on that ground in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 882.) "[A]n 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." (Ibid.)
In re Bushman (1970) 1 Cal.3d 767; People v. Lent (1975) 15 Cal.3d 481.
Nonetheless, a claim that a probation condition is unconstitutionally vague or overbroad is not forfeited by failure to raise the issue in the trial court. (In re Sheena K., supra, 40 Cal.4th at p. 888.) Such a challenge presents a "a pure question of law, easily remediable on appeal by modification of the condition." (Ibid.) We review constitutional challenges to probation conditions de novo. (People v. Appleton (2016) 245 Cal.App.4th 717, 723.)
" '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.'"' [Citation.] 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 ...." '" (People v. Stapleton (2017) 9 Cal.App.5th 989, 993 (Stapleton).)
"A probation condition cannot be overbroad. [Citation.] '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.'" (Stapleton, supra, 9 Cal.App.5th at p. 993.)
"Our inquiry does not take into account the individual facts pertaining to this particular probationer-as would an 'as applied' challenge-but it must take into account the nature of the case and the goals and needs of probation in general." (Stapleton, supra, 9 Cal.App.5th at p. 993 .)
C. Analysis
Appellant argues that travel is lawful, and his probation condition requiring written permission to leave the State of California is overbroad. Appellant relies on several cases in support of this proposition.
In In re James C. (2008) 165 Cal.App.4th 1198, the probationer, a juvenile, was declared a ward of the court and upon completion of his stay at a juvenile facility, was ordered to return to his residence in Tijuana, Mexico to live with his grandparents, his legal guardians. (Id. at p. 1201.) Then, despite being a United States citizen, he was prohibited from entering the United States while on probation. (Ibid.) The appellate court found the probation condition "banishing" the probationer from the United States was unconstitutional, much like the "banishment" provisions in many prior cases. (Id. at pp. 1204-1205; see also Alhusainy v. Superior Court (2006) 143 Cal.App.4th 385 [plea bargain in which defendant agreed to leave California invalid]; In re White (1979) 97 Cal.App.3d 141 [probation condition prohibiting entering a designated area of the city unconstitutional].)
In People v. Smith (2007) 152 Cal.App.4th 1245, the defendant, a convicted sex offender, was ordered to obey all probation department regulations as a condition of his probation. The defendant learned that the probation department had a blanket regulation which prohibited any section 290 offender from leaving the county for any purpose. (Smith, at p. 1247.) The appellate court found the probation condition prohibiting out-ofcounty travel was not sufficiently tailored and ordered the trial court to fashion a less restrictive limitation based on the defendant's needs. (Id. at pp. 1252-1253.)
In People v. Soto (2016) 245 Cal.App.4th 1219 the defendant was convicted of driving under the influence and subject to a probation condition which required he obtain approval before changing his residence out of county or leaving the State of California. (Id. at pp. 1225-1226.) In an as-applied challenge, the appellate court found the travel restriction failed the Lent test and was not reasonably related to the defendant's future criminality. (Id. at pp. 1226-1227.)
This case, however, does not involve "banishment" such as in James C., nor a complete travel ban even to neighboring counties, such as in Smith. Likewise, appellant's challenge to the travel restriction probation condition is on constitutional, not as-applied grounds such as in Soto. We therefore find the cases cited distinguishable on their facts.
"Imposing a limitation on probationers' movements as a condition of probation is common, as probation officers' awareness of probationers' whereabouts facilitates supervision and rehabilitation and helps ensure probationers are complying with the terms of their conditional release." (People v. Moran (2016) 1 Cal.5th 398, 406.) "Although criminal offenders placed on probation retain their constitutional right to travel, reasonable and incidental restrictions on their movement are permissible." (Ibid.)
Requiring written permission to leave the State of California is a reasonable restriction on appellant's right to travel. Appellant is not entirely prohibited from leaving the state, and nothing in this case indicates that any reasonable request would be denied, as was the case in Smith. Appellant need not make his request in writing, only receive permission in writing, and 10 judicial days' notice equates to roughly two calendar weeks. The restriction is also only for out-of-state travel, and appellant is free to travel throughout California at his leisure. The burden that is imposed on appellant's constitutional rights is minor. In turn, the state has a compelling interest in supervising appellant to ensure he complies with the terms of his probation, and the restriction facilitates that supervision. The restriction is therefore sufficiently tailored so as to not be constitutionally overbroad.
DISPOSITION
The judgment is affirmed.
[*] Before Levy, Acting P. J., Franson, J. and DeSantos, J.