Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. John I. Kelly, Judge. (Retired judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified. Super.Ct.No. INF058379
Thomas K. Macomber, 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, and Jeffrey J. Koch and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI Acting P.J.
Defendant Patrick Jeremiah Sheridan was found guilty of second degree commercial burglary (Pen. Code, § 459) and grand theft (§ 487, subd. (a)). The trial court suspended imposition of sentence for three years and placed defendant on probation on various terms and conditions, including that he serve 90 days in a weekend custody program.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant makes one claim on appeal: The probation condition that he “[r]eside at a residence approved by the Probation Officer and not move without his/her prior consent” should be stricken because it is not reasonably related to his crime or future criminality and is an overbroad, unconstitutional infringement of his rights to travel and freedom of association.
We agree with defendant that the condition was unreasonable but modify rather than strike it. In addition, although not raised by defendant, we modify another probation condition restricting him from associating with those on probation and parole, which as written is unconstitutionally vague. We otherwise affirm the judgment.
I
FACTUAL BACKGROUND
Defendant entered a Home Depot store in La Quinta on February 24, 2007, and put a large paint sprayer that was in a box on a cart. He opened up the box, put several items that he had taken from the store shelves into it, and taped it up. He then left the store, being able to exit without paying by showing a store employee who was standing at the exit door a receipt from another Home Depot, which was in fact a receipt for a refund of a paint sprayer dated February 14, 2007. A store security officer had observed his actions unbeknownst to him and apprehended him in the parking lot. The total value of the items taken was $906.91. Defendant was arrested and convicted of second degree commercial burglary and grand theft.
At sentencing, the trial court advised defendant that he was to be sentenced to three years’ probation with custodial time of 90 days and that it was going to impose the probation conditions in the probation report. Defendant objected to the restriction on residency, which read “[r]eside at a residence approved by the Probation Officer and not move without prior consent of the Probation Officer[.]” Defendant contended it was an invalid probation term.
The trial court stated, “The Court is going to deny that request.... [A]ll of these various recommended conditions of probation will become part of the Court’s order. I understand that the process in this County is to have these matters reviewed with defense counsel and defendants, and they are requested to sign a document that’s presented by the Probation Department attached to... their recommendation and their report in which it’s noted that the defendant, by signing that statement, would indicate that he has received the within terms and conditions of probation and discussed them with his attorney and that he feels he fully understands that there [are] these conditions of probation and waives any reading of them to him by virtue of the fact that he has gone over them with his attorney and fully understands them and accepts and promises to comply with the terms and conditions as stated.”
Defense counsel reviewed all the terms in the probation report with defendant. Defense counsel then objected to the search condition. The trial court again indicated that it intended to impose all of the conditions; it offered to set the matter over for another sentencing hearing but warned that such hearing could result in defendant receiving a prison sentence. It inquired of defendant whether he understood the probation terms and conditions and was willing to accept them. Defendant raised his own concern regarding one of the conditions. The trial court responded, “Either they are acceptable and you sign these and understand them and accept them or we’ll set aside the probation disposition and give further consideration to sending you to prison.”
Defendant again expressed concern about the conditions being fair. The trial court responded that it was not fair that defendant had committed the crimes and that it was the trial court’s responsibility to appropriately impose a sentence. Defendant then agreed to the terms of probation.
II
INVALID PROBATION CONDITION
A. Residence Approval Condition
Defendant contends the probation condition requiring him to seek permission to change his residence (1) has no rational connection to his crime or future criminality and (2) is facially overbroad in that it restricts his federal and state constitutional rights to travel and association.
Although defendant addressed waiver in his opening brief, the People do not contend that he has waived the issue. The record supports that defendant objected to the residence approval condition and, although he did not state the same grounds as raised on appeal, the trial court essentially foreclosed any argument on the matter.
Courts have broad discretion to impose conditions of probation that foster rehabilitation or protect public safety. (§ 1203.1; People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Recently the California Supreme Court clarified the review of probation conditions on appeal. It held, “We review conditions of probation for abuse of discretion. [Citations.] Generally ‘[a] condition of probation will not be held invalid unless it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality....” [Citation.]’ [Citation.] This test is conjunctive – all three prongs must be satisfied before a reviewing court will invalidate a probation term.” (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).) In other words, “even 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.]” (Id. at p. 380.)
In People v. Bauer (1989) 211 Cal.App.3d 937 (Bauer) the defendant was found guilty of false imprisonment and assault. He was placed on probation with a condition that he “obtain his probation officer’s approval of his residence....” (Id. at p. 940.) Bauer held this condition failed the requirements for probation conditions, as it was not related to the defendant’s crime and was not related to future criminality. (Id. at p. 944.) The Bauer court went on to hold that the probation condition was “all the more disturbing” because it impermissibly impinged on the defendant’s constitutional rights to travel and of freedom of association. (Ibid.) The condition was not narrowly tailored to interfere as little as possible with these important rights, but rather gave the probation officer broad power over the defendant’s living situation. (Id. at pp. 944-945.)
Here, defendant’s probation report makes no reference to his living situation, only that he has been married for 17 years and has no children. The only reference to his living condition during trial was that he owned his home and was married. Defendant was convicted of stealing items from the La Quinta Home Depot store. There is no indication that his home life contributed to the offense. In fact, the People do not claim that defendant’s residence was related to his crime, nor would the record support such a contention. We can see a situation where the probation condition might be necessary because the defendant’s residence was somehow involved in the crime or due to the nature of the crime, e.g. a sex offender who is mandated to live in certain areas, but in this case, the condition was not in any way related to defendant’s offense. 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 approval was not related to defendant’s crime and living condition in this case.
The second prong – that the condition involves conduct not itself criminal – is clearly met. (Olguin, supra, 45 Cal.4th at p. 379.)
Further, the condition is not reasonably related to defendant’s future criminality. In this case, there is no indication that he was living or planned to live with those who might impede his rehabilitation. The only evidence was that he had a stable living environment with his wife of 17 years. It is mere speculation to believe he might move to an undesirable location or live with others who might influence his criminal behavior. Imposing the residence approval condition was unreasonable here.
The People rely on Olguin to claim that this court should find that Bauer was wrongly decided and that the residence approval condition is related to future criminality. They claim Olguin expanded future criminality to include the ability of the probation officer to supervise the probationer in order to facilitate rehabilitation.
In Olguin, the Supreme Court reviewed a condition of probation that required the probationer to inform the probation officer of any pets owned by the probationer and to inform the probation officer within 24 hours of any changes. (Olguin, supra, 45 Cal.4th at p. 380.} The Supreme Court found that although the condition was not related to the crime the defendant committed, it was reasonably related to the supervision of defendant and, therefore, to his rehabilitation and future criminality. The court held, “[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.... [T]o ensure that a probationer complies with the terms of his or her probation and does not reoffend, a probation officer must be able to properly supervise that probationer. Proper supervision includes the ability to make unscheduled visits and to conduct unannounced searches of the probationer’s residence.... Therefore, the protection of the probation officer while performing supervisory duties is reasonably related to the rehabilitation of a probationer for the purpose of deterring future criminality.” (Id. at p. 381.)
The People now equate the notification by a probationer to his probation officer when he brings a pet into his home to the approval of defendant’s residence by the probation officer. They insist that such approval of the residence, like a pet condition, assists in the supervision of the probationer and reasonably relates to future criminality.
This condition is unlike that in Olguin, where the probationer only needed to notify the probation officer of a pet in the home and did not need approval to have a pet in his home. Several times the Olguin court distinguished the condition from one that would require approval of a pet by the probation officer. (See Olguin, supra, 45 Cal.4th at pp. 383, 385.) On these grounds alone, we find Olguin inapplicable, as it did not even consider a situation where the probation officer must approve a pet, much less a residence.
Further, the People claim the condition assists in a probation officer’s supervision of a probationer. They claim it would “substantially impede” a probation officer’s ability to supervise defendant it he moved to a “remote or hard to reach location....” This is pure speculation. Nothing suggested that defendant had any intention of moving, much less to a hard-to-reach location.
The People attempt to extend the finding in Olguin by arguing that who a defendant lives with could impact the safety of the probation officers and impede rehabilitation. As examples, they refer to a drug offender who moves in with drug users or gang members who live with other gang members. We agree with the People that in some situations, in order to adequately supervise a defendant, the probation officer may need to approve his or her residence. However, in this case, there was no indication defendant had a history of moving or living with people who promoted thefts and no indication that he planned to move. The instant probation condition was not reasonably related to defendant’s future criminality.
Because defendant’s living situation has not been shown to be reasonably related to future criminality and because there is no nexus between these circumstances and the instant offense, the court abused its discretion in imposing this condition.
However, we do see the benefit of the probation officer being informed if defendant’s residence has changed. We have the power to modify a probation condition on appeal. (See In re Sheena K (2007) 40 Cal.4th 875, 892; In re Justin S. (2001) 93 Cal.App.4th 811, 816.) We believe that the condition should be modified to read as follows: “Defendant shall keep the probation officer informed of his place of residence and give written notice to the probation officer twenty-four (24) hours prior to a change in residence.” We assume that defendant would have no objection to such condition, as he states in his reply brief, “Pursuant to Olguin, a narrowly drawn condition of probation concerning [defendant’s] residence would be for the court to order that he keep the probation officer informed of his place of residence, and to notify probation of pending move.”
Defendant additionally argues that the residence approval condition, as imposed by the trial court, is overbroad and unconstitutional, because it impinges on his right to travel and association.
“A probation condition is constitutionally overbroad when it substantially limits a person’s rights and those limitations are not closely tailored to the purpose of the condition. [Citation.]” (People v. Harrisson (2005) 134 Cal.App.4th 637, 641.) “[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; see also People v. Smith (2007) 152 Cal.App.4th 1245, 1250.) Similarly, “[a] probation condition ‘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,’ if it is to withstand a challenge on the ground of vagueness. [Citation.]” (In re Sheena K., supra, 40 Cal.4th at p. 890.)
We have already concluded that the condition was unreasonable in this case, as it had no relation to defendant’s crime or his future criminality. We will modify the condition to require defendant to notify the probation officer if he changes his residence. Such condition as modified is narrowly tailored to meet the goal of the probation officer being able to adequately supervise defendant and clearly details what is required of defendant to comply.
B. Stay-Away Condition
Although not raised by defendant, we note that probation condition No. 9, which provides that defendant“[n]ot associate with any unrelated person on probation or parole,” is unconstitutionally overbroad. “Prohibiting association with” unrelated persons on probation or parole “without restricting the prohibition to known” parolees and probationers “is ‘“a classic case of vagueness.”’ [Citation.]” (In re Justin S., supra, 93 Cal.App.4th at p. 816.)
The obvious jurisprudential trend is toward requiring that a term or condition of probation explicitly require knowledge on the part of the probationer that he is in violation of the term in order for it to withstand a challenge for constitutional vagueness. The appropriate remedy here is to modify the condition to read that defendant, “[n]ot associate with any unrelated person known to be or reasonably should be known to be on probation or parole.” We shall so order.
IV
DISPOSITION
We modify probation condition No. 6 to read as follows: “Defendant shall keep the probation officer informed of his place of residence and give written notice to the probation officer twenty-four (24) hours prior to a change of residence.” We modify probation condition No. 9 to read as follows: “Not associate with any unrelated person known to be or reasonably should be known to be on probation or parole.”
The judgment is affirmed as modified.
We concur: GAUT J.KING J.