Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1072152.
ELIA, J.
In this appeal, appellant Mark Stockdale challenges as overbroad a condition of probation that requires him to " 'remain 200 yards from all Safeway stores.' " For reasons that follow we agree with appellant that the condition is overbroad.
There was no preliminary hearing in this case and appellant waived referral to the probation department. Accordingly, we summarize the facts from the police and private security officers' reports that were the stated factual basis for appellant's plea in this case. We granted appellant's request that we take judicial notice of these reports on October 20, 2010.
On March 16, 2010, Alexander Martine, a U.S. Security private security officer working at a Safeway store at 179 Branham Lane in San Jose saw appellant select a number of packages of batteries and razor blades and then conceal them in his pants. Appellant walked past open cash registers and headed towards the exit door. Appellant made no effort to pay for the merchandise. Martine and his partners confronted appellant outside the store and spoke to him about the merchandise he took. Appellant was cooperative; when asked why he took the items, he told the security officers he planned to sell them for money. While appellant was detained, another security officer saw appellant take a glass pipe out of his pocket and attempt to throw it away.
After the police arrived, San Jose Police Officer D. McMullen retrieved the glass pipe from a trash can. Based on his training and experience, he recognized the pipe to be drug paraphernalia. Officer McMullen received an itemized receipt that indicated that the value of the items taken by appellant was $208.29. A records check by the police disclosed that appellant had a prior conviction for petty theft with a prior.
The Santa Clara County District Attorney charged appellant with one count of petty theft with a prior conviction (Pen. Code, § 666) based on the theft from the Safeway store; and with one misdemeanor count of possession of an opium pipe. (Health & Saf. Code, § 11364.)
On April 6, 2010, appellant entered a guilty plea to both counts in exchange for a promised disposition of probation with a 120 day county jail sentence. On May 4, 2010, the court suspended imposition of sentence and admitted appellant to probation on various terms and conditions including that appellant "remain 200 yards from all Safeway stores."
On May 18, 2010, defense counsel sought a modification of the aforementioned probation condition. Counsel requested that the court narrow the ban. The court noted counsel's objection to the condition for the record, but declined to modify the condition.
Appellant filed a timely notice of appeal based on the sentence or other matters occurring after the plea.
On appeal appellant contends that the probation condition requiring him to remain 200 yards from all Safeway stores is overbroad and improper and therefore must be modified.
Discussion
Appellant argues that the condition here is "clearly overbroad" because there are at least 14 Safeway stores in San Jose and restricting him from being within 200 yards of each of these stores would not only prohibit him from shopping at such stores, but would also keep him away from dozens of stores, malls and other businesses situated within two football fields of Safeway stores, in violation of his fundamental right to travel.
The right to travel "is simply elementary in a free society. Freedom of movement is basic in our scheme of values [citation]." (In re White (1979) 97 Cal.App.3d 141, 149.) "The right of intrastate travel has been recognized as a basic human right" of constitutional dimension. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1100.) Furthermore, "other fundamental rights such as free speech, free assembly, and free association are often tied in with the right to travel." (In re White, supra, 97 Cal.App.3d at p. 149.) A plurality of the United States Supreme Court has recognized that "the freedom to loiter for innocent purposes is part of the 'liberty' protected by the Due Process Clause of the Fourteenth Amendment." (City of Chicago v. Morales (1999) 527 U.S. 41, 53, fn. omitted (plur. opn. of Stevens, J.).)
A claim that a probation condition is unconstitutionally overbroad may be reviewed on appeal without an objection in the trial court if it is capable of correction without reference to the particular sentencing record in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 878-879, 888-889 (Sheena K.).)
"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." (Sheena K., supra, 40 Cal.4th at p. 890 .) "Where an otherwise valid condition of probation impinges on constitutional rights; such conditions must be carefully tailored, ' "reasonably related to the compelling state interest in reformation and rehabilitation...." ' [Citations.]" (People v. Bauer (1989) 211 Cal.App.3d 937, 942.)
"Under the overbreadth doctrine, ' "a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." ' [Citations.] 'A law's overbreadth represents the failure of draftsmen to focus narrowly on tangible harms sought to be avoided, with the result that in some applications the law burdens activity which does not raise a sufficiently high probability of harm to governmental interests to justify the interference.' [Citation.]" (In re Englebrecht (1998) 67 Cal.App.4th 486, 497 [discussing challenges to a preliminary injunction].)
It is quite apparent that the purpose of the probation condition at issue here is to prevent appellant from entering Safeway stores and taking merchandise without paying for it. "The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction [preventing appellant from entering Safeway stores to take merchandise] 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." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
Keeping appellant out of all Safeway stores will have minimal effect on appellant's rehabilitation as he could simply decide to take merchandise from an endless list of other stores. Thus, although it might relate to avoiding recurrences of appellant's criminal conduct in Safeway stores, it does not prevent him from engaging in his criminal conduct elsewhere. Thus, it is not closely tailored to appellant's rehabilitation. As appellant points out, the probation condition here is akin to an order directing a defendant to stay away from all persons with blonde hair because he assaulted a man with blonde hair. As such it casts too wide a net, and thus fails the requirement that it be narrowly tailored to the state interest in reformation and rehabilitation.
Generally, probation conditions requiring a probationer to "stay away" from certain people or places are commonly used in drug cases, gang cases, and certain other types of cases such as domestic violence cases or criminal threats cases. As such, these conditions relate to the nature or cause of the probationer's crime such as gang activity or drug possession, to the class of persons who would be a source of temptation to the probationer such as gang members and drug users or they are imposed to protect the actual victims of the probationer's crime.
Penal Code section 136.2 authorizes a trial court, exercising jurisdiction over a criminal matter, to issue stay away orders to protect victims of violent crime from all communication or contact by the defendant. (Pen. Code, § 136.2, subds. (a)(4), (7)(A); see People v. Selga (2008) 162 Cal.App.4th 113, 118 [authority does not extend to keep a defendant away from persons who are not victims or witnesses].)
Here, however, the condition requires appellant to remain 200 yards away from all Safeway stores -- stores that belong to a business corporation, not a person or class of persons related to the probationer's crime. We question how it would be possible for appellant to travel in and around San Jose without coming within 200 yards of a Safeway store. Potentially, appellant could violate the condition if a bus in which he was a passenger stopped at a bus stop by any such store or even passed by a store because appellant would not then be remaining 200 yards away from the store.
In addition, conceivably, appellant could violate the condition unknowingly. For instance, by walking on a street a block or two blocks away from a Safeway store that he could not see.
In People v. Perez (2009) 176 Cal.App.4th 380 (Perez), the Second District Court of Appeal struck down a probation condition that provided: " 'The defendant shall not attend any Court hearing or be within 500 feet of any Court in which the defendant is neither a defendant nor under subpoena. The defendant shall inform the probation officer prior to any Court appearance.' " (Id. at pp. 383, 386.) The court observed that the condition was neither "limited to protecting specific witnesses or parties" nor "confined to trials involving gang members" and, as written, it was "so broad" that it prevented activities unrelated to future criminality. (Id. at p. 384.) The same is true of the condition at issue here.
Although Perez concerned the constitutional right to access the courts (Perez, supra, 176 Cal.App.4th at p. 385), the constitutional right to travel is no less important. In fact, the "right is so important that it is 'assertable against private interference as well as governmental action... a virtually unconditional personal right, guaranteed by the Constitution to us all.' [Citation.]" (Saenz v. Roe (1999) 526 U.S. 489, 498.)
Although we find that there is an obvious nexus between appellant's crime and the probation condition as it relates to the specific Safeway store from which he took the merchandise, we believe that the condition should contain an exception that would allow appellant to be within 200 yards of Safeway property on legitimate business for the condition to pass constitutional muster. "[E]ven where probation access restrictions are appropriate, 'provision should be made to allow for lawful travel through the area of restriction and for access to the area for legitimate purposes....' (Oyoghok v. Municipality of Anchorage (1982) 641 P.2d 1267, 1270, fn. 4, italics added; In re White, supra, 97 Cal.App.3d at p. 150...; In re J.W. (2003) 204 Ill.2d 50, 272 Ill.Dec. 561, 787 N.E.2d 747, 765; see also State v. Churchill ( N.C.App. 1983) 62 N.C.App. 81, 302 S.E.2d 290, 293 [probation provision restricting defendant's access to a transportation facility was valid because '[t]he court allowed defendant access to the terminal premises for the legitimate business purpose of traveling by bus'].)" (Perez, supra, 176 Cal.App.4th at p. 386.)
Frankly, we believe a much better way to achieve what seems to be the purpose of the probation condition at issue here is a condition of probation that is implicit in every order granting probation (People v. Campos (1988) 198 Cal.App.3d 917, 921; People v. Cortez (1962) 199 Cal.App.2d 839, 844) that appellant refrain from engaging in criminal practices, i.e. obey all laws.
We strike the probation condition requiring appellant to remain 200 yards from all Safeway stores and remand the matter to the trial court. The court may impose a narrower condition if it deems such a condition to be necessary. In all other respects, we affirm the judgment.
Disposition
The case is remanded to the lower court for further proceedings.
WE CONCUR: PREMO, Acting P.J., GROVER, J.
Judge of the Superior Court of Monterey County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.