Opinion
E068713
01-22-2020
THE PEOPLE, Plaintiff and Respondent, v. DENNIS ALLAN SVET, Defendant and Appellant.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI17001275) OPINION APPEAL from the Superior Court of San Bernardino County. Lisa M. Rogan and Charles J. Umeda, Judges. Affirmed with directions. Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
This case is before us for the second time after the California Supreme Court granted review, deferred briefing, and transferred the matter back to this court with directions to vacate our prior decision filed July 30, 2018, and reconsider the cause in light of In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). In our earlier opinion, we rejected defendant and appellant Dennis Allan Svet's arguments relating to the trial court's jurisdiction to modify his probation conditions and the conditions requiring him to obtain the probation officer's written permission before leaving the state (travel approval condition) and to submit to search and seizure of any electronic device (electronics search condition), and affirmed the judgment. We hereby vacate our previous decision and, having reconsidered the matter in light of Ricardo P., strike the electronics search condition but reject defendant's remaining contentions.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the Orange County probation officer's report, the San Bernardino County probation officer's report, and the Department of Motor Vehicles (DMV) Report of Investigation.
In April 2014, a La Palma police officer issued defendant a citation for having an expired vehicle registration and for having a registration sticker affixed to his license plate that belonged to a different vehicle registered to American Honda Motor Company, Inc. Defendant had apparently obtained the vehicle registration sticker from an American Honda Motor Company employee with whom he had a personal relationship. During the stop, defendant gave the officer an old business card that identified him as a Senior Special Investigator for the DMV, even though he had been terminated from that position approximately 14 years earlier.
In August 2014, a DMV investigator checked defendant's vehicle registration and discovered that it was still expired. However, court records showed defendant's citation for having an expired registration had been dismissed based on proof of correction. Further investigation revealed that defendant had forged a Los Angeles County Sheriff's signature in order to falsely represent his registration was up to date.
In September 2014, a Fullerton Police Department officer located defendant parked on a public street with an expired vehicle registration and contacted the DMV. Defendant was also found in possession of a forged "'One Day Trip Permit' from AAA and a box containing over 100 business cards identifying the [defendant] as a Senior Special Investigator with the DMV." The DMV investigator responded to the location to interview defendant regarding the false registration tag and seized the box of business cards.
On November 18, 2014, the Orange County District Attorney's office filed a complaint charging defendant with offering forged or altered documents as genuine (Pen. Code, § 132; count 1); falsifying documents (§ 134; count 2); and receiving stolen property (§ 496, subd. (a); count 3).
On June 3, 2016, the complaint was amended by interlineation to add forgery (Pen. Code, § 470, subd. (a)) as count 4. On that same day, pursuant to a plea agreement, defendant pleaded guilty to counts 1, 3, and 4. In return, the Orange County Superior Court dismissed count 2 and granted defendant formal probation for a period of five years on various terms and conditions of probation.
On February 16, 2017, the Orange County Probation Department filed a notice and motion to transfer defendant's case to San Bernardino County. Defendant waived his right to a hearing on the motion and agreed to the transfer of probation to San Bernardino County.
On April 24, 2017, the Orange County Superior Court granted the motion to transfer defendant's case to San Bernardino County pursuant to Penal Code section 1203.9.
On May 12, 2017, after the San Bernardino County Probation Department verified that defendant had permanently relocated to San Bernardino County, the San Bernardino County Superior Court accepted jurisdiction over defendant's case.
On May 30, 2017, the San Bernardino County Probation Department filed a report requesting additional terms and conditions in San Bernardino County to ensure officer safety and offender compliance. The additional terms included:
"043A Carry at all times a valid California Department of Motor Vehicles driver's license or identification card containing your true name, age, and current address; display such identification upon request by any peace officer and not use any other name for any purpose without first notifying the probation officer.
"008A Keep Probation Officer informed of place of residence and cohabitants: give written notice to the Probation Officer twenty-four (24) hours prior to any changes. Prior to any move provide written authorization to the Post Office to forward mail to the new address.
"009 Neither possess nor have under your control any dangerous or deadly weapons or explosive devices or materials to make explosive devices.
"007 Not leave the State of California without first obtaining written permission of the Probation Officer.
"008F Permit visits and searches of places of residence by agents of the Probation Department and/or law enforcement for the purpose of ensuring compliance with the terms and conditions of probation; not do anything to interfere with this requirement, or deter officers from fulfilling this requirement, such as erecting any locked fences/gates that would deny access to Probation Officers, or have any animals on the premises that would reasonably deter, threaten the safety of, or interfere with officers enforcing this term.
"004A Report to the Probation Officer in person immediately or upon release and thereafter as directed. If you are removed from the United States, you are to report to the Probation Officer by phone or mail within fourteen (14) days of your release from immigration custody and inform Probation of your address and phone number.
"010B . . . [¶] Submit to search and seizure by a government entity of any electronic device that you are an authorized possessor of pursuant to P[enal] C[ode section] 1546.1 [subdivision] (c)(10)."
On June 15, 2017, the San Bernardino County Superior Court held a probation modification hearing. At that time, defendant's counsel objected to the imposition of the additional terms and conditions requested by the San Bernardino County Probation Department, arguing the court lacked jurisdiction to impose the additional terms. Defendant's counsel also objected to the electronics search condition as unconstitutionally overbroad and not relevant to the underlying offense. The prosecutor replied that the electronics search condition is related to defendant's rehabilitation and compliance with probation and that the inclusion of the condition is within the court's jurisdiction. The court found that in looking at Penal Code section 1546.1, subdivision (c)(10), and reviewing defendant's charges, the electronics search condition is reasonable. The court noted defense counsel's objection to the additional terms and imposed all of the terms and conditions recommended by the San Bernardino County Probation Department. Thereafter, the court continued the hearing to allow the San Bernardino Probation Department time to check with the Orange County Probation Department to determine what payments defendant had made toward the fines and fees ordered at the time defendant was placed on probation.
On June 20, 2017, the San Bernardino Probation Department verified that defendant had paid all fines and fees previously ordered by the Orange County Superior Court.
The continued modification of probation hearing was held on July 6, 2017. At that time, defendant's counsel renewed his objection as to the imposition of the additional terms and conditions recommended by the San Bernardino Probation Department, noting the electronics search condition had no nexus to defendant's offense. Defendant's counsel also objected to the term prohibiting defendant from leaving the State of California without the probation officer's approval. The court found that defendant had paid all the fines and fees previously imposed and noted defense counsel's objections to the imposition of the additional terms.
On July 10, 2017, defendant filed a timely notice of appeal.
In a nonpublished opinion filed July 30, 2018, this court rejected defendant's contention that the San Bernardino County Superior Court had no jurisdiction to add terms not previously imposed in Orange County because no change in circumstances existed to justify the additional terms. We also rejected defendant's arguments that the travel approval and the electronics search conditions that were imposed as terms of his probation were unreasonable and unconstitutionally overbroad and affirmed the judgment. Defendant subsequently filed a petition for review with the California Supreme Court.
On November 14, 2018, the California Supreme Court granted review and deferred briefing pending consideration and disposition of related issues in Ricardo P., supra, 7 Cal.5th 1113.
On October 23, 2019, the Supreme Court transferred the matter back to this court with directions to vacate our prior decision, and reconsider the cause in light of Ricardo P. After we vacated our prior opinion, we requested supplemental briefing from the parties.
On October 31, 2019, defendant filed a supplemental brief, contending under People v. Lent (1975) 15 Cal.3d 481 (Lent), and in light of Ricardo P., supra, 7 Cal.5th 1113, the travel approval and the electronics search conditions must be stricken because each imposes a disproportionate burden on his constitutional rights with minimal justification.
On November 8, 2019, the People filed a supplemental brief, conceding that the proportionality inquiry relied upon by the majority in Ricardo P. invalidates the electronics search condition in this case. However, the People disagree that the Ricardo P. proportionality inquiry invalidates the travel approval condition.
The parties did not provide supplemental briefing concerning defendant's argument relating to whether the trial court acted in excess of its jurisdiction by imposing additional terms and conditions recommended by the San Bernardino County Probation Department. Because that issue was raised in defendant's opening brief following his appeal, we will address it in this opinion.
III
DISCUSSION
A. Change in Circumstances
Defendant argues the trial court acted in excess of its jurisdiction by imposing the additional terms and conditions recommended by the San Bernardino County Probation Department because the court's modification was not based on a change in defendant's circumstances. Specifically, defendant asserts that the transfer of supervision to San Bernardino County did not constitute a change in circumstances, and absent a change in circumstances, his probation conditions could not be modified. Defendant believes that the additional electronics search condition not previously imposed by the Riverside County Superior Court must be stricken. The People respond the court had jurisdiction to modify defendant's probation conditions because a change in circumstances, namely defendant's move from Orange County to San Bernardino County, justified the modification.
A trial court generally has discretion in setting the appropriate terms and conditions of probation, parole, or supervised release: "In general, the courts are given broad discretion in fashioning terms of supervised release, in order to foster the reformation and rehabilitation of the offender, while protecting public safety. [Citations.] Thus, the imposition of a particular condition of probation is subject to review for abuse of that discretion. 'As with any exercise of discretion, the court violates this standard when it imposes a condition of probation that is arbitrary, capricious or exceeds the bounds of reason under the circumstances. [Citation.]' [Citation.]" (People v. Martinez (2014) 226 Cal.App.4th 759, 764.)
Penal Code section 1203.9, subdivision (a)(1), governs the transfer of probation cases from one county to another and provides in pertinent part: "[W]henever a person is released on probation or mandatory supervision, the court, upon noticed motion, shall transfer the case to the superior court in any other county in which the person resides permanently, meaning with the stated intention to remain for the duration of probation or mandatory supervision, unless the transferring court determines that the transfer would be inappropriate and states its reasons on the record." Pursuant to subdivision (b) of Penal Code section 1203.9, "The court of the receiving county shall accept the entire jurisdiction over the case effective the date that the transferring court orders the transfer."
The procedure for transferring a case to another county is outlined in California Rules of Court, rule 4.530. (See Pen. Code, § 1203.9, subd. (f) [judicial council shall promulgate rules of court procedures for the transfer of probation cases].) Subdivision (h)(1)(B) of rule 4.530 provides: "The receiving court and receiving county probation department may impose additional local fees and costs as authorized." Further, subdivision (g) of rule 4.530 entitled "Transfer" provides in subsection (6), "Upon transfer the probation officer of the transferring county must transmit, at a minimum, any court orders, probation or mandatory supervision reports, and case plans to the probation officer of the receiving county."
Neither Penal Code section 1203.9 nor the California Rules of Court, rule 4.530 specifically address whether probation conditions can be modified upon transfer to another county. Penal Code section 1203.3, subdivision (a), states "The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence." This section "broadly states the court's power to modify." (People v. Cookson (1991) 54 Cal.3d 1091, 1100 (Cookson).) A defendant is subject to notice, a hearing, and reasons for the modification to be placed on the record before the modification. (Pen. Code, § 1203.3, subd. (b).)
Any clarification as to whether a transfer to another county qualifies in itself as a change in circumstances that authorizes a change in probation conditions, like the ability of the receiving county to change the fees and costs, will have to come from the Legislature.
A court can modify a term of probation at any time before the expiration of that term and need not wait until a probation violation occurs. (Cookson, supra, 54 Cal.3d at p. 1098; see People v. Leiva (2013) 56 Cal.4th 498, 505 (Leiva).) In Cookson, the defendant was ordered to pay restitution for diverting construction funds at the time that his probation was granted, but the probation department set up an incorrect payment schedule resulting in insufficient funds being paid by defendant on the restitution when his probation term was set to expire. (Cookson, at p. 1094.) The superior court extended the time for probation in order for the defendant to be supervised while completing the payments on restitution. (Id. at pp. 1094-1095.)
The California Supreme Court noted that "'An order modifying the terms of probation based upon the same facts as the original order granting probation is in excess of the jurisdiction of the court, for the reason that there is no factual basis to support it.'" (Cookson, supra, 54 Cal.3d at p. 1095.) Although the defendant had complied with all of the probation conditions, and the miscalculation of the monthly payments was solely the fault of the probation officer, our Supreme Court determined "the Court of Appeal correctly determined that a change in circumstance could be found in a fact 'not available at the time of the original order,' namely, 'that setting the pay schedule consistent with [the] defendant's ability to pay had resulted in defendant's inability to pay full restitution as contemplated within the original period of probation.'" (Ibid.)
Here, the People assert the change in circumstances was that defendant moved his permanent place of residence from Orange County to San Bernardino County. The San Bernardino County Probation Department recommended additional terms and conditions commonly used in San Bernardino County, presumably to ensure officer safety and offender compliance. The transfer of the instant case from Orange County to San Bernardino County constituted a fact not available at the time of the original order. Upon transfer, defendant's probation was overseen by a new probation officer and court, with different standards of practice regarding probationers. The San Bernardino County Probation Department's suggested changes to the conditions were reasonably related to ensure officer safety and defendant's compliance and rehabilitation. The additional terms and conditions were aimed at ensuring defendant's rehabilitation. Defendant voluntarily moved to San Bernardino County and San Bernardino County is a large, geographical county, the largest county in the continental United States. The San Bernardino County Superior Court was entitled to consider defendant's new circumstances when the case was transferred to San Bernardino County, and to apply new conditions appropriate in supervising San Bernardino County probationers.
Furthermore, the additional terms and conditions are reasonably related to preventing future criminality and necessary in aiding defendant's rehabilitation. (See People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin) [test for valid probation conditions].) Term Nos. 043A (carry a valid California driver's license or identification), 008A (keep probation officer informed of place of residence), 009 (not use or possess controlled substances), 007 (not leave state without written permission of probation officer), and 08F (permit probation to visit and search residence) promoted the San Bernardino County Probation Department's ability to identify, supervise, and rehabilitate defendant. In fact, conditions 008A, 007, 08F, and 010B were no different than the conditions imposed in Orange County requiring defendant to violate no law; cooperate and follow all reasonable directives of the probation officer; and submit to immediate search of person, home, and property by a law enforcement officer.
Based on the foregoing, we conclude the San Bernardino County Superior Court had jurisdiction to modify the conditions of defendant's probation. The new additional conditions were reasonably related to the goal of maintaining supervision and safety of the officers, as well as, defendant's offenses and rehabilitation.
B. Electronics Search and Travel Approval Conditions
Defendant contends under Lent, supra, 15 Cal.3d 481 and Ricardo P., supra, 7 Cal.5th 1113, the travel approval and the electronics search conditions must be stricken because each imposes a disproportionate burden on his constitutional rights with "very little justification." For the reasons explained below, we agree with defendant's claim relating to the electronics search condition but disagree with his contention concerning the travel approval condition.
1. Applicable Principles Generally
A grant of probation is an act of clemency in lieu of punishment. (People v. Moran (2016) 1 Cal.5th 398, 402 (Moran).) Probation is a privilege, and not a right. A court has broad discretion to impose "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, . . . and generally and specifically for the reformation and rehabilitation of the probationer . . . ." (Pen. Code, § 1203.1, subd. (j); People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) "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."'" (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1355 (O'Neil).)
A condition of probation will not be upheld, however, if it (1) has no relationship to the crime of which the defendant was convicted, (2) relates to conduct that is not criminal, and (3) requires or forbids conduct that is not reasonably related to future criminality. (Olguin, supra, 45 Cal.4th at pp. 379-380; see Lent, supra, 15 Cal.3d at p. 486.) Our high court has clarified that this "test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (Olguin, at p. 379.)
However, "[j]udicial discretion to set conditions of probation is further circumscribed by constitutional considerations." (O'Neil, supra, 165 Cal.App.4th at p. 1356.) "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. (2007) 40 Cal.4th 875, 890.) "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." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153; accord, People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.)
We generally review the imposition of probation conditions for an abuse of discretion, and we independently review constitutional challenges to probation conditions de novo. (People v. Appleton (2016) 245 Cal.App.4th 717, 723 (Appleton).)
2. Ricardo P.
In Ricardo P., a juvenile who admitted to committing two burglaries was placed on probation subject to an electronics search condition. (Ricardo P., supra, 7 Cal.5th at pp. 1116-1117.) Although the juvenile had not used an electronic device in the charged offenses, the juvenile court justified the condition by (1) construing the juvenile's statements to his probation officer as admitting he had used marijuana in connection with the offenses, and (2) "'find[ing] that minors typically will brag about their marijuana usage . . . by posting on the Internet, showing pictures of themselves with paraphernalia, or smoking marijuana.'" (Id. at p. 1117.) Thus, the juvenile court reasoned the ability to search the juvenile's electronic devices was "'a very important part of being able to monitor [his] drug usage.'" (Ibid.)
The Court of Appeal concluded the electronics search condition was valid under Lent's third prong, but the Supreme Court disagreed. (Ricardo P., supra, 7 Cal.5th at p. 1119.) The high court explained that "Lent's requirement that a probation condition must be '"reasonably related to future criminality"' contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Id. at p. 1122.) The court found "[s]uch proportionality . . . lacking" because "nothing in the record suggests that [this juvenile] has ever used an electronic device or social media in connection with criminal conduct." (Ibid., italics added; see ibid. ["courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense"].) Therefore, the juvenile court's generalized finding that juveniles use electronic devices to brag about marijuana use was insufficient to justify the condition because "Lent's third prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality." (Id. at p. 1121.)
The Ricardo P. court was skeptical of the connection between the electronics search condition and the juvenile's future criminality, but even if it accepted the connection articulated by the juvenile court, it found the necessary proportionality lacking. (Ricardo P., supra, 7 Cal.5th at pp. 1120, 1122.) There was no evidence the juvenile had ever used an electronic device in connection with criminal activity and the search condition imposed a significant burden on privacy interests due to scope and magnitude of information that could be revealed. (Id. at pp. 1123-1124.) In invalidating the electronics search condition, our high court concluded it "imposes a very heavy burden on privacy with a very limited justification." (Id. at p. 1124.)
The Ricardo P. court was careful to note that its "holding does not categorically invalidate electronics search conditions. In certain cases, the probationer's offense or personal history may provide the juvenile court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality." (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129, citing Appleton, supra, 245 Cal.App.4th at p. 724 [finding electronics search condition reasonable because the defendant lured victim using "'either social media or some kind of computer software'"]; In re Malik J. (2015) 240 Cal.App.4th 896, 902 [condition allowing officers "to search a cell phone to determine whether [the defendant] is the owner" was reasonable in light of the defendant's "history of robbing people of their cell phones"]; People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1173, 1176-1177 [finding electronics search condition related to the defendant's future criminality where the defendant was convicted of making gang-related criminal threats and had previously used social media sites to promote his gang].) But, on the record before it, the Ricardo P. court found "the electronics search condition imposes a burden that is substantially disproportionate to the legitimate interests in promoting rehabilitation and public safety." (Ricardo P., at p. 1129.)
"From Ricardo P.[, supra, 7 Cal.5th 1113] we glean the following guidelines for determining when an electronic[s] search condition survives the third prong of Lent . . . . First, there must be information in the record establishing a connection between the search condition and the probationer's criminal conduct or personal history—an actual connection apparent in the evidence, not one that is just abstract or hypothetical. [Citation.] But no nexus between the search condition and the [probationer]'s underlying offense is required. . . . Finally, 'the burden imposed by [the] probation condition' must be proportionate to 'the legitimate interests served by the condition.' [Citation.] Thus, '"[a] condition of probation that enables a probation officer to supervise his or her charges effectively is . . . 'reasonably related to future criminality,'"' only if its infringement on the probationer's liberty is not 'substantially disproportionate to the ends of reformation and rehabilitation.'" (In re Alonzo M. (2019) 40 Cal.App.5th 156, 166, italics omitted.)
3. Ricardo P. and its Application to the Electronics Search Condition
Although Ricardo P. involved a juvenile, it is applicable here because "the Lent test governs in juvenile and adult probation cases alike." (Ricardo P., supra, 7 Cal.5th at p. 1119.)
Here, as in Ricardo P., the issue is the third prong of the Lent test, whether the electronics search condition is reasonably related to future criminality. The burden imposed by the condition is the same substantial burden as in Ricardo P. As in Ricardo P., the electronics search condition fails Lent's third prong. The factual background indicates that defendant was given a citation for driving with an expired registration and having a registration sticker on his vehicle that belonged to another vehicle. To have the citation dismissed, defendant forged the signature of a Los Angeles County Sheriff and presented the forged document to the Orange County Superior Court as proof of correction. Defendant pleaded guilty to offering false evidence (Pen. Code, § 132), forgery with intent to defraud (Pen. Code, § 470, subd. (a)) and receiving stolen property (Pen. Code, § 496, subd. (a)). As the People acknowledge, there is no evidence defendant used a computer, cell phone, or similar electronic devices in any way related to his offenses. There is also no indication in the record of any such use of electronic devices in prior criminal acts or anything in defendant's personal history to justify the electronics search condition. Further, the trial court offered no justification for the condition specifically related to defendant's conduct. Given the heavy burden an electronics search condition imposes on the probationer's privacy interests, the evidence supporting a finding under Lent's third prong must relate directly to the defendant or his crime rather than generic evidence. As our Supreme Court noted, "[i]n virtually every case, one could hypothesize that monitoring a probationer's electronic devices and social media might deter or prevent future criminal conduct." (Ricardo P., supra, 7 Cal.5th at p. 1123.) If such generalizations were sufficient to justify the substantial burdens of the electronics device search condition, "it is hard to see what would be left of Lent's third prong." (Ricardo P., at p. 1124.)
Because there is no evidence supporting a finding that the electronics search condition is reasonably related to defendant's future criminality, it is invalid under Lent and Ricardo P. and must be stricken.
The People assert that "this court should not simply strike the condition," but rather "remand the matter to the superior court to afford it an opportunity to more narrowly tailor the condition." Under the circumstances of this case, we decline the People's request to remand the matter. Nonetheless, our modification does not prevent the trial court from exercising its discretion following a noticed hearing to modify the probation terms if presented with additional facts that would tie an electronics search condition to defendant's future criminality as set forth in Ricardo P. (See Pen. Code, § 1203.3, subds. (a), (b); Leiva, supra, 56 Cal.4th at p. 505 [order modifying probation based on the same facts exceeds the court's jurisdiction].) --------
4. The Travel Approval Condition
In his supplemental brief, defendant argues the probation condition requiring him to not leave the State of California without first obtaining written permission of the probation officer is invalid under Lent because it imposes "a substantial and disproportionate burden on [his] right to travel with very little justification." In his opening brief, defendant also asserts that the travel approval condition is unconstitutionally overbroad and restricts his right to travel. We reject these contentions.
The environment in which a probationer serves probation is an important factor as to whether the probation will be successfully completed, and thus, directly impacts the likelihood of effective rehabilitation. (People v. Robinson (1988) 199 Cal.App.3d 816, 818.) Although conditions requiring prior approval of a probationer's residence may affect the constitutional rights to travel and freedom of association (People v. Bauer (1989) 211 Cal.App.3d 937, 944), courts have the authority to do so if there is an indication the probationer's living situation contributed to the crime or would contribute to future criminality. (People v. Soto (2016) 245 Cal.App.4th 1219, 1228.)
Here, the travel approval condition is reasonable under the circumstances of this case, and the burden imposed by the condition is proportionate to the legitimate interests served by the condition. The record in this case shows defendant is a person who needs a considerable amount of supervision to ensure he is complying with the terms of his probation. The probation report indicates that defendant did not have a stable living situation. He was sleeping on the couch of the friend who supplied him with the false registration sticker. The record also indicates he may have been living in his car at some point before moving to San Bernardino County.
Moreover, defendant continued to falsely identify himself as a DMV Senior Special Investigator to law enforcement officials while on probation. During his first probation appointment in June 2016, defendant immediately handed the probation officer a DMV business card with the State seal identifying himself as a DMV Senior Special Investigator. The card was seized along with additional business cards found in defendant's wallet during a subsequent search. Defendant denied having any more business cards. However, additional business cards were found in defendant's vehicle in October 2016. The probation officer reported, "it is believed [defendant] has continued to use the business cards to manipulate, intimidate or curry favor from others by representing himself as a law enforcement official." The probation report also notes that defendant minimized the current offense for which he was placed on probation. Defendant also informed his probation officer that he should have falsified the smog certificate rather than the vehicle registration, suggesting a lack of remorse. Without the limitations placed by the condition, defendant could, for example, opt to leave the state for extended periods of time, thereby depriving himself of the stability and supervision he needs to succeed on probation.
Leaving the state, especially for a long period of time, would interfere with the probation officer's ability to effectively supervise defendant. It could also hinder defendant's rehabilitation and successful compliance with other probationary conditions. Although traveling outside of California is not itself criminal and the condition is not related to the offenses defendant committed, the travel approval condition enables the effective supervision of defendant and is reasonably related to future criminality.
Moreover, the burden the travel approval condition imposes on defendant is minimal. The condition does not forbid defendant from traveling. It only requires that he request permission to do so. In addition, there is nothing in the record to suggest that defendant's reasonable requests to travel out of state to visit relatives or friends would be disapproved. Our Supreme Court in Olguin, supra, 45 Cal.4th at page 382, stated that a probation condition "should be given 'the meaning that would appear to a reasonable, objective reader.'" We view the travel approval condition here in light of Olguin, as well as Ricardo P., and presume a probation officer will not withhold approval for irrational or capricious reasons. (Olguin, at p. 383; see People v. Stapleton (2017) 9 Cal.App.5th 989, 996-997 ["A probation officer cannot issue directives that are not reasonable in light of the authority granted to the officer by the court."]; People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240 [probation conditions are limited by reasonableness "[s]ince the court does not have the power to impose unreasonable probation conditions, [and therefore] could not give that authority to the probation officer"].)
Because there is evidence supporting a finding that the travel approval condition is reasonably related to defendant's future criminality and supervision, it is valid under Lent and Ricardo P.
In his opening brief, defendant asserts that the travel approval condition is unconstitutionally overbroad and impermissibly infringes on his right to interstate travel. Defendant does not fully elucidate his argument with respect to how this particular probation condition is facially overbroad. Instead he simply asserts that it infringes on his right to travel. We disagree with the suggestion that a probation condition requiring a probationer to seek and obtain approval from his or her probation officer before leaving the state is not sufficiently tailored and reasonably related to the compelling state interest of facilitating supervision and rehabilitation of the probationer. Indeed, "[i]mposing 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." (Moran, supra, 1 Cal.5th at p. 406.)
In fact, as defendant acknowledges, despite being frequently subjected to as-applied challenges regarding the proper scope, the imposition of travel restrictions subject to permission being granted by probation is regularly upheld. (See People v. Relkin (2016) 6 Cal.App.5th 1188, 1195-1196 [upholding against constitutional overbreadth challenge a probation condition similarly requiring defendant to obtain written permission from probation officer prior to leaving state]; In re Antonio R. (2000) 78 Cal.App.4th 937, 942 [same].) "Although criminal offenders placed on probation retain their constitutional right to travel, reasonable and incidental restrictions on their movement are permissible." (Moran, supra, 1 Cal.5th at pp. 406-407.) Such a condition is in the public interest, as it assists the probation department in determining "defendant meets the standards of the Uniform Act for Out-of-State Probationer and Parolee Supervisions before he is allowed to go to another state (Pen. Code, § 1203.) Also it minimizes extradition problems." (People v. Thrash (1978) 80 Cal.App.3d 898, 902.) "[T]he condition's limitation on interstate travel is closely tailored to the purpose of monitoring defendant's travel to and from California not by barring his ability to travel altogether but by requiring that he first obtain written permission before doing so." (Relkin, at p. 1195.) Thus, the imposition of a travel restriction is not a facial violation of a probationers' right to travel. (Moran, at p. 406 ["Although criminal offenders placed on probation retain their constitutional right to travel, reasonable and incidental restrictions on their movement are permissible"].) We therefore conclude that there is nothing facially inappropriate about the contested travel approval condition.
Based on the foregoing, we find the travel approval condition is not unconstitutionally overbroad and it does not unreasonably restrict defendant's right to interstate travel.
IV
DISPOSITION
The probation condition requiring defendant to submit to search and seizure of any electronic devices is stricken. The trial court is ordered to enter an order striking this term and forward a copy of the order to the San Bernardino County Probation Department. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.