Filed 2/22/18 P. v. Gideon CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL MORRIS GIDEON,

Defendant and Appellant.


E067492

(Super.Ct.No. RIF1605177)

OPINION


APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Affirmed as modified.
Allison L. Ehlert, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Seth M. Friedman and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Daniel Morris Gideon pled guilty to resisting an officer. (Pen. Code, § 69.) Pursuant to the plea agreement, a trial court placed him on probation for a period of three years, under specified conditions. On appeal, defendant contends that the probation condition requiring that he reside at a residence approved by his probation officer infringes on his constitutional rights to travel and freedom of association. We agree and modify this condition. In all other respects, we affirm the judgment.
PROCEDURAL HISTORY
On October 25, 2016, the People charged defendant by felony complaint with resisting an officer. (§ 69.) On November 28, 2016, defendant pled guilty. He waived preparation of a probation officer’s report and requested immediate sentencing. Defendant accepted the various terms and conditions of his probation by signing a sentencing memorandum enumerating those terms. Among the conditions of probation, the court included the following requirements: “Inform the probation officer of your place of residence and reside at a residence approved by the probation officer. Give written notice to the probation officer 24 hours before changing your residence and do not move without the approval of the probation officer.” Defendant did not object to this probation condition.
ANALYSIS
The Challenged Probation Condition is Overbroad
Defendant contends the probation condition listed above (hereinafter, the residence approval condition) is overbroad, in that it violates his constitutional rights to travel and freely associate, and it gives the probation officer unfettered discretion to grant or deny his choice of where to live. He believes the condition must be stricken. The People respond that defendant forfeited this issue on appeal by failing to object below; and, in the alternative, argue that his contentions lack merit.
In general, trial courts are given broad discretion in fashioning terms of probation or supervised release in order to foster the rehabilitation of the offender while protecting public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) 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.]” (People v. Jungers (2005) 127 Cal.App.4th 698, 702.) However, constitutional challenges are reviewed under a different standard. Whether a term of probation is unconstitutionally vague or overbroad presents a question of law, which we review de novo. (In re J.H. (2007) 158 Cal.App.4th 174, 183.) The failure to object below that a condition of probation is unconstitutionally overbroad does not forfeit review of the issue on appeal, as it is a pure issue of law. (See In re Sheena K. (2007) 40 Cal.4th 875, 888-889 (Sheena K.); People v. Stapleton (2017) 9 Cal.App.5th 989, 994 (Stapleton) [“[W]here a claim that a probation condition is facially overbroad and violates fundamental constitutional rights is based on undisputed facts, it may be treated as a pure question of law, which is not forfeited by failure to raise it in the trial court.”].)
To be valid, a probation condition “must (1) . . . relate[] to the crime of which the defendant was convicted, or (2) relate to conduct that is criminal, or (3) require or forbid conduct that is reasonably related to future criminality.” (People v. Bauer (1989) 211 Cal.App.3d 937, 942 (Bauer), italics in original.) “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.) However, a probation condition cannot be overbroad or vague. (Sheena K., supra, 40 Cal.4th at p. 890.) “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.” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
In Bauer, supra, 211 Cal.App.3d 937, cited by both the People and defendant, the reviewing court struck a nearly identical residence approval probation condition, stating: “The condition is all the more disturbing because it impinges on constitutional entitlements—the right to travel and freedom of association. Rather than being narrowly tailored to interfere as little as possible with these important rights, the restriction is extremely broad. The condition gives the probation officer the discretionary power, for example, to forbid appellant from living with or near his parents—that is, the power to banish him. It has frequently been held that a sentencing court does not have this power. [Citations.]” (Id. at pp. 944-945.)
The probation condition here suffers from the same infirmity as the one in Bauer. It puts no limits on the probation officer’s discretion. A probationer’s residence could be disapproved for any reason, including inconvenience. Defendant’s conviction was for resisting an officer. Nothing about the nature of the conviction suggests a need for such unfettered oversight. We also note that there is nothing in the record referring to defendant’s living situation, and there is no indication that his home life contributed to his offense. Thus, the condition was not in any way related to defendant’s offense.
The People assert that defendant was on probation for drug possession at the time he committed the instant offense and that he was living with a caregiver. The People then claim that “awareness of his residence is relevant” to the purpose of “deter[ring] future criminality via supervision.” The People suggest that the probation condition “could be pertinent to [defendant’s] supervision if he sought to live near the officer with whom he fought.” They also claim that “[h]is drug use warrants similar oversight, as drugs may be associated with particular areas.” There is no indication defendant planned to live with individuals that might impede his rehabilitation. Furthermore, it is mere speculation to believe he might move near the officer with whom he fought, or that he had a drug use problem, since there was no evidence he used drugs. The People add that “[t]he caregiver also might be providing [him] with stability.” However, they fail to explain how this supposed factor has any bearing on the issue at hand.
The People also rely on People v. Olguin (2008) 45 Cal.4th 375 (Olguin) to claim that a probation condition which enables a probation officer to supervise his charges effectively is reasonably related to future criminality. However, 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. (Id. at p. 380.) The condition at issue here is unlike that in Olguin, where the probationer only needed to notify the probation officer of the presence of a pet in the home. Several times, the Olguin court distinguished the condition from one that would require approval of a pet by the probation officer. (See Id. at pp. 383, 385.) On this ground 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.
In view of the foregoing, we conclude that the challenged condition need not be stricken, but should be modified. We do see the benefit of the probation officer being informed if defendant’s residence has changed, and we have the power to modify a probation condition on appeal. (See Sheena K., supra, 40 Cal.4th at p. 892; In re Justin S. (2001) 93 Cal.App.4th 811, 816.) Thus, we modify the condition 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.
DISPOSITION
The residence approval condition is modified to read: 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.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.


We concur:


MILLER
J.


SLOUGH
J.