P. v. Petty

























Filed 1/28/13 P. v. Petty CA1/2













>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
TWO




>

THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS DANIEL PETTY, Defendant and Appellant.

A130605 (Marin County Super. Ct. No. SC172023A)

After
pleading guilty to felony grand theft
(Pen. Code, § 487, subd. (a)),href="#_ftn1"
name="_ftnref1" title="">[1]
Nicholas Daniel Petty challenges on appeal two of the conditions of his
probation, namely that he take antipsychotic medications at the direction of
his mental health worker and that he stay at least 50 yards from the victim’s
home. He also challenges the legality of
a stay‑away order prohibiting him from coming within 100 yards of the
victim or her daughter.

Resolution of the
first question requires us to consider the applicability of our prior decision
in In re Luis F. (2009) 177 Cal.App.4th
176 (Luis F.) to an adult
probationer. In Luis F. we upheld the juvenile court’s power to require
psychotropic medication as a condition of juvenile probation. But in the present case we conclude the
medication condition of probation must be stricken due to lack of a
medically-informed showing that the condition is reasonably related to
defendant’s crime or future criminality.
We affirm the 50-yard restriction on defendant’s approach to the
victim’s home and the stay-away order, as modified.

>FACTS

In
August 2010 the victim and her husband returned home to Novato from separate
business trips to find about ten items of jewelry worth about $9,500.00 missing
from their bedroom. While she and her
husband were away, the victim’s daughter hosted a party at the residence
without her parents’ permission. The
guests at the party included defendant, age 19, who eventually confessed to the
theft.

About
a month after the theft, defendant and his mother showed up at the victim’s
home. Defendant told the victim he had
taken the jewelry when he was drunk and could not explain why he took it. He claimed he had developed a guilty
conscience in the days following the theft and had tried to return the jewelry
by placing it in a blue envelope, along with a note of apology, and putting it
under the victim’s fence at 3:00 a.m. He
came back to check the following day and found the jewelry was gone, so he
thought the victim had found it.

In
a later phone call with the victim, defendant admitted he had taken the jewelry
to pay off a drug debt. He also admitted
to the police he was addicted to Oxycontin.
On the phone he told the victim he had placed the jewelry in a Ziploc
bag and put it under the fence.

Defendant
entered a guilty plea before the preliminary
examination. Imposition of sentence
was suspended and he was placed on probation for three years.

>DISCUSSION

The
probation report recommended, among many other conditions, that defendant stay
100 yards away from the victim’s residence
and that he “comply with all directions of his/her mental health worker,
including taking medications as directed.”
Defendant objected to those two conditions. The court modified the
stay-away condition to 50 yards from the victim’s residence and modified the
medication condition to make it “subject to court review upon the defendant’s
timely objection.” The court also issued
a protective order requiring defendant to stay at least 50 yards from the
victim’s residence and 100 yards from the victim and her daughter.

Defendant
challenges both the medication and stay-away conditions of probation and also
claims the court had no authority to issue the protective order.

Medication Condition

Defendant
has a long history of mental health issues.
By his own account, he had been on medication for href="http://www.sandiegohealthdirectory.com/">attention deficit hyperactivity
disorder since age seven and had been taking sleep aids since age 14. He began seeing a therapist and a behavioral
pediatrician at approximately age ten.
He was diagnosed with bipolar disorder and posttraumatic stress disorder
when he was 17. Defendant’s mother said
he had recently been “stabilized” with “pretty heavy-duty medications.” Defendant told the probation officer he had
been taking Seroquel and clonazepam at the time of his arrest, but his
medications were changed to thorazine and lithium when he went to jail. His stepmother thought he might be
“over-medicated” and should be taken off all medications to have his mental
status reevaluated. She also worried
about the interaction between his medications and the alcohol and illicit drugs
he consumed.

The
probation report recommended that defendant be ordered to stay on his
medications because “without appropriate treatment, his ability to comply with
probation conditions may be compromised.”
The prosecutor argued mental health medication was required for
defendant’s rehabilitation, pointing out that the defense had drawn attention
to his mental health problems in arguing for leniency during plea negotiations.


The
court concluded, “it seems to me fairly clear that a part of the defendant’s
criminality relates to his mental health.”
The court appeared to attach significance to defense counsel’s earlier
reliance on defendant’s mental health problems in plea negotiations.>

Defendant
contends the medication condition violates People
v. Lent (1975) 15 Cal.3d 481, 486, in that it was not “reasonably
related to the crime of which the defendant was convicted or to future
criminality.” He further claims that,
because it restricts his exercise of constitutional
rights, it needed to be narrowly drawn and reasonably related to the
compelling state interest in rehabilitating the defendant and protecting public
safety. (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1356.)

Defendant
relies largely on U.S. v. Williams
(9th Cir. 2004) 356 F.3d 1045, 1053‑1057, which established certain
procedural requirements before a court could impose a condition of supervised
release requiring the defendant to take antipsychotic medication.href="#_ftn2" name="_ftnref2" title="">[2] The Attorney General opposes defendant’s
position based on our prior decision in Luis
F., supra, 177 Cal.App.4th
176. Defendant has the better argument.

In
Luis F., supra, 177 Cal.App.4th 176, we held a juvenile offender could be
ordered as a condition of probation to continue to take medically-effective
psychotropic drugs which had been prescribed by his doctor and which he had
been taking voluntarily prior to being declared a ward. (Id.
at pp. 192-193.) In so holding we
reviewed a number of United States Supreme Court cases dealing with forced
administration of antipsychotic drugs in which a due process right to refuse
antipsychotic medication was recognized. (Luis
F., supra, 177 Cal.App.4th at p.
183, fn. 6, discussing Washington v.
Harper (1990) 494 U.S. 210, 221–222, 227 [forcible administration to prison
inmate]; Riggins v. Nevada (1992) 504
U.S. 127, 133–135 [forcible administration during trial]; Sell v. United States (2003) 539 U.S. 166, 179 [forcible
administration to render a defendant competent for trial]; see also, >Carter v. Superior Court (2006) 141
Cal.App.4th 992 [forcible administration to render defendant competent for
trial]; U.S. v. Ruiz-Gaxiola (9th
Cir. 2010) 623 F.3d 684, 687 [same].)


Both
this case and Luis F. are clearly
distinguishable from the forced administration cases.

In
Luis F. we also discussed at some
length and distinguished Williams, >supra, 356 F.3d 1045. Williams
involved a “college student who sent threatening e-mails to one of his
teachers. (Fn. omitted.) Initially found incompetent to stand trial,
Williams was hospitalized and involuntarily medicated with antipsychotic
drugs. Once he regained his competency
he continued taking the antipsychotic
medications on a voluntary basis, although the record shows that they
caused him to experience ‘ “lethargy, blurred vision, and dry
mouth,” ’ and they made him feel ‘lousy’ and ‘medicated.’ ([>Williams, supra,] 356 F.3d at
pp. 1049‑1050.) In light of
these side effects, Williams objected at sentencing to a continuing medication
condition, indicating that at some point in the future he probably would want
to discontinue the medication. (>Id. at pp. 1050-1051.)

“The
judge nevertheless imposed a condition of supervised release requiring Williams
to take all ‘ “psychotropic and other medications prescribed for him by
physicians treating his mental illness.” ’
(Williams, >supra, 356 F.3d at p. 1047,
fn. omitted; see id. at p. 1047,
fn. 3.) The propriety of this condition
was appealed to the Ninth Circuit.

“Under
the federal statutes, a condition of supervised release ordinarily must be
‘reasonably related’ to one or more of the statutory factors deemed to advance
the goals of supervised release. (18 U.S.C. § 3583(d)(1); see also 18 U.S.C. §
3553(a)(1), (2)(B), (2)(C) & (2)(D) [specifying factors relevant to
supervised release].) In light of the
significant liberty interest at stake in the context of coerced psychotropic
medication, however, Williams appears
to demand a stronger nexus between the need for medication and the goals of
supervised release, requiring that the medication condition be ‘necessary’ for
the achievement of those goals, not simply ‘ “reasonably related” ’
to them. (Williams, supra, 356 F.3d
at pp. 1052-1053, 1057; see also U.S. v.
Weber (9th Cir. 2006) 451 F.3d 552, 561, 568 (Weber) [a condition implicating a ‘sufficiently weighty’ liberty
interest must be ‘reasonably necessary’ to the underlying goals of supervised
release].)

“Additionally,
while acknowledging that imposition of most terms of supervised release do not
require the court to articulate reasons on the record, Williams concluded that requiring a defendant to take antipsychotic
medications as a condition of supervised release requires an express finding
that the condition ‘ “involves no greater deprivation of liberty than is
reasonably necessary for the purposes” ’ underlying the supervised release
statute. (Williams, supra, 356 F.3d
at pp. 1053, 1056, quoting 18 U.S.C. § 3583(d)(2).) A condition of supervised release must meet
that standard in all federal cases under 18 United States Code section
3583(d)(2), but the additional requirement of on‑the‑record
compliance with that statutory provision appears to stem from the court’s
belief that the Supreme Court’s forcible administration cases dictate such a
result. ([Williams, supra,] 356 F.3d
at p. 1055.)

“Finally,
Williams required the sentencing
court to develop a ‘medically-informed’ record before imposing a medication
requirement. (Williams, >supra, 356 F.3d at
pp. 1056–1057.) The court held that
‘before a mandatory medication condition can be imposed at sentencing, the
district court must make on-the-record, medically-grounded findings that
court-ordered medication is necessary to accomplish one or more of the [factors
relevant to supervised release] . . . [and] must make an explicit
finding on the record that the condition “involves no greater deprivation of
liberty than is reasonably necessary.” ’
(Id. at p. 1057, quoting 18
U.S.C. § 3583(d)(2); see also Weber, >supra, 451 F.3d at pp. 568-569
[requiring similar findings to support penile plethysmograph testing as a
condition of supervised release];href="#_ftn3"
name="_ftnref3" title="">[3]
U.S. v. Cope (9th Cir. 2008) 527 F.3d
944, 955 & fn. 5, cert. den. sub nom.
Cope v. U.S. (2008) [555 U.S. 933] (>Cope) [explaining that >Williams applies to any condition of
supervised release that ‘ “implicates a particularly significant liberty
interest of the defendant,” ’ and this would include involuntary chemical
castration, such as by use of Depo-Provera].)”
(Luis F., supra, 177 Cal.App.4th at pp. 185-186.) Although there was no issue of physically
forced medication, Williams considered
a requirement of antipsychotic medication during supervised release to be
sufficiently “coercive” to require a stronger showing than other, less invasive
conditions of supervised release. (>Williams, supra, 356 F.3d at pp. 1053, fn. 10 & 1055.)

We
did not adopt in Luis F. the same
procedural strictures outlined in Williams
for various reasons, not the least of which was that we were dealing with a
juvenile, not an adult offender. We
relied upon the particularly broad discretion of a juvenile court in devising
appropriate conditions of probation for a minor, including that Welfare and
Institutions Code section 727, subdivision (a), specifically authorizes a
juvenile court to make orders for “medical treatment” of wards. (Luis
F., supra, 177 Cal.App.4th at
pp. 188-189.)

Luis
had been hospitalized for two weeks with suicidal tendencies approximately
three months before he committed his crime. (Id. at pp. 179, 190.)
His school performance had improved after he started taking the
medications. (Id. at pp. 180, 190.)
The medications were also reported to alleviate his sense of alienation
from his peers and to promote his social adjustment. (Id.
at p. 191.) Thus, there were good
reasons for the court, acting as parens
patriae, to condition probation on his
continued medication in the hope and expectation it would help to deter him
from future criminality. (>Id. at pp. 188‑191; see
generally, In re Frank V. (1991) 233
Cal.App.3d 1232, 1242-1243.)

But
the case now before us is much closer to Williams
than to Luis F. We agree with defendant that adults have a
state constitutional privacy right and a fundamental due process freedom to
refuse to take antipsychotic medications.
(See, e.g., Williams, >supra,
356 F.3d at pp. 1053-1054; In re
Qawi (2004) 32 Cal.4th 1, 14.) In
light of those individual interests, significantly impaired by the challenged
condition of probation, we find the medication condition was unreasonable in
this case. (Lent, supra, 15 Cal.3d at
p. 486.) It “ ‘(1) has no
[reasonable] 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.’ ” (Ibid.)

True,
defendant reported a long mental health history. However, he was not, so far as we can tell,
influenced to commit his crime by being off his medications or even by his
underlying mental health issues. He evidently
committed the crime to pay off a drug debt, which is not an uncommon or medically-related
motive. Putting him into a drug
treatment program (which was also accomplished through the conditions of
probation) was an appropriate intervention.
But the medication requirement goes much further based upon an
unsubstantiated link between his href="http://www.sandiegohealthdirectory.com/">mental health issues and his
crime.

The
Attorney General points out that defendant attempted to commit suicide by
taking over-the-counter sleeping pills when he was 14 years old,href="#_ftn4" name="_ftnref4" title="">[4]
and he had suicidal thoughts after the theft in this case. But a suicide attempt five years before the
crime provides no reasonable basis for imposing a medication requirement on
defendant, nor does the mere reporting of suicidal thoughts. The potent nature of the psychoactive drugs
which defendant may be ordered to take calls for especially careful inquiry
before their ingestion is imposed as a mandatory condition of probation.

Indeed,
we modified the condition of probation in Luis
F. to specify that the minor would be required to take medications only for
his specifically diagnosed conditions of href="http://www.sandiegohealthdirectory.com/">depression and social anxiety
disorder. (Luis F., supra, 177
Cal.App.4th at p. 192.) We distinguished
Williams in part on the basis that we
were dealing with milder antidepressants and anxiolytics, not the Haldol at
issue in Williams or other
antipsychotic medications with the severe side effects discussed in the Supreme
Court’s forced administration cases. (>Luis F., supra, at pp. 186-187.)

According
to defendant’s medical authorities—which are not contradicted by the Attorney
General—several of the drugs he had been taking both before being jailed and
after were antipsychoticshref="#_ftn5"
name="_ftnref5" title="">[5]
with significant side effects, including collectively pseudoparkinsonism,
seizures, neuroleptic malignant syndrome, cardiac arrest, circulatory collapse,
tremors, tachycardia, leucocytosis, urinary incontinence, hypothyroidism,
memory loss, and the list goes on.
(Mosby’s Nursing Drug Reference (2008) 261-264 [chlorpromazine],
288-289, 620-621, 875-876 [quetiapine].)
Adults have significant liberty and privacy interests in deciding
whether they are willing to risk such serious side effects. One of the drugs, clonazepam,href="#_ftn6" name="_ftnref6" title="">[6]
is a controlled substance (Health & Saf. Code, §§ 11057, subd. (d)(7),
11375, subd. (c)(2)), which could be a valid reason for declining to take it
for someone like defendant, who was already addicted to Oxycontin.href="#_ftn7" name="_ftnref7" title="">[7]

The
minor in Luis F. had been taking the
medications in question on a voluntary basis, with his parents’ consent and
encouragement, long before the court imposed the condition of probation. (Luis
F., supra, 177 Cal.App.4th at pp. 182, 189.) No objection to the medication condition was
registered at Luis’s dispositional hearing, and so far as the record disclosed,
neither Luis nor his parents were opposed to his continuation on the
drugs. (Id. at pp. 181-182 & fn. 5.)

Defendant
here had also been taking medication voluntarily before he was arrested for
this offense. But unlike the minor in >Luis F., defendant here complained that
he did “not like the way the new medications ma[d]e him feel” when the jail
physicians changed his prescriptions.
His attorney also objected to the condition of probation when it was
imposed.

The
Attorney General suggests defendant’s underlying mental problems were
“inevitably intertwined” with his abuse of Oxycontin, and thus could ultimately be faulted as the
cause of this crime. Significantly,
however, no medically-based information was gathered to support such a
supposition.

True,
the probation officer predicted “without appropriate treatment, [defendant’s]
ability to comply with probation conditions may be compromised.” The court also noted that in sentencing
negotiations the defense had pleaded for leniency in part based on the “alleged
underlying mental health issues that Mr. Petty has suffered with.” It further opined, “it seems to me fairly
clear that a part of the defendant’s criminality relates to his mental
health. As a matter of fact that was
urged as to one of the conditions reasons why the Court should take a fairly
lenient . . . position regarding the defendant which I believe the
indicated sentence does.”

Whatever
was said in that regard by defense counsel is not contained in the record. But we do not think defense counsel’s plea
for leniency on the basis of defendant’s mental health deficits can bind
defendant to continue on a course of medication dictated by his mental health
worker. No medical opinion was referenced
by the probation officer or the court.
We have only the court’s unsupported speculation that “the conditions
generally that relate to mental health are relating to this crime and relates
to criminal conduct in that . . . mental health issues I think
contributed somewhat to the defendant’s situation.”

These
excerpts are the closest the record comes to articulating a reason for the
medication requirement. Exactly which
medications were prescribed for which disorders, what their side effects might be,
and whether the decision to decline to take such medications would increase the
risk of future criminal conduct were matters that simply were not explored
before the condition of probation was imposed.
(Cf. People v. Christiana
(2010) 190 Cal.App.4th 1040, 1052 [order for involuntary administration of
antipsychotics to render defendant competent for trial reversed where exact
diagnosis and prescription were not before court].) We find nothing in the record to show what
defendant’s symptoms are when he is unmedicated, exactly how the medications
have benefited him, or (aside from the probation officer’s prediction) whether
continuing on antipsychotic medications would help him to avoid future
criminality.

We
emphasize there was absolutely no medical input on these issues. We found in Luis F. that “to the extent a ‘medically-informed’ record might be
required we believe this case provides one.”
(Luis F., supra, 177
Cal.App.4th at p. 190.) We cannot say
the same in the present case. We agree
with Williams, at least where an
adult objects to imposition of antipsychotic medication as a condition of
probation, before such medication may be required a medically-informed record
must be developed in the trial court. (>Williams, supra, 356 F.3d at pp. 1056-1057.)

While
much faith is routinely placed in a probation officer’s judgment as to how best
to rehabilitate a defendant, we cannot leave the vital linkage between a
medication condition of probation and the defendant’s past or future criminal
conduct to the hunch of a probation officer whose credentials to opine on such
matters have not been established. We
are not dealing with commonsense conclusions, but with predictions relating to
serious illnesses and potent medications—matters requiring medical knowledge
beyond the expertise of the probation department. Medically-informed
justification for insisting upon defendant’s compliance with his mental health
worker’s medical decisions is simply absent from the record in this case.

Nor
was the probation order narrowly drawn.
Indeed, the court’s probation order is so broad that it could cover any
form of medication, whether or not related to defendant’s mental health or his
criminality. (Cf. Luis F., supra, 177
Cal.App.4th at p. 184.) Even if we
could assume the “mental health worker” would insist only on his taking mental
health medications, we remain concerned that the decision whether defendant
must take a particular drug has been delegated to a “mental health worker”
whose exact relationship with defendant is not clear from the record and whose
qualification to make medical decisions on defendant’s behalf is not
established. (Cf. >People v. Leon (2010) 181 Cal.App.4th
943, 953-954 [probation officer may not be given “unfettered discretion” to
dictate terms of probation]; United
States v. Mike (10th Cir. 2011) 632 F.3d 686, 699 [improper to
delegate to probation officer decision whether defendant must take psychotropic
medications as a condition of supervised release].)

In
Luis F., on the other hand, the medication
condition, as modified, required defendant to follow his own chosen doctor’s
prescriptions with respect to specified medical conditions. (Luis
F., supra, 177 Cal.App.4th at p.
192.) In light of that direct
doctor-patient relationship, Luis presumably would have had input in the
medical decisions based on how he responded to any given medication. We thus left it up to a doctor, in
consultation with the patient, to determine the appropriate course of medication.

Presumably
a doctor’s prescription would also be a prerequisite to any mandated medication
under defendant’s condition of probation.
But when an individual is on a complicated medical regimen for various
mental conditions, leaving it to an unidentified “mental health worker” to
determine whether and which medications will, in fact, be taken constitutes a
threat not only to defendant’s liberty interests but to his physical and mental
well-being. Such extraordinary
interference with defendant’s self-autonomy is not warranted on this record.

Although
we do not know whether defendant’s mental health worker has ordered him to
continue taking antipsychotic drugs, such an order would need to be followed
under the condition of probation unless defendant addressed a “timely
objection” to the court. Presumably such
a condition would remain mandatory until a decision was made on any
objection. Giving the defendant a
belated judicial remedy does not in our view eliminate the problem. Defendant’s refusal to follow his mental
health worker’s instructions even temporarily could result in revocation of
probation and a return to custody. And
if he abided by the condition of probation he would be subject to the potential
side effects of the drugs until the issue could be sorted out by the court.

Because
there was no medically-informed showing on the record before us that
defendant’s adherence to a particular medication regime was reasonably related
to his criminal offense or his future criminality, we will strike the
medication condition of probation.

Requirement that defendant stay 50 yards away from the victim’s
residence

Defendant
next contends the condition of probation requiring him to maintain a distance
of at least 50 yards from the victim’s home was unreasonable and
unconstitutional. Here we disagree.

This
theft was unlike many others in that the victim had known defendant since he
was in preschool. Defendant nevertheless
stole nearly $10,000 worth of jewelry from her house while attending a party
hosted by her daughter. By his own
account defendant also went to the house on several later occasions uninvited
(i.e., to put the jewelry under the fence in the dead of night, to check on the
jewelry the next day, and to apologize and confess to the victim). Whether his claim of having attempted to return
the jewelry is believable or not, it appears defendant has attempted to make
himself welcome where he is not. The
victim may rightly feel violated by his unannounced approaches to her home and
his middle-of-the-night visits. She
might worry that he will steal from her home again. It was reasonable for the court to order
defendant to stay away from the house where the theft occurred.

Defense
counsel objected at sentencing to the proposed 100-yard stay-away order. The court reduced the distance to 50
yards. Fifty yards is not an
unreasonable distance. (Cf., e.g., >People v. Hall (1990) 218 Cal.App.3d
1102, 1104, fn. 2 [defendant ordered to stay 100 yards from victim’s
residence]; In re Veronica G. (2007)
157 Cal.App.4th 179, 183 [100 yards from victim].)

Defendant
claims the restriction violates his right to intrastate travel, citing >People v. Beach (1983) 147
Cal.App.3d 612 and In re White (1979)
97 Cal.App.3d 141. In >In re White, supra, 97 Cal.App.3d at pp. 148-152, the Fifth District granted a
writ of habeas corpus requiring elimination or modification of> a condition of probation prohibiting a
prostitute from going into certain high prostitution areas of the city, in part
because it interfered with her right to intrastate travel. In People
v. Beach, supra,
147 Cal.App.3d at pp. 619-623, the court held a condition of probation
requiring an elderly widow convicted of involuntary manslaughter to relocate
from her home community was overbroad and violated her constitutional rights. The intrusion on defendant’s travel is
minimal by comparison and the forbidden zone is specifically linked to his past
crime. Indeed, we have upheld more
onerous restrictions on the right to travel.
(In re Victor L. (2010) 182
Cal.App.4th 902, 931-932.) There is no
substantial interference with defendant’s constitutional rights in this case
and we perceive no abuse of discretion.

Stay-away order

Finally,
defendant claims the court had no authority to issue a stay-away order
requiring him to stay not only 50 yards away from the victim’s home, but 100
yards away from the victim and her daughter.
Although there were no-contact and no- harassment conditions of
probation,href="#_ftn8" name="_ftnref8" title="">[8]
the only provision requiring him to maintain a specified distance from the
mother and daughter is contained in the protective order. The order also prohibited defendant from
harassing or stalking the victim or her daughter and forbade similar conduct
otherwise unlawful (e.g., assault). href="#_ftn9" name="_ftnref9" title="">[9]

Unlike
many property crimes perpetrated against strangers, defendant’s family and the
victim’s family had known each other for many years. By stealing the victim’s valuable jewelry
(some of which were family heirlooms) while he was a guest in her home
defendant violated a long‑standing family friendship and committed a serious
breach of trust. When asked to provide a
statement to the probation department, defendant expressed his suspicion that
the victim’s daughter stole $500 from his home a year earlier. Such an
accusation suggests there may have been more personal hostilities influencing
the crime than are involved in a typical theft.

Defendant
claims a protective order may only be issued to protect witnesses during trial
under section 136.2, to protect domestic violence victims from further abuse
under section 1203.097, or to protect stalking victims under section 646.9,
subdivision (k). This case, he
argues, does not involve such circumstances or meet the prerequisites under
those sections.

We
may agree for purposes of argument that protective orders are expressly authorized
by statute only for crimes involving href="http://www.sandiegohealthdirectory.com/">interpersonal violence, threats,
terrorism, sexual misconduct and the like.
Indeed, the prosecutor in this case said, “I don’t necessarily see a
reason to keep him away from the victims, there wasn’t any violence or anything
of that nature, but I do think a stay away order from the residence is
appropriate.” Nevertheless, whether an
emotional violation and breach of trust is grounds for issuing a protective
order appears to be subject to the court’s discretion. (§ 1203.1, subd. (j).) While it may be unusual to impose such an
order for a property offense alone, defendant has directed us to no case
holding such an order cannot be issued in such circumstances.href="#_ftn10" name="_ftnref10" title="">[10]

Defendant
relies on People v. Selga (2008) 162
Cal.App.4th 113, 118-120 (Selga), in
which the Third District struck a stay-away order issued to protect the
boyfriend of a woman who had been stalked by defendant, despite that the
boyfriend himself had been threatened by the defendant. Selga
held the order was not authorized under either section 136.2 or 1203.097,
but that it could lawfully have been issued under section 1203.1,
subdivision (j), under which “the court enjoys wide discretion . . .
to impose a stay-away order as a condition of probation.” (Selga,
supra, 162 Cal.App.4th at p.
118.) In Selga the stay-away order had been expressly issued under
section 1203.097,href="#_ftn11"
name="_ftnref11" title="">[11]
which is intended to protect victims of domestic violence. This was improper because the boyfriend did
not fall within the class of protected persons under that statute. (Selga,
supra, at p. 119.) For that
reason the court held the stay-away order was unauthorized. But the court remanded the case to allow
reissuance of the order under the correct section (§ 1203.1, subd. (j)) if the
trial court so desired. (>Selga, supra, at p. 121.)

The
Attorney General responds that the present stay-away order, unlike that in >Selga, was lawfully issued under section
1203.1, subdivision (j).href="#_ftn12"
name="_ftnref12" title="">[12] The language of that section is broad enough
to allow a stay-away order in the present case, even though it did not involve
a sex offense, domestic violence, or stalking.
(See fn. 12, ante; cf. >Selga, supra, 162 Cal.App.4th at p. 120.)

Defendant
claims the order was not in fact issued under that section because the court
had already finished imposing the conditions of probation when it issued the
protective order. We believe the
Attorney General’s interpretation of the record is correct and the court’s use
of a stay-away order, in addition to a no-contact condition of probation, was
lawful.

The
stay-away order was signed immediately after the judge imposed conditions of
probation requiring defendant to stay 50 yards away from the victim’s home,
prohibiting him from having contact with the victim or her daughter, and
prohibiting him from stalking or harassing the victim or her daughter, with
comparable terms also included in the stay-away order.

We
see nothing in the record to suggest the court purported to act under any of
the statutes specially authorizing protective orders. Instead we note that section 1203.1,
subdivision (j) was cited to and by the court as indicative of its broad
discretion in imposing conditions of probation shortly before the protective
order was issued. We believe the court
then acted under that broad general power.
Under that section, defendant acknowledges the court had authority to
issue such an order.

Defendant
also argues the order was “unnecessary and unconstitutional” in that it was
duplicative of the conditions of probation.
Whatever duplication exists provides no reason to strike the order. The stay-away order makes more concrete the
no-contact and no-harassment conditions of probation and sets up an additional
incentive for defendant to avoid future criminal violation of those conditions.href="#_ftn13" name="_ftnref13" title="">[13]>

Defendant
also argues, insofar as it contained a 50-yard stay-away zone for the victim’s
house and a 100-yard stay-away zone for the victim and her daughter, the
protective order was overbroad because it restricts his rights to travel and
freely associate. As indicated above, any impact on his right to travel is
strictly limited, as is the impact on his freedom of association. He has no “right” to associate with those who
shun him because of his past crimes against them.

At
defendant’s request, however, we will modify the protective order to provide
that defendant must not “knowingly” come within 100 yards of the victim or her
daughter. (See, e.g., >In re Sheena K. (2007) 40 Cal.4th 875,
890-892; People v. Moses (2011) 199
Cal.App.4th 374, 376-377; In re Victor L.,
supra, 182 Cal.App.4th at
pp. 911‑912; People v. Leon,
supra, 181 Cal.App.4th at p. 950.)>

>DISPOSITION

The
condition of probation requiring defendant to take medications as instructed by
his mental health worker is stricken.
The provision of the stay-away order is modified to provide that
defendant “shall not knowingly come within 100 yards of the protected persons.” The judgment and orders, as modified, are
affirmed.



Richman,
J.





We concur:



Haerle, Acting P.J.



Lambden, J.