Filed 3/14/18 P. v. Ramirez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

VICTOR ANTHONY RAMIREZ,

Defendant and Appellant.
D073011



(Super. Ct. No. RIF1406325)

APPEAL from a judgment of the Superior Court of Riverside County, Michele D. Levine, Judge. Affirmed.
Jean Ballantine, 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 J. Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Victor Anthony Ramirez appeals from a judgment of conviction entered after a jury convicted him of voluntary manslaughter resulting from an altercation in front of a bar during which Ramirez lethally stabbed another bar patron. On appeal, Ramirez challenges his conviction on the ground that the trial court erred in responding to a jury question regarding the meaning of "provocation." Specifically, Ramirez contends that in responding to the jury's question regarding provocation, the trial court failed to tell the jury that provocation is relevant not only to the offense of voluntary manslaughter, but that it may also be relevant to the complete defense of reasonable, perfect self-defense. Ramirez maintains that by not mentioning reasonable, perfect self-defense in answering the jury's question, the trial court improperly focused the jury on the offense of voluntary manslaughter and away from a consideration of provocation in the context of a complete defense to the killing.
Ramirez also challenges certain conditions of probation that the trial court imposed on him at sentencing. Ramirez contends that the condition prohibiting him from using marijuana without a prescription and the condition requiring him to submit to testing for controlled substances are unreasonable and constitutionally overbroad because marijuana may now be legally used for recreational purposes in California. Ramirez also challenges, for the first time on appeal, the probation conditions that require him to secure the approval of his probation officer before moving his residence and before leaving the state, maintaining that these conditions are facially overbroad and must be stricken.
We reject Ramirez's contentions and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecution case
Approximately 300 people were attending an event at the Mission Tobacco Lounge in Riverside on May 10, 2014. A bar manager observed patron Bruce Mackey behaving in a "loud and drunk" manner a few nights before. On the night of May 10, the manager noticed him again and "could tell he'd been drinking again." A bar security guard also noticed Mackey. The security guard had seen Mackey several times before, and believed that Mackey was nice and friendly, although he was very loud. The security guard characterized Mackey as being "drunk" when he was at the bar.
At some point during the evening, another bar patron, R. Rodriguez, saw two men escorting Mackey toward the bar's exit. Rodriguez testified that in his opinion, the men were "making matters worse" by the manner in which they were treating Mackey, in that they were being more aggressive and rough with Mackey than Rodriguez believed was necessary. Rodriguez intervened and said that he would ensure that Mackey went outside. Rodriguez and Mackey exited the bar together peacefully.
Once they were outside of the bar, Rodriguez and Mackey sat down on a curb. Rodriguez said that Mackey expressed gratitude and was friendly, but also appeared excited and upset about the way he had been treated while inside the bar. Rodriguez spoke with Mackey for a few minutes. Mackey did not behave aggressively or in a threatening manner while he was with Rodriguez. Rodriguez then said goodbye to Mackey and re-entered the bar.
The bar security guard also witnessed Mackey being escorted out of the bar. It did not appear to the security guard that Mackey was fighting with the person who was escorting him out. The security guard followed Mackey outside in an attempt to determine what had occurred that had caused Mackey's expulsion from the bar. Other patrons explained that Mackey had spilled beer on someone else and said that Mackey was "too drunk to be in[side]." After determining that Mackey was not a danger to himself or to others, the security guard went back into the bar.
K.K., a cab driver, was parked outside the bar waiting for a fare and observed Mackey outside the bar, speaking with a young Hispanic man. K.K. testified that Mackey was sitting, talking, and laughing "like most drunks do." K.K. looked away for a moment, and when he looked back, he noticed Mackey standing up and facing a Hispanic man. Mackey was staggering and appeared to be very intoxicated. According to K.K., not long after Mackey stood and faced the man, the man moved "towards [Mackey] a little bit." Mackey then put his hands on his stomach and fell backward onto a parked motorcycle. K.K. testified that he did not witness Mackey threaten or assault anyone during this incident.
Another cab driver, R.P., also witnessed the events that night. R.P. testified that Mackey had been sitting next to a Hispanic man who at some point stood up and struck Mackey. R.P. saw Mackey bend over and then fall. R.P. believed that the Hispanic man had said something to Mackey before Mackey fell. To R.P. the Hispanic man looked "really mad, angry."
Other patrons attempted to help Mackey. Someone called 911, and police and paramedics arrived at the scene. Mackey was taken to a hospital where medical personnel declared him dead.
A forensic pathologist testified that the cause of Mackey's death was a stab wound to the left groin. The knife severed an artery, causing Mackey to bleed to death. The pathologist noted that during the autopsy, no wounds were found on Mackey's hands or knuckles.
Police searched the scene. In a bathroom trashcan, inside the bar, police found bloody paper towels. Police also found blood on the bar's rear door, which opened to an alley. No weapon was found.
Police identified and obtained two videos, one from a nearby traffic camera and one from a security camera operated by the bar, that showed some of Ramirez's actions that evening.
Video from the traffic camera shows Ramirez walking outside the bar just before the stabbing, and walking back inside the bar just after the stabbing. The traffic camera footage is recorded at a speed of only five images per second, which means that details may be missing, and it is possible that the recording would not have captured the full motion of a punch being thrown. Video from the bar's security camera showed Ramirez inside the bar, and then attempting to exit the bar through the back door leading to the alley but then turning and going back the way he came. Detectives used both videos to help them determine Ramirez's identity.
Police began looking for Ramirez the day after the stabbing. They located him as he was leaving his house that day, and arrested him. After Ramirez's arrest, police conducted a search of his vehicle and found a bag of clothes in the back seat. The clothes in the bag matched the clothing that Ramirez was wearing in the videos taken from the crime scene.
A detective testified that he inspected Ramirez's body for signs of injuries to his face and neck, and that he observed none. Photographs of Ramirez taken after his arrest, which depicted him with no visible injuries, were shown to the jury.
Ramirez led police to a field located in the Moreno Valley, where they recovered a black folding knife that was used in the stabbing.
2. The defense case
Ramirez testified in his own defense. According to Ramirez, he stabbed Mackey, but did so in self-defense and in defense of Ramirez's female friend, C.A. Garza.
Ramirez testified that he was sitting outside of the bar, flirting with and kissing Garza, when, without notice, Mackey attacked Ramirez with his fists. Ramirez had never seen Mackey before, and Ramirez had not been involved in any altercations or disputes with anyone that evening.
Ramirez testified that when Mackey attacked him, Ramirez feared for his life because he was sitting on the curb, and Mackey was standing over him. Mackey delivered four to six "fast and hard" blows to Ramirez that caused Ramirez to "see bright stars." Ramirez testified that it had been about 20 years since anyone had punched him like that.
According to Ramirez, if he had been standing, he would not have removed the pocket knife from his pocket and stabbed Mackey. In describing what occurred, Ramirez had told one of the detectives, " '[I]f I could stand up, if I could get some space, I would never have pulled my knife. It was -- I only use[d] it as a last resort.' " According to Ramirez, if he could have made it to his feet he would have "taken the blows and been in a fight." Ramirez further testified that he "had no intention o[f] ever mortally wounding or killing" Mackey. Rather, Ramirez stabbed Mackey because he was "afraid for [his] life," and was worried about Garza's safety. He testified, "I was afraid for my life. I was getting beat up. I didn't know if he was going to injure or hurt [Garza]."
Ramirez explained that after the stabbing, he left the bar almost immediately and went home. He was in "shock" and was not able to "think[ ] clearly." He threw his knife out of his truck on his drive home. Ramirez put his clothing from that night into a bag, which he placed in the back seat of his truck.
Approximately ten minutes after the stabbing, Ramirez contacted Garza via text message. They engaged in the following text message exchange:
Ramirez: " 'Sorry had to go, but I got hit me [sic] in the face, and I don't like violence.' "

Garza: " 'It's okay. He died,' sad face. ' I didn't see anything.' "

Ramirez: " 'That guy randomly hit me in the face. . . . 'That's sad.' "

Garza: " 'Yeah, I didn't see anything.' "

Ramirez: " ' I didn't see anything either. I think someone saw' . . . 'me get hit[.]' "

Later that day, Ramirez called Garza and asked her to tell his friends that he had left the bar the night before because he "had to finish some paperwork." After that, Garza and Ramirez exchanged the following text messages:
Ramirez: " 'I'm glad you and I were safe. That's all I cared about.' "

Garza: " 'Yeah, that guy was scary.' "

Ramirez: " 'You'll be fine. All we need to do is stick to the truth. Thank you. He [could've] came at me instead[.]' "

When police detained Ramirez the day after the stabbing, he chose to speak to them without having an attorney present. Ramirez testified that during the interview, he told police exactly what had happened. He also took police to find the knife that he had discarded.
Garza testified that she and Ramirez had been sitting outside of the bar, talking. Garza saw Mackey and another man sitting on the curb, also talking. Mackey appeared to be drunk and angry, and placed the other man in a headlock. Mackey then turned his attention to Ramirez, which caused Garza to become frightened. Garza could not understand what Mackey was saying to Ramirez. Ramirez did not respond to Mackey. Mackey then began to hit Ramirez's head with his fist. Garza "was scared."
According to Garza, Mackey's punches came so quickly that Ramirez had no time to react, beyond moving his head. Garza also said that after Mackey first attacked Ramirez, he stopped, and then began a second attack on Ramirez. Garza saw nothing that suggested to her that Mackey intended to stop hitting Ramirez. Garza was frightened that Mackey might turn his attention to her. Garza then realized that Mackey was bleeding. She did not see Ramirez stab Mackey. After the stabbing, Garza cried and talked with friends, one of whom advised her to call the police. Within three hours of the stabbing, Garza called police.
The defense also presented evidence to demonstrate Mackey's reputation for drunkenness and violence in the week leading up to his death, as well as evidence demonstrating Ramirez's character for honesty, peace and nonviolence.
B. Procedural background
Ramirez was charged by information with one count of premeditated murder, with the corresponding allegation that Ramirez had used a deadly and dangerous weapon, a knife, in the commission of the offense.
The case went to trial. After the prosecution's presentation of its case, the court struck the first degree premeditation allegation.
The jury found Ramirez not guilty of second degree murder, but found him guilty of voluntary manslaughter. The jury also found true the allegation that Ramirez used a deadly and dangerous weapon in committing the offense.
At sentencing, the trial court explained that it found the case to be one of the unusual instances in which a grant of probation would best serve the interests of justice. The court placed Ramirez on formal probation for a period of three years and imposed a variety of probation conditions.
Ramirez filed a timely notice of appeal.
III.
DISCUSSION
A. The trial court did not err in responding to the jury's question regarding provocation

1. Additional background

The trial court instructed the jury with CALCRIM No. 520, regarding the offense of second degree murder, consistent with the prosecution's theory of the case. The court also instructed the jury with CALCRIM No. 505, which explains that a killing that results from an act taken in reasonable, perfect self-defense is not a crime.
In addition, the court instructed the jury on both voluntary manslaughter and involuntary manslaughter. Specifically, the court instructed the jury that there were two ways that it could reach a determination that Ramirez was guilty of voluntary manslaughter: (1) if Ramirez killed Mackey as a result of being provoked into the heat of passion (voluntary manslaughter – heat of passion), as explained in CALCRIM Nos. 522 and 570; or (2) if Ramirez killed Mackey while acting in self-defense, or the defense of another, but through an "unreasonable" belief that self-defense was necessary (voluntary manslaughter – imperfect self-defense), as explained in CALCRIM No. 571. The court instructed the jury that it could reach a determination that Mackey was guilty of only involuntary manslaughter if it found that Ramirez had acted with an "unreasonable" belief in the need for self-defense or defense of another, but that he also did not intend to kill Mackey and that he had not acted with a conscious disregard for life when he engaged in the conduct that killed Mackey (involuntary manslaughter – imperfect self-defense), as explained in CALCRIM No. 580.
On the second full day of deliberations, the jury sent the court a note that stated, "We are hung up! We have come to a point where we can go no further. If we can not come to a verdict by Fri. Apr. 1st what happens[?]" The court inquired of the jury foreperson whether there were further instructions, legal definitions, or "areas of the law" that would assist the jury in "go[ing] through this process." The jury foreperson responded, "Yes. At one point, um, we're having trouble with the word 'provocation.' " The jury foreperson continued, "And we -- you gave us instructions, and we've been using that as a definition. [¶] . . . [¶] . . . And it just -- we're -- where we're at with that, it just seems that there's 12 different definitions of provocation." The court responded, "I'm going to take that as a question on the issue of provocation and the legal definition of provocation. I certainly will talk to counsel about trying to come up with a -- some assistance for you. I don't know if you can put it in -- in any more specific way. I'm assuming from that -- I just want to make sure I have the question correct, is that you would like to have a more specific definition of provocation, if there is one in the law." The jury foreperson replied, "That would be helpful."
The court thoroughly discussed the jury's note with counsel at the end of that day and again the next court day. The prosecutor offered the court a proposed additional instruction on the term "provocation." Defense counsel offered a proposed response to the jury, and explained that he was of the opinion that the term "provocation" should not be defined "because it otherwise directs them away from imperfect self-defense." Defense counsel argued that "there is no self-defense [of any kind] without provocation."
The trial court disagreed with defense counsel's argument. The court explained, "Obviously in considering the different kinds of homicide, they have to consider all of the aspects of whether or not it's an unlawful homicide or not. The only way they get to provocation is if they're finding that the killing was unlawful because if it's a lawful killing [i.e., because the defendant acted in reasonable, perfect self-defense], they don't get to provocation. They've dealt with the issue of self-defense, so that -- that's why I'm not going to do it, sir. I just think it otherwise -- I'm going to start putting in here the entirety of what I already instructed them on [regarding self-defense]."
The trial court ultimately provided the jury with the following additional instruction, in response to the jury's question about provocation:
"Provocation may reduce murder to manslaughter. The weight and the significance of the provocation are for you to decide. No specific type of provocation is required. The provocative conduct by the victim may be physical or verbal.

"The provocation involved must be such as to cause a person of average disposition in the same situation and knowing the same facts, to do an act rashly and under the influence of such intense emotion that his judgment or reasoning process was obscured. In other words, it is not a matter of law, but a matter of fact for you as jurors to determine based on the evidence if a person actually reacts from emotion due to provocation without judgment. This is an objective test and not a subjective test. If the provocation would cause a reasonable person to react from emotion and not from judgment, the defendant is deemed to have acted without malice so as to further reduce the crime to voluntary manslaughter.

"You have been provided instructions on Second Degree Murder, Voluntary Manslaughter and Involuntary Manslaughter. You may consider these different kinds of homicide in whatever order you wish. In providing this definition to you, the court does not intend to direct your deliberations or the order in which you consider the different kinds of homicide.

"Again, you should pay careful attention to all of the instructions and consider them together."

2. Analysis
Ramirez contends that the trial court's response to the jury's question regarding provocation failed to tell the jury that provocation is relevant not only to voluntary manslaughter, but also to the complete defense of reasonable, perfect self-defense. According to Ramirez, a person cannot commit a lawful killing in self-defense unless that person was first "provoked" by the victim. Ramirez asserts that "perfect self-defense is a response to a provocative act," given that "[a]n 'imminent threat of death or great bodily injury' is certainly a 'provocation,' i.e., 'something that provokes, arouses, or stimulates,' 'arouse[s] to a feeling or action,' and/or 'incite[s] to anger.' " This contention is without merit.
A trial court in a criminal case has a duty to instruct, sua sponte, on general principles closely and openly connected with the facts of the case, including potential defenses. (People v. Breverman (1998) 19 Cal.4th 142, 154.) "The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under [Penal Code] section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." (People v. Beardslee (1991) 53 Cal.3d 68, 97.) We apply the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury. (People v. Waidla (2000) 22 Cal.4th 690, 745–746.)
However, when a court does decide to further instruct a jury on a legal principle, it must correctly state the law. We review de novo whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) " 'When we review challenges to a jury instruction as being incorrect or incomplete, we evaluate the instructions given as a whole, not in isolation. [Citation.] "For ambiguous instructions, the test is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction." ' " (People v. Moore (2011) 51 Cal.4th 1104, 1140.) Further, we " ' "assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given," ' " and we interpret the given instructions " 'so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
In reviewing a claim of instructional error, the ultimate question is whether there is a reasonable likelihood the jury applied the challenged instruction in an impermissible manner. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220, overruled with respect to a different point in People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
Notably, Ramirez does not claim that the trial court's responsive instruction on provocation was erroneous. Rather, he claims that by explaining provocation in the context of reducing murder to voluntary manslaughter, and by not also mentioning that reasonable, perfect self-defense could also be a "response to a provocative act," the court improperly focused the jury "solely on reducing murder to manslaughter" and "did not give the jury the option to consider whether appellant acted in complete, reasonable self-defense in response to provocation."
The jury sought clarification only on the meaning of "provocation," which, as was clear from the instructions provided to the jury, has a very specific meaning in the law. The jury was instructed with CALCRIM No. 522, as follows:
"Provocation may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide.

"If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was murder or manslaughter."

The jury was also instructed with CALCRIM No. 570, as follows:
"A killing that would otherwise be Murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.

"The defendant killed someone because of a sudden quarrel or in the heat of passion if:

"1. The defendant was provoked;

"2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment;

"AND

"3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.

"Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.

"In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it.

"While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.

"It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment.

"If enough time passed between the provocation and the killing for a person of average disposition to 'cool off' and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.

"The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder."

Given these instructions, it is clear that when the jury requested additional guidance from the court in defining "provocation," the jury was asking about the meaning of provocation as it was used in the manslaughter instructions. In responding in the manner that it did, the court did not improperly emphasize voluntary manslaughter over justifiable homicide based on reasonable, perfect self-defense; rather, the court's response appropriately addressed the jury's specific question. As should be clear from the text of the original relevant jury instructions, the court's response to the jury's question about provocation was, for the most part, a reformulation of the standard jury instruction regarding the heat of passion defense based on provocation. This was appropriate.
B. Ramirez's challenges to certain probation conditions are without merit
1. The trial court did not abuse its discretion in imposing probation conditions prohibiting Ramirez from using marijuana without a prescription and requiring him to submit to testing for the detection of controlled substances

Ramirez contends that the trial court abused its discretion in imposing probation conditions related to his use of marijuana without a prescription because, according to Ramirez, these conditions regulate conduct that is no longer criminal after the passage of Proposition 64. Specifically, Ramirez challenges the probation condition that he "not . . . knowingly use nor possess any controlled substances unless lawfully prescribed for [him]" and the probation condition requiring him to submit to chemical and physical tests "for the detection of controlled substances." According to Ramirez, these probation conditions "prohibit what is now lawful conduct: the personal use, possession, and cultivation of marijuana by persons over 21 when such use, possession, and cultivation meet the restrictions stated in the statutory scheme." Specifically, he argues that their imposition constitutes an abuse of discretion because they regulate conduct that is legal, and they are not reasonably related to the crime for which Ramirez was convicted or to his future criminality.
a. Additional background
On November 8, 2016, California voters passed Proposition 64, which had the effect of "legalizing marijuana for recreational use by adults, subject to various conditions." (City of Vallejo v. NCORP4, Inc. (2017) 15 Cal.App.5th 1078, 1081.) Among other things, Proposition 64 added Health and Safety Code section 11362.1, subdivision (a)(1), which permits the possession, by persons 21 years of age or older, of up to 28.5 grams of marijuana.
Although possession of up to 28.5 grams of marijuana is no longer illegal, marijuana remains a "controlled substance," a hallucinogen, under Health and Safety Code section 11054, subd. (d)(13).
b. Legal standards
A trial court has broad discretion in setting the terms and conditions of probation. (Pen. Code, § 1203.1; People v. Carbajal (1995) 10 Cal.4th 1114, 1121; People v. Welch (1993) 5 Cal.4th 228, 233 (Welch).) On appeal, we review the trial court's exercise of that discretion under the abuse of discretion standard. A trial court does not abuse its discretion in imposing a probation condition unless its determination is arbitrary or capricious or " ' "exceeds the bounds of reason, all of the circumstances being considered." ' " (Welch, supra, at p. 234.)
"A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.' " (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent), fn. omitted, overruled on other grounds in People v. Wheeler (1992) 4 Cal.4th 284, 290–292.) All three factors must be present before a condition of probation is determined to be invalid. (People v. Wardlow (1991) 227 Cal.App.3d 360, 365–366.) Further, "[i]nsofar as a probation condition serves the statutory purpose of 'reformation and rehabilitation of the probationer,' [citation] it necessarily follows that such a condition is 'reasonably related to future criminality' and thus may not be held invalid whether or not it has any 'relationship to the crime of which the offender was convicted.' " (People v. Balestra (1999) 76 Cal.App.4th 57, 65.) Finally, "it is well settled that the trial court has the discretion to impose probation conditions that prohibit even legal activity." (People v. Brooks (2010) 182 Cal.App.4th 1348, 1352 (Brooks).)
c. Analysis
As an initial matter, although Ramirez did not object to the imposition of this probation condition at the time of sentencing, we will not conclude that he has forfeited his challenge, given that at the time of sentencing, Proposition 64 had not passed, and imposition of the probation condition therefore did not prohibit potentially lawful conduct. Given this fact, any objection that Ramirez would have made at the time would have been futile. The passage of Proposition 64 has altered the effect of the probation condition, and we therefore exercise our discretion to consider Ramirez's challenge, despite the lack of an objection in the trial court.
Again, a probation condition will be invalidated as being unreasonable only if all three prongs of the Lent test are satisfied. Assuming that Ramirez is correct in asserting that the recreational use of marijuana must be considered to be legal for purposes of a Lent analysis, it is clear that a court may nevertheless prohibit an otherwise legal activity if the condition either bears a relationship to the crime for which the defendant was convicted, or the condition is reasonably related to preventing future criminality. Indeed, appellate courts have affirmed probation orders that have prohibited the medical use of marijuana, even after such use was made legal in California. (See, e.g., Hughes, supra, 202 Cal.App.4th at p. 1480; Brooks, supra, 182 Cal.App.4th 1348; Leal, supra, 210 Cal.App.4th 829.)
Ramirez argues that the marijuana use condition has no relationship to his crime, or to his rehabilitation. He acknowledges that there is evidence in the record that he was drinking at the time of the incident, but states that the information charged no marijuana-related offenses, and that the prosecution presented no evidence "concerning marijuana or any other drugs at the preliminary hearing or at trial." There was testimony, elicited during Ramirez's direct examination, that when the police came to his home to investigate, they found that he was growing marijuana plants. According to Ramirez, he claimed the plants as his own so that his father and brother would not get into trouble. Ramirez also argues on appeal that he has no prior or current convictions related to marijuana or other drugs. With respect to this condition being related to his future criminality, Ramirez contends that "marijuana had no connection to the crime and appellant has no history of alcohol or drug abuse," and, as a result, "there is no nexus between the challenged probation conditions and future criminality."
We disagree with Ramirez that the challenged conditions are not reasonably related to preventing future criminality. (See People v. Olguin (2008) 45 Cal.4th 375, 379–380 (Olguin) ["even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality"].) The probation report reveals that Ramirez told the probation officer that he smoked "about a bowl a day" prior to his incarceration, and that he began smoking marijuana when he was 15 years old. It is clear that marijuana, like alcohol, is an intoxicant, and that Ramirez was intoxicated (albeit from consuming alcohol) at the time of the offense. The court could determine that it should limit Ramirez's use of intoxicants to prevent the possibility of similar incidents in the future. In addition, although Ramirez had no prior convictions related to drug use, his self-described conduct in smoking marijuana on a daily basis places him in an increased risk category for future criminality. In a situation such as this, where there is evidence that the defendant had consumed an intoxicant at the time of the commission of an offense, it is not unreasonable for a court to prohibit the use of other intoxicants, even if the use of one of those intoxicants has been determined by the state's electorate to be legal under certain circumstances, during the period of probation. We see no abuse of discretion in the court's imposition of the two challenged probation conditions relating to the use of and testing for controlled substances.
2. Ramirez's "overbreadth" challenge to the conditions related to controlled substances is without merit because he has pointed to no constitutional right that is infringed by a prohibition on the recreational use of marijuana

Ramirez also argues that the condition that a probationer " 'not use or possess alcohol, intoxicants, narcotics, or other controlled substances without the prescription of a physician' appears to be a standard condition widely imposed" in California. Ramirez asserts that given Proposition 64, the condition is "overbroad on its face." He argues in favor of rewriting the condition to prohibit the use of "illegal controlled substances." In making this argument, Ramirez fails to acknowledge that an overbreadth challenge to a probation condition is one that challenges a condition that infringes on a probationer's constitutional rights. "[A]bsent . . . a showing [that a condition infringes on a constitutional right], [a] court simply reviews such a condition for abuse of discretion, that is, for an indication that the condition is 'arbitrary or capricious' or otherwise exceeds the bounds of reason under the circumstances." (Olguin, supra, 45 Cal.4th at p. 384.)
Even if individuals in California have a statutory right to possess a certain amount of marijuana after the passage of Proposition 64, Ramirez does not identify the constitutional right that he contends is infringed by such a condition. We therefore reject Ramirez's purported "facial overbreadth" challenge to the conditions regulating controlled substance use.
3. A probation condition requiring that Ramirez reside only at a residence approved by a probation officer is not facially overbroad

Ramirez contends that a condition of probation, as stated in the sentencing minute order that he "reside at a residence approved by the probation officer" is facially overbroad and must be stricken.
Ramirez acknowledges that he did not object to the imposition of this probation condition, but argues on appeal that he may challenge it notwithstanding his failure to object because he has framed his arguments as involving pure questions of law. Although the failure to make a timely objection to a probation condition ordinarily forfeits the claim of error on appeal, where 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 question of law which is not forfeited by failure to raise it in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 881, 888–889 (Sheena K.); People v. Quiroz (2011) 199 Cal.App.4th 1123, 1127 [forfeiture rule does not apply to defendant's contention that as a matter of law probation condition, on its face, is unconstitutionally vague and overbroad]; Pirali, supra, 217 Cal.App.4th at p. 1347 ["[a]lthough a probation condition may be overbroad when considered in light of all the facts, only those constitutional challenges presenting a pure question of law may be raised for the first time on appeal"].)
"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.) A constitutionally overbroad condition is one that restricts a defendant's fundamental constitutional rights to a greater degree than necessary to achieve the condition's purpose. (Olguin, supra, 45 Cal.4th at p. 384.) The overbreadth doctrine requires that probation conditions, which may impinge on constitutional rights, be tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation. (In re Victor L. (2010) 182 Cal.App.4th 902, 910.) " '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.' " (Pirali, supra, 217 Cal.App.4th at p. 1346.) A reviewing court has the authority to modify a probation condition to render it constitutional. (Sheena K., supra, 40 Cal.4th at pp. 888, 892.)
As Ramirez points out, a restriction requiring that a probation officer approve his residence imposes a burden on Ramirez's constitutional rights to associate and to intrastate and interstate travel. (See People v. Bauer (1989) 211 Cal.App.3d 937, 944 (Bauer) [probation condition requiring that probation officer approve of residence "impinges on constitutional entitlements—the right to travel and freedom of association"].) However, a probation condition may restrict these rights as long as it reasonably relates to reformation and rehabilitation. (In re White (1979) 97 Cal.App.3d 141, 146.)
Ramirez relies on Bauer to argue that a probation condition that grants a probation officer unfettered discretion to approve or disapprove of a probationer's residence is facially unconstitutional. Bauer involved a probationer's challenge to a condition nearly identical to the one here that requires Ramirez to obtain his probation officer's approval of his place of residence. (Bauer, supra, 211 Cal.App.3d at pp. 943–945.) The Bauer court struck the condition, concluding that any requirement that the defendant obtain his probation officer's approval of his residence was an "extremely broad" restriction, and was not "narrowly tailored to interfere as little as possible" with the constitutional right of travel and to freedom of association. (Id. at p. 944). Such a condition gave the probation officer the discretionary power to prohibit the defendant from living with or near whomever the probation officer chose—i.e., gave the probation officer "the power to banish him." (Ibid.)
According to Ramirez, Bauer stands for the proposition that a probation condition is facially overbroad where it makes the probationer's residence "subject to the probation officer's prior approval, without tailoring the condition to the defendant's crime or rehabilitation." To the extent that Ramirez is arguing that a residency-approval probation condition is unconstitutional as applied to him, given the circumstances of his offense and his unique rehabilitative needs, we conclude that he has forfeited such an argument, given the lack of any objection in the trial court and the possibility that the trial court could have addressed his concerns if they had been raised. (See Sheena K., supra, 40 Cal.4th at p. 889.)
To the extent that Ramirez is arguing that a residency-approval condition is facially overbroad, we reject this contention. It is significant that the Bauer court did not explain whether it was considering a facial or an as-applied challenge to the residency-approval condition at issue, and there is no mention in that case whether the defendant had raised an objection to the condition in the trial court. Although the Bauer court utilized broad language, including language often used in the context of facial overbreadth analysis, to conclude that the residency-approval condition was unconstitutional in that case, it appears from the court's analysis that it made this determination only after a particularized assessment of the application of this condition to the specific circumstances of that defendant. In fact, the Bauer court's conclusory constitutional analysis followed discussion of the fact that there was "nothing in the probation report or otherwise a part of the record in this case suggesting in any way that appellant's home life (which is exemplary compared to that of most convicted felons) contributed to the crime of which he was convicted." (Bauer, supra, 211 Cal.App.3d at p. 944.) We are unconvinced that the Bauer court was truly considering whether this probation condition was unconstitutional in every potential application, as opposed to determining that it was unconstitutional in its application to the particular defendant in that case. For this reason, we read Bauer to hold, narrowly, that a residency-approval condition may not be constitutionally applied to a defendant where the record demonstrates that the defendant's rehabilitation would not be served by placing restrictions on his residency, given the specific nature of the offender and the nature of his offense.
Because we conclude that Bauer is not persuasive with respect to determining whether the challenged probation condition is facially overbroad, we next consider whether review of the residency-approval condition in the abstract reveals that it is simply not sufficiently narrowly tailored to the state's legitimate purpose in imposing it. (See Sheena K., supra, 40 Cal.4th at p. 885 [appellate claim that the language of a probation condition is unconstitutionally vague or overbroad "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts"].) We cannot say that the residency-approval condition is facially overbroad based on its language and legal concepts. It is readily apparent that application of this condition could be constitutionally overbroad as applied in certain circumstances, but it is equally apparent that it can be entirely appropriate, and constitutional, as applied in others. There can be no dispute that certain probationers may require more intensive supervision and monitoring, as the specific facts of each case demand.


To the extent that Ramirez contends that there is no application of the residency-approval condition that is constitutional, that the granting of unfettered discretion to a probation officer is unreasonable, and that a court must provide a probation officer with criteria relevant to each probationer for the probation officer to use in assessing whether to grant residency approval, we reject such a suggestion. Even where a court does not provide an individualized assessment of a particular probationer's needs with respect to his or her living circumstances, the grant of discretionary authority to a probation officer includes an implicit requirement that the discretion be exercised reasonably. (See People v. Stapleton (2017) 9 Cal.App.5th 989, 996–997 (Stapleton) ["A probation officer cannot issue directives that are not reasonable in light of the authority granted to the officer by the court. Thus, a probation officer cannot use the residence condition to arbitrarily disapprove a defendant's place of residence"].) We agree with the Stapleton court that a residency-approval condition "does not grant a probation officer the power to issue arbitrary or capricious directives that the court itself could not order." (Ibid., citing People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240–1241 [probation condition requiring a probationer to obey directions from his probation officer does not give probation officer "power to impose unreasonable probation conditions"].) We therefore reject the suggestion that the residency-approval condition must include probationer-specific criteria in every case in order to avoid being unconstitutionally overbroad.


Further, we reject Ramirez's reliance, in his reply brief, on a particular paragraph in Stapleton, supra, 9 Cal.App.5th at pp. 993–994, to suggest that we may consider the "nature of the case" at issue here in deciding the facial overbreadth question. Specifically, Ramirez quotes the following language from Stapleton:
"However, even a facial challenge to constitutionality requires more than a one-size-fits-all approach. Our inquiry does not take into account the individual facts pertaining to this particular probationer—as would an 'as applied' challenge—but it must take into account the nature of the case and the goals and needs of probation in general. For example, what is constitutional in a case involving drug usage is not necessarily the same as what is constitutional in a theft-related case. This broad consideration of the nature of the case must inform all decisions about whether the condition has been 'narrowly tailored,' even where, as here, we do not reach the personal circumstances of the probationer." (Ibid.)

Ramirez relies on this language to suggest that he may compare the facts of his case with the facts of both Stapleton and Bauer. We reject this contention and conclude that any comparison of the particularized facts of the defendants and the offenses in this case with other cases necessarily constitutes raising an as-applied challenge to the probation condition in question. That is because we question whether the Stapleton court correctly states the appropriate standard for assessing the facial constitutionality of a probation condition. In Sheena K., the Supreme Court described the nature of a facial constitutional challenge as follows, which appears to be at odds with the above statement by the Stapleton court:
"In contrast [to an appellate claim involving discretionary sentencing choices or unreasonable probation conditions], an appellate claim—amounting to a 'facial challenge'—that phrasing or language of a probation condition is unconstitutionally vague and overbroad because, for example, of the absence of a requirement of knowledge as in the present case, does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court. Consideration and possible modification of a challenged condition of probation, undertaken by the appellate court, may save the time and government resources that otherwise would be expended in attempting to enforce a condition that is invalid as a matter of law." (Sheena K., supra, 40 Cal.4th at p. 885.)

Later, the Supreme Court distinguishes a facial constitutional challenge, which may be raised despite the failure to object in the trial court, from a constitutional challenge that requires reference to facts in the record—i.e., an as-applied challenge:
"We caution, nonetheless, that our conclusion [that forfeiture need not apply to facial constitutional challenges to probation conditions] does not apply in every case in which a probation condition is challenged on a constitutional ground. As stated by the court in Justin S., we do not conclude that 'all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." ' " (Sheena K., supra, 40 Cal.4th at p. 889.)

Given how the Supreme Court has differentiated between constitutional challenges that can be resolved without reference to a particular sentencing record and constitutional challenges that cannot, it seems clear that a constitutional challenge that takes into account the fact that a particular probationer was involved in a "case involving drug usage" and treats that probationer differently from one involved in a "theft-related case"


(Stapleton, supra, 9 Cal.App.5th at pp. 993–994) is necessarily one that is referencing "the particular sentencing record" (Sheena K., supra, 40 Cal.4th at p. 889) of the probationer, and is, therefore, an as-applied challenge, not a facial challenge. For this reason, we reject Ramirez's suggestion that we may rely on Stapleton to consider the particularized facts of his case to determine whether the residency-approval condition is constitutional in this case, despite his failure to object in the trial court.
4. The probation condition requiring Ramirez to obtain the written permission of a probation officer to leave the state is not facially overbroad

Ramirez contends that the following probation condition is facially overbroad and must be stricken: "Do not leave the State of California without first obtaining written permission of the probation department per the Interstate Compact Act." Although Ramirez did not object to this condition, he contends that his challenge is cognizable on appeal because the condition is unconstitutionally overbroad on its face, and thus, his challenge involves a pure question of law and is not forfeited for failure to object. We agree that Ramirez may challenge this probation condition for facial overbreadth despite his failure to object in the trial court, and we apply same constitutional standards to consideration of this probation condition as we applied with respect to the residency approval condition in the prior section.
Ramirez does not fully elucidate his argument with respect to how this particular probation condition is facially overbroad; instead he simply asserts that it impinges on his


right to associate and travel. We disagree with the suggestion that a probation condition requiring a probationer to seek and obtain the approval of 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." (People v. Moran (2016) 1 Cal.5th 398, 406 (Moran).)
In fact, 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 requiring defendant to obtain written permission from probation officer prior to leaving state].) "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.) Thus, the imposition of a travel restriction is not a facial violation of a probationers' right to travel. (Id. 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 restriction.
IV.
DISPOSITION
The judgment is affirmed.


AARON, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.